The Politics of Accountability in the Modern State by Matthew Flinders

Author:Matthew Flinders [Flinders, Matthew]
Language: eng
Format: epub
Tags: Political Science, General
ISBN: 9781351800822
Google: 9JU4DwAAQBAJ
Goodreads: 4655098
Publisher: Routledge
Published: 2017-10-05T12:33:48+00:00

5.5 The Abdication of Ministerial Responsibility Through Legal Advice

Section 4.4 discussed how several commentators had highlighted a trend whereby ministers increasingly deflected responsibility onto legal advisers or the Attorney General.100 Woodhouse detected a tendency whereby legal advice was used to justify ministerial actions thereby allowing ministers to deflect political responsibility onto their legal advisers and also focus the debate on legal technicalities rather than policy or ministerial discretion.101 This theory was used as the justification for proposing reforms that would open up legal advice to public inspection so that ministers could not release only those sections that appear to absolve them while suppressing the good advice that they rejected. Within the Home Office and the Treasury Solicitor’s Department legal advisers were well aware of these issues and the proposals for reform. They neither agreed with the thesis nor the need for reform: ‘This is one area where academics have misunderstood the relationship between legal advisors and ministers and made sweeping statements from atypical examples’.102 None of the advisers interviewed was concerned that ministers might abuse the advice they had given: ‘I have no fear that my legal advice will be misused or misrepresented by ministers. It is simply not the way ministers act’.

Home Office legal advisers were relaxed about the use of their advice and explained how their ministerial advice was often copied to outside groups and politicians as a way of explaining the legal position of a decision. Advisers would often brief opposition politicians personally to outline and answer questions on specific legal areas. The advisers were happy with this system although there was a convention that ministers would always ask permission before copying legal advice outside the department. While legal advisers were content that ministers followed the convention research suggests that ministers have been less than loyal on occasion.103 This was illustrated during the incident involving the Prison Service and the early release of prisoners in 1996. The release programme was based on a reinterpretation of the Criminal Justice Act 1967. The Prison Service followed the advice of a Home Office legal adviser and released a large number of prisoners without notifying ministers. Public outcry followed and the convention of the confidentiality of legal advice was wounded. Michael Howard publicly blamed inadequate legal advice for the incident and even named the individual official concerned.

The position of the Attorney General was also portrayed as unproblematic. There is a convention that the Attorney General’s advice is never disclosed and nor is the fact that a minister has requested advice. Woodhouse has used the Arms to Iraq Affair as an example of ministers breaking with this convention to allow them to deflect responsibility for signing Public Immunity Certificates (PIIs) onto the advice of the Attorney General. This, the legal advisers claimed, was, in fact, in line with the convention as the Attorney General is free to waive his or her anonymity in appropriate cases. The legal advisers were unanimous in their opposition to proposals to publish their advice and are no

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.