The Telegraph, reporting today on tension between 10 Downing Street and the Department for Business over implementing the Agency Workers Directive, tells us

Downing Street has been told by lawyers that the Business Secretary’s department has “gold-plated” the legislation with additional rules that need not have been included, despite a pledge by the Coalition not to introduce unnecessary regulation that undermines business.

But the lawyers doing the telling aren’t government lawyers, apparently:

With the changes looming, Steve Hilton, Mr Cameron’s director of policy, is understood to have hired Martin Howe QC to provide confidential legal advice on the Government’s options regarding the directive ..

.. It is extremely unusual for Downing Street to commission its own external legal advice rather than rely on Whitehall recommendations and it indicates the distrust towards Mr Cable.

This is indeed unusual, and I think a worrying departure from good government.

No. 10 is unique as I think the only government department without in-house lawyers – but that isn’t quite as odd as it sounds. The PM has very few formal powers, so needs no day to day advice on how to exercise them (unlike HMRC or DWP, for instance). The PM isn’t responsible for taking legislation through the Commons, so he doesn’t need lawyers to do that, as most departments do. And if he’s sued, Treasury Solicitors will defend him.

There are perfectly good procedures within government for the Prime Minister to challenge the advice given by lawyers at the Department for Business, Innovation and Skills, if he has any concern about it. First, he can tell BIS to consult Cabinet Office Legal Advisers, where a team of EU lawyers work all day at checking departmental advice on EU law. I’d be astonished if they hadn’t advised already, in fact.

If the PM’s still not happy, he should then require BIS to consult the Law Officers, whose job it is to resolve disputes between departments and to give definitive advice on legally difficult (or quite often, legally easy but politically difficult) issues. Since this is a question of EU law affecting the whole UK it wouldn’t be the Attorney General Dominic Grieve alone who’d give the definitive government view (he’s Attorney for England and Wales and Advocate General for Northern Ireland) – he would do so jointly with the Advocate General for Scotland, Lord Wallace, for former leader of the Scottish LibDems. But then, this is a coalition government, after all.

If the Law Officers haven’t been consulted already, I imagine they’re being consulted now. There’s absolutely no reason why advice from an outside QC – or two, or three, or more of them – should not be sought either when Cabinet Office lawyers or the Law Officers are considering the matter. That would be sought from barristers on the government’s panel (selected so as to ensure public money is spent well) or from a QC approved by the Attorney.

What the purpose of this private advice is, I don’t know. It may simply be a way of taking this battle into the media. I’m also doubtful how useful it is. I mean no disrespect to Martin Howe, but it would seem he hasn’t been instructed by lawyers who understand the legal issues, and it surely cannot have been proper to give him sight of the almost certainly extensive advice and discussion of the issues that is on government files.

I’m not surprised some in No. 10 mistrust government lawyers, and I doubt this is the first time secret advice has been sought outside. But it’s a very bad sign. If I were the Attorney and had already advised, I’d be incandescent about this attempt to second-guess me; the PM would certainly know how I felt about it. If I were yet to give advice, I’d still be very concerned about a crass attempt to influence me, and about spending public money on one of the Conservative party’s favourite silks, outside the normal systems. If the PM is serious about ensuring government’s carried on in a proper way, he’ll stamp down hard on this sort of thing.

And if he has no confidence in his Law Officers, he should sack them.


2011-09-07T15:07:56+00:00Tags: , , , |