Officials say certain politicians just don’t get that the rule of law is a thing
Some government ministers need to have it carefully explained to them why they can’t deliberately break the law, a new report claims.
Civil servants told researchers that certain politicians have no idea what the big deal is about cracking on with their plans in face of warnings that it would be illegal.
The Institute for Government spoke to a range of Westminister insiders for a report on legal advice in government. Among the findings was that politicians’ appetite for legal risk varies a fair bit, from those who “take what lawyers say as gospel” to those who have no clue that the rule of law is a thing at all.
Quoting a former official, the report says that: “[T]he most difficult were those who ‘totally refused to accept the fundamentals on which officials and lawyers were giving advice’, leading to the problem of finding the right language to explain to them why they could not break the law.”
The Johnson government has been embroiled in several rows over its attitude to legal constraints. Last September, chief civil service lawyer Jonathan Jones QC and Scottish law officer Lord Keen QC dramatically quit in protest at the administration’s plans to deliberately breach international law.
More recently, Justice Secretary Robert Buckland has also been accused of distorting the findings of an independent Faulks report on judicial review. Respected silk David Anderson, a former national security watchdog, pointed out that “the minister’s foreword to the consultation claims that the panel identified a growing tendency for the courts to review the merits of decisions, and to replace the reasoning of decision-makers with their own. But the report contains no such conclusion”.
The government is now pressing ahead with restrictions to judicial review, despite the Faulks report giving little backing for radical changes. A consultation on its proposals closes on 29 April.
The Institute for Government argues that judicial review would cause less frustration “if ministers and civil servants better understood what legal advice is for and how to use it”.
Getting it into ministers’ heads that breaking the law is actually a problem could be a good place to start.
