A Response to “The Gatekeepers: Executive Lawyers and the Executive Power in Comparative Constitutional Law”

Vanessa MacDonnell

University of Ottawa

Conor Casey and David Kenny’s article, “The Gatekeepers: Executive Lawyers and the Executive Power in Comparative Constitutional Law,” investigates the growing influence of government lawyers from a comparative perspective. Drawing on the experiences of the United Kingdom, the United States, Canada, and Ireland, they develop four metrics for evaluating the functions of government lawyers, explaining that:

“Executive lawyers in each system can be: (i) political or technocratic; (ii) secret or public in their provision of advice; (iii) “court-mimicking” (advising what courts would or may do) or “political constitutionalist” (encouraging or enabling the political branches to take interpretations specific to their role); and (iv) centralized in a single office or entity or diffused amongst various executive actors.”

These factors should not be treated as “binaries,” they note, but rather as “spectra.” 

Their analysis of the role and influence of government lawyers across the four jurisdictions leads them to articulate three “normative” prescriptions regarding these officials. The first is that government lawyers have different features in different legal systems, and that there is not a generic ideal-type for this position. The second is that the position of government lawyer is insufficiently specified as a matter of constitutional and statutory law, and that it would benefit from further legal regulation. The third is that the legal advice government lawyers offer should more routinely be disclosed in the interests of transparency. This, Casey and Kenny explain, would allow outsiders to better evaluate the function these officers perform, and the extent to which their legal advice is inflected with political considerations. 

In my view, the major contribution of Casey and Kenny’s article is that it provides scholars with a conceptual framework for thinking through the role and functions of government lawyers, whether in a single jurisdiction or comparatively. In this blog post, I offer two reflections that build upon the conceptual framework they develop. First, I ask what role legal advisors ought to play in advising on constitutional matters in nations in which the constitution has distinct legal and political components (by ‘political components,’ I mean constitutional conventions and the like). And second, I query how, under Casey and Kenny’s framework, we ought to categorize government lawyers who perform a complex mix of policy, advisory, legislative drafting, and litigation support functions. 

I begin with the first point. Most of the existing scholarship on government lawyers (including my own) assumes that government lawyers are the primary advisors on constitutional matters within the executive, since they are the experts on constitutional law. Academics rarely consider the fact that the constitution may not be entirely – or even primarily – legal in nature. At least three of the legal orders the authors discuss (the UK, Ireland and Canada) are systems with traditions of both legal and political constitutionalism. In this context, it is important to consider whether there are other advisers working within government who may be offering non-legal advice on what the constitution requires, and who should also be the subject of scholarly inquiry. Further investigation into this matter in Canada would reveal that there are advisors with expertise in history working within the Privy Council Office who advise on constitutional conventions. 

This law/politics divide is important for two other reasons. First, it is often implied that government lawyers’ advice on constitutional matters is susceptible to being influenced, improperly, by political considerations. But the charge of politicization takes on a different character when the aspect of the constitution under consideration is political, rather than legal, in character. In that context, it is far from clear that considering the political dimensions of a constitutional issue is improper or unconstitutional. While there may be constitutional principles that structure that exercise, political factors are in fact central to the determination of what the constitution requires.

Second, reflecting on these issues raises questions about whether lawyers have been permitted to assume excessive control over advice-giving on constitutional matters, whether those matters are legal or non-legal in nature. It seems entirely plausible that lawyers are treated as experts on the constitution generally, rather than as experts on constitutional law only. Now, these lawyers may well have a deep understanding of the constitution. But if it is true that government lawyers are regarded as the dominant constitutional advisers on all constitutional matters within the executive, this may be further undermining the political aspects of the Canadian constitution, a practice that scholars often note has occurred alongside the growth in importance of courts. This would lend credence to Casey and Kenny’s argument, in a related article, that the Irish Attorney General operates as a ‘one person Supreme Court,” whether the matter is legal in nature or not. 

Finally, further thought needs to be given to how the conceptual framework Casey and Kenny propose applies to government lawyers who perform a complex mix of policy, advisory, legislative drafting, and litigation support functions. In Canada, the government lawyers who are experts on constitutional matters may provide input on justice policy, provide advice to government on the constitutionality of a proposed course of action, advise on the drafting of legislation, and provide litigation support when the government’s legislation is challenged in court. Each of these functions requires a somewhat different orientation. This means that it may not make sense to speak, for instance, about government lawyers in a particular jurisdiction falling somewhere on a spectrum between political and technocratic on all matters. Rather, one might expect them to be more political in offering policy advice, and more technocratic in advising on legislative drafting; more “court-mimicking” in defending legislation in court, and more willing to offer an independent interpretation of rights in other aspects of government decision-making. It will be imperative, then, to continue to be nuanced about how we talk about the mix of factors that Casey and Kenny have usefully set out.

One thing is certain: there remains a great deal of work to be done on the role of constitutional advisors within government. They are essential constitutional actors whose functions are only beginning to be explored and theorized. Casey and Kenny have provided very useful tools for doing so.

I am grateful to Philippe Lagassé and Yan Campagnolo for a discussion on some of these matters. Some of this blog post builds on my ongoing doctoral research at McGill University. 

Vanessa MacDonnell is an Associate Professor at University of Ottawa Faculty of Law & Co-Director of uOttawa Public Law Centre

Suggested Citation: Vanessa MacDonnell’s, ‘A Response to “The Gatekeepers: Executive Lawyers and the Executive Power in Comparative Constitutional Law”’, IACL-AIDC Blog (16 February 2023) https://blog-iacl-aidc.org/wmps-gatekeepers/2023/2/23/a-response-to-the-gatekeepers-executive-lawyers-and-the-executive-power-in-comparative-constitutional-law.