Government Lawyers as Constitutional Gatekeepers

Aileen Kavanagh

Trinity College

In this excellent article, Conor Casey and David Kenny delve into the dynamics of Executive legal advice in Ireland, the UK, Canada and the United States.  Eschewing the temptation to offer an overarching taxonomy, or to prescribe an optimal model of Executive legal advice, Casey and Kenny uncover the variable nature of government lawyering across four jurisdictions.  This article is the product of deep research.  It is also an admirable exercise in ‘fine-grained, contextual comparativism’, borne of a desire to analyse a complex legal phenomenon in light of inherited norms, structures and processes embedded deep within the constitutional culture.  

Together with other leading scholars – including Gabrielle Appleby, Anna Olijnyk, Daphna Renan, Vanessa MacDonnell, Benjamin Yong, and Conor McCormick - Casey and Kenny are carving out an important sub-field within constitutional law scholarship, one which has hitherto been overlooked and ignored.  This oversight is unjustified.  After all, as Casey and Kenny observe, executive lawyers are

‘at the frontline of advising whether executive actions or policy proposals are in accordance with constitutional norms.  They are … the gatekeepers, deciding in the first instance how law shapes policy and the powers of the executive’ (p. 2).  

For this reason, comparative constitutional lawyers and political scientists should pay more attention to the pivotal role government lawyers play in the policy-making process.  On the issue of legal advice within the Executive branch, Casey and Kenny’s article is a ‘must-read’.

In this blogpost, I will focus on two discrete issues. One is the claim that government legal advice can be ‘court-mimicking’ (p. 3), thus providing a good example of what Mark Tushnet famously described as ‘policy distortion or democratic debilitation’.  The other is Casey and Kenny’s normative argument in favour of ‘increased transparency in the provision of executive constitutional advice’.

Policy Distortion and Court-Mimicry

When analysing the effect of government legal advice, Casey and Kenny draw on Mark Tushnet’s influential claim that judicial decisions can have a distortive effect on policy development.  For Tushnet, ‘policy distortion’ occurs when legislators who would otherwise articulate their own constitutional norms instead choose to ‘slavishly adopt the dicta and dictates of the courts’, thereby allowing judicial decisions to ‘supplant[] legislative consideration of other arguably more important matters’.  Whilst it is tempting to read these claims as statements of empirical fact, it is important to recall that they are hypothetical speculations about what might occur, not empirical claims about what actually occurs in any particular constitutional system.  The dangers of distortion and democratic debilitation are hypothetical conjectures which require empirical testing.  Therefore, we should be cautious before assuming that judicial decisions have a ‘chilling effect’ on worthwhile policy-development in any jurisdiction.

However, whilst Tushnet framed his analysis in hypothetical and conjectural terms, his arguments about policy distortion have been absorbed into the constitutional literature as quasi-empirical propensities or even a priori normative truths.  Casey and Kenny do not make this mistake.  They refrain from claiming that ‘policy distortion’ is an inevitable by-product of Executive legal advice.  Instead, they speak of hypothetical risk and potential pathology.  As they put it, 

‘it is possible that the constraining effect of legal advice could lead to “policy distortion”, where the political branches are inhibited from taking legislative and constitutional actions because of overly cautious legal advice’ (p. 3).  

Indeed, given the secrecy which typically surrounds government legal advice, they note that it may be impossible to get reliable empirical data on the cause and effects of internal legal advice on Government behaviour one way or the other.  

Nonetheless, by using the language of ‘policy distortion’ and ‘court mimicry’, Casey and Kenny raise concerns about an insidious juridification of the policy process through the backdoor i.e. not through overt judicial censure, but indirectly through the legal advice of the ‘gatekeepers’ within the Executive branch.  In my forthcoming book, The Collaborative Constitution (CUP, June 2023), I analyse the role of pre-legislative scrutiny within the UK Executive on legislative proposals which impact on rights.  As an empirical matter, I cast severe doubt on the suggestion that the UK government is crippled by cringing ‘court mimicry’ or policy distortion in the context of rights.  In fact, there is plenty of evidence the other way.  I see Casey and Kenny’s article on government legal advisors as joining in this exploratory, partly empirical research agenda.  They are alert to the worry, but open-minded about the facts in particular jurisdictions.

The fundamental issue concerning the charge of policy distortion is where we draw the line between (legitimate) constitutional compliance and (illegitimate) policy distortion.  After all, if we assume that it is sometimes justifiable – perhaps even constitutionally laudable - for the Executive to follow judicial decisions about what the constitution requires, then the deeper challenge is to articulate a normative baseline which distinguishes policy distortion from ‘the enactment of policies consistent with the constitution’s requirements’ - as Tushnet himself acknowledged.  Indeed, compliance with judicial rulings is often thought to be a requirement of the rule of law.  Instead of being able to pick and choose which judicial decisions the Executive might wish to respect, a government under the rule of law is generally expected to follow judicial rulings, unless there are strong reasons not to do so. In order to gain some deeper traction on this issue, we need to articulate some normative baselines about why and when political actors should comply with judicial decisions, and to what extent.  

Of course, when articulating those baselines, we should not assume that compliance with the ‘constitution’s requirements’ is co-extensive with what the judges say the constitution requires.  Nonetheless, if judges have been given the job of making authoritative decisions about what the constitution requires within the constitutional scheme, then it behoves the other branches of government to give judicial rulings some serious constitutional credence, at least some of the time.  Otherwise, judicial decisions will be set at nought, in the name of a dubious ‘departmentalism’ severely detached from constitutional realities.  

The Case for Transparency

In this article, Casey and Kenny argue for ‘increased transparency in the provision of executive constitutional advice’.  In doing so, they are careful not to advocate exhaustive disclosure of all legal advice to Government.  Instead, they make a more subtle argument in favour of increased transparency in some contexts, especially in relation to ‘politically contentious issues’ (p. 31).  Their argument resonates with evolving practice in the UK, where the Government now publishes an Explanatory Memorandum to accompany the bald ‘Statement of Compatibility’ to Parliament that the proposed legislation complies with rights under the UK Human Rights Act 1998.  This has created enhanced accountability within and beyond Parliament of a kind that Casey and Kenny would applaud.  

However, despite these accountability benefits, I would like to enter a word of caution about a broader ‘case for transparency’.  ‘Transparency’ is one of those values which is often presented as an unalloyed good.  However, no government could function without some of its deliberations taking place behind closed doors.  In my view, that includes the reception and discussion of sensitive legal advice.  Government Ministers need to be able to have confidential discussions with their legal advisors, in order to discuss the legal ramifications of all policy options in a private setting, away from the glare of publicity and the relentless demands of a 24-hour news cycle hungry for ‘breaking news’.  

Casey and Kenny argue that getting Government legal advice out in the open would enhance accountability and reassure the public that nothing underhand is afoot.  However, it could also cause confusion, breed distrust of government, and – ironically - flood public discourse with detailed discussion of legalistic niceties between qualified lawyers, instead of focusing on the political merits of a controversial policy choice.  It is natural for legal academics to want to examine the legal advice given to Governments, particularly on controversial issues where the legal arguments could go both ways.  But it is precisely in those circumstances that the publication of such advice could be counter-productive. 

Conclusion

By opening up the question of Executive constitutional advisors in interesting and thoughtful ways, Casey and Kenny have highlighted the need for comparative constitutional reflection on this hitherto overlooked issue.  They have expanded the array of crux constitutional actors beyond the usual coterie.  In doing so, they have not succumbed to the false dichotomy between political versus legal constitutionalism.  Instead, they document an iterative and dynamic engagement between differently situated constitutional actors embedded in a complex and, in my view, collaborative constitutional scheme.  

Aileen Kavanagh is Professor of Constitutional Governance and Director of TriCON (Trinity Centre for Constitutional Governance) at the School of Law, Trinity College Dublin

Suggested Citation: Aileen Kavanagh, ‘Government Lawyers as Constitutional Gatekeepers’ IACL-AIDC Blog (21 February 2023) https://blog-iacl-aidc.org/wmps-gatekeepers/2023/2/21/government-lawyers-as-constitutional-gatekeepers.