A People’s Advocate (P.202-2004) - comments

STATES OF JERSEY

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A PEOPLE'S ADVOCATE (P.202/2004): COMMENTS

Presented to the States on 18th January 2005 by H.M. Attorney General

STATES GREFFE

COMMENTS

1. T  h e proposition is for the appointment of what it refers to as "A People's Advocate" but both the proposition andthereportmakeitclear that thefunction of the postholder will beconfinedexclusivelyto giving legal advice to the States Assembly,membersof the Assemblyand Scrutiny Panels. There is no suggestion that the postholder will advisemembersof the public.
2. W  e have made this seemingly trivial point because the choice of a title such as "A People's Advocate" for a postholderwho is notgoingtoadvisemembersof the public suggests to us that the proposition and the report  are  based on a  mistaken  perception  that  there  are  some elected members within  the States Assembly who represent "the People" whereas others do not. This is a concept with whichwehavesome difficulty in coming to terms.Thefact is that all elected members of theStates are there because they have beenelectedby the electorate, or (in thecase of a minority)becausenomember of the electorate has felt a need tooppose them.
3. W  e agree that theAssembly frequently needsindependentlegal advice. Ithasalways been one of the functions oftheLawOfficerstoprovide that advice. If theAssemblyhasnoconfidence that the Law Officers doprovideindependentlegaladvice,theremedyistoseekother individuals to occupy the offices of Attorney Generaland/or Solicitor General rather than create a new position of LegalAdviser.
4. T  h ere is a distinction between legal advicewhichisindependentandlegal advice which the recipient wants to hear.This is sowhetherthe recipient is the Assembly, a Committeeor an individualmember,or in the future a Minister or the Council of Ministers. If legal advice is only acceptable when it fits the wishes ofthe recipient, there is notmuchpoint in having it.
5. W  e hope that members will recognisethe importance of protecting the independenceof the Law Officers because it isin the interests of the Assembly and the Island as a whole that they shouldfeel able to give advice fearlessly to the Assembly withoutbeing subject tothe sort of personal attacks whichregrettably two orthreemembershavemade over the last couple ofyears.

Advice to the Assembly

6. P a r agraph  (a)(ii) of the proposition setsoutthe purposes ofthepost,ofwhich there are five.The first three refer to the giving of "independent" legal advice. Thefourthand fifth purposes are "to hear, consider, scrutinise and/or peer review legal or other advice and, when appropriate, challenge that advice or offer an alternative opinion."
7. T  h ere are two possibilities here.The first is that the postholder will agree with the adviceof the Law Officer. What will have been achievedin that caseis that the States will have paid twice for thesame advice.
8. A  lt ernatively the postholder may disagree. Lawyers frequently do.If they did not, there would rarely be contested court cases. Disagreementwill certainly notbean indication that the advice of the Law Officers is either biased infavourof the "establishment" or that it is wrong.
9. S t a tes memberswill,however, have to choosebetween the advice oftheLawOfficersand the advice of the postholder. This raises the questionof how they will doso.The very fact that they areasking for legal advice suggests that they themselves do not know the answerto their question.If that is so, it is difficult to see how they can decide between the conflictingadvices. It is to be recognised that in manycases the advice whichisgiven,whetherby the Law Officers orbythe postholder, would represent a professional exercise of judgment as to what a courtwouldmakeof particular languagein a statute, or in a Treaty, or of a particular course ofconductifadoptedby the "executive" in whatever guise it acts.
10. If thereis a conflict inthe advice, members would have to decide which they preferred inone of the following ways –

( i) D  e ciding which source of advice (i.e. Law Officer or postholder) they personally prefer. That

seems a bad basis for making a decision.

(i i) B y choosing the advice which fits in with what they want to hear and rejecting the advice which

does not. That would seem to be as bad if not worse.

(i i i) B  y deciding as best they can which is the more sound legal advice, without in fact having any

qualifications to reach that decision.

In s u mmary, the risk is that members would take their decisions not on the basis of the law but on the

basis of what they wanted or hoped the law to be, which surely cannot provide a sure foundation for good decision-taking.

11. In a sense, thesecommentsreflectwhatissaid at paragraph 3 above. In the private sector, clients who lose confidence in their lawyersgo to otherlawyers. They donot maintain twosetsof lawyers to give conflicting advice because that leads only toconfusion.
12. It would be wrong not to pointout that the adoption of this proposition wouldchange the landscape for giving legal advice in a waywhich would almost certainly beunacceptable both to the Law Officers and the otherlawyer appointed bythe States. Lawyers are used to their advicebeing scrutinised byother lawyers and if necessaryhaving to defend their advice before a competent court. Nolawyerworth his salt minds that. There is frequently an appeal process too where the legal advice can be defended and dissected. Butto defend the competenceof the advice notbefore a court but, instead, before a groupof politicians whichmay include thosewho will accept it or reject iton the basisofwhat suits them, andnot on the basis ofwhetheraslegaladviceit is objectively rightorwrong,andwithoutany ability toappeal, would be toreleaseone'sprofessional reputation very publicly into veryuncertain territory.

Advice to Scrutiny Panels

13. S c rutiny Panels will report to the Statesondraft legislation whichis to be presented to the States and will review policieswhich have comeunder consideration by the executive orthosewhich have not, and decisions taken by the executive. Legaladvicemaybe necessary or critical toeach of these functions.
14. T h e Privileges and Procedures Committee has previously accepted that the LawOfficers should be the first portofcall for providing that advice. We think that is the correct approach. Scrutiny is a political exercise, carriedoutfor the most part by politicians ofdecisionstakenbyother politicians. In orderto carry out that exercise effectively, membersmay need to have anamountof technical information which sometimeswillbelegalandsometimesother technical advice.
15. W  e accept that sometimes it will be appropriateorevennecessary for Scrutiny Panels to have access to alternative technical advice; but itseems to us that this should be the exception rather than the norm. The question arises againastohoworwhere any dispute over technical advice – whether legalorother – would be resolved.
16. I f politicians take a political decision basedon legal advice from the Law Officers' Department, the obvious political scrutiny iswhether that decision, basedon that advice,isorisnottherightdecision.If the scrutiny is on whether the legaladvice should have been different, the scrutiny isnotofthedecisions of the politicians but of the adviceof the lawyers.Wedo not suggest that such scrutiny wouldneverbe appropriate ornecessarybutit would require politicians to form a view onlegal matters which fall outside their technical competenceand for that reason does not seem to ustobe an obviouslydesirable course to follow.
17. T h e results ofany such scrutinywould ultimately be measured in the States Assemblywhich is not a court qualified to assess conflicting legal orothertechnical advice.
18. T h ereare,however,other factors which are relevantand present difficulty particularly in respect oflegal

advice.

19. A s wehavesaid,legaladvice reflects anexerciseofjudgmentas to what a courtmightmake,for example, of a particular courseofconduct if adopted by "the executive". That requiresoneto have regard to all relevant facts. Inorderfor the postholder to give advicewhich could be compared with the advice of the Law Officer, the "executive" would have to make available to the postholder all available facts. It is unclear how practicable a proposition this would be, whether for privacy, confidentiality orother reasons.
20. T h ough the lawyerneeds to identify all the relevant facts, the ascertainment ofthese facts in thecontext of Assemblybusinessis primarily not a legal function but a political one. The function oflawyers is to advise on the facts as presented. Theappointmentof a People'sAdvocate as proposed would be likely to achieve exactly that ofwhich the proposercomplains,namely the use of lawyers for political purposes.
21. T h e essenceof legal advice is that it goes towhat a courtmightmake of the issue under debate. In the backgroundofeachissueliesthe possibility that a court might have to construe the piece of legislation or determine the validity of a piece of executive action. A litigant is notin the positionof having to disclose to his opponent the strengths andweaknessesof his caseon the basisof the legal advice receivedand there is noobvious reason why the executive organs oftheStatesshould be in anyworseposition.
22. T h e wayinwhich Scrutiny Panels handle the receipt of legal advice from the Law Officers is a matter which is under consideration and will be the subject of further discussion.However, for the purposes of this ReportandProposition, it is probably enough to note that a public discussion of the meritsof the legal advice provided is unlikely to be in the public interest.

Advice to Individual Members

23. T h e Reportsuggests that the postholder would be available to give advice to backbenchers.Werecognise that members currently have to wait longer for advice than wewouldwish.However, the remedy for that is toprovide more resources totheLawOfficersinorder that extra lawyers can be recruited, not to setup an alternative sourceof legal advicewhich will potentially create all the same problems as are listed above.
24. T h ere is anissuearound the desirability of the LawOfficersproviding individual members with advice. Sometimes it is entirely rightweshouldbeaskedtodoso,aswhen a member is contemplating bringing an amendment to a pieceof legislation or a proposition of a committeewhere there are legalimplications. On other occasions however, membersseeklegaladviceonbehalf of a constituent. While this is very understandable, we think membersmustguard against putting themselves in a position whereby they seek confidential advice given toCommittees or, postministerialgovernment, ministers for the purposes of using the advice to launch an attack on the decision.In this type ofcase, the constituents shouldbe seeking their ownlegaladvice, if necessarymaking an application for legal aid andshould not beusing governmentlawyers, through individual States members,to attack the decisionswhichgovernmenthas taken.

Generally

25. T h e basis of this Report and Proposition is that the adviceofthe Law Officersadverselyaffects the outcome ofimportant public decisions and goesbeyond matters of law.
26. A s wassaidin the debates on the amendmentstothe States ofJerseyLaw, it is notalwayseasyto distinguish between points of law and mixed points of fact or policy and law. Courts have long appreciated that there are points which are actually mixed fact and law. Furthermore there is the additional difficulty that the background to nearly all questions of lawput to the Law Officers is political, and the question often involves mixed points of law and policy where an answeron the legal part would be impossiblewithout a reference to policy or structural issues.

27. C l ients in the private sector recognise that they get a lawyer's advice not only for pure points of law but also because they getvalue from theassessment by a legally trained person of theconsequencesof particular decisions they might take. They donotalways accept that assessment,norshouldthey;but it informs their decision-taking.
28. W e thinkitisno different in the public sector. Members frequently express appreciation ofthe structural advice which they receive from the Law Officers in Committeewithoutever being bound to follow it even incaseswherethepointis a mixed one offactandlaw,or policy and law. In our view not only is there room for the Assemblyto gain benefit from such advice too, again ofcourse without being bound to follow it, butalso that istherenoharm in such a process.Members are perfectly able to indicate – and they do – when they consider the Law Officerhasgone too far into political issues, and are equally able to form – and are elected to form – their ownjudgments on the political implications of any matter whatever thelegaladvicemightbe.
29. W e havenoted how somemembersappear keen that Jersey shouldhaveparty politics. Without passing any comment on the merits of such a possibility, we pause to reflect that the position of a lawyer appointed bythe States ostensibly to give independentlegaladvicewouldbe very precarious in such a system becausetheparty in power would soonbe able to dispose ofhisservicesifhisadvicewerefound to beinconvenient.Towhomwould such a lawyerowe his allegiance? Clearly tothe States Assembly, and yetthe existence of the party majority would be the very thingwhichcompromised his position. By contrast, the independenceof the Law Officers is obvious. That independence should be protected and nurtured rather than attacked.
30. It will benoted that we have notyetcommented upon the potential difficulties of recruiting someoneto the position that the proposer seeks, nor onthe costswhichwouldbe associated with it. Asto the potential difficulties ofrecruitment,wecomment only to suggest that members might wish to consider whether a Jersey lawyerofthenecessary calibre wouldwantto apply for a jobwhich offered neither the financial orother rewards available in the private sector nor the status of theLaw Officers, andwhether, conversely, if the job does offer anyofthose things, there would beanyimpacton the ability to recruit applicants tothe office of Attorney GeneralorSolicitorGeneral.
31. A s to the resourceimplications,we have twocomments.Firstofall,weconsider the proposition should be rejected for its intrinsic absenceofmerit.Secondly,theresourceswhich would beneeded would be very considerable, and, if there are resourcestospare for additional legal capacity, they are urgently needed for the purposes of recruiting additional lawyers to the Law Officers'Departmentwhere there would be a muchmore productive use madeof their skills.
32. F in ally, we wish to add these personalcomments.We have been takenabackbythe allegations which Senator Syvret has madeandbythelanguageinwhich he haschosen to makethem. The allegation is made not just that the LawOfficers "routinely make political speeches" but also that the "interventions are customarily designed to intercede on behalf of Committees or to rescue the "establishment" position" and that the LawOfficers give "pseudo legal advice". (Emphasis added.)Noexamples have been givenofsuchallegedly political speechesor interventions andwe absolutely reject the suggestion.
33. It is the professional duty of a lawyer to give to the client the advice which the lawyerbelievesisright. Whetherhe realises it or not, Senator Syvret, in accusingusof tailoring ouradvice to suit a particular political purpose, rather than giving independent legal advice, is accusing us of conduct which is professionally improper.Theseremarksare therefore a direct attack on ourprofessional integrity and they ought notto have been made.

H.M. Attorney General H.M. Solicitor General

11th January 2005.