16th January 2021
There are news reports that the prime minister has not read the trade and cooperation agreement with the European Union – and nor had the fisheries minister before it was agreed.
And this follows the former Brexit Secretary who once admitted he had not read the thirty-five page Good Friday Agreement – even though that document was of fundamental importance to the shape and outcome of Brexit.
“May I ask you. Have you read the Good Friday Agreement?” To which Dominic Raab replied: “Well, I haven’t sat down, and started from the beginning and gone through it.”pic.twitter.com/W6F7DfRGCV— Emma DeSouza (@EmmandJDeSouza) September 16, 2020
One reaction to these admissions is to say that it is not actually necessary for ministers to read such legal texts – that ministers are usually not specialist lawyers, that such engagement could lead to misunderstandings, and that it would not be an efficient or sensible use of their limited time.
And that it is perfectly reasonable, and indeed preferable, that ministers rely on the advisers to summarise and explain these legal texts instead.
For such reasons, the argument goes, it is not fair to criticise ministers for not reading legal texts for which they are responsible or, in the case of the Good Friday Agreement, fundamental to their ministerial roles.
Many of those who hold this view are themselves advisers or others who have briefed and summarised such legal texts for ministers and other lay people.
This blogpost avers that this view is not correct and that, for the following three reasons, any minister should be on top of the legal text for which they are responsible or is relevant to their roles, and that ministers should not rely on advisers and their summaries.
As a preliminary point, however, there is something that this blogpost is not contending.
A minister should not just be left alone with a legal text and be expected to engage with it as an experienced and specialist lawyer.
Even ministers who happen to be lawyers may not be experienced or specialised in the relevant field.
This post is not suggesting that ministers become their own lawyers.
This post instead is putting forward the view about how ministers should approach legal texts as an active (rather than as a passive) client of their legal advisers.
How – in accordance with the old adage – advisers should advise and how ministers decide.
The first reason is that any intelligent and diligent lay person (that is, a person who is not a specialised lawyer in a relevant field) can engage with a legal text.
No legal text is so obscure – or sacred – that it requires a solemn priesthood of lawyers to interpret its import to the uncouth.
Although parts of some legal documents can look as impenetrable as a computer screen suddenly full of source code, all legal documents will have basic terms, for example: party [x] shall do [y] and if [y] does not happen, then [z] happens instead.
Legal instruments create rights and obligations, and they provide for consequences of those rights being exercised or of those obligations not being fulfilled, and they provide for allocations of risk of certain things happening or not happening.
This is not mysterious stuff – but the very stuff of relationships and powers and conflicts – indeed, it is the basic stuff of politics itself.
And for a minister, a legal text for which they are responsible will set out in hard form these relationships and powers, and how any conflicts are to be resolved.
A minister should therefore engage with such a text and ask their lawyers and other advisers: What does this provision mean? What is the consequence if [a] happens? What is the consequence if [b] does not happen and so on.
In response, any (genuine) expert will have no difficulty in explaining the answer in plain language – or in admitting that something may be missing.
In my experience, the best lay clients are not the ones who pretend to be lawyers – but the ones who will test their lawyers to explain any instrument or other legal text.
Often the lay client, who will usually be approaching the text in a far more practical, street-wise way than any adviser, will spot many possible imprecisions and omissions.
After all, the lay-client is the one who will have to deal with the consequences of how that instrument works in practice.
And this exercise in active engagement can only be done by direct reference to the legal text – not some summary at one or two stages removed.
Like a decent literature student who knows not to rely on York Notes, and a decent law student who knows not to rely on Nutshells, any intelligent and diligent lay client knows there is no substitute to knowing the primary materials.
And again, this is not the lay person pretending to be a lawyer, but them fulfilling their proper role as a client.
The second reason is that is that summaries are sometimes not reliable texts, notwithstanding the best intentions and professionalism of the adviser who prepares that summary.
This is the nature of summaries: you are relying on another person to identify and set out all the key issues – and such summarisers are not infallible.
But regardless of fallibility, a summary of any legal instrument does not necessarily deal with all the questions a lay client can have when reviewing the terms of that instrument.
And this is because a legal instrument deals (or may have to deal) with dynamic situations where different parts of the instrument can be engaged at once and interact- and any summary is linear.
For example: a thing could happen which is simultaneously a breach of obligation (a), triggers remedy (b), which is subject to a limitation (c), giving rise to process (d), entitling the party not in breach to options (e), (f) and (g).
Different fairy lights can be flashing all at the same time.
No summary can ever equate to having a practical grasp of how a legal instrument works in foreseeable situations.
And this grasp is perfectly possible for an intelligent and diligent lay client – in dialogue with advisers.
This is not to say summaries are redundant – but that they are inherently limited as a means of conveying a robust understanding of any legal instrument.
(And this assumes the summariser being a professional person with relevant experience the best intentions – advisers with their own biases and interests or lack of experience can make the summaries even less of an adequate substitute.)
The third reason is political.
The doctrine of ministerial responsibility means that it is the minister – and not the civil servant, government lawyer or other adviser – who is responsible to parliament and to the public for decisions.
This means that parliament and the public look to the minister to be the one who makes decisions.
Many ministerial decisions are necessarily made on the basis of summaries – one or two pages of a recommendation in those famous red boxes.
But when the minister is to bind the United Kingdom in an international agreement, with profound consequences for every citizen and business, that duty cannot be offloaded and outsourced to advisers.
A refusal or unwillingness to engage with the primary materials also can lead a minister to wishful-thinking or even denialism – that such-and-such will not really lead to a trade barrier in the Irish Sea and so on.
Such evasions are far less possible when you see things in their black-and-white typed form, and you have had explained to you what the meaning and consequences are of that black-and-white typed form.
There is also, of course, the natural tendency of people with power to rely on others only then to blame them when things go wrong.
Decisions in respect of the United Kingdom’s obligations are not for advisers and officials to make – ministers have to form their own view, for it is that view for which ministers are responsible.
A minister – even a prime minister – is just as capable as any intelligent and diligent lay client as engaging directly with a legal instrument, and in forming their own understanding of that instrument.
Summaries and reliance on advisors are not substitutes for knowing your way round the primary materials.
And given the doctrine of ministerial responsibility, and the immense importance of many legal international agreements, ministers have a special responsibility to properly understand what they are signing us up to.
Advisers advise, and ministers decide – but some ministerial decisions require far more than reliance on advisers.
If you value the free-to-read and independent legal and policy commentary please do support through the Paypal box above.
Suggested donation of any amount as a one-off, £1 upwards per post found useful or valuable, or £4.50 upwards on a monthly profile.
This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.
Each post takes time, effort, and opportunity cost.
Or become a Patreon subscriber.
You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated.
Comments will not be published if irksome.