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One of the things we've all learnt over the last few years is that Parliament is Sovereign, so why (under what principle) is legal advice provided to the Government or executive rather than to Parliament?

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  • I'm not from the UK, but on first glance, isn't that the purpose of the Scrutiny Unit?
    – ccprog
    Commented Apr 3 at 17:02
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    Is there any specific kind of legal advice that you are concerned about? Legal advice could range from "we recommend that you settle X pending lawsuit for Y pounds" to "the date that you should observe the Easter holiday in 2024 is . . . " Is there a specific incident triggering this concern?
    – ohwilleke
    Commented Apr 3 at 19:11
  • The question was prompted mostly because the discussion today around legal advice provided to the Foreign Secretary regarding the possibility of war crimes in the Israel/Palestine conflict.
    – Jontia
    Commented Apr 3 at 19:14
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    Are only Sovereigns entitled to legal advice? Commented Apr 4 at 9:43
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    @Jontia I agree, it seems unhelpful, but not threatening the sovereignty. Parliament should simply get its own legal advice or make a law that forces the government to open up their legal insights to them. I think they would be free to do so that, aren't they. And if they don't do it, the conclusion would be that they (a majority of them) simply just choose (in their sovereignty) to remain ignorant of that advice. Commented Apr 4 at 22:01

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The notion that "Parliament is Sovereign" means that the institution acting in according with its rules and processes has no limits on its legal authority to do anything it decrees. It does not pertain to the rules and processes of parliament itself.

A lawyer needs a client that is capable of definitively expressing itself and communicating with. The government is the component of parliament that is capable of and designated to act that way in accordance with the rules and processes of the parliament, and the only body really capable of acting on that legal advice, and keeping it confidential. Confidentiality is important, because government officials might not seek legal advice in the first place if they knew that their inquiries and the answers to them would be made publicly available, and we want government officials to seek legal advice so that they can act lawfully.

Parliament as a whole can't act that way. The House of Lords, the House of Commons, and individual members of parliament can be at odds with each other and can't act unilaterally on the advice given.

Three more points:

First, not all legal advice from government lawyers is provided to the government. Government lawyers also provide advice to the general public in the form of "opinion letters" which provide advisory opinions on the law that are binding on government officials in the absence of litigation adjudicating the issue presented, and protects private citizens relying on the opinion letter from government action against them if they act in conformity with the opinion letter.

For example, an opinion letter might state that it is the official opinion of the government's lawyers that discrimination against a transgender individual constitutes discrimination on the basis of sex under the country's sex discrimination statute, and that letter would be made available to the general public.

Government lawyers also sometimes issue what are called "private letter rulings" in U.S. tax practice, or the equivalent in another country's practice, in which they issue binding legal opinions limited to a specific transaction or interaction with the government with a non-governmental party, in which they state whether the transaction does or does not comply with a particular statutory or regulatory requirement.

For example, a letter ruling might advise an import/export company that, for purposes of customs duties on goods imported by that company, that it is permissible for it to classify imported calamari as "fish" even though these invertebrates are not generally considered to be fish by zoologists, rather than as "meat not elsewhere classified" which is subject to a different and higher customs duty.

Second, most government provided legal advice to government officials does not makes it all of the way to the cabinet (and shouldn't), and is instead provided to someone in the executive branch bureaucracy run by the cabinet, who is far junior to a member of cabinet. This is simply because the advice concerns ordinary non-policy matters "below the pay grade" of the cabinet or anyone in parliament.

For example, some government lawyer might advise a local police captain that she cannot obtain a valid search warrant for a barrister's case files on the grounds that they might contain information regarding criminal activity by the barrister's clients, because those records are protected by attorney-client privilege.

Third, keep in mind that the lawyers providing advice to the government are not just any lawyers off the street. They are generally government employees who report through a direct chain of command in the government bureaucracy to a minister who is part of the government, and who, in turn, reports to the prime minister. So, in part, this is a case of a subordinate employee presenting their preliminary work product to their manager for approval before it is acted upon or disclosed. Advice from a government lawyer to an official of the same government is basically just one more example of intra-agency communication that happens on a daily basis in volumes far too great to burden all of parliament with.

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  • Parliament as a whole can act on advice. That is afterall what it does day in and day through passing legislation and other motions urging the government to act. That it does so without access to legal advice provided seems non-sensical. Deliberately withhold information from a decision making body does not make sense.
    – Jontia
    Commented Apr 3 at 19:04
  • The idea of parts of parliament acting at odds with other members applies equally to the government which is afterall simply a subset of members of parliament.
    – Jontia
    Commented Apr 3 at 19:06
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    @Jontia The Government is a structured organization led by the Prime Minister with subordinate ministers responsive to the PM's instruction. Individual members of parliament and lords are free actors. The government can also maintain confidentiality in a way that the parliament, collectively, cannot, which is important, for example, in deciding have to deal with individual pending lawsuits.
    – ohwilleke
    Commented Apr 3 at 19:07
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    @Jontia Without knowing what legal advice you are talking about, it is hard to know. Also, keep in mind that very little legal advice has black and white clarity. It is full of exercises of judgment and gray areas. It isn't generally a matter of stating facts or rules, it is generally a matter of offering informed opinions with ultimate decisions made by the client.
    – ohwilleke
    Commented Apr 3 at 19:21
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    Minor note, the UK doesn't have the rank of "Captain" in the police. I suspect something like "Chief Inspector" or maybe "Superintendent" would be the rough equivalent.
    – James K
    Commented Apr 3 at 21:32
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In the context of the article linked to by the OP's comment, the legal advice is that provided by the Law Officers to the Government about Government powers: Cameron urged to publish Foreign Office legal advice on Israel’s war in Gaza.

The role of the Law Officers of the Crown

The Law Officers are the senior legal advisors to the Government, not Parliament. Their job is to provide advice to their colleagues in Government about the legal aspects of Government policies. Their roles are a hybrid of Government minister and 'in-house lawyer' - their sole client is the Government.

They should endeavour to give honest, candid and independent advice to colleagues, without massaging it for party politics, while not ignoring policy objectives and political circumstances.

One of the Law Officers is the Attorney General for England and Wales. They attend Cabinet (but they're not a member of Cabinet). The role of Attorney General dates back to 1243 (if not before) when a professional attorney was hired to represent the interests of Henry III in court.

Convention that the legal advice should not be disclosed

It's a long-standing convention, maintained by successive Governments, that the legal advice from Law Officers to the Government is not disclosed outside the Government.

The Ministerial Code says:

2.12 The fact that the law officers have advised or have not advised and the content of their advice must not be disclosed outside government without their authority.

Erskine May says:

By long-standing convention, observed by successive Governments, the fact of, and substance of advice from, the law officers of the Crown is not disclosed outside government. This convention is referred to in paragraph 2.13 of the Ministerial Code. The purpose of this convention is to enable the Government to obtain frank and full legal advice in confidence.1 Therefore, the opinions of the law officers of the Crown, being confidential, are not usually laid before Parliament, cited in debate or provided in evidence before a select committee,2 and their production has frequently been refused; but if a Minister deems it expedient that such opinions should be made known for the information of the House, the Speaker has ruled that the rules of the House are in no way involved.3

On occasion, Parliament has compelled the disclosure of some advice and, given that (in theory) Parliament can make or unmake any law, Parliament could make law that obliges the disclosure of legal advice. However, Parliament hasn't done that in the general case - because, while there is sometimes a lot of noise about it, there is an understanding that it's useful - and generally in 'the public interest' - for the Government to be able to "obtain frank and full legal advice in confidence".

This House of Lords Briefing Paper on Publishing Government Legal Advice has some examples of circumstances when legal advice has been demanded and when it has been sometimes disclosed (albeit in edited/summarised form).

Legal advice privilege

There have been numerous assertions/debates/arguments as to whether the legal advice has 'legal advice privilege' (i.e. immune from compelled disclosure). However, the courts have ruled that it is privileged.

See e.g. Factortame (Discovery) - the Government of the day waived privilege for a particular period, the applicants sought disclosure beyond that period, but the High Court dismissed the application. The court said the Government was entitled to waive privilege for a specific period and maintain privilege for other periods.

Parliament can get its own advice

Many MPs and Lords are or have been lawyers and they are free to obtain their own legal advice. However, often they don't have access to all the information to which the Government has access.


Convention:

A convention is an unwritten understanding about how something in Parliament should be done which, although not legally enforceable, is almost universally observed. Occasionally a new convention is agreed in order to resolve a specific procedural issue that has arisen.

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    Another reason that Parliament doesn't (often) legislate to force the government to reveal its legal advice is that (in normal circumstances) the executive controls the parliamentary timetable, and would not allow a bill to do that to come to a vote. Commented Apr 4 at 21:35

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