Staff churn ‘means lawyers have better policy knowledge than officers’

Think tank argues policymaking processes should be improved before rules on High Court challenges are changed
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By Jim Dunton

16 Apr 2021

Civil service policy officers often have less background knowledge about the areas they are working on than the government lawyers advising them on the legality of plans, a think tank has said.

The Institute for Government said proposals to reform the judicial review system, under which policy and ministerial decisions can be challenged at the High Court, are a poor alternative to making better policy.

Central government faces more than 2,000 judicial review claims a year at the High Court, the IfG said – the overwhelming majority involving the Home Office and the Ministry of Justice.

The government's current consultation follows the Conservative Party’s 2019 manifesto pledge to ensure the judicial review process is “not abused to conduct politics by another means or to create needless delay”.

But the think tank said the review process improves policy and that it would cause less frustration in government if ministers and civil servants better understood what legal advice is for and how it should be used.

Report authors Raphael Hogarth, Catherine Haddon and Alex Nice said that “better understanding” must also to be coupled with reducing staff turnover to maintain experience in highly litigious policy areas to help the government focus on making legal advice work better.

“The government needs to drive forward the wider agenda of reducing churn among officials and preserving institutional memory when they move on,” they said.

“Whereas policy officials typically stay in post for around two years, lawyers typically stay in post for longer, often four years. This can mean they are often a greater expert on a policy area than their policy counterparts.”

Hogarth, Haddon and Nice noted that some departments have a greater appetite for legal risk than others, with interview subjects reporting No.10 and the centre of government tending to have a “higher tolerance”.

“Policy leads in departments are attuned to the cost of a successful court challenge – which could overturn years of policy preparation – and will have to manage the fallout of a legal defeat, whereas No.10 is more focused on driving forward the government’s political agenda,” they said.

The authors said the government’s most urgent priority should be be changing how some policymakers view the role of judicial review. 

“We heard that legal advice is not always accepted as fundamental to effective policymaking in the same way as economic, statistical or operational advice,” they said.

“In many cases, it also encourages ministers to seek a democratic mandate for their policies, as decisions approved by parliament are harder to challenge in court. That is an important message for policy officials and ministers. Public law can improve public policy, and better policy is more likely to be lawful.”

Hogarth, Haddon and Nice said there is evidence of a “lawyer says no” culture in Whitehall,  but cautioned officials not to hide behind legal advice when there are problems with a policy because it could reduce ministers’ confidence in that legal advice.

They also called for policy professionals to be given proper training in how to commission and interrogate legal advice so that policymakers and lawyers “speak each other’s language”. 

The most high-profile judicial review of government policy in recent years was businesswoman Gina Miller’s successful 2016 bid to secure a vote for MPs on triggering the Article 50 process to commence the UK’s departure from the European Union. Ministers had argued the move was unnecessary,  but Miller’s case was endorsed by High Court judges and ultimately by the Supreme Court.

In February this year, the looming prospect of a judicial review forced the Treasury to scrap new rules limiting exit payments for civil servants and other public-sector workers to £95,000.  Four years ago, the PCS trade union successfully challenged Cabinet Office revisions to the Civil Service Compensation Scheme, arguing that it had been wrongly excluded from the consultation process on the changes. The victory resulted in more generous exit settlements being reinstated for officials.

The IfG report cited the example of the 2017 High Court ruling that found the Department for Work and Pensions’ changes to rules on Personal Independence Payments to be unlawful because they discriminated against some benefit claimants. It said judges found no “factual or evidential basis” the measures achieved the government’s stated aim of targeting support at claimants in the greatest need.

The report's authors said the ruling was hugely costly and led to millions of claims being reviewed.

“Flaws in the design of the scheme made it much harder to fight, and deal with the result of, the case,” they said.

“As one person who worked on the problem noted, the problems the judge identified were already obvious by the time the government got to court: It was fairly clear that the benefit didn’t do what it was meant to.”

The government's consultation on changes to the judicial review process is open to comments until 29 April.

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