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13 - The Law Officers: The Relationship between Executive Lawyers and Executive Power in Ireland and the United Kingdom

from Part II - Institutional Pressures and Contested Legitimacy

Published online by Cambridge University Press:  17 August 2021

Oran Doyle
Affiliation:
Trinity College Dublin
Aileen McHarg
Affiliation:
University of Durham
Jo Murkens
Affiliation:
London School of Economics and Political Science
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Summary

The United Kingdom’s decision to invoke Article 50 of the Treaty on European Union triggered serious ripples across its constitutional order, including repeat clashes between Parliament and the Government. This friction reached a crescendo in 2018, following the former’s unprecedented decision to hold the latter in contempt for refusing to obey its request to publish the Attorney General’s full legal advice on the Government’s draft Withdrawal Agreement with the EU. One of the many interesting constitutional issues thrown into sharp focus by this event, was the important relationship between executive power and the legal advice-giving role of executive lawyers.

Using the UK and Ireland as illustrative examples, this essay considers how the work of executive lawyers interacts with executive authority. I argue that their legal advice can be important in supporting the executive’s political narratives about the basis for controversial policy action or inaction and is deployed by the executive to enhance its perceived legal credibility and political legitimacy. Its relationship to exercises of public power deserves greater positive and normative scrutiny, both in each system and from a comparative public law perspective more broadly.

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Chapter
Information
The Brexit Challenge for Ireland and the United Kingdom
Constitutions Under Pressure
, pp. 292 - 312
Publisher: Cambridge University Press
Print publication year: 2021

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