[10.1] Australia has nine legislatures1 that between them produce a vast mass of written law each year.2 This chapter focuses on legislative drafting, on how legislative drafting work is carried out within government and on the specialist lawyers who perform that work for government. In presenting a draft to their instructors in response to a set of drafting instructions, these lawyers provide legal advice that the draft is consistent with those instructions and gives legal effect to them. The style of drafting used by these lawyers in their work has evolved over time, with a plain language style now preferred. While there is a common commitment to plain language drafting, particular drafting practices and techniques vary from jurisdiction to jurisdiction within Australia, presenting a challenge to the enactment of uniform legislation.

This chapter starts to analyse the institutional frameworks of different international courts and tribunals in comparative perspective. More importantly, it introduces the invisible army of legal bureaucrats (clerks, registry and secretariat officials, and arbitral secretaries) who assist international adjudicators in their daily duties. The story focuses on their backgrounds, their modes of recruitment and promotion, their relationship with the judges and arbitrators they are called to serve, and the ambiguities inherent in that relationship. From here onwards, the role of bureaucrats in the judicial process will come into sharper relief. Their duties typically include: summarizing the parties’ arguments for the benefit of the adjudicators, conducting legal and factual research on the disputed issues, circulating internal memoranda that suggest options on how to solve the case, assisting in the preparation of oral questions for hearings, attending deliberations, and drafting the final judgments or awards.

This chapter starts to dig into the role of judicial bureaucrats as consiglieri of the court. In particular, it focuses on the memoranda they prepare to advise the adjudicators throughout the proceedings. While these internal documents go by different names and take different forms in each court, they tend to share some common features: typically, they describe and characterize the state conduct that gave rise to the case; review the facts and evidence on the record; evaluate the viability of the parties’ legal claims and defences; compile relevant case law; and provide suggestions on how the issues in dispute should be resolved. Through the preparation of memoranda, judicial bureaucrats often run a full pre-assessment of the case, thereby exerting considerable influence on the decision horizon of the adjudicators.

The separation of French administrative courts and French administrative judges from the ordinary courts and judges predates the Revolution. As the activities of the public administration have grown, so has litigation against it. This has led to an increasing diversity of administrative courts and a narrowing of the judicial role of the Conseil d’Etat principally to questions of law. The Conseil d’Etat continues to perform a consultative role in providing legal advice to the government, especially on legislation. It also has a supervisory role over the work of other administrative courts. The background of members of the Conseil d’Etat is less legal than that of the lower administrative courts and their career path is more diverse, going well beyond judicial functions. These features are distinctive compared with administrative judiciaries in other countries.

The potential of digital solutions and legal tech (LT) for increasing access to justice is real. Although many LT developments focus on innovation of law practices, in several countries we see LT as champion of access to justice. These typically are new types of players in the market that provide legal services directly to the public. Even though practice-based evidence shows their positive impact, legal services regulations struggle to catch up and facilitate these developments. They, as a matter of fact, may actually hamper access to justice improvements. In that respect, it is illustrative that private investors acknowledge the potential of LT, but only dared to invest 2.8 per cent of their $1 billion total investments in 2018 in customer-facing services.1

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.