I find Professor Stern’s statements in “The attack on legal oversight threatens us all” incomprehensible.
First, he makes the claim that part of the legal advisor’s job is to protect the public from misuse of power by the Executive. Why? Who says? He’s basically assuming the argument of those who think the current system is good and using that as “proof” that changing it would be bad. Is it necessary to point out that in the US the legal advisors are appointed by the Executive (with possible confirmation by the Legislature, depending on the position)? Someone commented on the blog, asking for examples of democracies with a system like ours. So far he’s gone unanswered.
Next he ignores the obvious question: Why should we trust the legal advisors, whom we have no hand — even indirectly — in choosing, more than the people we voted for (and whom we can vote out)?
Nor does he even raise the issue of how a minister can do something that is arguably legal and in the public interest if his advisor’s opinion is otherwise, given that the minister is precluded from having another legal professional present his case. One can only conclude that infallibility is one of the superpowers granted to legal advisors.
And why would we think that without these advisors there would be nothing to prevent the government from doing anything it wants? Leaving aside the fact that ministers want to be reelected, and leaving aside the office of the Ombudsman, we still have the courts! Is it really necessary for the advisor to refuse to defend the ministry before them? If the case is so clear that we needn’t hear any opinion but the advisor’s, can we be worried that the court will decide in the ministry’s favor just because some hack is found to defend it?
And to top it all off, the author misrepresents the bill in order to make it sound more ominous (at least to people who agree with the aforementioned specious reasoning). He describes is as enabling ministers to simply hire-and-fire their legal advisors. As should be obvious from the preceding paragraphs, that would actually be reasonable. The proposed law, though, doesn’t go nearly that far. It calls for the advisors to be selected by committees that include a couple of ministry representatives along with the Attorney General, a representative of the civil service and an agreed-upon academic. On top of that, the person selected will serve a seven year term.
Anybody telling us that that is a dire threat to our democracy simply cannot be trusted.