Yesterday I wrote about the legal advice that, according to the Telegraph and the Standard, the PM’s Director of Strategy Steve Hilton obtained from Martin Howe QC. According to the Telegraph:
The Prime Minister’s office secretly commissioned its own legal advice .. Steve Hilton, Mr Cameron’s director of policy, is understood to have hired Martin Howe QC to provide confidential legal advice .. It is extremely unusual for Downing Street to commission its own external legal advice ..
and according to the Standard
No10 sources confirm Mr Hilton engaged Martin Howe QC .. But a Downing Street source said: “This work has been done by Steve Hilton and did not cross the Prime Minister’s desk.” Sources said the new laws would be implemented as planned.
For a No10 official to go outside the Whitehall machine for legal advice suggests a distrust of Mr Cable or the regular government lawyers.
The FT says interestingly that
Steve Hilton .. has sought external advice, despite the directive being pored over by business department officials, to see if the directive can be watered down ..However, the advice that came back reaffirmed the business department’s findings ..
In my earlier post, I expressed concern about this sort of thing in terms of the proper conduct of government.
But since then I’ve also been wondering on what basis Steve Hilton sought the advice from Martin Howe (assuming these reports to be correct), and on what basis Martin Howe advised. I’m not accusing either man of anything improper: but there are a few things that are unclear about the circumstances in which this advice – if it was advice – was obtained, that I think need to be cleared up.
Steve Hilton is a special adviser rather than a permanent civil servant, and so is subject to the code of conduct for special advisers. Apart from not having to be appointed on merit or be impartial and objective, they have comply to with the Civil Service Code. In particular, they must maintain confidentiality (para. 4 of the SpAds’ code)
Special advisers should not, without authority, disclose official information which has been communicated in confidence in Government
they must not (para. 7.iv):
authorise the expenditure of public funds, have responsibility for budgets, or any involvement in the award of external contracts
and must not (para. 7.ix):
supplant the advice being prepared for Ministers by permanent civil servants although they may comment on such advice.
I wonder whether the advice was paid for, either out of public funds or by Steve Hilton personally. I assume it was not paid for, by either – but I think that should be publicly confirmed. I also think we need to know whether the advice was presented to ministers or others as better than that of government lawyers, outside counsel hired by government or the Law Officers – and if so, how this can be justified in terms of the obligation not to “supplant” official advice.
Much more importantly, though, we need to know whether Martin Howe was told anything about internal government discussions on the Agency Workers Directive. Did Steve Hilton disclose to him, for instance, the gist of government legal advice?
The other aspect of this is on what basis Martin Howe advised Steve Hilton – if indeed he did provide legal advice as is reported.
The Bar Code of Conduct, at paragraph 401, says
A self-employed barrister whether or not he is acting for a fee:
(a) may supply legal services only if appointed by the Court
or if instructed:(i) by a professional client; or
(ii) by a licensed access client, in which case he must comply with the Licensed Access Rules .. ; or
(iii) subject to paragraph 204(c), by or on behalf of any other lay client, in which case he must comply with the Public Access Rules ..
Not (I think) being a lawyer or licensed conveyancer, Steve Hilton isn’t a “professional client” within the meaning of the Code. And Martin Howe QC isn’t registered for the purposes of rule 2(1) of the public access rules – you won’t find his name in the public access directory. That knocks out paras. (a)(i) and (a)(iii).
I suppose the government might just conceivably be a licensed access client, but it’s not obvious why they’d bother, since they have ranks of lawyers able to instruct a barrister if ministers want them to; they’re certainly not listed in the Schedule to the relevant Regulations. And would Steve Hilton really have sent Howe his licence as required by para. 4(b) of the applicable rules? It’s unlikely, surely, that this was the basis of the instructions.
In the absence of a basis in para. 401, Martin Howe must therefore presumably have been simply
giving advice on legal matters free to a friend
in which case, what he did was outside the definition of “legal services” for the purpose of the Bar Code of Conduct. I presume the two men must be friends in private life – again, this should be confirmed.
The Code does not specify what form this sort of friendly advice can take without being in breach. The Bar Council’s conduct and ethics “FAQs”, at A34, merely says
You are allowed to give free legal advice to friends and relations without instructions from a solicitor even if you have not completed the public access training. You should bear in mind that this is limited to advice and does not cover representation.
The Bar Council’s guidance for employed barristers (at para. 4.15) could be read as implying that what’s meant is informal verbal advice,
As a result of the definition of “legal services”, barristers are permitted to give free legal advice to friends and relations (e.g. at dinner parties etc). They should be aware of the risks associated with such advice and, in particular, should consider whether they need any insurance to cover this.
but nothing I’ve seen actually excludes the possibility that a barrister can give written advice to a friend, free, without providing legal services as defined in the Code of Conduct.
Obviously, brief advice in an e-mail or text to a friend would not be legal services under the Code definition. I wonder here whether that’s what we’re dealing with – in which case it’s difficult to see how Steve Hilton could have seen it as seriously contributing to the legal debate within government – or whether this was a full, formal opinion. I think we should know.
The clarifications and confirmations we need are as follows:
- that the advice was not paid for from public funds or otherwise;
- whether the advice was presented to ministers or civil servants as more correct than the government’s own legal advice;
- most importantly of all, whether Steve Hilton disclosed to Martin Howe anything about internal government discussions – for instance, the gist of the government’s own legal advice?
- whether Martin Howe gave legal advice as a barrister at all;
- what form that advice took – was it verbal or in an e-mail, or a formal written opinion;
- that the two men are friends in private life;
- whether Martin Howe was instructed in accordance with paragraph 401 of the Code of Conduct, or whether alternatively he was merely giving free advice to a friend.
In the interests of clarifying exactly what happened here, the government (if the advice belongs to it) or Steve Hilton should publish both the advice, and his request for it.
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