The Role of Legal Advisors - Explainer
From Professional to Political: The Appointment of Legal Advisors
The coalition agreements, published when the government was formed, include the stated intention to advance legislation that in essence—will change the method of appointing legal advisors in government ministries from a professional to a political process, whereby ministerial legal advisors will be appointed and dismissed by the ministry’s Director-General, who is itself appointed directly by the minister. Currently, legal advisors to government ministries—like the vast majority of civil servants in Israel—are appointed by means of a formal tender process.
Changing the method for appointing and dismissing ministerial legal advisors will compromise their independence and neutrality and do away with their function as gatekeepers. In addition to their role of helping their ministry implement its policies from a legal perspective, these advisors are also required to ensure that the ministry operates according to law and adheres to the rules of good governance.
Subordinating legal advisors to political leaders will undermine the rule of law and good governance, and as a result - may deal a blow to public trust in the government, inasmuch as it will no longer be possible to assume that government decisions or actions have undergone a proper examination of their constitutionality and legality. In addition, the politicization of legal advisors is liable to lead to a deterioration in the quality of the civil service and its effectiveness.
Today, legal advisors in government ministries, like most civil servants in Israel, are appointed through a tender process. Its first stage is an internal tender open to all legal functionaries employed in government ministries. If no suitable candidate is found, a second stage of the process begins, with a public tender. The tender committee includes the Director General of the ministry, the Deputy Attorney General, the legal advisor of another ministry, and a representative of the Israel Bar Association.
The Civil Service Commissioner is authorized to dismiss legal advisors, with the participation of the Attorney General through a professional committee appointed for this purpose. Since the report of the Abramovich Commission (an inter-ministerial team formed to assess issues related to legal advice to government ministries, which published its report on September 10, 2008), and the subsequent government resolution to implement the report’s recommendations, the term of service of ministerial legal advisors has been limited to seven years.
Nevertheless, and notwithstanding the government resolution, the implementation of the Abramovich Commission report’s recommendation to limit the term of service of legal advisors has not been implemented in practice, due to issues related to the retirement arrangements for legal advisors.
As clarified in the Abramovich Commission report, the role of legal advisors is to “provide what is needed in order to ensure that ministry policy is grounded in law. They must provide the ministry with the necessary legal tools to implement its policy, while ensuring that its activity is conducted within legal boundaries and adheres to the rules of good governance and other norms to which the civil service is obligated.”
In other words, legal advisors must help their ministry carry out its policy from a legal perspective, while also serving as gatekeepers who ensure that the ministry operates in accordance with the law and good governance. Accordingly, the method for appointing advisors must reflect the critical need for ensuring their ability to apply their judgement independently of the ministry.
From an administrative standpoint, legal advisors are subordinate to the ministry’s Director General, but from a professional standpoint they are subordinate to the Attorney General, with whom they are required to coordinate their activities. Moreover, the job description of ministerial legal advisors is misleading, for two reasons:
First, the professional opinions they provide reflect, for the purposes of their ministry, the legal situation. In controversial cases, senior ministry leadership has the option of requesting the Attorney General to decide on the issue, because her opinion on legal matters is binding on the government and its agencies, as long as the courts have not ruled otherwise.
Second, legal advisors are integral to the management of their ministries, and their role extends beyond simply “advising.” Ministerial legal advisors also serve as directors of the ministry’s legal department, which may include dozens of employees. In addition, their role may include involvement in legislation, providing legal advice, representing the ministry in civil proceedings, overseeing ministry contracts, and even initiating criminal proceedings.
There is a common denominator among all the responsibilities held by legal advisors; that is-- the two public interests that they are charged with promoting:
On the one hand, they must help the ministry implement its policy from a legal perspective; or as stated in the guidelines laid down by the Attorney General, they must “help provide the ministry with the legal tools and means needed to implement the ministry’s policy” (Guideline 9.1000).
On the other, legal advisors are also gatekeepers, responsible for maintaining the rule of law in their ministry. In this sense, they are part of the system overseen by the Attorney General, which serves as an “internal check” on the government (the “external check” is provided by the judicial branch), as described by the retired justice Yitzhak Zamir. In other words, a substantial part of the role of ministerial legal advisors is to serve as an extension of the Attorney General, and to warn the latter of anticipated problems or decisions that warrant its intervention.
Due to the inherent tension between these two public interests, their official status has a dual nature, as described above: On the one hand, they are an integral component of their ministry’s organizational hierarchy and are subordinate to the Director General, are involved in the ministry’s work processes, and thus are armed with the practical tools they need to carry out their role. On the other, to maintain their independence of judgement, which is an essential condition for enabling them to fulfill their obligation to protect the rule of law, they are appointed via a Civil Service Commission tender and are professionally subordinate to the Attorney General.
It is important to note that the current status of legal advisors, and the professional nature of their appointment, are also necessary to ensure the effectiveness of the work of the ministry’s legal department, of the ministry, and of the government as a whole. Empirical studies have found a link between appointments based on professional merits and a higher level of effectiveness of the civil service, as compared with political appointments.
The explanations underlying this finding include: Candidates appointed on a professional basis are more suitable to the role in terms of their skills, education, and professional experience; are less likely to be involved in corruption; have better relationships with other workers in the civil service, who are also appointed via professional processes; tend more to apply solely professional considerations in their work; and are not replaced too often, unlike political appointments. In addition, the harm to professional norms caused by the politicization of senior appointments spreads to the rest of the civil service and interferes with the maintenance of an ethos of professionalism.
The system of legal advice to the government plays an essential role in Israel, given the context of the country’s system of government—in particular, the lack of an entrenched constitution and a full bill of rights, and the strength of the government, which has almost no check on its powers in comparison to other democracies (such as a bicameral legislature, a president with executive powers, a federal system, and more).
Thus, in Israel, the main check on the government’s power is the judicial branch. However, the judicial branch is the “external check”, while the system of legal advice to the government is the “internal check”. The judicial branch only sees breaches of the law that harm citizens, who then petition the courts. These breaches are just the tip of the iceberg, while the vast majority of the government’s activities lie below the surface, where there is no practical possibility for effective judicial oversight to be applied. Without the “internal check,” there would be no oversight or restriction on breaches of good governance that contravene the law and harm the public interest.
Just as Israel’s system of legal advice to the government is a product of the country’s history, constitutional regime, and political and legal culture, the equivalent systems in other countries have been similarly shaped. Yet, the tension inherent in the role of legal advisor —between helping the government implement its policy and protecting the rule of law—can also be found in the roles of attorneys general in other countries who occupy a position similar to that of Israel’s Attorney General, such as the United States, Canada, or the United Kingdom.
Though in the United Kingdom, as in the other countries that use this model, the Attorney General is usually a political figure who is sometimes a member of government, these countries have various models for the role of ministerial legal advisors. Thus, in the United States, for example, General Counsels to department secretaries are appointed by the President and approved by the Senate. In Canada, on the other hand, the Department of Justice is responsible for providing legal advice to the government and its various ministries—such that this is effectively a professional appointment. Deputy Ministers are appointed by the Prime Minister, with the advice of the Clerk of the Privy Council, which is itself a professional (and not political) appointment.
Thus, the appointment of these deputy ministers is essentially professional, and is based on the candidate’s experience and abilities. Deputy ministers are defined as public servants (unlike ministers, who are political officials); they are appointed from within the civil service and are not replaced with changes in government, and thus are required to act in a nonpartisan manner and to refrain from politicization of their professional role.
- Damage to the independence of ministerial legal advisors: Transforming legal advisors into political appointees will thwart the dual purpose of their role- helping the ministry implement its policy, while maintaining the rule of law. As political appointees, the independence of their judgement will be undermined and they will become servants solely of the minister rather than of the public, as is their obligation. Indeed, there is reasonable concern that appointees will be chosen mainly for their loyalty to the minister and their willingness to provide amenable legal advice and interpretation, leading to a failure to comply with the law. If legal advisors are given the standing as political appointees, the maintenance of the rule of law in government ministries will be impaired.
- Damage to the office of the Attorney General: Transforming legal advisors into political appointees will have broad consequences for the ability of the Attorney General’s office to fulfill its function of protecting the rule of law in the executive branch. This is the case since this ability depends, among other things, on the role played by the system of ministerial legal advisors who are professionally subordinate to the Attorney General. If these become political appointments, the Attorney General’s influence within each of the government ministries will no longer exist.
- Damage to good governance: The proposed change will deal a blow to good governance in government ministries—for example, regarding the hiring of contractors or purchase of equipment, which may result in those close to the minister and their appointees being preferred on the basis of inappropriate considerations. Another example relates to the ethics of appointments in which legal advisors are asked to assess whether candidates have any personal, political, or business connections to ministers involved in the appointment, or to other members of the government. This damage to good governance is liable to result, among other things, in a proliferation of petitions to the Supreme Court against decisions made by government ministries, because such decisions have been subject not to a professional and neutral legal assessment, but rather to a political assessment, and as such may well be improper.
- Damage to the consistency of legal advice: We can also expect that the change will harm the consistency of legal advice across different government ministries, and undermine the principle that “the state speaks with one voice.” Examples may include conflicting legal opinions, the issuing of different procedures and guidelines, and different decisions being made by legal advisors in different ministries.
- Damage to public trust in the government: Another anticipated outcome of the proposal is that the Supreme Court, when discussing petitions made to it, will not be able to rely on the presumption that a proper assessment has been made of the legality and constitutionality of the government’s decisions or actions. Similarly, public trust in the government—which in any case is extremely low—will be harmed and deteriorate even more.
- Damage to the effectiveness of the civil service: Based on the frequency with which government ministers are replaced in Israel, it can be assumed that there will also be a high turnover of legal advisors if the latter are ministerial appointments. This short term of office will not allow advisors to become sufficiently familiar with the ministry and the professional structure they oversee, making it difficult for them to do their job successfully.
The change in the status of legal advisors, by making them political appointees, is also liable to make it more difficult for them to fulfill their roles as heads of the ministerial legal department and in their interactions with other officials in the ministry. As noted, this change will not only undermine their independence, but will also impair their effectiveness in carrying out the ministry’s policy. It will thus result in a deterioration of the quality of the civil service, and make it more difficult to recruit first-rate professionals to it.
Furthermore, making legal advisors into political appointees is part of a broader process of politicization of the civil service in Israel, which not only runs counter to the civil service’s ethos, but also (as noted above), harms its effectiveness.
- Damage to the independence of the criminal prosecution: The damage to the independence of legal advisors, who hold criminal prosecution powers, will also undermine the independence of their judgement as prosecutors, and the independence of judgement of prosecutors who may be under their authority. Thus, this change also entails an infringement of the right of Israeli citizens to fair legal proceedings.
- Damage to the rule of law: In conclusion, it is important to note that the proposed change in the standing of legal advisors in government ministries is part of a broader effort currently underway to undermine the standing and powers of all the gatekeepers of the rule of law in Israel, including the Supreme Court, the Attorney General, and the media. In this context, it is just one piece of an overall attempt to remove the government’s subordination to the rule of law, Israel’s constitutional principles, and human rights.