Read on Twitter
I think this is a correct read of the situation. I also think it is positive that Gov will not go against AG advice. Will try to explain why 1/ https://twitter.com/conorucclaw/status/1350228482387832832
At least if we think it is good to have legal constraints on government and interpreted by courts, it is good that Gov tries to comply with those constraints. Not ok to say let people go to courts for definitive resolution - too costly, late, time consuming, just inaccessible 2/
Art26 provides some leeway but only applies to bills and too cumbersome to be replacement for good faith attempt at constitutional compliance, even if expectations over frequency of use were to shift radically 3/
So how can Gov form view on constitutional compliance? AGO Advice has advantages over other sources. Institutional knowledge, number of people involved, access to paid outside advice. Barristers’ closeness to judges brings enhanced predictive ability 4/
Perhaps most important: single actor with clear institutional responsibility for giving advice and getting it right. 5/
Replacing this with interpretative pluralism-any good faith view that constitutionally compliant suffices- means no prior constraint on political action. Wide range of such beliefs plus impossible to know whether in good faith 6/
Does AGO always get it right? Clearly not. Anyone can be wrong. But some speculation on other factors: Overly conservative on borderline calls, possibly due to fear of loss. Institutional position on a topic not sufficiently responsive to changing law/reality /7
Barristers perhaps not so good at discerning how long term attitudinal shifts in judiciary require earlier cases and precedents to be reconsidered. How to counteract these weaknesses? 8/
Robust academic and public engagement with AGO positions can help. Increase of this in recent years, both on this hellsite and off, is welcome development. 9/
Contributions of @maeveorourke @maireadenright @ConorUCCLaw @dkennytcd @ferguswryan @rachaelawalsh @TomHickeyDCU @LaurCah particularly stand out for me on issues I’ve followed 10/
Publication of basis for AGO position on contentious issues could be helpful although I don’t think it’s essential 11/
If Gov misrepresents AGO advice or the certainty expressed about that advice, AG should resign. Constitutional role comes with responsibility to public interest, not just to Gov as client. I do not know if this has ever occurred. 12/
Tldr the role played by AGO advice in stopping Gov proposing leg is not of itself problematic and serves important values, even if that advice is sometimes wrong and even if that wrongness stems from structural weaknesses that are likely repetitive and should be addressed 13/13
