He has advised more than ten Home Secretaries over 25 years.
“It is important to build up a relationship with the key people in the room and learn to judge when to make your point then and there in the meeting and when to make it elsewhere,” adds Susanna McGibbon of Lincoln’s Inn, the Government’s – and indeed the UK’s – top litigator. She has advised several Secretaries of State in four different Departments over 16 years, as well as the highest profile Cabinet Secretary in recent times, Lord (Gus) O’Donnell.
Susanna and Harry are two of my former Government Legal Service (GLS) colleagues now working at the top of the newly expanded and restructured Government Legal Department (GLD), formerly the Treasury Solicitor’s Department. It now comprises around three-quarters of the GLS.
Susanna emphasises the need to give risk-based advice to ministers to enable them to meet their policy imperatives, despite the strong possibility of further challenges down the line. Harry comments: “How much risk they want to take, whilst staying within the law, is a matter for them.”
He adds: “Be confident. Show you believe what you are saying. Ministers need to see you are on their side, actively helping them achieve their objectives.” Reflecting a change of emphasis from the past, Susanna says: “It’s really important to demonstrate to them that you ‘get it’ – ie understand the political impact of winning or losing. We shouldn’t be afraid of wanting to win our cases. In the past there was more of a sense that it was less important whether we won or lost and more important how we did so. That’s changed. Of course it’s important too that we don’t go all out to win at the expense of behaving properly and professionally.”
Contrasting career paths
The two have many shared values and experiences despite seemingly contrasting careers.
After 18 months squatting in chambers, Susanna’s first GLS post was at the Ministry of Defence. “Piles of documents would arrive with a Post It saying: ‘Please advise.’ Anything from demonstrators at Fylingdales to easements on a bit of MoD land.” A move to help the Education Department prepare for the Human Rights Act followed. “For a short time I was the world’s expert on the Act and the right to education.” Promotion to senior management came when she became legal adviser to the Cabinet Office. “I had a lot of contact with the Cabinet Secretary of the day and supported senior witnesses from the Cabinet Office and No. 10 in the Hutton Inquiry.” She also advised on national security work “I can’t talk about.” Further promotion followed, with senior roles at the then Department of Trade and Industry, including investigating and prosecuting insolvency and company crimes. She took over the legal team at the Department for Communities and Local Government in 2009. During her time there had to reduce it in size by one-third as an austerity initiative. “It involved major restructuring – a huge leadership and management challenge. At the same time it was a real privilege to have a ringside seat as the Coalition was forming.”
As Head of GLD Litigation, Susanna works with her 550-strong group in open plan in GLD HQ off Kingsway. “We handle litigation for most government departments, from private law claims arising out of injuries sustained by soldiers through to judicial reviews of major policy decisions. We have over 30,000 cases going through in any one year, 95% of government litigation. We are the biggest single user of the Supreme Court, accounting for one-third of its business.”
How far has Susanna’s diverse career prepared her for her current role? “My broad experience of government, of advising ministers in different sized departments, of public law and of different cultures and risk appetites enables me to add value and help my litigators understand the political dimension.” She draws too on wide management experience and she has already restructured her group to focus it more on its major clients, including the Home Office, the Ministry of Defence and the Ministry of Justice.
But this was not in her mind when she joined the GLS. “I didn’t then see myself as someone who would ultimately be in charge of people – still less 550. I hadn’t thought that far ahead. Barristers’ aspirations don’t usually involve management – in fact it can be a bit of a turn off. But I started to see things that ‘needed fixing’ and it didn’t take me long to realise that if I wanted to get things done I should aspire to senior responsibility – and what’s more I really enjoy it.”
In contrast, Harry has spent much of his career in the Home Office. After pupillage in commercial chambers he saw an enticing advert for the GLS. “It was actually less like an interview and more like a discussion of interesting legal issues.” He believes postgraduate study at the EU Centre in Nancy plus two six-month stages in Brussels and Strasbourg helped too. He now runs half the GLD’s Home Office Legal Adviser’s Branch of 60-or-so people from his open plan desk in Home Office HQ in Marsham Street. “It’s a huge annual exercise to work with internal clients to anticipate the workload for the year, especially in a General Election year. We are always too small. Like the M25, however much it is widened, it’s never enough.”
Does Harry now do much “real law”? “Absolutely. I spend large chunks of my day with my teams tackling fascinating legal issues: crime and policing; counter terrorism and organised crime; Northern Ireland; EU law; international law; constitutional law; all aspects of public law – the variety is enormous. Legislation in all its forms, legal advice to help shape policy making, and input into litigation. The Child Sexual Abuse Inquiry, the Modern Slavery Bill, the recent Stormont Agreement, the fast track Counter Terrorism Bill. A lot of what you read about in your evening paper on your way home. And the remarkable thing about the GLD is that you take on huge responsibilities like this from very early on in your career. Your work is completely absorbing from the word go – and you’re making a real difference.”
It’s in the passage of legislation that Harry is the real expert as the longest serving lawyer based in the Home Office, having worked on well over 100 Bills. He speaks about the work with excitement. “At the beginning of a Bill, we have the broad outline of what Ministers want to achieve and can influence how the policy develops in detail. We are not just interpreting law – we are making it. Later, I’m supporting the Home Secretary and her ministers from the officials’ box in the Second Reading debate and at the subsequent stages of the Bill in the Commons chamber and in the Lords. I’m thinking, ‘Crikey, will I be able to answer the next question?’ It’s a small space. No laptop or text books. I’m relying on what’s in my head. If I’ve done my job properly, I will have anticipated the questions, discussed with the minister and put notes in his or her folder. If a question has not been anticipated and there is time, I have to scribble a possible response on my knees on a piece of paper – legibly – which is then passed to the Minister. It’s fairly prehistoric. One day we’ll have computer links with Ministers and tap out answers which can be read on screen.”
Susanna too has a hands-on legal practice. “I make it my business to be involved in all significant cases and to have a good overview of the rest. For example, last week I coordinated a cross-government line on the Human Rights Act and attended a consultation with First Treasury Counsel [James Eadie QC] to discuss it. I directed him to a point of concern to Ministers and helped him test his advice against a real life example. I see my role as illuminating the context, adding value, not undermining counsel or treading on the toes of my litigators on the case.”
Having worked with the Government’s finest counsel over the years, what does Susanna look for in those whom she instructs, particularly on the Attorney General’s panels? “An understanding of the Government’s agenda. A recognition that, as well as the pure legal answers, there are wider considerations. We enjoy a diversity of approach in our counsel but we do require the ability to set the narrow legal point in a broader constitutional context. And I hope it goes without saying that we demand the highest standards of propriety and professionalism.” And Harry adds, “Giving ministers options rather than just saying yes or no.”
In the run-up to the General Election these are two lawyers whom any government would want to have advising it.
Contributor Anthony Inglese CB
Formerly General Counsel to HM Revenue & Customs
Master of the Bench, Gray’s Inn