The Key Ideas

#14 Create a specialist government 'legal hit squad' which would specialise in overcoming legal objections to public policy changes

While the Scottish Government's internal legal advice does a good job of keeping the Scottish Government out of court and in line with the law, it is almost universally seen as being excessively risk averse. Very often good policy ideas are blocked by legal advice that they would potentially contravene European law. But 'potentially' and 'definitely' are quite different, as are 'may face a legal challenge' and 'would be likely to lose a legal challenge'. After all, virtually everything could in theory face a legal challenge. It is of particular concern that practices which appear to be normal in other European countries are deemed illegal in Scotland.

This is not how big corporations behave. When a corporation's lawyers tell them something can't be done, in the well-known phrase the corporation will demand 'better lawyers'. It is this asymmetry—government lawyers who seek to avoid a fight against corporate lawyers determined to win the fight—which has blocked so much progressive policy.

Again, the government lawyers do a good job of providing advice, but the public deserve to have an approach to the law which is every bit as determined to win as the private sector's approach. The Scottish Government should therefore set up a 'legal hit squad'. Where the routine advice by the legal service is that something can't be done (and where the government sees it as a sufficient priority), the government should be able to call on a specialist team of lawyers whose sole purpose is to make sure the government wins, to find work-arounds, to take a more aggressive approach to risk assessment, and so on. This 'hit squad' might be attached to a legal National Policy Academy.