Focus on…The role of a legal adviser in a government office

Legal advisers of government offices in Israel have three main duties and they are to act as gatekeepers and ensure good governance, furnish advice on legal issues, and provide representation in accordance with the office’s policy, laws, and regulations. There are different views as to whether legal advisers should advise only on the legal status or should also exert their influence on policy issues.

On the one hand, the legal advisers’ role does not come down to merely stating whether the action is permitted by law. They are expected to explain whether it is consistent, its potential consequences and risks, and whether it is balanced with other considerations. On the other hand, policymakers are chosen by the citizens for their agenda and should, therefore, establish and effectively implement the government policy without bias. Either way, stretching principles of reasonableness too far, has become highly controversial since it is seen as interference with discretion of the government.

Many factors lead to the conclusion that legal advisers should generally provide a broad opinion. Legal advisers are well positioned within the organisation and sit at the decision-making table. They are exposed to all information and considerations. Their legal education and practice develop their research skills and critical thinking. They know how to frame their questions and provide well-structured answers. Most importantly, they are expected to use their best and independent judgement. As a senior legal counsel for the Israel Land Authority (ILA), head of legal – ILA Haifa District, I am advising the government and ensuring legal and just implementation of public law and regulations on complex real property matters. It is well known that territory and land ownership in Israel are sensitive topics. However, few know that due to historical reasons over 90 % of all land in Israel is owned and managed by the state, through the ILA. The ILA does not normally transfer ownership in land, but rather contracts in short- or long-term leases, and as a result real property is kept under the government’s control. Having worked as a legal adviser on complex cases and pressing legal issues involving public land management, I am skilled in balancing several considerations and conflicting legal rights. Consequently, fifteen years ago I realised that a crucial component was missing in the decision-making process: regardless of the importance of the matter discussed, sustainability factors, environmental justice, and environmental economics, were rarely considered.

As a Georgetown University Law Center LL.M graduate, and a senior of the Heschel Center for sustainability leadership program, I raised awareness of policy makers to the importance of these matters through my legal opinions, eventually resulting in the ILA embracing sustainability considerations as part of its agenda, thus affecting the wellbeing of the public and future generation. In conclusion, it is debated whether legal advisers should provide narrow legal opinions, or rather use their skills and qualifications to offer broad and holistic opinions to their best and independent judgement, regardless the consequences on the office’s policy.

From my perspective as a legal counsel involved in some of the most cutting-edge projects in Israel, which have a significant impact on public health, environment, and biodiversity, I believe that legal advisers’ duties extend further than explaining the law to government officials. The legal adviser should boldly use critical thinking, solve incoherences, illuminate deficiencies and advise how to fill a lacuna. It is important that a legal adviser suggests changes. Nonetheless, a legal adviser is an adviser, and the mandate of policymaking must stay in the hands of the official holding the authority.