On 5 December 2018 the government released, in full, the advice given by the Attorney General on the consequences of the Brexit deal already reached by the government. It took parliament to hold the government in contempt before it agreed to abide by the outcome of an earlier humble address vote. Thereto, the government refused to release the advice, stating repeatedly that it was covered by legal privilege. This article examines whether legal privilege can properly be said to apply in this situation.
The Attorney General fulfils a number of constitutional roles: superintending the prosecution agencies together with a number of functions in relation to criminal proceedings, being the arbiter of the public interest in that role, and representing the public interest in civil proceedings. Most importantly, and in the context of the discussion here, the Attorney General is the chief legal adviser to the government, and as such he has access to Cabinet and Cabinet papers. He is also a senior minister of the government. The current Attorney General is a member of the House of Commons, with separate duties and responsibilities to those he represents and all Attorneys General take the whip of the party forming the government. The Attorney General is therefore a public servant, with a duty to the public, but as a member of government he is responsible for government policy. There is an obvious tension between these roles.
Given the above, when the Attorney General provides advice to the government, can the government truly be said to be his client, and he an independent legal adviser so that the advice he gives may be said to be legally privileged, or is the fact that the advice of the Attorney General to government is not disclosed save in exceptional circumstances not a result of legal privilege, but rather of parliamentary convention? In other words, can it thus be said that such advice does not have the unassailable quality of communications covered by legal privilege? In answering this question it is necessary to remind oneself of the context in which legal privilege may arise, and the policy reason for which it exists in that context.
Material is protected by legal privilege when its purpose is that of providing legal advice. Equally relevant to determining whether legal privilege applies is the question whether protecting the material in question is consonant with the underlying policy reasons for upholding legal privilege in the specific context.
There are two key elements in deciding whether legal privilege applies. First, one must consider the nature of the advice itself, as was said in Balabel v Air India [1988] Ch 317 at paragraph 330:
’The purpose and scope of the privilege is still to enable legal advice to be sought and given in confidence. In my judgment, therefore, the test is whether the communication or other document was made confidentially for the purposes of legal advice. Those purposes have to be construed broadly…. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context.’
Second, the “context” referred to is the one in which one would expect legal privilege to apply. In Three Rivers District Council and Others v Governor and Company of the Bank of England (No 6) [2005] 1 A.C. 610 Lord Scott of Foscote said at paragraph 38:
’…There is, in my opinion, no way of avoiding difficulty in deciding in marginal cases whether the seeking of advice from or the giving of advice by lawyers does or does not take place in a relevant legal context so as to attract legal advice privilege. In cases of doubt the judge called upon to make the decision should ask whether the advice relates to the rights, liabilities, obligations or remedies of the client either under private law or under public law. If it does not, then, in my opinion, legal advice privilege would not apply. If it does so relate then, in my opinion, the judge should ask himself whether the communication falls within the policy underlying the justification for legal advice privilege in our law. Is the occasion on which the communication takes place and is the purpose for which it takes place such as to make it reasonable to expect the privilege to apply? The criterion must, in my opinion, be an objective one.’
In relation to the advice provided on the Brexit deal, it is certainly questionable that the Attorney General advised on what should ’prudently and sensibly be done.’ The advice explains the law, and the consequences of a deal already done, rather than give advice on what should or could be done. It ends by noting that ’this is a political decision for government,’ as opposed to a legal one that the Attorney General could reasonably be expected to advise government on.
It is also questionable whether the relevant context is strictly a legal one where legal privilege should apply, or rather a political one where it should not. There is a much broader and more general point in relation to whether the usual position of non-disclosure of the Attorney General’s advice to government attracts the principle of privilege relating to legal advice, or whether it is patrolled by parliamentary convention. Any privilege in a communication is that of the client, and not of the lawyer providing the advice. Notwithstanding that there may be a certain indivisibility between the Attorney General and the Government he advises, given his public role and duty, is the Government truly his client? In providing evidence to the House of Commons Constitutional Affairs Committee[1] Lord Pannick QC argued:
’…the Attorney General’s ultimate client is not the Government but the public, the Attorney General should have the power, if necessary, to publish his or her legal views on important matters, while maintaining the confidentiality of discussions with ministers’.
In other words, the confidentiality does not belong to the government, but to the public, as represented by the membership of the House of Commons and in whose interest the Attorney General acts.
If that is right, then advice given to the government by the Attorney General could never truly be said to be covered by legal privilege upon which the government can either rely, or which it can alternatively waive. Support for the proposition that the usual non-disclosure of the Attorney General’s advice to government is governed by convention can be drawn from a number of other sources.
The learned authors of Erskine May[2] state the position as follows at page 447:
’By long-standing convention, observed by successive Governments, the fact of, and substance of advice from, the law officers of the Crown is not disclosed outside Government. This convention is referred to in paragraph 2.13 of the Ministerial Code. The purpose of this convention is to enable the Government to obtain frank and full legal advice in confidence. Therefore, the opinions of the law officers of the Crown, being confidential, are not usually laid before Parliament, cited in debate or provided in evidence before a select committee, and their production has frequently been refused; but if a Minister deems it expedient that such opinions should be made known for the information of the House, the Speaker has ruled that the orders of the House are in no way involved in the proceedings.’
A valid claim to legal privilege is unassailable, yet parliament was able to force disclosure of advice given to the government by the Attorney General not just in the recent context of Brexit, but also in relation to the legality of the Iraq war under the Blair administration. Again, this would indicate that the collective membership of the House of Commons, as representing the public, is entitled to see the advice that has been tendered on its behalf and for its benefit. While the public interest in the principle or policy for the existence of legal privilege is so that a private individual may have access to unfettered advice in the knowledge that it will remain confidential, the public interest in the advice given by the protector of the public interest at large to the government, which shapes the nation’s future, is arguably not served by secrecy, but by transparency.
It is recognised that full disclosure of all advice given by the Attorney General to government may not, in fact, be ultimately in the public interest when a government needs to pursue a legislative programme and also make finely balanced decisions. However, that is as much a reason for the usual position of non-disclosure to exist because of convention, and does not serve to strengthen the argument that the principle of legal privilege applies in this context.
The role of the Attorney General may be seen to be compromised by his position inside the circle as a government minister and politician, and his position outside of it as custodian of the public interest in a variety of contexts. It is the authors’ view that the government was wrong, certainly in relation to the advice from the Attorney General now disclosed on the Brexit deal, to refer to it as being cloaked with legal privilege. Much more broadly, there is a far stronger case to argue that the non-disclosure of the Attorney General’s advice to government is a matter governed by parliamentary convention, and therefore lies for determination within parliament on behalf of the public it represents, rather than by the principle of legal privilege behind which a government could sit unless a court determined it could not.
[1] ’Constitutional Role of the Attorney General’ Fifth Report of Session 2006-07 HC 306, 19 July 2007.
[2] May, Thomas Erskine, et al. Erskine May’s Treatise on the Law, Privileges, Proceedings, and Usage of Parliament. LexisNexis, 2011.
Rupert Bowers QC and Margherita Cornaglia are barristers at Doughty Street Chambers
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