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Solicitor-Client Privilege Not for Government – Murphy

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July 4, 2019

Solicitor-Client Privilege Not for Government – Murphy

By Gavin Murphy

The Pearson Centre has invited various leading thinkers to contribute their ideas towards the Progressive Platform to generate good ideas for debate in this general election. The views expressed here are those of the writer. We thank the writers for putting forward their ideas for this important project.
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Why Solicitor-Client Privilege Should NOT Apply to Government Legal Advice

Gavin Murphy*

Background

Confidential and bona fide advice from a legal adviser to a client is generally protected from disclosure and this has been the case in the common law for centuries. This principle, known in Canada as solicitor-client privilege, is considered a fundamental human right with a heritage dating back almost 500 years.1

The rationale behind the principle is simple. In order to provide a client with proper, effective and meaningful advice, a legal adviser needs to know all the facts surrounding the matter under consideration. Likewise, the client needs to be assured that the advice discussed with their legal adviser will not be revealed without the client’s consent. For this reason a legal adviser cannot be compelled to reveal that advice either inside or outside of court.

There is a groundswell movement, particularly in the UK, to exclude the government from the right to claim privilege on its legal advice. The government represents the people and it has been suggested by several high profile commentators that citizens have a right to know what legal advice their government obtains to help inform decision-making on matters that could ultimately affect people’s rights and obligations.2

UK Backstory

Amid the utter confusion surrounding negotiations for the UK’s possible departure from the European Union following the 2016 Brexit referendum, one of the largely overlooked issues was parliament’s vote of contempt against Theresa May’s Conservative government on 4 December 2018 for failure to abide by an earlier request to reveal the full legal advice it obtained concerning the Brexit withdrawal agreement.3 At first blush parliament’s demand for disclosure of the opinion appears inconsistent with the doctrine of solicitor-client privilege4 and the client’s right to keep this advice confidential. Nevertheless, a closer examination suggests a constitutional and political showdown was avoided5 on 3 December when the government published a summary of that advice, thereby effectively waiving privilege.

Parliament’s initial request that the government release its legal advice on the withdrawal agreement was referred to in a University College London event featuring Lord Neuberger of Abbotsbury, former president of the UK Supreme Court, on 14 November 2018. During this presentation Lord Neuberger raised, from a constitutional law perspective, whether the government has a separate legal existence from the people6 and he questioned if it will now become “standard” for the government to publicly disclose its legal advice. There is little doubt his comments only heightened calls for the government to make public its advice on Brexit.

It is not just His Lordship reflecting on the issue of whether privilege should apply to government legal advice. Writing in The Guardian, Geoffrey Robertson QC, a highly respected barrister with more than half a century of practise at the bar, also argued that government legal advice should be made public.7  Similar sentiments were echoed by Oxford University professor Andrew Higgins in the Independent.8  Even Tory rebel and staunch Brexiteer Boris Johnson called on the government to release its opinion, saying it is a “scandal” that it had not done so.9

Notwithstanding pleas from eminent jurists, opposition MPs and Tory rebels, the government basically remained intransigent, originally only releasing a summary position paper. But by releasing the position paper the government effectively waived privilege in its totality as partial disclosure of the legal advice destroyed its confidentiality and allowed for full disclosure.10 Attorney general Geoffrey Cox also answered questions in parliament on 3 December regarding the Brexit advice which could have further eroded any claim to the privileged status of the legal opinion. Due to the exceptional circumstances surrounding the contempt vote, the government complied forthwith and released the entire six page legal opinion11 the following day drafted under the name of the attorney general.12

Argument in Favour of Disclosure of Government Legal Advice

Should the state be able to claim privilege against its own people? The government is not your normal client and it does not fit conveniently into the individual client and lawyer paradigm. It represents all citizens and it seems unreasonable to conceal legal advice from the public that the government has obtained on matters potentially affecting them. Exceptions to solicitor-client privilege already exist in Canadian law, for example the innocent-at-stake exception.13 Unlike in England where the doctrine is virtually absolute,14 a further Canadian exception would not set a legal precedent. Amendments to parliamentary standing orders or new legislation could be possible ways to allow disclosure.

Sentiment in the UK against a strict application of privilege is changing and Brexit may be the greatest catalyst. A matter as important as the UK leaving the European Union will have an enormous effect on the lives of British citizens. They deserve to know what legal advice their government was given to help guide it. Canadians also have a right to know what legal advice their government has been given. It is conceivable that the controversy surrounding SNC-Lavalin could have been diffused if the public was made aware of the legal advice provided to the government on the deferred prosecution matter. Rather than cloaking its advice with privilege, then waiving privilege under pressure, the government should have made this legal advice available as a matter of course.

The common law is lauded as a legal system that adapts with the times and the time has come to revise our thinking about the reach of solicitor-client privilege. Given the discussion in the UK and elsewhere, and the desire for greater transparency and accountability in government, the right to claim privilege on government legal advice is long past its sell by date.15

The question for candidates:

Should government legal advice be covered by solicitor-client privilege? If so why, if not why not?

*Barrister and solicitor. Deputy executive editor of the Journal of Parliamentary and Political Law in Ottawa and legal editor of the Commonwealth Law Bulletin in London.

[1]Berd v Lovelace(1577) Cary 61; 21 ER 33. See more generally Gavin Murphy, “Is it time to rebrand legal professional privilege in EC competition law? An updated look.”(2009) 35 C.L.B. 443.
[2]Alongside the privilege doctrine, there is the convention of the confidentiality of law officers’ advice to the government. “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… 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 proceeding,” Sir Malcolm Jack (ed), Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament,2011, 24th ed, at 447. The attorney general and solicitor general are the law officers of England and Wales.
[3]Already rejected by parliament three times in 2019. Any further or revised withdrawal agreement will require parliamentary approval to secure a Brexit deal which results in a final divorce from the European Union.
[4]Referred to in England as legal professional privilege.
[5]Admittedly UK government legal advice has been released in the past, for example advice regarding military action in Iraq in 2003, but this was done on the government’s own initiative (two years after the fact).
[6]And if the government does not have a separate existence from the people, how can it shield legal advice from them?
[7]Geoffrey Robertson, “Keeping the Brexit legal advice secret is in no one’s best interests”, The Guardian, 4 December 2018.
[8]Andrew Higgins, “Professional privilege is a human right, not a state right – the government must release its Brexit legal advice,” the Independent, 3 December 2018.
[9]Boris Johnson, “We need to hold our nerve over Brexit – we can do so much better than this deal,” the Daily Telegraph,2 December 2018.
[10]By voluntarily disclosing the summary, the government also preserved the integrity of the cabinet confidences convention and the common law privilege doctrine.
[11]The Cox legal opinion is available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/761852/05_DeceF!mber-_EU_Exit_Attorney_General_s_legal_advice_to_Cabinet_on_the_Withdrawal_Agreement_and_the_Protocol_on_Ireland-Northern_Ireland.pdf.
[12]The UK attorney general is not a member of cabinet, but normally attends cabinet meetings By contrast in Canada, the attorney general and minister of justice are one and the same person and in cabinet. So if the attorney general provides Canada’s cabinet with legal advice through the prime minister, would the attorney general not be both the solicitor and client? A review is currently underway, headed by Anne McLellan, former attorney general and minister of justice, to assess whether the offices should be split. She is expected to report by 30 June 2019.
[13]Gavin Murphy, “The Innocence at Stake Test and Legal Professional Privilege”[2001] Crim. L.R. 728.
[14]R v Derby Magistrates’ Court, ex parte B, [1995] 4 All E.R. 526.
[15]Query: Is a blanket waiver suitable? If not, how would the waiver framework realistically be applied?