FREEDOM OF INFORMATION ACT REQUEST THE ATTORNEY GENERAL S LEGAL ADVICE ON THE IRAQ MILITARY INTERVENTION ADVICE 1. The legal justification for the Government s decision to participate in military action against Iraq in March 2003 has always been, and remains, highly controversial. So much so that on 17 March 2003, the Foreign Secretary took the unusual step of submitting a memorandum to the Foreign Affairs Committee explaining the legal background and, on the same day, the Attorney General took the equally unusual step of setting out his view on the legal basis for the use of force in a written answer in Parliament. Unsurprisingly, these steps generated an interest in the legal advice that the Government had received from the Attorney General at the time. But, so far, the Government has refused to disclose that advice. 2. On 20 December 2004, Rob Evans, a reporter with The Guardian wrote to the Private Secretary at 10 Downing Street, requesting disclosure of the following documents and/or information under the provisions of the Freedom of Information Act 2000, which came into force very recently: (a) Complete copies of all documents drawn up by the Attorney General and received by the Prime Minister which gave him advice on the legality of the military intervention against Iraq. (b) Whether legal advisers other than the Attorney General and officers of the Crown were involved in giving advice to the Prime Minister on the subject. (c) Dates on which other legal advisers were approached and copies of their advice if given. 1
3. The Private Secretary replied on 25 January 2005 refusing the request in so far as it related to any advice given by the Attorney General and deferring an answer to the request in so far as it related to advice from others. 4. The principal reason given for refusing the request in so far as it related to any advice given by the Attorney General was that the information requested is exempt from the disclosure provisions in the Freedom of Information Act because it is information in respect of which a claim to legal professional privilege could be maintained in legal proceedings: a section 42(1) claim. In the main body of his letter, the Private Secretary also relied on sections 35(1)(a), 35(1)(b) and 35(1)(c) of the Freedom of Information Act, which provide exemptions from disclosure of information relating to the formulation of government policy, Ministerial communications and the provision of advice by any of the Law Officers or any request for the provision of such advice. In the annex to the letter, reliance is also placed on sections 27(1), 27(2) and 41(1) of the Freedom of Information Act, which provide exemptions from disclosure of information the disclosure of which is likely to prejudice international relations, confidential information obtained from another state and confidential information generally. 5. The nature of the exemptions relied on is important. The Freedom of Information Act distinguishes between absolute exemptions on the one hand and qualified exemptions on the other. Absolute exemptions speak for themselves. Qualified exemptions only operate to permit nondisclosure where in all the circumstances the public interest in nondisclosure outweighs the public interest in disclosure. Significantly, all the exemptions relied on by the Private Secretary, save for that under s.41(1)(confidential information), are qualified exemptions and therefore the public interest test applies. For that reason the Private Secretary set out in some detail in his letter of 25 January 2005 why, in his view, the public interest in non-disclosure of the documents and/or information requested outweighs the public interest in disclosure. 2
6. It is convenient to deal with the question of legal professional privilege first because it is the primary reason given by the private Secretary for refusing disclosure of the documents and/or information requested and also because it overlaps with some of the other exemptions relied on. 7. Although not a typical lawyer/client relationship, there is little doubt that a claim to legal professional privilege could be made in respect of any advice given to the Government by its legal advisers. The reasons are fully set out in the annex to the Private Secretary s letter of 25 January 2005, where reliance is placed on the recent decision of the House of Lords in Three Rivers DC v Bank of England (No.6) [2004] UKHL 48 (which eroded the distinction between legal advice privilege and litigation privilege). 8. However, the fact that a claim to legal professional privilege could be made in respect of any advice given to the Government by its legal advisers is not enough, in itself, to satisfy the test for exemption set out in section 42 of the Freedom of Information Act. The exemption in section 42 only applies to information in respect of which a claim to legal professional privilege could be maintained in legal proceedings. And that raises the important issue of waiver. 9. Privilege can be waived in a number of ways. The most obvious is where one party to legal proceedings seeks to rely on material that is privileged and therefore discloses it. Where all the material relating to the matter in issue is disclosed, no real difficulty arises. The position is more complicated where some material that attracts privilege is disclosed but other material relating to the same matter is not. Although the courts recognise that each party is free to choose whether and to what extent he or she waives privilege, they also recognise that there is an obvious unfairness if the parties to litigation are allowed to cherry-pick the material they choose to disclose (the phrase used in R v Secretary of State for Transport, ex parte Factortame Ltd [1997] 9 Admin LR 591). 3
10. The general rule is that if a party voluntarily seeks to put part of a privileged document or part of a sequence of privileged documents before a court, he or she must also put before the court the rest of the document or sequence of documents to ensure fairness to his/her adversary: A party cannot deliberately subject a relationship to scrutiny and at the same time seek to preserve its confidentiality. He cannot pick and choose, disclosing such incidents of the relationship as strengthen his claim for damages and concealing from forensic scrutiny such incidents as weaken it. (Lord Bingham in Paragon Finance Plc v Freshfields [1999] 1 WLR 1183 at p.1188 F-G) 11. The test for waiver is whether the contents of the document in question are being relied on. A mere reference to a privileged document is not enough, but if the contents are quoted or summarised, there is waiver (Dunlop Slazenger International Ltd v Joe Bloggs Sports Ltd [2003] EWCA Civ 901). Publication of privileged information to the general public will deprive the information of any privilege which previously existed. So, for example, any press release which makes use of privileged information will almost certainly result in a waiver of that privilege (Chandris Lines v Wilson & Horton Ltd [1981] 2 NZLR 600). 12. Applying those principles to the exercise required by section 42 of the Freedom of Information Act, there is, in my view, a very strong argument that the Government has waived any privilege that may have existed in respect of the advice it received form the Attorney General about the legality of the military intervention against Iraq by putting into the public domain what is, in essence, a summary of that advice, or at least a summary of part of that advice. Adopting the approach of Lord Bingham in the Paragon Finance Plc case referred to above, the argument in favour of disclosure of the material sought by The Guardian is that the Government cannot deliberately subject its relationship with the Attorney General on the question of the legality of the military intervention to scrutiny and at the same time seek to preserve its confidentiality: put 4
another way, the Government cannot disclose those parts of the Attorney General s advice as strengthen its claim that the military intervention against Iraq was legally justified while concealing from scrutiny those parts that weaken it. 13. No doubt the Government would claim that it had no intention of waiving privilege when on 17 March 2003 it submitted the memorandum to the Foreign Affairs Committee explaining the legal background and/or when on the same day the Attorney General set out his view on the legal basis for the use of force in a written answer in Parliament. But waiver is an objective not subjective principle. Whether a party intended to waive privilege in a particular document is not the question. What matters is an objective analysis of what the party has done (Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529). Appling the test set out in the Dunlop Slazenger International Ltd case referred to above, publishing a summary of the Attorney General s advice is obviously to refer to the contents of that advice. [Privilege belongs to the client. Therefore the Government must be taken to have waived its legal professional privilege in permitting its legal adviser, the Attorney General, to set out his view on the legal basis for the use of force in a written answer in Parliament.] 14. It follows, in my view, that section 42 of the Freedom of Information Act does not provide a proper basis for non-disclosure of the material sought by The Guardian. For the reasons set out above, that material is not information in respect of which a claim to legal professional privilege could be maintained in legal proceedings. Resort to the public interest test under that section is not needed. 15. The fact that section 42 does not apply because any privilege in the material in question has been waived has implications for the operation of the other provisions in the Freedom of Information Act that the Private Secretary relies on in his letter of 25 January 2005. In particular, it has 5
implications for the operation of section 35(1)(c), which exempts from disclosure information relating to the provision of advice by any of the Law Officers or any request for the provision of such advice. In my view, that provision pre-supposes that a claim to legal professional privilege could be maintained in respect of the advice to which it refers. Once that privilege is lost, it is difficult to see how the public interest test in section 35(1)(c), could ever favour non-disclosure. 16. Equally, it seems to me, the fact that section 42 of the Freedom of Information Act does not apply because any privilege in the material in question has been waived has implications for the operation of section 41(1), which exempts from disclosure information if it was obtained from a third party and disclosure of that information to the public would constitute an actionable breach of confidence. Confidentiality lies at the heart of legal professional privilege, which recognises a strong public interest in a person seeking access to legal advice being able to communicate freely with his/her legal advisers in confidence. It follows that a waiver of legal professional privilege inevitably destroys any confidentiality in the communications in question. In such circumstances, it is difficult to see how disclosure to The Guardian of the material it seeks could constitute an actionable breach of confidence unless the Government seeks to assert some other confidence in the material. While I would not rule that possibility out, no such claim has yet been made. 17. The impact of waiver on the operation of section 41(1) of the Freedom of Information Act is important because, as noted above, it is the only exemption provision relied on by the Government that is absolute in the sense that the public interest test under the Act does not apply. If section 41(1) does not apply for the reasons set out above, disclosure of the material requested by The Guardian will thus turn on the public interest test that is to be applied in respect of the exemptions relied on in sections 27(1), 27(2), 35(1)(a), 35(1)(b) and 35(1)(c) (in so far as this last provision continues to apply at all). 6
[NB(1): even if section 41(1) does apply, in my view it could be argued that there is a public interest test inherent in its application even though it provides an absolute exemption. That is because disclosure of confidential information is not necessarily actionable (the section 41(1) test) if disclosure is in the public interest).] [NB(2): it will be for the Government to establish that sections 27(1), 27(2), 35(1)(a), 35(1)(b) and 35(1)(c) of the Freedom of Information Act apply at all. So, for example, under section 27(1), the Government would have to show that disclosure of the material requested by The Guardian would, or would be likely to prejudice, relations between the UK and others states.] 18. There is no definition under the Freedom of Information Act of the public interest, nor is there any guidance on the factors likely to be relevant to the balancing exercise required. However, the Information Commissioner has issued guidance. That guidance suggests that, in effect, something in the public interest is simply something that serves the interests of the public. As the Information Commissioner points out, there is a presumption running through the Freedom of Information Act that openness is, in itself, to be regarded as something which is in the public interest. 19. As to the relevant factors, the Information Commissioner lists the following public interest factors as encouraging the disclosure of information: Furthering the understanding of and participation in the public debate of issues of the day. This factor would come into play if disclosure would allow a more informed debate of issues under consideration by the Government or a local authority. Promoting accountability and transparency by public authorities for decisions taken by them. Placing an obligation on authorities and officials to provide reasoned explanations for decisions made will improve the quality of decisions and administration. 7
Promoting accountability and transparency in the spending of public money. Bringing to light information affecting public health and public safety. 20. The first two of these factors points weighs very heavily in favour of disclosure of the material requested by The Guardian. There is arguably no single issue of greater public importance than the legality of the military intervention against Iraq in March 2003. The implications if the intervention was not legal are profound not only for the Government, but also for the public and, I particular, the individuals who were involved directly or indirectly in the military action. On any view, there is a very powerful case for disclosure. 21. The Government relies on the factors set out in paragraph (b) in the annex to the Private Secretary s letter of 25 January 2005 to meet the case for disclosure. There it is argued that it is strongly in the public interest that governmental action should respect the rule of law, which makes it imperative both that the Government should seek legal advice in relation to difficult policy decisions and that clear, fully informed and fully reasoned balanced legal advice should be available to the decision-makers with responsibility for decisions. It is also argued that if either the instructions given by or the advice provided to the Government were liable to be put in the public domain, the great pressures of political debate and criticism are such that the instructions and advice might not be as full and frank as they should be if they had to take into account the impact they would have in the public debate in which they would feature. 22. There is obvious force in these arguments. They represent the application to the Government of the principles that underpin legal professional privilege. In most instances, no doubt, they would provide a sound basis for non-disclosure of advice given by the Attorney General to the Government. But, in my view, when applied to the material requested by 8
The Guardian, they leave out of account the fact that the Government has chosen to put the gist of the advice it received from the Attorney General on the legality of the military intervention against Iraq into the public domain. That not only amounts to a waiver of legal professional privilege for the reasons set out above, but it also fatally weakens the force of the arguments relied upon for not disclosing the material in question. 23. If the Government seeks to persuade the public that the military intervention in Iraq was legally justified by reference to parts of the advice it received from the Attorney General, the public is entitled to know the full terms of the advice given. While there is no rule that a party who waives privilege in relation to one communication is taken to waive privilege in relation to all, a party may not waive privilege in such a partial and selective manner that unfairness or misunderstanding may result (Paragon Finance, above, p.1188d). In those circumstances, I am firmly of the view that the application of the public interest test under the Freedom of Information Act ought to result in disclosure of the material requested by The Guardian. Keir Starmer QC 14 February 2005 9