A couple of years ago, it was all the rage to worry about the role of the Attorney General, and the government even consulted on the possibility of publishing the Law Officers’ advice. You can see the results of the consultation here, from paragraph 84. Most respondents said there shouldn’t be publication, generally speaking – a view I agree with – although it might be fair to say that many of that majority seemed to come from within government itself. As it turns out, the government’s doing nothing on that in its Constitutional Reform and Governance Bill – of which more in a later post.
But it’s worth noting this judgment yesterday from Blake J, in which the government successfully appealed against a decision by the Information tribunal ordering the disclosure not of Law Officers’ advice itself, but of whether or not they advised in relation to the bill that became the Financial Services and Markets Act 2000.
It’s quite a success for the government, this, I’d say: they’ve argued successfully that if you want to know whether the Law Officers have advised on a certain matter you must establish that there is a weighty public interest in such disclosure. In effect I think the ruling puts the burden on applicants to show the public interest in disclosure outweighs the public interest in non-disclosure – since Blake J says the starting point is to give weight to that except in very rare cases.
I think this is a sensible approach – though whether it’s really what Parliament intended in the Freedom of Information Act 2000, I’m less sure. What I think this shows, though, again, is that it would be much better for the freedom of information regime to set out clearly the circumstances in which the fact of Law Officers’ advice – and the content of that advice – should and should not be disclosed. It’s not good enough just for the government, the Information Commissioner and the Tribunal to make these decisions by weighing up two very airy and general idea of the public interest in disclosure and the public interest in non-disclosure. From what he says at paragraph 66 of his judgment, I suspect Blake J may agree.
The case also shows, though, of course, that neither the fact nor the content of the Law Officers’ advice can always be kept confidential. A weighty public interest can mean disclosure is required.
The "burden on applicants to show the public interest in disclosure outweighs the public interest in non-disclosure" surely makes it hard for any disclosure to take place. Why cant the burden be the other way around?
There is a public interest in the people knowing what their law officer has advised their government about a public issue and the staring point ought to be that they should be made aware of that advice unless the contrary is shown.
Why you would consider the approach taken as a sensible approach beats me.
I think if you start from your premise, Anon – your second paragraph – then you inevitably reach the conclusion you do. And in fact I think you must conclude all Law Officers' advise should be disclosed, as it's difficult to imagine what specific public interest in non-disclosure could ever trump your general principle. Let me know if you disagree.
I begin from another premise – that the government we elect is entitled to keep its legal advice confidential, just as everyone else can. That means it, and ultimately we, are not put at a serious disadvantage in litigation brought by the government's opponents such as big businesses or rich individuals who might be opposing a new tax, pressure groups (on issues like hunting and smoking for instance) or anyone else. That is the public interest in non-disclosure (or PIND).
If you start from that premise, as the Act seems to and as the judge did, then I think you reach my position. The PIND that I've identified is a general argument, not specific to any particular issue or advice. If you see it as having any weight at all, then it has the same weight in every case, basically, and whether or not there will be disclosure must depend on the public interest in disclosure outweighing it or at least equalling it – in practical terms therefore it must be for the applicant to establish a public interest of sufficient weight to count against it.
If you don't see it like that, then it seems to me either (a) you think the PIND never justifies non-disclosure, which means you didn't accept my premise in the first place and are (in the hypothesis) cheating; (b) you think the PIND would always justify non-disclosure, which is the same as saying the advice should simply be exempt; even I don't go that far or (c) you think inconsistent decisions should be made, depending on how the government/Commissioner/Tribunal/judge feels about the PIND on any given day – which makes no sense.
The alternative to (b) and (c) is to see the weight of the public interest in disclosure as key, in which case there must be at least an evidential burden on the applicant to establish that weighty PID.
Remember the battle royal over whether Goldsmith's advice relating to the Iraq War ought to be disclosed. Ultimately, it was disclosed and the world hardly came to an end. In fact, much of the heated debate was then deprived of further fuel.
Secrecy is endemic in British government and not to be even able to disclose the fact that the Attorney gave advice only adds to that culture. I tend to feel that the presumption should be that matters are made public but might remain secret where there is good enough reason.
Head of Legal, thanks for your comment.
It is interesting that you should characterize big businesses or rich individuals as government's opponents. What makes you think that the big business and government are in opposition to each other?
You also state that disclosure might put the government at a serious disadvantage in litigation brought by its opponents as a justification for non-disclosure. You are no doubt assuming that most advice given by the law officers are disadvantageous to big businesses and rich individuals. I am not so sure about that. How do we know that is the case when we do not know what advice has been given?
The unarticulated justification for non-disclosure is the desire for secrecy. I very much agree with Peter Hargreaves