Chapters: 01 | 02 | 03 | 04 | 05 | annex A | annex B
4.1 The exemption under section 42 is not an absolute exemption. Therefore, if it has been decided that information falls within the terms of the exemption, the balancing of public interests under section 2 of the Act will need to be carried out to justify any refusal of disclosure.
4.2 There is an important public interest in the proper administration of justice. In that context, the weight which has been given to the public interest in LPP is great. The view taken by the Courts has been that parties may be tempted to hold matters back if disclosure of the contents of their communications with their lawyers may be compelled against their wishes. The law is complex and it enhances the administration of justice for clients to be represented by legal advisers [footnote 2]. And "[legal] advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice" [footnote 3].
4.3 The importance given by the courts to the doctrine of LPP is demonstrated in the case referred to in paragraph 2.2 above, Derby Magistrates' Court.
A man was charged with the murder of a 16-year-old girl. Initially he admitted guilt. However shortly before the trial he blamed his stepfather for the murder. He was acquitted. Many years later his stepfather was arrested for the murder. Counsel for the stepfather wanted to cross-examine the first man about the instructions he had given his solicitors between confessing to the murder and retracting his confession. The magistrate ordered the instructions to be produced because of their likely relevance to the conduct of the stepfather's defence. The House of Lords set aside the disclosure order. It found that, in the wider public interest, it should not be possible to undermine the doctrine of LPP. This is so even if the result in a particular case is that a court will not be in possession of all the relevant material.
In his Judgment in this case, Lord Taylor C J said [footnote 4]: "if a balancing exercise was ever required in the case of legal professional privilege, it was performed once and for all in the sixteenth century, and since then has applied across the board in every case, irrespective of the client's individual merits".
4.4 The courts themselves do not distinguish between private litigants and public authorities in the context of LPP. Just as there is public interest in individuals being able to consult their lawyers in confidence, there is public interest in public authorities being able to do so. The need to be able to share information fully and frankly with legal advisers for the purposes of obtaining legal advice applies to public authorities just as much as it does to others. This is explained in more detail with reference to government departments below.
4.5 Therefore, although the exemption in section 42 is qualified and each case must be considered on its own merits, where information comes within this exemption it will be by virtue of a very important public interest consideration which is recognised by the courts as requiring information to be protected.
4.6 On the other hand, LPP can always be waived. The privilege belongs to the client not the lawyer and it is therefore always for the client to decide whether to rely upon the privilege or whether LPP should be waived. Where the Government chooses to waive LPP in the context of litigation it has effectively determined that the interests of justice in that particular case require LPP to be waived. The public interest balance in the case of this exemption has therefore to take into account the fact that LPP could be waived. If it is likely that government would waive LPP if litigation were afoot, this would be relevant to the exercise of the public interest balance in an FOI context but would not automatically lead to disclosure.. It should be remembered however that if LPP is waived this might lead to the quality of confidentiality in the material being lost, in which case no further claim for LPP can be made in respect of that material - including in subsequent legal proceedings.
4.7 Information to which this exemption applies is very likely to attract other exemptions under the Act because legal advice is not given or received in a vacuum. In particular, section 35 will almost always need to be considered because the purpose of seeking legal advice within government is usually to inform policy decision making. The legal advice itself will contain detailed consideration of the context in which the advice is sought - essentially setting out the policy considerations to determine what legal implications might apply. Legal advice may be sought early on in the policy development and to disclose it may undermine the effectiveness of the policy position that was finally reached. The public interest factors that apply in relation to section 35 are very similar to those set out below, but the courts have recognised the very special position of legal advice and therefore substantial weight should be attached to those factors here.
4.8 It is in the public interest that the decisions taken by government are taken in a fully informed legal context where relevant. Government departments therefore need high quality comprehensive legal advice for the effective conduct of their business. That advice needs to be given in context, and with a full appreciation of the facts. It needs to be sought and given in a timely fashion to ensure that policy develops in a fully informed way. The legal adviser needs to be able to present the full picture to his or her departmental clients, which includes not only arguments in support of his or her final conclusions but also the arguments that may be made against them. It is in the nature of legal advice that it often sets out the possible arguments both for and against a particular view, weighing up their relative merits. This means that legal advice obtained by a government department will often set out the perceived weaknesses of the department's position. Without such comprehensive advice the quality of the government's decision making would be much reduced because it would not be fully informed and this would be contrary to the public interest.
4.9 Disclosure of legal advice has a high potential to prejudice the government's ability to defend its legal interests - both directly, by unfairly exposing its legal position to challenge, and indirectly by diminishing the reliance it can place on the advice having been fully considered and presented without fear or favour. Neither of these is in the public interest. The former could result in serious consequential loss, or at least in a waste of resources in defending unnecessary challenges. The latter could easily result in poorer decision-making. The decisions themselves may not be taken on a fully informed basis. Alternatively there may be a risk that lawyers and clients will avoid making a permanent record of the advice that is given or make only a partial record. This too would be contrary to the public interest. It is in the public interest that the provision of legal advice is fully recorded in writing. As policy develops or litigation decisions are made it will be important to be able to refer back to advice given along the way. It is in the public interest that the record describes the process of decision making accurately and fully, the legal advice must be part of that record. At worst there may even be a reluctance to seek the advice at all. This could lead to decisions being made that are legally flawed. In addition to undermining the quality of the government's decision-making this is likely to attract successful legal challenges which could otherwise have been avoided.
4.10 It is very important to bear in mind that the seeking and giving of legal advice is very seldom an isolated activity. It is likely that legal advice given in one context will be helpful or relevant to subsequent issues. The full context therefore needs to be considered, not just the immediate context of the piece of advice in question. This means not only considering the circumstances in which future legal interests could be prejudiced but also bearing in mind that the public interest in protecting the confidential relationship between lawyer and client is a long term public interest which could be damaged by individual disclosures. Decisions made on a narrow factual basis today could affect the future quality of government decision making thereby having much wider implications.
4.11 The disclosure of legal advice even when no litigation is in prospect may disadvantage the government in future litigation. It is quite possible that legal advice in connection with one department will have wider implications for other departments so it is important that decisions on disclosure are not taken in isolation.
4.12 In some circumstances the public interest will require the disclosure of LPP material and this is likely to be in those circumstances where the government would waive its privilege if litigation were afoot. Legal advice should be taken if it is anticipated that such circumstances might arise.
4.13 Consideration will need to be given to other factors which need to be balanced against the public interest in the continuing confidentiality of legal advice. These factors will be very similar to the factors identified in relation to the section 35 exemption. There is a public interest in public authorities being accountable for the quality of their decision making. Ensuring that decisions have been made on the basis of good quality legal advice is part of that accountability. Transparency in the decision making process and access to the information upon which decisions have been made can enhance accountability.
4.14 It could be argued that there is a public interest in some cases in knowing whether or not legal advice has been followed. However, the factual position is unlikely to be so simple. Legal advice is often complex and involves a fine balance of risks. Instances of departments overriding unequivocal legal advice will be very rare.
4.15 The weight to be attached to these public interest factors will differ according to the case in question. However, given the very substantial public interest in maintaining the confidentiality of LPP material, it is likely to be only in exceptional circumstances that it will give way to the public interest in disclosure.
4.16 Particular considerations arise where civil litigation is under way or in contemplation. In the context of civil litigation, the Crown is in the same position concerning disclosure of LPP material as any other litigator. Litigation is adversarial rather than inquisitorial. In broad terms this means that each side sets out its own case to the best of its ability and the Judge determines what in his view is the just and true result. Under standard disclosure the rules of court require disclosure of documents on which a party relies and documents which adversely affect his case (subject to exemptions such as that which relates to inspection of LPP material) but there is no obligation on parties to draw to the attention of the court or their opponents either weaknesses in their own arguments or their underlying strategic approach to a case.
4.17 The Government would not be acting in the public interest by waiving LPP to a degree which did not acknowledge the rationale for its place in the adversarial system. Disadvantaging the Government in the conduct of its litigation would not be in the public interest. In broad terms, it is in the public interest that the Government is able to act in litigation on the same terms as its opponents.
4.18 Therefore, although the public interest for and against disclosure must be considered on a case by case basis, where litigation is in process or is anticipated the weight to be given to the public interest in the Government not releasing privileged information that the court would protect in the ordinary course of the litigation is very great.
The interpretation of legislation will often be a significant issue in litigation involving government departments. The department is likely to have legal advice which weighs up the possible arguments for and against a particular interpretation. The conclusion may be that the arguments are finely balanced but that the department's preferred interpretation is perfectly arguable. Access to the department's legal advice setting out the countervailing arguments would be highly beneficial to the other party in litigation. The legal advice would not be disclosed in the normal course of the proceedings as it is subject to LPP and if there are no exceptional circumstances which would lead the department to waive this privilege, it would not normally be disclosed. The other party may argue that there is a public interest in knowing the perceived strength of the case against the department and the legal basis on which the department had decided to defend the case, particularly in view of the fact that the department was spending public money in doing so. Against this must be weighed the public interest in maintaining the department's right to consult its lawyers in confidence, in the department having access to thorough and candid legal advice and in not being considerably disadvantaged in the conduct of its litigation and so, normally, legal advice of this sort will not be disclosed.
The position for material which may be subject to LPP in non-adversarial proceedings (for example, Inquiries) is referred to in Annex A. This aspect of LPP is still evolving and legal advice should be taken where this is likely to be a relevant issue.
4.19 The public interest balance may turn out differently if a request is made for advice which has already been disclosed by the public authority in whole or in part to an opposing party to litigation to which it was a party. (A claim for LPP might still be maintained in respect of the advice where the element of confidentiality necessary for such a claim to be maintained has not been lost because the disclosure to the other party was on condition of no further disclosure.) Again, however, each case will depend on its own particular facts.
An example of a case in which the Government might decide to waive LPP for the purposes of legal proceedings is where it is the subject of proceedings for failure to implement or implement properly European Community obligations and the case on its facts turns on the legal advice which was given to the Government, such as was the case in Factortame. If advice is disclosed to an opposing party in litigation this will usually be because it was decided by the public authority that it would not be in the public interest for LPP to be maintained in the advice for the purposes of the proceedings. Depending on the facts of the case there might be a public interest in the advice being made available more generally. It might help explain why the decision was taken to waive LPP in the case in question. If advice is disclosed to an opposing party in litigation this might suggest that the weight of the public interest in maintaining the exemption is reduced.
However, just because LPP has been waived in the course of legal proceedings this will not automatically mean that the public interest balance under the Act will weigh in favour of disclosure. It will not necessarily mean that the LPP material is then in the public domain and the considerations that arise in respect of disclosure to a party in the course of litigation (where it is possible that LPP might not have been waived for the purposes of subsequent proceedings) will not always be the same as those which arise when considering disclosure under the Act
4.20 The weight to be given to the factors against disclosure of information which is subject to LPP is likely to change as a result of the passage of time. In very broad terms, as the advice becomes older the weight that can be given to the public interest in maintaining the exemption is likely to decrease. After 30 years beginning with the year after the year in which the record was created the advice becomes a "historical record", and can no longer be exempt by virtue of section 42. As this point becomes nearer the public interest in maintaining the exemption is likely to decrease.
4.21 Special considerations apply where the advice in question is that of the Law Officers. The chapter on section 35 deals with these in further detail.
4.22 The balancing of the public interests in relation to this exemption is likely to be complex. It is important that legal advisers are consulted where it appears that information which is the subject of a request might fall within section 42.
4.23 The Law Officers should also be consulted where it appears that their advice is the subject of a request.