Published by The Guardian on 4th December 2018, at https://www.theguardian.com/commentisfree/2018/dec/04/brexit-legal-advice-secret-best-interests-democracy.
There is no political “convention” more misguided and less examined than the supposed rule that legal advice to ministers must remain confidential. This is the basis for the government’s refusal to publish the attorney general’s advice on Brexit, instead releasing a summary. The refusal relied on the theory of attorney-client privilege – namely that counsel’s advice to a client is confidential to that client who has the sole discretion over whether to publish it. Ministers, however, are no ordinary clients.
Ministers expend taxpayers’ money when instructing counsel to provide an opinion on the law – a law that everyone is entitled (and indeed presumed) to know. In so doing they act not for their personal interest but on behalf of the people whose interest they are bound to represent. In any true democracy, the public should be able to see that advice, to discuss and debate it, and since it is not infrequently proved, later in court, to have been wrong, to expose its errors before the government acts unlawfully or mistakenly.
The foghorn voice of our attorney oft resounded at the Old Bailey, but attorneys general are rarely the authors of their opinions on intricate legal matters. Geoffrey Cox’s opinion will have been cobbled together from the advice, not only of lawyers in his department, but from that of Treasury counsel and probably outside QCs retained at public expense. Their legal opinions should also be published, together with the instructions that have solicited their advice. Only in this way can the public be sure that the government is taking the most important decision of the past half-century in full awareness of its legal implications.
In practising at the bar over that half-century I became aware of a number of cases – especially concerning human rights – where ministers (particularly Labour home secretaries) have acted on advice obtained for them, as always, by their “Sir Humphreys”, their top officials instructing counsel whose opinions usually coincided with Sir Humphrey’s own preference. Such opinions were honest, of course, but would not have agreed with counsel more learned in that area of law – as court decisions would later prove. On some legal issues there are a range of arguable opinions and the choice of counsel by the Home Office may determine the government’s action. Publication of the opinion would enable others to point out its errors and allow MPs to challenge its reasoning or misconceptions and would thus conduce better decision-making.
In examining any counsel’s opinion, it is important to see his or her instructions. For example, a government department brief may have requested an opinion about whether a proposed course of action is “arguably” lawful. The opinion will set out reasons why it is indeed arguable. But “arguable” can denote “I will happily stand up in court and make this argument with a straight face, but I would not bet on winning it”. This was pretty much the attorney general’s opinion on the legality of going to war with Iraq on an arguable, but pettifogging, interpretation of a previous UN security council resolution. The government initially opposed its publication by reference to the convention, but when forced to do so it provoked expert and justified disagreement.
How can the convention stand against modern demands for transparency? “If government advice were routinely made public the advice might be less frank and lawyers might be less willing to commit their concerns to paper,” ran an editorial in Monday’s Times. This is nonsense – the very nonsense that was rejected by the courts in the 1950s, and ever since, when ordering disclosure of civil service documents so as to enable judicial review of government decisions. Barristers do their duty of stating their honest opinion about the law, whether or not their client intends to publish the concerns that they put on paper – to suggest they would do otherwise is an insult to their professionalism. The Times demanded publication of the Brexit opinion, but as “an exception to the rule”. Instead, the exception should become the rule.
The use (and occasional abuse) of outside legal advice within Whitehall has gone largely unexamined by academics and political scientists – perhaps because they so rarely get their hands on it. But a convention that imposes a secrecy blanket over an important part of government decision-making, and merely and irrelevantly by reference to a professional rule applying to private clients, requires reconsideration in the interests of transparency. When parliament itself cannot be told in full the legal basis upon which the government is proposing to act, this convention is revealed as profoundly undemocratic. For Brexit, as with other ailments, sunlight is the best disinfectant.
And incidentally the refusal by the attorney general to publish his advice constitutes the offence of contempt of parliament, defined as “any act which impedes either House of Parliament in the performance of its functions”. The Speaker can banish culprits from the Palace of Westminster but has another punishment available, more appropriate for Geoffrey Cox. John Bercow should lock him up in that cell underneath Big Ben where in 1880 the atheist MP Charles Bradlaugh was confined for contempt of parliament by refusing to take its oath, and release him only when he purges his contempt by publishing his opinion.