There is an assertion often made by our Civil Service in Guernsey that the privilege attaching to legal advice given by the Law Officers belongs to the Law Officers and not to the Civil Service as the client. The inference is that, even if they wanted to, Guernsey’s Civil Service cannot release legal advice given to them.
Here’s an example of what they say:
“The legal position regarding the disclosure of legal advice given by the Law Officers is clear: the privilege attaching to legal advice given by the Law Officers belongs to the Law Officers, not the client (as would normally be the case). The same position applies, for example, in England & Wales and has been generally accepted for reasons of public policy, including by the States of Deliberation.”1
The truth is the opposite and Guernsey’s Civil Service knows it fully. The government is the client and the client holds the privilege.
Now, why does this matter? Because it’s a well-established method Guernsey’s Civil Service uses to obscure what they’ve been up to. A way to hide the truth and evade accountability…
That’s why it is important to examine this claim in detail to prevent its further misuse.
Let’s begin:
If legal privilege in the UK were held by the Government’s lawyers rather than the Government itself, it would produce perverse outcomes. The Government would have to seek permission to use or release its legal advice, while its lawyers could disclose it at will, potentially undermining Government authority. Such a shift would hinder timely decision-making, compromise confidentiality, erode trust, create conflicts of interest over what to release, and cause operational inefficiencies, ultimately weakening the Government’s effectiveness and control. It would break the integrity of advisory relationships and upend 447 years of legal precedent (Berd v. Lovelace, 1577).
Key Points:
Holder of Privilege: Legal professional privilege (LPP) is owned by the client, not the lawyer. This principle is well established in common law, as affirmed in Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48 ((https://publications.parliament.uk/pa/ld200304/ldjudgmt/jd041111/riv-1.htm)). The judgment explicitly states that privilege is intended to protect the client’s right to seek and receive confidential legal advice.
Confidential Nature of Advice: For legal advice privilege to apply, the communication must be confidential.
Waiver of Privilege: Privilege can be waived by the client whenever they want. In this instance, the Government work for you, and they can release privileged information.
Relevant Case Law Extracts:
- Three Rivers District Council v Governor and Company of the Bank of England (No 6):
- “The BIU, and no one else, was to be treated as Freshfields’ client for privilege purposes.”
- “Legal advice privilege arises out of a relationship of confidence between lawyer and client. Unless the communication or document for which privilege is sought is a confidential one, there can be no question of legal advice privilege arising.”
- “If a communication or document qualifies for legal professional privilege, the privilege is absolute. It cannot be overridden by some supposedly greater public interest. It can be waived by the person, the client, entitled to it and it can be overridden by statute (c/f R (Morgan Grenfell Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563), but it is otherwise absolute.”
- “In Balabel v Air India [1988] Ch. 317 the basic principle justifying legal professional privilege was again said to be that a client should be able to obtain legal advice in confidence. The principle which runs through all these cases … is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent (p.507)”
Privilege in Government Legal Advice
When legal advice is given by a government lawyer to the government, the same principles of LPP apply, but with some significant qualifications related to public interest. Government legal advice may be subject to greater scrutiny and potential disclosure, particularly when public interest considerations are at stake.
- Attorney General v Jonathan Cape Ltd [1976] QB 752 ((https://en.wikipedia.org/wiki/Attorney_General_v_Jonathan_Cape_Ltd)): This case considered the balance between public interest and confidentiality, establishing that public interest can override confidentiality in some circumstances.
- R (Evans) v Attorney General [2015] UKSC 21 ((https://www.supremecourt.uk/cases/uksc-2014-0137.html)): The Supreme Court ruled on the disclosure of Prince Charles’s letters, emphasizing that the government cannot withhold information on the sole basis of confidentiality if there is a significant public interest in disclosure.
- The Brexit Legal Advice Case (R (on the application of Miller) v Secretary of State for Exiting the European Union) [2017] UKSC 5 ((https://www.supremecourt.uk/cases/uksc-2016-0196.html)): The UK Government was compelled to disclose legal advice related to Brexit negotiations due to the overwhelming public interest and the necessity for parliamentary scrutiny.
The Memorandum of Understanding between Law Officers and Guernsey’s States:
This clarifies that the Law Officers provide guidance on claiming legal privilege but do not hold the privilege themselves; it belongs to the States Committees. The memorandum attempts to ensure Committees will not release legal advice without the Law Officers’ consent, emphasizing controlled dissemination rather than ownership of privilege. As a Memorandum of Understanding, this document outlines agreed principles and processes but is not legally enforceable, serving as a framework for cooperation and governance rather than a binding contract.
Specifically, section 2.4 states:
“The government legal advisers are to be informed if the advice that they have given is likely to be shared or published in full or in part beyond the relevant Committee and (in accordance with established practice) their agreement is to be obtained before any such publication is made. The government legal advisers are to advise the States of Guernsey on whether it may or may not claim legal privilege; and to explain why in a format that can be published if necessary and agreed”2.
Therefore, while the Law Officers have significant control over the dissemination of their legal advice, the memorandum does not state that they hold the legal privilege themselves, and for a good reason: the privilege would belong to the client receiving the advice, in this case, the States of Guernsey’s Committees.
Conclusion:
The claim that the Law Officers hold the privilege over legal advice given to the Government is untrue. The Government, as the client, holds the privilege and has the right to waive it. Indeed, as a government, their rights to privilege are weaker as there is a public interest element. Additionally, once privileged information has been released to a third party it is no longer confidential, so it is difficult to see how such a claim could continue to be made should this happen.
Privilege should not be used to evade the fundamental obligations of accountability and transparency, essential parts of the Civil Service Code3. And to pretend that it’s beyond Civil Service control because the Law Officers hold the privilege is patently absurd.
Updated 12/06/24
- Mrs C A Falla, States of Guernsey, 28/05/2024 [↩]
- https://www.guernseylawofficers.gg/CHttpHandler.ashx?id=122368&p=0 [↩]
- https://www.gov.gg/CHttpHandler.ashx?id=114786&p=0 [↩]