STATES OF JERSEY
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Code of Practice for Scrutiny Panels and the Public Accounts Committee (P.77/2007): comments
Presented to the States on 3rd July 2007
by H.M. Attorney General
STATES GREFFE
COMMENTS
Introduction
1. Following
the practice adopted in relation to P.101/2006, we are presenting a report on
this proposition without being requested by the States to do so because we
think the way in which legal advice is treated is of fundamental importance to
the good administration of the Island. We very much regret that we have not
been able to reach agreement with the Chairmen’s Committee, and we would like
to reaffirm our commitment in principle to assisting Scrutiny Panels as well as
individual members wherever it is reasonably possible for us to do so. Given
that in our view the States Assembly is not the right place to have legal
arguments, we would hope that, given goodwill and understanding, it should be
possible for us to assist in the overwhelming majority of cases. Indeed that
has been our experience so far.
2. We
have noted a hardening of the approach of the Chairmen’s Committee compared
with the approach taken in P.101/2006. We regret that. This hardening of
approach is shown by these substantive changes –
(i) There is no provision requiring a Panel
to afford the Law Officers an opportunity to review the draft Scrutiny Report
in order to ensure the confidentiality of their advice is maintained.
(ii) There is no provision that where an
approach to an external Legal Adviser is made, it will be so made through the
Law Officers’ Department such that the Attorney General is aware of the legal
advice given to the Panel, and can be properly prepared to advise the States
Assembly should that be necessary.
Executive Summary
3. The
proposed protocol in relation to access by Scrutiny Panels to legal advice at
paragraphs 9.25 to 9.29 inclusive would cause serious damage to the
relationship between the Law Officers’ Department and the States Assembly,
Ministers and Scrutiny Panels.
4. Without
carrying out an exhaustive survey, we think that all jurisdictions accept the
need for the executive to have access to confidential legal advice. The public
policy underlying this is to ensure that there is no inhibition on the part of
Ministers or departments both in seeking advice and in giving all the relevant
facts to the lawyer whether they are embarrassing to the Minister or department
or not; and to ensure that there is no inhibition on the part of the lawyer in
giving full and frank advice.
5. The
proposed protocol is likely to drive a wedge between the Minister or the
department and the lawyer, affecting adversely the mutual trust between the two
which is essential to the relationship.
6. The
proposed protocol is likely to affect adversely the nature of the advice which
will probably become more conservative and less positive, and the time which it
takes to deliver it.
7. The
proposed protocol carries a risk, the extent of which we think it is
undesirable to say in a public document, that legal advice privilege might be
lost if there were to be litigation between the Minister and a member of the
public.
8. The
proposed protocol is likely to drag the Law Officers personally into political
disputes or arguments.
9. Furthermore,
at a technical level the protocol does not work even if the principles
underlying it were right, which we think strongly is not the case.
The Chairmen’s Committee Report
10. In the
Chairmen’s Committee Report, all that is said about the code of practice
insofar as legal advice is concerned is this –
“Unfortunately it has
not been possible to introduce the code of practice as early as the Chairmen
would have liked, due to the difficulties arising in reaching a consensus with
the Council of Ministers and the Law Officers’ Department in respect of
Scrutiny’s access to legal advice.
This access to legal
advice covers two distinct areas: First, a Scrutiny Panel’s access to advice
for its own benefit in pursuit of Scrutiny business, and secondly, access to
legal advice that has previously been given to the executive, and upon which
advice a particular policy, direction or decision was taken.
The Chairmen’s Committee
does not consider that any further delay in the establishment of a code of
practice is acceptable, and has decided to lodge its draft code of practice “au
Greffe”, with the inclusion of provisions relating to access to legal advice
that it considers are appropriate …
This Code of Practice
was originally lodged on 15th August 2006, but because of continuing
difficulties in reaching agreement with relevant parties on the legal advice
issue, it was withdrawn. Despite extensive negotiations it has not been
possible to resolve the legal advice issue to the satisfaction of all parties.
The Committee therefore considers it appropriate to bring the matter to the
Assembly for resolution.”.
11. The
only justification for the proposed code of practice in relation to access to
legal advice is that agreement has not been possible and further delay in the
establishment of a code of practice would not be acceptable. By any standards,
this is surprising. One might have expected some justification for the
proposals to be advanced. This is especially so because, as far as we are
aware, the proposal which has been made is inconsistent with worldwide
practice, and because one might have expected some statement of the Committee’s
position by way of response to our comments lodged in relation to P.101/2006.
12. By way
of example of that worldwide practice, on the Law Officers’ website in the United
Kingdom there appeared the following statement, posted in 2004 prior to the
leak of the Attorney’s advice in relation to Iraq –
“There is a longstanding
convention, adhered to by successive governments, that neither the fact that
the Law Officers have been consulted in relation to a particular matter, nor
the substance of any advice they may have given is disclosed outside
government. The purpose of the convention is to enable the government, like
everyone else, to obtain full and frank legal advice in confidence. There is a
strong public interest in the government seeking legal advice so that it acts
in accordance with the law. If there were a risk that Law Officers’ advice
would be made public, this might inhibit the provision of full and frank legal
advice. The rationale for the convention is the same as that which underpins
the doctrine of legal professional privilege, which also applies to Law
Officers’ advice.
Parliamentary debates as
long ago as 1865 refer to a general rule that Law Officers’ advice is not
disclosed. Erskine May mentions a number of cases in which the views of the Law
Officers on a particular matter were disclosed to Parliament. As far as LSLO
[Legal Secretary to the Law Officers] are aware, there are in fact only three examples
in the past one hundred years of the actual advice of the Law Officers being
disclosed publicly. Two of these examples relate to the provision of documents
in judicial proceedings, namely the Factortame litigation and the Scott
Enquiry. In both of these cases, the advice given by the Law Officers was
central to the issues in the proceedings. The third example arose from the
Westland Affair when the Solicitor General’s letter to Michael Heseltine was
disclosed. However, this followed a leak in breach of the convention, gave rise
to serious consideration of prosecutions under the Official Secrets Act and led
to or contributed to the resignation of two Cabinet Ministers.”
13. The
former Attorney General, the Honourable Darrell Williams, AM, QC, in the early
years of the current Australian Government said this –
“I am not going to
speculate about advice that the Government may or may not have received, nor am
I going to provide any of that advice. On many occasions, the previous
Government declined to say whether it had legal advice on an issue and what
that advice was. That is, of course, the traditional response.”
We
are advised that this remains the position in Australia.
14. There
is an implication from the Report that there have been extensive negotiations
since P.101/2006 was withdrawn. For the avoidance of doubt, the only contact
between the Law Officers and the Chairmen’s Committee on this subject has
been –
(i) A meeting between the Attorney General,
the President of the Chairmen’s Committee and Deputy Le Hérissier held on 4th
May 2007, the upshot of which was that the Attorney General was asked to draft
a more user-friendly version than that proposed on the last occasion by the
Council of Ministers, but which, it was understood, would adhere to the same
principles as Ministers had put forward.
(ii) An e-mail dated 17th May 2006, from the
Attorney General to the President attaching such a revised version and offering
to meet either the Chairmen’s Committee or all members of Scrutiny together.
(iii) An e-mail dated 31st May 2006, from the
President to the Attorney General expressing regret that the proposed Code of
Conduct was unacceptable and indicating that the Chairmen’s Committee would
bring forward its own provisions for consideration by the States. The President
offered a meeting on the subject, if we so desired, but given that P.77/2007
was lodged a few days later, such a meeting seemed to us to be without merit.
We
regret there have in reality been no negotiations at all, let alone extensive
negotiations, between the Chairmen’s Committee and ourselves. We particularly
regret that neither the Committee nor Scrutiny members generally were prepared
to meet us before P.77/2007 was lodged.
15. In
Jersey, prior to the move to Ministerial Government, and despite the fact that
there was no clear distinction in the States of Jersey between the executive
and the legislature, the general principle was that legal advice given to
Committees of the States was confidential unless otherwise agreed with the Law
Officers. Although there may from time to time have been mistakes made either
by politicians or by civil servants as a result of which legal advice has been
published, the approach historically adopted in Jersey has been similar to that
adopted by jurisdictions elsewhere. Of course, the Law Officers have regularly
given advice to the States Assembly in addition to advising Committees and
individual members.
16. We
will go on to set out the reasons why the Law Officers’ advice should be kept
confidential, but in doing so we would not want members to be under the
impression that we are advancing a departure from the status quo. The status
quo is firmly that both legal professional privilege and the confidentiality of
the Law Officers’ advice does exist and it is for those who wish to propose a
departure from that arrangement to justify their position rather than the other
way round. To date, we have seen nothing which begins to establish such a case.
It is in those circumstances all the more surprising that the Chairmen’s
Committee does not set out in its report some reasons for the proposals which
it makes other than the reason that the Committee does not wish to encounter
further delay.
What we do
17. Most
departments do not have employed lawyers working within them. It follows that
the Law Officers are not just the principal legal advisers to government, but
in most cases are the only legal advisers providing advice to the civil
servants or the Ministers. It is therefore very important that as administrative
decisions are taken or challenged or as new proposals are worked up and
developed, the Law Officers are actively engaged with the aim of ensuring that
the policies of the administration are achieved, and that there is proper
respect for the rule of law, for human rights obligations and for the Island’s
international obligations. The process of policy formulation involves civil
servants with policy making responsibilities, Ministers with political
responsibilities and the Law Officers. Of course the civil servants tend to be
well-informed about the legal framework which is applicable to their particular
type of business, as well as the policy behind a particular set of proposals.
Of course the Law Draftsman, whose duty it is to reduce to a piece of
legislation the proposals which are made, also has some experience of the
Island’s international obligations as well as of the law generally. But
ultimately it is for the Law Officers to advise on new proposals, preferably at
an early stage so as to avoid otherwise potentially embarrassing results for
the Ministers or for the States as a whole.
18. The
Law Officers do not advise only on policy. Indeed, policy advice forms a
relatively small part of those of our functions which are relevant to this debate.
The majority of our advice is on particular decisions under existing
legislation, decisions which are about to be taken or have been taken.
19. This
type of administrative decision affects one citizen directly or sometimes more
than one. Such decisions can usually be challenged in a court of law, either on
appeal or by way of judicial review. It seems unlikely that, on the whole,
Scrutiny Panels will want to scrutinise individual decisions. But it is
essential that, for the reasons which are set out later, the advice on these
decisions as well as the request for advice is kept confidential.
20. In
giving advice we recognise that there are three principles which we should
apply. The first, and by far the most important, is that our advice should be
independent and impartial. The second is that our approach should if possible
be constructive. The third is that wherever we give unwelcome advice, we must
be prepared to stand firm where that is called for. Similar to the lawyer’s
duty in the private sector, it is our function not to tell the Minister or
civil servant what he wants to hear – rather it is to tell him what he
ought to be told.
21. Sometimes
the best advice which can be given to a Minister or a department may be wholly
unwelcome if not unacceptable to them. Nonetheless, if we think what has been
done, or is proposed to be done, is open to fatal legal objections, we expect
to say so. However, on the assumption that we analyse the position properly and
set out our reasons in sufficient detail, it is our belief that even advice
which the Minister or the department was hoping not to hear will nevertheless
be respected and followed.
The proposed Protocol does not work
22. The
protocol on legal advice is to be found in paragraph 9.25 of the draft
code of practice. Although we go on to consider it in more detail below, the
effect of it is that on every occasion when the Minister or his Department seek
legal advice or the Law Officers give it, both sides must assume that the
request for advice and the advice itself will be the subject of a request by a
Scrutiny Panel to see it. It is rightly said at paragraph 9.27 that legal
advice covers a broad spectrum. The advice may go to new legislation, or to
policy issues, or to particular issues which either are the subject of or which
might subsequently lead to litigation. Advice on policy may equally often be
very relevant indeed to matters which will become, or may become, the subject
of litigation. The proposed Protocol is silent on whether the Executive are expected
to acquiesce to the Scrutiny Panel’s request to see the advice. If adopted, the
Protocol would leave this point in the air, unresolved.
23. At
paragraph 9.26, the code of practice asserts that because both executive and
Scrutiny are both branches of government, they are not to be considered as
separate clients. As a matter of law, we think this is not correct. The whole
concept of the States of Jersey Law 2005 and the move to Ministerial Government
is based on the premise that the States Assembly is no longer to take executive
decisions through its Committees, because, by and large, these will instead be
taken by Ministers independently. That is why the States of Jersey Law provides
that Ministers are corporations sole. They have a separate legal status. As a
matter of law, Ministers are separate bodies from the States Assembly, Scrutiny
Panels and from members.
24. Scrutiny
Panels are not corporations sole. They have no need to be, because they do not
take executive decisions in relation to individual cases. Scrutiny is an
important parliamentary process for holding the executive to account.
Accordingly, one cannot see any probability that a Scrutiny Panel will be the
subject of legal proceedings. On the other hand, one can see every probability
that Ministers may from time to time be the subject of legal proceedings. It
follows that the advice which is given to Ministers, whether in the context of
a particular case or in the context of general policy which may ultimately be
relevant in particular cases, should be kept confidential. If it were any other
way, then in any litigation between a member of the public and the Minister, it
would follow that the Minister’s advice would be known to the member of the
public, but the private sector legal advice would not be known to the Minister.
Given that the Minister’s decisions are, or should be, taken in the public
interest, it is very hard to see why it should be in the public interest to put
the Minister at a disadvantage.
25. At
paragraph 9.29.2, the proposal is that the Panel may ask the executive for a
copy of the legal advice received. We do not think this is likely to be
practical, at least in the majority of cases. This part of the protocol assumes
that there is one document which contains the legal advice – but often
that is not the case. Often advice is given over a protracted period in letters
of advice or at meetings or over the telephone. In the latter two cases, the
civil servant or Minister may have made his own note of the advice which has
been given. What is meant then by the proposal that the executive will provide
a copy of the legal advice received? If it means that the Scrutiny Panel will
receive from the executive the civil servant’s note of the legal advice which
has been given, that would seem to be a course pitted with danger. It would
mean that the Scrutiny Panel would be operating not on the basis of what the
legal position was, but on the basis of what the civil servant believed the
legal position was, which might be a completely different matter. So
identification of what the legal advice actually is or was, is not a
straightforward matter.
26. We
wish to add that the protocol set out at paragraph 9.29 poses some
problems even as it stands, and even if one assumed the underlying objective
was appropriate, which in our view it is not. This is because –
(i) At sub-paragraph 9.29.6, it is proposed
that where a dispute arises, a meeting will take place between the executive,
the Law Officers and the Presidents of the Chairmen’s Committee. It is to be
recognised that the dispute will have arisen because the Scrutiny Panel
considers it ought to have access to legal advice and the executive considers
it ought not. Often the executive’s reasons for not disclosing the legal advice
will be inextricably linked to the advice itself, and it will be impossible to
have any sensible meeting as to why the advice should not be disclosed other
than to say that the nature of the advice means that it should not be
disclosed. It is hard to see how this dispute resolution provision will take
anyone anywhere.
(ii) The protocol suggests that the Scrutiny
Panel will have access to legal advice given to Ministers but must keep it
confidential. This presumably means that the Scrutiny Panel cannot use the
advice in any public way. It does not seem to us that this is in the Panels’
interests, nor in the interest of the public. If the Minister has disregarded
legal advice, what is the purpose of the Scrutiny Panel being handed the
equivalent of a politically loaded gun and not being able to use it?
The reasons for the Rule
27. Whether
in the public or private sector, legal advice is treated confidentially. It is
qualitatively different from other sorts of advice. This is primarily because a
third party – the Court – sits to consider the case of the party to
whom the legal advice is given. As far as we are aware, everywhere in the
civilised world, private and public sector clients have an entitlement to legal
professional privilege, and lawyers advise them in the knowledge that this is
so. That legal professional privilege is an entitlement because it is necessary
for the protection of the client. There are two primary reasons for this. They
are –
(i) To ensure that there is no inhibition
on the part of the client in seeking legal advice, and no inhibition in
ensuring that all relevant facts, whether they tell against him or not, are
given to the lawyer to ensure that a balanced view can be taken.
(ii) To ensure that there is no inhibition on
the part of the lawyer in giving full and frank advice on all the matters which
are raised with the lawyer for advice, or which the lawyer considers should
reasonably be volunteered to the client for his consideration when he takes his
next step.
28. These
principles are fundamentally important both to the client and to the lawyer. It
is essential that Ministers and/or Departments do take legal advice, and that
when they take it, they provide all the relevant facts, whether those facts
tell against them or not. Anything which inhibits Ministers or Departments from
taking legal advice or from giving the full facts to the lawyers at the time
they do so, would be very bad for the integrity of the administration.
29. It is
also essential that the lawyers are not inhibited in giving advice. We both
accept that there may be occasions when our advice is disregarded. The
Committee or Minister may take a view, as paragraph 9.27 of the protocol
suggests, that the Law Officers’ advice is only an expression of opinion, and
might or might not be right. If a Minister or Committee takes that view, then
the Minister or Committee accepts the risks which go with that decision.
The consequences of the proposed change
30. If the
draft Code were accepted, one has to contemplate what the result, in political
terms, would be if a Minister decides not to act in accordance with the legal
advice received. That legal advice has been shared with the Scrutiny Panel,
which might naturally wish to scrutinise the Minister upon it. Is the Minister
to trust to luck that the Scrutiny Panel will overlook this particular piece of
advice, and if luck goes against him and it is scrutinised, is it to be assumed
that he will concede he was wrong not to act consistently with that advice?
That seems unlikely. Far more likely is that the Minister would assert to the
Scrutiny Panel that he or she thought the advice received from the Law Officers
or from lawyers within the Department was bad advice, or was wrong, or was
unrealistic. In other words, the tendency would be for the Minister to justify
the decision taken, belittling the legal advice received. What is then the
position of the Law Officer or the lawyer in the Department? Is it to be
expected that the lawyer will say to the Scrutiny Panel that may be the advice
given was not correct? That seems unlikely. He is likely to justify it. The
proposal which has been put forward by the Chairmen’s Committee in effect will
therefore drive a wedge between the Minister and the lawyer who advises him or
her, and over a period of time, relationships between the Minister and the
lawyer stand the risk of becoming ever more fractured. This presumably would
only not arise if the Minister always followed to the letter the advice given
by the Law Officers’ Department, whether strictly legal advice or not. Such a
possibility is neither reasonable nor desirable. It is the Minister who is
accountable for the decisions taken.
31. We
think that there are other, and even more damaging, consequences of the
proposal that legal advice given to Ministers should be shared with Scrutiny
Panels. First of all, it is likely that the advice given to Ministers will be
more conservative and less positive. It is not that we, or the lawyers in our
Department, have at the moment carte blanche to give risky advice. It is simply
a reflection that at present, the lawyer and the client are broadly speaking on
the same side. This is so whether we advise Ministers or Scrutiny Panels. But
where the legal advice is going to be made available to someone who may be a political
opponent, whether that be the Minister or the Scrutiny Panel, it seems to us to
be inevitable that the advice will contain more doubts and more reservations
and will focus much more on all the potential drawbacks in relation to the
course which the Minister or Department may have sought advice about. There is
a real risk therefore that the written advice will become less positive and
will take even longer to produce.
32. There
is certainly a substantial risk that if something became the subject of litigation
between a Minister and a member of the public, the privilege over legal advice
could not be claimed in the proceedings because the Minister has disclosed the
information voluntarily to a third party, namely the Scrutiny Panel. Arguments
could be run both ways on that point, and it is unclear to us why this risk
should be taken.
33. It is
very likely that the advice to Ministers will no longer include what we might
call strategic or tactical advice on the next steps forward. Some members may
think that this is not part of a lawyer’s advice anyway. For our part, we
strongly disagree with that. Lawyers in both the public and the private sectors
have long since tried to give added value to clients by expressing a lawyer’s
view on the next steps forward or a lawyer’s analysis of the problems which
have to be tackled. It is part of his professional function. We doubt very much
whether it would be desirable or indeed always possible to redact advice so
that one could take out the strategic or tactical advice from the legal advice
which had been given. The likely result would be that strategic or tactical
advice would not be offered at all, and we have no doubt that the quality of
the Ministerial decision would be worse as a result. We say that not because the
lawyer’s advice is always followed, but because it is a contribution in the
overall process through which the Minister goes to reach a decision.
34. It is
likely also that the mechanism for giving advice would change. We anticipate
there is a risk that there would be a conservative advice note, and at least
the possibility that more positive advice might be given orally. We do not
think this particularly helps Scrutiny Panels, especially so if they were in
danger of thinking they had received all the advice when they had not. We do
not think that it assists the executive because there would be an added risk of
misunderstanding as to what advice had actually been given, and no way of
identifying later what that advice was, with the probability then of a subsequent
mutual loss of confidence between the executive and the Law Officers’
Department; and finally, the result would not be helpful for us, because it
would create the risk of quality control problems within our Department. We
cannot possibly give all advice personally and an important quality control
mechanism is the review of outgoing correspondence containing written advice.
35. Perhaps
worst of all from our perspective is the increased likelihood that the Law
Officers would be dragged into political disputes or arguments. It is wrong
that the Law Officers should be drawn into any public support for or criticism
of the executive. If Scrutiny Panels were to see the Law Officers’ advice, the
risk of our being dragged into political debates would be very high. Indeed we
think it would be inevitable.
Conclusion
36. We are
very sorry that the Chairmen’s Committee has decided to promote this protocol
regarding access to legal advice which, as that Committee is aware, the Law
Officers have advised against strongly and which the majority of the Council of
Ministers is thought to regard as unacceptable. The fact of so doing means that
we have already been driven into taking up a position which is more critical of
the Chairmen’s Committee than we would have liked. In our view, however
difficult it is on occasions, we think that generally speaking the Law Officers
ought to be able to advise Scrutiny Panels as well as Ministers, and in doing
so the advice given would be confidential to the Panel or Minister requesting
it. With a little goodwill and common sense, we believe this to be manageable.
Of course one can anticipate that from time to time there will be difficulties,
perhaps because the matter is of such sensitivity that for any number of
possible reasons we will be obliged to indicate to the Scrutiny Panel that it
would be embarrassing for us to continue to advise, or to advise at all. On
those occasions the Scrutiny Panels would be required to get advice from
outside the Law Officers’ Department. While that has occurred on one occasion
so far, we think that, with goodwill, these occasions will be few and far
between.
37. We
fully recognise that Scrutiny Panels may from time to time need to have legal
advice in order to evaluate what the Minister has done. What is critical,
however, is that the Panel does not need to see the advice which was given to
the Minister to scrutinise his decision taking process. That confuses the
scrutiny of decisions, which is an important public objective, with the process
of taking decisions, which is private. A Minister may reach a brilliant
decision on good or bad or no advice, and for any number of reasons which are
very good or very poor. Alternatively, he may reach a very poor decision on the
basis of misreading some very good advice, or perhaps on the basis of some very
bad advice. In each case the critical thing is the decision which the Minister
makes. Where we think we can usually help is to give legal advice which will
enable the Scrutiny Panel to understand the parameters within which the
Ministerial decision has been taken or policy adopted.
38. An
approach which means that Scrutiny Panels will assess the quality of all legal
advice put to the Minister all the time could not be adopted without affecting
the trust which must exist between the Minister and the lawyer and the nature
of the legal advice and the pace with and extent to which the legal advice is
provided. In any event, Panels are not equipped to assess the quality of legal
advice. Nor would it be easy for us to find lawyers prepared to work in such a
system whereby judgment calls continually have to be defended against those who
question them for political reasons rather than from any informed legal basis.
It is the decision or the policy which is to be scrutinised.
39. There
is in our view no justification for departing from the general rule that the
Law Officers’ advice is to be treated confidentially. Accordingly Scrutiny
Panels should not see the legal advice given to the executive. We are firmly
opposed to the proposal that Scrutiny and the executive will each have access
to legal advice given to the other, and we consider that such a proposal will,
if implemented, be bad for Ministers, bad for Scrutiny Panels and bad for the
Law Officers. As a result, implementation would be bad for the States and bad
for the Island.
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July 2007 |
H.M. Attorney General |
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H.M. Solicitor General |