Thursday, 8 April 2010


I see that Sir William Gage, chairing the Baha Mousa Public Inquiry has refused to order disclosure of the AG's opinion on whether or not the ECHR applied to British soldiers in Iraq.  It has been held to be privileged.  The soldiers and officers under suspicion and represented before the Inquiry particularly wanted disclosure to show what legal advice they were applying or trying to apply in Iraq.  The MOD opposed and won.  Sir William has left himself the tricky job of trying to work out what to do when those witnesses wish to defend themselves from criticism by saying they were following the AG's advice but they cannot make reference to it.  

I am often troubled by the absolute application of legal advice privilege to the AG's advice to HMG.  I can see the litigation privilege should always apply but less sure that legal advice privilege should be rigidly applied.  I think that it is time that the legal advice privilege claimed by the AG is brought into line with the test applied under section 42 Freedom of Information Act 2000 under which legally privileged material is exempt from disclosure but by section 2(2) only if  "in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information".  It seems to me that that is exactly the same test which should apply to considering whether legal advice privilege should apply to the AG's advice and which should have been applied by Sir William.  After all if the soldiers applied to the Information Commissioner for disclosure he would apply the public interest test - whereas Sir William could not in making his determination.  That seems a bit odd.  For a good example of the public interest test at work in the Iraq context see this decision of the Information Tribunal.

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