AG: Iraq

FROM: Attorney General’s Chambers via email
25 January 2005

Ms Brooke
I refer to your request received on 5th January 2005 under the Freedom of Information Act 2000 (“the Act”) and the Environmental Information Regulations 2004 for “the final advice given by the Attorney General to the Government on the legality of invading Iraq along with copies of earlier versions of such advice … and all emails and any other inter-departmental correspondence relating to the rationale behind changes made to this advice”.

This office holds no information within the scope of your request to which the Environmental Information Regulations 2004 apply.

Your request under the Act has been considered and we have concluded, for reasons set out more fully in the Annex, that there is no obligation under the Act to disclose this information. Accordingly your request for disclosure is refused.
This letter, together with the Annex, constitutes the notice required to be given under section 17(1), (3) and (7) of the Act.

Section 42(1) of the Act provides that information is exempt if it could be the subject of a claim to legal professional privilege. This exemption applies to the Attorney General’s advice. It reflects a strong public interest in protecting the confidentiality of communications between lawyers and their clients. This confidentiality promotes respect for the rule of law by encouraging clients to seek legal advice and allowing for full and frank exchanges between clients and their lawyers. It is particularly important for the Government to seek legal advice in relation to sensitive and difficult decisions, and for any advice given to be fully informed and fully reasoned. Without confidentiality, clients might fear that anything they say to their lawyers, however sensitive or potentially damaging, could be revealed later. They might be deterred from seeking legal advice at all, or from disclosing all relevant material to their lawyers. Or the advice given may not be as full and frank as it ought to be.

As Stephen Irwin QC, the Chairman of the Bar Council said in a statement on 1 March 2004: “Were this advice to be published, it would leave future Governments of whatever hue in difficulty when it comes to obtaining confidential legal advice on major matters of public or international law. That would be clearly against the public interest. It means the Government might not ask for advice when they should, or might not reveal all the facts when they do.”
As explained in the Annex, other exemptions in the Act also apply to the information you have requested.

It is accepted that there is a public interest in understanding the legal justification for the Government’s decision to participate in the military action against Iraq in March 2003. But the Government’s view of the legal position is already well known. On 17 March 2003, the Foreign Secretary submitted a memorandum to the Foreign Affairs Committee which explained the legal background. The legality of the Iraq conflict has also been debated in Parliament on a number of occasions when Ministers have given reasoned explanations of the Government’s position. The Government has therefore fully explained the legal basis on which it decided to take military action. In addition, in view of the high public interest in the issue, the Attorney General exceptionally gave a written answer in Parliament on 17 March 2003 setting out his view of the legal basis for the use of force. Both the FCO memorandum and the Attorney General’s written answer are publicly available.

We therefore consider that in all the circumstances of the case the public interest in maintaining each exemption clearly outweighs the public interest in disclosing the advice.

If you are unhappy with the decision made in relation to your request to us, you may ask for an internal review. If you wish to complain, you should contact Jonathan Jones, Legal Secretary, at the address given on my covering e-mail message.

If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

If you have any further queries about this matter, please contact me.
Yours sincerely

CHRISTOPHER SIMSON
Freedom of Information Officer

Annex
This note sets out in more detail the reasons why the Legal Secretariat to the Law Officers considers that the Attorney General’s advice on the legality of the military action taken in Iraq in March 2003 and the related information you have requested is exempt from disclosure under the Freedom of Information Act and why, in all the circumstances of the case, the public interest in maintaining each applicable exemption clearly outweighs the public interest in disclosing this information.

Section 42(1) The advice is legal advice to the Prime Minister and government in respect of which a claim to legal professional privilege could be maintained in legal proceedings. There has been no waiver of that privilege.

In the case of section 42, there is a strong public interest in a person seeking access to legal advice being able to communicate freely with his legal advisers in confidence, and in being able to receive advice from his legal advisers in confidence. The House of Lords has said that legal professional privilege is “a fundamental condition on which the administration of justice as a whole rests”: R v Derby Magistrates’ Court ex p B [1996] AC 487. The importance of the public interest in maintaining the confidentiality of communications between lawyers and their clients has been recently reaffirmed by the House of Lords in Three Rivers DC v Bank of England (No. 6) [2004] UKHL 48. It is based on the following considerations:
(a) The underlying rationale for having a strong rule against disclosure is that it both encourages clients to seek legal advice in order properly to arrange their affairs and promotes full and frank exchanges between clients and their legal advisers, which is judicially recognised as being something strongly in the public interest, for a variety of reasons: see for example Lord Rodger’s comments in Three Rivers (No. 6) especially at paragraph [54]: “If the advice given by lawyers is to be sound, their clients must make them aware of all the relevant circumstances of the problem. Clients will be reluctant to do so, however, unless they can be sure that what they say about any potentially damaging or embarrassing circumstances will not be revealed later.” See also paragraphs [29] and [34] (Lord Scott), [61]-[62] (Lady Hale), [106] and [112] (Lord Carswell) and [120] (Lord Brown).

(b) These reasons apply with particular force in relation to legal advice concerning sensitive and difficult governmental decisions, because (i) it is strongly in the public interest that governmental action should respect the rule of law, which makes it imperative both that the government should seek legal advice in relation to difficult policy decisions and that clear, fully informed and fully reasoned and balanced legal advice should be available to the decision-makers with responsibility for such decisions; (ii) if either the instructions given by or the advice provided to government were liable to be put in the public domain, the great pressures of political debate and criticism are such that the instructions and advice might not be as full and frank as they should be if they had to take into account the impact they would have in the public debate in which they would feature. This would directly undermine the point at (i) above.

(c) Furthermore, the public interest in allowing government to have a clear space, immune from exposure to public view, in which it can debate matters internally with candour and free from the pressures of public political debate, is given recognition in the Act itself (see section 35), and has also been judicially recognised: see eg Conway v Rimmer [1968] AC 910, 952 (Lord Reid); Burmah Oil Co Ltd v Bank of England [1980] AC 1090, 1112 (Lord Wilberforce), 1121 (Lord Salmon), 1126-1127 (Lord Edmund-Davies), and 1143-1145 (Lord Scarman).
(d) It is also an important factor, which underlies the general rationale for legal professional privilege and its particular application in the case of governmental decisions, that the rule against disclosure should be known to operate with reasonable certainty in advance, since if its application were uncertain and too readily displaced, that would undermine the very public interest in encouraging full and frank exchanges between government and its legal advisers which the rule is supposed to promote. This is a common feature of rules which are designed to promote free exchange of information: see eg Prebble v Television New Zealand Ltd [1995] 1 AC 321, 334A-D and A v UK (2003) 36 EHRR 51 (protection for free speech in Parliament, through clear rules of parliamentary privilege); R v Mirza [2004] 1 AC 1118 (protection of free debate in the jury room); Goodwin v UK (1996) 22 EHRR 123 (protection of journalists’ sources); R v Derby Magistrates, ex p. B [1996] 1 AC 487, 508E (strict rule of legal professional privilege, to protect exchanges between clients and lawyers); R v Chief Constable of the West Midlands Police, ex p. Wiley [1995] 1 AC 274, 297D-E; and AG v Blake [2001] 1 AC 268, 287D-F (strict rule of non-disclosure to encourage informants to provide information).

(e) All the reasons for favouring non-disclosure of information referred to above apply with especial force in the context of a decision of such gravity, sensitivity and difficulty in policy terms, legal complexity and diplomatic sensitivity as that concerning the decision to take military action in relation to Iraq in 2003; and in the context of advice given personally by the Attorney General at the highest levels of Government.

(f) The particular importance of maintaining the confidentiality of advice given by the Law Officers is reflected in the long-standing convention, observed by successive Governments, that neither the advice of Law Officers, nor the fact that their advice has been sought, is disclosed outside government. This convention is recognised in paragraph 24 of the Ministerial Code and in section 35(1)(c) of the Act (see below).

The same considerations apply equally to your request for each of the “copies of earlier versions of such advice … and all emails and any other inter-departmental correspondence relating to the rationale behind changes made to this advice”.
Section 35(1)(a) The advice relates to the formulation or development of government policy, namely in relation to the measures to be taken in respect of Iraq and its non-compliance with Security Council resolutions.

Section 35(1)(b) The advice relates to Ministerial communications in that it relates to a communication between the Attorney General and the Prime Minister.
Section 35(1)(c) The advice relates to the provision of advice by one of the Law Officers (the Attorney General) to the Prime Minister.

The same factors as mentioned above in the context of section 42 are relevant in the case of each of the exemptions under sections 35(1)(a), (b) and (c).
In these circumstances, and having regard to the factors set out above, the Legal Secretariat to the Law Officers has concluded that the public interest in maintaining the exemptions clearly outweighs the public interest in disclosure of the advice, and we therefore consider that section 2(2)(b) of the Act applies.

The Legal Secretariat also relies on the exemptions in sections 27(1) and (2) (international relations), 41(1) (information provided in confidence) and further on section 35(1)(c). No further information is provided in relation to these exemptions, in reliance on section 17(4) of the Act.

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