Professional privilege is a human right, not a state right – the government must release its Brexit legal advice

Theresa May frequently asserts that she is only motivated by the national interest in decisions on Brexit. But how does attempting to block the public from legal advice on the withdrawal deal square with that?

The debate about whether the government should disclose its legal advice on the Brexit withdrawal agreement has been cast as an argument between politics and law. The government has invoked the right available to all clients – known as legal professional privilege – to keep the legal advice it has received confidential. Although it’s technically true that it can claim privilege over its advice, whether the government should have this right is open to debate, even as a matter of law. The case of the state’s Brexit advice illustrates perfectly why many lawyers question the scope of privilege for governments.

Legal professional privilege is a human right. It allows citizens to get legal advice explaining what legal obligations the state has imposed on them, and the rights they have against the state and their fellow citizens.

The government, however, is no ordinary client.

In a recent talk on legal professional privilege at UCL, Lord Neuberger, the former president of the Supreme Court, questioned the soundness of allowing the state to claim privilege against the people.

The spectre of the government denying British citizens access to its advice on the rights and obligations that will legally bind Britain if the withdrawal agreement is ratified is another Alice in Wonderland moment in a debate that has had no shortage of Lewis Carroll references.

If the government does want to resort to technical legal doctrine to support its argument, it would also be well aware that it has the right to waive privilege, and is free to disclose its advice for whatever reason. So what’s stopping it from doing so? Sir Keir Starmer has said that the government’s legal advice should be disclosed in exceptional circumstances, which is clearly the case here (as it was when the country went to war in Iraq).

But there is a deeper reason to think that waiving privilege would not cause any harm to good government. This is an area where the law has extended well beyond the principle that supports it. The logic of privilege as it applies to citizens is that without a guarantee of absolute confidentiality, they might be reluctant to seek advice, or be less than candid in what they tell their lawyer. Now apply that logic to the Brexit withdrawal agreement. Does anyone seriously believe the government would not seek advice about the legal effect of the agreement if they thought the advice might be later disclosed?

Theresa May frequently asserts that she is motivated only by the national interest in decisions on Brexit. Even her fiercest critics, from committed Remainers to hardline Brexiteers, acknowledge her sense of duty to the public interest.

But the public interest now requires that the government take legal advice about such a momentous legal decision, and it is the lawyer’s legal duty (whether it be the attorney general or any other lawyer) to provide the state with frank and fearless advice.

In this context, there is simply no risk of the same “chilling effect” that might affect an individual when they are deciding whether to get advice. And even if there were a possible chilling effect, the fact that governments do change (this one could change quite soon) means that a privilege does not avoid the problem. Subsequent governments, or subsequent leaders of the same government, are always free to waive privilege in the advice if this one won’t. Put simply, no one in government ever has a complete assurance of confidentiality in the legal advice they obtain on behalf of government.

None of this is to deny that there is an important role for confidentiality in the effective working of the state. The limits of that principle should be, and are, set out in freedom of information laws. Nor does anyone doubt the need for a privilege for all persons involved in litigation, including governments. But for the government to claim there is an important principle at stake in asserting privilege against the country is untenable. This is all the more so where the country’s elected representatives have passed a parliamentary motion demanding disclosure of that advice.

Andrew Higgins is an associate professor of civil procedure at the University of Oxford, and a fellow of Mansfield College. He is an author of a book on legal professional privilege