The government, faced with the prospect of losing one or more ministers to the Tower of London* for holding Parliament in contempt over its initial refusal to publish the Attorney General’s legal advice on Brexit, cited the ‘long standing’ constitutional arrangement which holds that such advice is bound by the concept of lawyer/client confidentiality. Ministers on air and elsewhere were talking as if the parliamentary motion calling for publication was an effort to drain all our precious bodily fluids and hand them over to Vladimir Putin lock, stock and barrel. I know, there’s a slight exaggeration there. But it’s all bollocks. Legislation already exists which could force publication as the Daily Telegraph reported:
“The Foreign Secretary said that, in refusing to publish full details of its internal legal advice, the Government was following a long-standing Whitehall convention. But, under the Freedom of Information Act, the [information] commissioner can over-rule a decision to withhold the publication of legal advice if he decides the public interest in disclosure outweighs the public interest in keeping it secret. Following the signing last month of a "memorandum of understanding" between his office and the Lord Chancellor's Department on the conduct of his investigations, [the information commissioner] will see all the papers relating to the issue. If he believes secret papers are being held back from him, the commissioner even has the power to issue his own search warrant to get access to what he wants.”
Well, well – no wonder Tony Blair in hindsight regretted the Freedom of Information Act. The above report dates back to 25th March 2005 and of course related to the then Attorney General, Lord Goldsmith’s advice to ministers on the legality of the Iraq war. The Tories supported the war, so were probably not that fussed at the time to see the legal advice. At least there’s some consistency there.
*More like a bit of a spanking in the Carlton Club followed by a glass of port.