Introduction

LEGAL PROFESSIONAL PRIVILEGE AND THE LAW OFFICERS’ CONVENTION

73.  A further category of sensitive document which the Inquiry has considered relates

to legal advice provided to the Government.

74.  The Government is entitled to obtain legal advice in confidence, and to be certain

that the advice it receives will remain confidential unless the right to confidentiality is

expressly waived. This is in accordance with a long-established principle known as

Legal Professional Privilege (LPP).

75.  In addition, there is a long-standing convention, adhered to by successive

governments and reflected in the Ministerial Code, that neither the fact that the

Law Officers have been consulted in relation to a particular matter, nor the substance

of the advice they have given, is disclosed outside government without their authority.

76.  On 12 January 2004, in response to a question asked by Lord Alexander,

Baroness Amos told the House of Lords that she was:

“… aware of only two cases in which Law Officers’ advice was disclosed. In both

cases, disclosure was made for the purposes of judicial proceedings. In 1993,

Law Officers’ advice relevant to the subject matter of the Arms to Iraq Inquiry was

disclosed to the Scott Inquiry. The advice was published in an annex to the Inquiry

report. Law Officers’ advice on the 1988 Merchant Shipping Act was disclosed to the

other parties in the course of the Factortame litigation in which Spanish fishermen

were seeking damages from the Government for a breach of Community Law.

“I am aware of three other cases in which the views of the Law Officers on a

particular matter were disclosed, but not the actual advice. In February 1971, the

substance of the Law Officers’ advice relating to the UK’s obligations to supply arms

to South Africa under the Simonstown Agreement was published in a command

paper (Cmnd 4589). In February 1993, the views of the Law Officers’ advice were

disclosed in the debate in the other House on the Maastricht Treaty. In March this

year the Attorney General set out in a Written Answer a summary of his view of

the legal basis for the use of force against Iraq.”15

77.  In his Review of Intelligence on Weapons of Mass Destruction Lord Butler reported

that his Committee had read Lord Goldsmith’s advice of 7 March 2003 and referred very

briefly to its contents.16 His report did not, however, disclose details of the advice.17 In the

spring of 2005, Lord Goldsmith’s advice was leaked and, following a number of Freedom

of Information Act requests, the Government disclosed the full advice on 28 April 2005.

15  House of Lords, Official Report, 12 January 2004, columns WA63-64.

16  Review of Intelligence on Weapons of Mass Destruction [“The Butler Report”], 14 July 2004, HC 898,

page 94. 

17  Lord Butler identified one other occasion when Law Officers’ advice had been disclosed: during the

“Westland Affair”, which resulted in the resignation of two Cabinet Ministers, a letter from the Solicitor

General to the Defence Secretary, which had already been leaked in part, was published.

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