AG denies ATI request, leaves Speaker to release opinion

House Speaker Juliet Holness is facing the heat over her failure to make public Attorney General (AG) Derrick McKoy’s opinion on the tabling of reports after his office washed its hands of the now contentious matter, disclosing that it cannot lawfully release the document.

The AG’s Chambers last week denied an Access to Information request made by The Gleaner, stating that the document is exempt from disclosure.

“We have identified an official document that relate to your request made under the act, but it is exempt from disclosure under Section 17(a),” Solicitor General Marlene Aldred said in response to the request.

That section outlines that an official document is exempt from disclosure if “it would be privileged from production in legal proceedings on the ground of legal professional privilege … ”.

“We are therefore unable to grant access to the official document as the privilege is not ours to waive,” Aldred said.

Jamaican Bar Association President Kevin Powell said in the usual course, where a client seeks and receives legal advice from his or her attorney, the advice is protected from disclosure because of legal professional privilege.

In this instance, he said the attorney general considers the Speaker of the House his client and his advice to the Speaker would be similarly protected.

On the other hand, Powell said the client in this case, the Speaker, can waive the privilege, but unless that it is done, the solicitor general’s stance appears to be correct.

“However, given the significant public interest in this matter, I think it is important to highlight that the Speaker can waive the privilege and disclose the advice,” he said.

But Jamaicans for Justice (JFJ) Executive Director Mickel Jackson has argued that the matter ought to be ventilated in court.

Jackson said that the human rights lobby is concerned whether legal privilege can properly be said to apply in this specific matter.

“We ask, ‘who is the client that the attorney general serves?’ and ‘to whom this privilege belongs?’”

DUTY TO PUBLIC

Jackson said the AG’s Chambers fulfils several constitutional roles, including being the arbiter of the public interest.

Equally, she said the AG is the chief legal adviser to the Government and, specifically, to Cabinet.

Jackson said the AG is, therefore, a public servant with a duty to the public.

She said that while there may be an inherent tension between the roles of legal adviser to Cabinet and the public, this tension does not extend to the current situation as the AG has no legal obligation to the Speaker.

The JFJ director said there are two key elements in deciding whether legal privilege applies.

She said it must be considered whether the Speaker is a client of the AG and can benefit from privilege.

Pointing to a similar matter in the Turks and Caicos Islands where the issue of privilege arose, Jackson said the courts ruled that the Cabinet may benefit from privilege as a collective but not an individual member.

“The House Speaker is no Cabinet member, so neither is applicable here,” she told The Gleaner.

NATURE OF ADVICE

Jackson said the second element is the nature of the advice – whether the Speaker sought legal advice which would be given in confidence or whether that advice was sought on behalf of the House of Representatives of which she is a member.

Jackson said the test is whether the AG’s opinion was made confidentially for the purposes of legal advice or whether the opinion is merely sharing the AG’s opinion on the law and what can prudently be done.

Further, “If we accept that this opinion ought to have been sought on the House’s behalf, privilege is therefore not the House Speaker’s to assert,” she said.

“JFJ is of the view that the attorney general’s ultimate client is not the Government, by way of the Cabinet, but the public. The attorney general should therefore have the power and an obligation, if necessary, to publish his legal views on important matters, while maintaining the confidentiality of discussions with the Cabinet.

“We maintain that withholding the AG’s opinion is ill-advised as the public interest is not served by secrecy, but by transparency, said Jackson.

She urged the parliamentary opposition to challenge the withholding of the opinion in court and that Jamaicans not view the issue as a political but rather “a critical moment in deciding what type of democracy we want for Jamaica”.

The Opposition said it has not yet decided on whether to take the matter to court.

Noted constitutional lawyer Dr Lloyd Barnett said the normal principle is that communication between attorney and client is governed by professional privilege and cannot be disclosed to a third party without the consent of the client.

However, he said the matter is an “extraordinary” one in which the client is not only a public body but is, in effect, the people’s Parliament.

He said the opinion provided to the Speaker is one which concerns the conduct of the Parliament.

“It is very unusual for opinions on a matter relating to the constitutional arrangements of the people’s Parliament to be kept away from people they all represent and are supposed to serve,” he said.

Barnett said globally, there are occasions in which countries’ AGs give opinions on general matters relating to the application of the laws or any constitutional principle and said opinions are made public.

Further, he said the assumption of Holness to withhold reports even from Parliament is “highly questionable”.

“The Speaker is a presiding officer and neither the Constitution nor the standing orders permit the Speaker to withhold matters to Parliament, whether it’s to the Speaker or to the Clerk,” he said, adding that there has to be legal grounds which specifically authorise this.

“There is no individual discretionary powers given in constitutional law to a Speaker to withhold documents or information from Parliament,” Barnett added.

Holness has maintained a tight grip on the AG’s opinion, but has asserted that “there is nothing to hide”.

However, she has released the opinion of Parliament’s legal counsel on the matter which supports her current position.

kimone.francis@gleanerjm.com