I agree Alan. And I would add three other observations: first, the record keeping function should extent all the way down the bureaucratic chain of command. Second, there should be a presumption of public access. In other words where claims of confidentiality are made the onus should be on the public official to justify any refusal to make a record public or to redact (and what a lovely term that is) certain portions of the record. Finally, public servants should understand that only in the most exception circumstances will they be granted confidentiality or anonymity. And that should extend from the Prime Minister to the lowliest clerk. Even such long standing notions as solicitor client confidentiality should be taken with a grain or two of salt when it is the government which is the client. (And this is particularily true where a matter has been determined.)

I agree with you that a record needs to be kept for finding out 'truth' and historians in the future. However, the more access we have to these records, the less records politicians will want to keep.

I remember reading about Tony Blair and how emails and other sources came to bite him in the butt on a controversy I don't recall. Afterwards, he and his top advisers started to gather in same room when difficult decisions were being made and they would talk. No records were kept because the important meetings were done orally and a transcriber was not present.

But jwt that is, practically speaking, how any number of important decisions are actually made. However, the discussion leading to them and their implementation will throw off records.

To cite a recent example: the CHRC was recently required to produce certain documents it did not want to produce before the CHRT. It produced the documents so redacted as to render them largely useless. There was a decision made to redact them. It was probably made over the phone or in a small room with only a couple of people present. But the work itself was done by someone. There was certainly a reaction to the decision compelling production and there was almost certainly a legal opinion rendered.

In my view, as this was the public's business, none of this material, including the legal opinion, should be taken as confidential. All should be available, and, indeed, should be filed as part of the record. Now, of course, the respondent is going to have to go through the hoops to get the documents unredacted and the process will likely be stonewalled with a series of excuses ranging from privacy concerns to solicitor client privilege none of which, in my view, should be available, save very exceptionally, to public officials conducting public business.

You are falling into that bloggy trap, Jay: having an opinion with no connection to reality. You need to set out a theory of throwing away legal privilege that makes the slightest bit of sense. If you could create that opinion it could be considered but you have built that part of your argument on a house of sand. The rest is perfectly sensible and largely the case now with freedom of information legislation and capable legla counsel during a disclosure process.

Well, in bloggy land you get to draw the long bow.

But I would love a group project on the argument that solicitor client priviledge should extend, <i>prima facie</i> to advice given public officials in the conduct of the public's business. Why should the public not have the benefit of reading the opinions of lawyers acting on their behalf? Or, perhaps, those lawyers, while paid by the public, are not in fact acting in its interest.

Oh the fun we will have!

(And as for connection to reality: proposing an alternative to a traditional view is not disconnected from reality; rather it is to ask "Why not?" After all, there is, in reality, some disjunction between the private and the public interest is there not. The logic of solicitor client privilege is grounded in the notion that there is a private interest in objective, confidential, legal advice. Is the same true of the public's interest? Or, to get to cases, where is the harm in making the advice of a government lawyer public? Remembering that the government's interest is in the law being upheld and justice being done for all.

Or, more specifically, would a government lawyer write a different opinion if he or she knew it would be open to public scrutiny, say, one year after a matter has been finally resolved? (I acknowledge the tactical consideration of, as it were, handing your legal theory to the other side in the midst of litigation or a hearing.) And if there were to be a different opinion would it be better or worse than the opinion written behind the veil of a rather bogus solicitor client privilege with a client which is all of us. (And, parenthetically, it is best to deal with the question conceptually rather than hiding behind the assorted legal fictions which purport to differentiate the government from the governed.)

This round goes to Jay....

Nope.

"The logic of solicitor client privilege is grounded in the notion that there is a private interest in objective, confidential, legal advice."

Wrong. There is a public interest in everyone having the right to confidential advice about their interests. It is at the heart of our freedoms and the system of justice which keeps us strong and wealth ridden. a cursory look at the caselaw will confirm this...but that would be relying on authority - a bloggy no no.

"...rather than hiding behind the assorted legal fictions which purport to differentiate the government from the governed."

Quite the opposite. It is because they are the same that the same rule applies. A red herring of a parting shot. Hans, I expect more of you.

Just to elaborate, we have a constitutional sphere of autonomy as individuals. This is related to privilege as it reflects the limits of the state and the dignified nature of being human. WIthin that sphere we are free to make decisions. That, however, is not a solitary act as you are also free to get help in making decisions. People in isolation do not make decisions well or ever live healthily. If one read a biography of Ayn Rand rather than her output you would appreaciate this.

So we have one class of people who can enter into the secrecy to assist and assure that decision making is going to a certain standard - these are the lawyers. Law, after all, is merely the lexicon of human relations. Seeking to breach the privilege is seeking to destroy human dignity, the fundamental principle upon which freedom is built.

Unlike conspiracy theorists, most recognize the machinery of the state is also populated by people who also need the assistance of counsel in making decisions. Jackles might like to nip at the heels of those making decisions during the process - but of course to no end.

And one more thing. You will likely say that the state is not a real person. Neither are trusts, corporations or condominums. Undermine one you undermine all. Context is everything.

""...rather than hiding behind the assorted legal fictions which purport to differentiate the government from the governed."

Quite the opposite. It is because they are the same that the same rule applies. A red herring of a parting shot. Hans, I expect more of you."

I should have read more closely. It is the opposite of the quote from Jay but the opposite proves his point. The legal fictions he complains of is that, in a legal proceeding, government (or an arm thereof) is the same as an individual. That is what you assert in your last paragraph. Whether or not this is true at law I don't know but, if true at law, is still only a legal fiction. It is not necesarily valid if you have an ideology or system that says the State (or government) is merely a social construct or a tool for delivery of certain services and not one of a number of classes of people like individuals or corporations.

I think it is completely reasonable to say that such a thing as solicitor client privelege applies to individual clients because their interests are a private matter but it does not apply to arms of government precisely because such interest is not a private matter it is necessarily a public matter because government is nothing but a tool of the citizens.

The state is populated by people who can obtain advice but when they are doing so in the operation of their official state work, their human dignity, privacy or freedom is not in jeopardy.

I don't think it is a stretch to say that the state is not entitled to the concept of human dignity.

Of course, my main concern right now is that this comment is not helping me meet Al's expectations. ;)

I have a feeling there is some more upbraiding in store for me....

We are in trouble if we start thinking that the state, font of law, is a legal fiction. We may debate what the state is - but there is no doubt that in fact, it is. It is also populated by people and nothing else. Those people make decisions.

The state is not a legal fiction, the idea that the state or an arm of government is of the same class of entities as an individual citizen is a legal fiction, at best.

I have done too many sentencing hearings to believe that.

"We are in trouble if we start thinking that the state, font of law, is a legal fiction. We may debate what the state is - but there is no doubt that in fact, it is. It is also populated by people and nothing else. Those people make decisions."

Alan, I am not for a moment suggesting that the state per se is a legal fiction; but the various entities of the state, from the Privy Council on down are creatures of statute and, as such, accorded the status of "client" as a matter of legal fiction. These are, in fact, people and people operating on our behalf.

My modest proposal is that as these people are making decisions on our behalf, the "record", including the legal advice which they have received, should be a matter of public record. Perhaps with an appropriate lag, but public none the less.

I suspect that the quality of the legal advice would change rather for the better if the lawyer was writing for the record.

"...I suspect that the quality of the legal advice would change rather for the better if the lawyer was writing for the record..."

You must never have practiced under the impression that the law society had any role in enforcing standards.

But rather than go on, I would suggest you consider the difference between a record created to formulate policy or advice and the decision or advice itself. I would see the latter could be disclosable but rather than make it better, expect it to be laced with all sorts of reservations.