Proposed Questions to the Law Officers of the Crown on Privilege

Introduction

These questions would be submitted to the Law Officers of the Crown to obtain clear and authoritative clarification on matters of client status and legal professional privilege in the relationship between the Law Officers and the States of Guernsey. The purpose is to ensure that the constitutional, legal, and professional boundaries governing the provision of legal advice to the States are transparent, consistent with common law principles, and properly understood by all Members of the States of Deliberation. The questions are structured in a logical sequence to avoid ambiguity, prevent internally inconsistent answers, and close off common avenues of evasion. They are intended to establish, through direct and precise inquiry, who the Law Officers act for, who owns and controls legal professional privilege, and how these principles apply in practice to the rights of Deputies, the duties of officials, and the accountability of government under Guernsey’s constitutional framework.

Proposed Questions to the Law Officers of the Crown

Purpose and Structure

These questions are designed to elicit unambiguous answers regarding client status and legal professional privilege. They proceed logically to prevent contradictory responses and close off common evasions.

Here is a link to a copy of the memorandum of understanding.

PART A: CLIENT IDENTIFICATION

Question 1: The MoU Language

The Memorandum of Understanding dated 27 June 2019 states that it “relates to the work that Chambers undertake on behalf of the States of Guernsey” when “acting as the government legal advisers.”

Does “on behalf of” mean that the States of Guernsey are your client when you act as government legal advisers?

Anticipated evasion: “The relationship is more nuanced…”

Follow-up: In standard legal terminology, when a lawyer acts “on behalf of” a party, is that party the lawyer’s client? Please answer yes or no.

Question 2: The Explicit Client Reference

Section 11.3 of the MoU refers to “the States of Guernsey as a client.”

Do you accept that this language identifies the States of Guernsey as your client for government advisory work?

Anticipated evasion: “The States are a client but not the only relevant party…”

Follow-up: Does the Crown hold a concurrent client status for the same advisory matter, such that you have two clients with potentially divergent interests? If so, where is this dual-client relationship documented?

Question 3: The Crown’s Role

For legal advice provided to the States on domestic governance matters (for example, policy development, States legislation, or Committee decisions), is the Crown also a client whom you advise on that same matter?

Anticipated evasion: “We have constitutional duties to the Crown…”

Follow-up: I am asking specifically about client status for advisory work, not your constitutional office. When you advise the Policy & Resources Committee on, for example, proposed States legislation, is the Crown your client for that advice? Please answer yes or no.

PART B: PRIVILEGE OWNERSHIP

Question 4: Who Claims Privilege

Section 2.4 of the MoU states: “The government legal advisers are to advise the States of Guernsey on whether it may or may not claim legal privilege.”

This contemplates that the States claim privilege. Do you accept that this means the States, not the Crown, hold legal professional privilege over government advisory work?

Anticipated evasion: “We advise on privilege but the legal position is complex…”

Follow-up: Under established common law principles, privilege belongs to the client. If the States claim privilege as stated in the MoU, does this not confirm they are the client and privilege holder?

Question 5: Crown Waiver Rights

Can the UK Government, acting on behalf of the Crown, waive legal professional privilege over advice you have provided to the States on purely domestic Guernsey governance matters without the States’ consent?

Anticipated evasion: “This has never arisen in practice…”

Follow-up: I am asking about the legal position in principle. Please answer yes or no.

Question 6: States Waiver Rights

Can the States of Guernsey waive legal professional privilege over advice provided to them on domestic governance matters without requiring the Crown’s consent?

Anticipated evasion: “Consultation would be appropriate…”

Follow-up: I am not asking about consultation as a matter of courtesy; I am asking whether the States have the legal right to waive privilege without Crown consent. Please answer yes or no.

PART C: PROFESSIONAL DUTIES AND PRIVILEGE CONTROL

Question 7: Lawyer versus Client Control of Privilege

Section 2.4 of the MoU requires your “agreement” before legal advice is published. In standard legal practice throughout common law jurisdictions, the client holds privilege and decides whether to waive it; the lawyer’s role is to advise on the legal consequences of waiver, not to grant or withhold permission.

Do you consider that a practice whereby the Law Officers effectively control whether privilege is asserted (rather than advising the client who then decides) is consistent with:

(a) Your professional duties under the Advocates’ oath to the Royal Court?

(b) The professional rules of conduct governing Advocates?

(d) The fundamental principle that privilege belongs to the client, not the lawyer?

Please address each point separately.

Anticipated evasion 1: “Section 2.4 merely requires consultation, not consent…”

Follow-up 1: The text states “their agreement is to be obtained.” In plain English, “agreement” means consent or permission. If this was intended merely as consultation, why was “consultation” not the word used? Does “agreement” give you a veto, or does it not?

Anticipated evasion 2: “We have special constitutional responsibilities that differ from ordinary lawyer-client relationships…”

Follow-up 2: The MoU describes you as “government legal advisers” providing services “on behalf of the States of Guernsey.” This is a professional advisory relationship. Please identify the specific constitutional principle that permits government lawyers to control their political client’s privilege assertions in a manner that would be improper for any other lawyer-client relationship.

Anticipated evasion 3: “Our duty of impartiality requires us to ensure privilege is properly maintained…”

Follow-up 3: Impartiality means not favouring one party over another. How does preventing Deputies (who are part of the client per the MoU) from accessing legal advice, whilst permitting the executive to access that same advice, demonstrate impartiality? Isn’t this precisely partiality towards the executive?

Anticipated evasion 4: “This is established practice and has worked well…”

Follow-up 4: Longevity of a practice does not determine its propriety. I am asking whether the practice is consistent with your professional duties and the standard principle that clients control privilege. If UK Government departments’ lawyers asserted control over whether Ministers could publish legal advice, this would be considered a constitutional impropriety. Why should Guernsey be different?

Anticipated evasion 5: “The Advocates’ oath requires us to protect the interests of our client…”

Follow-up 5: Indeed. But who determines what those interests are on a matter of political judgment, such as whether legal advice should be published? In a democracy, surely elected representatives (the client) make political judgments, whilst lawyers (advisers) make legal judgments. If you are making the political judgment about publication, aren’t you exceeding your advisory role?

Question 8: The UK Comparison

In the UK Government Legal Department, legal advisers provide advice to government departments and ministers. The Treasury Solicitor does not have the power to prevent ministers from publishing legal advice; ministers (the clients) decide, with legal advice on the consequences.

Do you accept that this is the standard model in comparable jurisdictions, and if your practice differs, please explain the constitutional or legal basis for that difference.

Anticipated evasion: “The UK has different constitutional arrangements…”

Follow-up: The principle that clients control privilege and lawyers advise is not UK-specific; it is fundamental to common law legal professional privilege everywhere. What specific feature of Guernsey’s constitutional arrangements justifies departing from this foundational principle?

Question 9: The Civil Service Code Paradox

Section 7.1 of the MoU requires States officers to “abide by the Civil Service Code in all dealings with the government legal advisers.”

The Civil Service Code typically requires officials to serve the government of the day impartially and to implement its policies. If Deputies (part of the government per the MoU) are denied access to legal advice by officials invoking privilege, how is this consistent with the principle that officials serve the elected government?

Anticipated evasion: “The Civil Service Code doesn’t override privilege…”

Follow-up: I am not suggesting it overrides privilege. I am asking: if the States (including Deputies) are the client who hold privilege, how can civil service officials use privilege to deny the client access to their own advice? This inverts the proper relationship between officials (servants) and elected representatives (masters).

Question 10: The Transparency Principle

Section 9 of the MoU is titled “Continuing to enhance transparency.”

Is a practice whereby legal advice is provided to the executive but systematically withheld from Deputies who must vote on the matters advised upon consistent with the stated principle of enhancing transparency?

Anticipated evasion: “Transparency must be balanced with privilege…”

Follow-up: Transparency to the legislature that must vote on matters is not merely a good governance principle; it is fundamental to democratic accountability. If privilege is being used to prevent legislative scrutiny, privilege is being weaponised against democracy. How is this consistent with your duty to serve the States of Guernsey?

Question 11: The Accountability Question

Your professional rules require you to act in your client’s best interests.

Is it in the States of Guernsey’s best interests for legal advice on matters of public importance to be available to the executive but withheld from the legislature, thereby creating an information asymmetry that undermines democratic accountability?

Please explain how this serves your client’s interests.

Anticipated evasion: “Confidentiality protects frank advice…”

Follow-up: Confidentiality within the client protects frank advice. Confidentiality from the client prevents informed decision-making. The States of Deliberation is the supreme decision-making body. How does keeping them ignorant of legal advice serve the client’s interests?

Question 12: The Tripartite Convenience

The current arrangement appears to create a symbiotic convenience amongst three parties whereby:

Committees can deny Deputies access to advice by claiming “the Law Officers won’t permit it due to privilege”;
The Law Officers can maintain control by claiming “we must protect privilege as lawyers”;
Civil service officials can refuse disclosure by citing section 2.4 of the MoU (“Law Officers’ agreement required”)

Each party thus avoids accountability by pointing to the others, whilst all three benefit from restricting Deputies’ access to politically inconvenient advice. The civil service maintains their close relationship with the executive; the Law Officers retain control over disclosure; and Committees avoid scrutiny.

Is this an accurate characterisation of how the system operates in practice? If not, please explain how the arrangement differs.

Anticipated evasion: “This mischaracterises our professional relationship…”

Follow-up: Then please explain: when a Deputy requests legal advice and is refused:

Who makes the actual decision: the Committee, the Law Officers, or the civil service?
If it’s the Committee, why do civil servants cite “privilege” or “section 2.4” rather than the Committee’s political decision?
If it’s the Law Officers, on what basis do lawyers override their political clients’ decisions about disclosure?
If it’s the civil service, on what basis do officials deny elected representatives access to advice on matters they must vote upon?
Or does each party point to the others, creating a circle of unaccountability?

PART D: DEPUTIES’ ACCESS

Question 13: Definition of “States of Guernsey”

The MoU states: “the States of Guernsey includes the Committees, the services areas that provide support to the Committees, and individual members of the States of Deliberation” (emphasis added).

Do you accept that this definition includes all Deputies, not merely Committee members?

Anticipated evasion: “Yes, but there are different roles…”

Accept: Good. Proceed to Question 14.

Question 14: Third-Party Status

If, as stated in the MoU, Deputies are part of “the States of Guernsey” who are your client, how can individual Deputies be treated as third parties for the purposes of privilege waiver when they request access to legal advice?

Anticipated evasion: “Privilege requires confidentiality to be maintained…”

Follow-up: Yes, but confidentiality within the client organisation. The MoU defines the client as including individual Deputies. Are you saying the MoU definition is incorrect, or that Deputies can be simultaneously part of the client and third parties to that same client?

Question 15: Restricting Deputy Access

Can legal professional privilege properly be invoked to refuse a Deputy’s request for legal advice on a matter they must vote upon in the States of Deliberation?

Anticipated evasion: “It depends on the circumstances and whether there are confidentiality concerns…”

Follow-up: I am asking about the principle. If the States of Guernsey (including Deputies) are the client, and privilege protects confidential communications with the client, on what legal basis can one part of the client (the executive) use privilege to deny another part of the client (Deputies) access to their own legal advice?

Question 16: Publication Consent

Section 2.4 requires “agreement” of the government legal advisers before advice is published beyond the relevant Committee. Why is your agreement required if you are merely the lawyer and the States (the client) hold the privilege?

Anticipated evasion: “The lawyer has professional duties regarding privilege…”

Follow-up: Standard practice is that lawyers advise on privilege but clients decide whether to waive it. Does section 2.4 give you, as lawyers, a veto over the client’s decision to publish their own legal advice?

PART E: CONFLICTS WITH THE CROWN

Question 17: Adverse Interests

If the States of Guernsey sought legal advice on a matter where their interests were directly opposed to the Crown’s interests (for example, challenging the exercise of Crown prerogative powers or opposing the extension of UK legislation to Guernsey), could you provide that advice?

Anticipated evasion: “We would assess the position and might recommend external counsel…”

Follow-up: I am asking whether you could advise, not whether you would. If the Crown is your client (or co-client), you would have an irreconcilable conflict of interest. Please confirm whether this is correct.

Question 18: The MoU Conflict Provisions

The MoU addresses conflicts “within the States” and “between the States and the government legal advisers” (sections 7.3 and 12.1), but does not address conflicts between the States and the Crown. Why not?

Anticipated evasion: “Such conflicts are rare…”

Follow-up: Rare does not mean non-existent. If the Crown were truly a client (or co-client) alongside the States, conflicts between them would require explicit provision in the MoU. The absence of such provision suggests either: (a) the MoU is incomplete; or (b) the Crown is not a client for government advisory work. Which is correct?

Question 19: Dual Capacity Clarification

Do you accept that your role has at least two distinct capacities:

(a) Constitutional functions as Law Officers of the Crown (prosecution, Crown representation, constitutional advice to the Crown); and

(b) Government legal advisers to the States of Guernsey?

Anticipated evasion: “Our role is multifaceted…”

Follow-up: Please answer yes or no: are these distinct capacities?

Question 20: Capacity-Specific Client Status

If you accept that you act in distinct capacities, do you further accept that in your capacity as government legal advisers (capacity (b) above), the States of Guernsey are your client, whilst in your capacity as Law Officers of the Crown (capacity (a) above), the Crown may be your client for certain constitutional functions?

This question is carefully worded to allow them to maintain Crown client status for constitutional functions whilst conceding States client status for advisory work.

PART F: THE FUNDAMENTAL QUESTION

Question 21: Clear Statement

Please provide a clear, unambiguous statement:

When you provide legal advice to the Policy & Resources Committee on proposed domestic legislation, who holds legal professional privilege over that advice:

(a) The States of Guernsey?

(b) The Crown?

(d) Some other arrangement?

If your answer is (c) or (d), please explain how this arrangement operates and where it is documented.

PART G: THE SCOPE OF PRIVILEGE – LEGAL VS NON-LEGAL ADVICE

Question 22: The Fundamental Limitation

Legal professional privilege protects confidential communications made for the purpose of obtaining or giving legal advice. It does not protect commercial advice, strategic advice, policy advice, or political advice, even when such advice is provided by a lawyer.

Do you accept this as an accurate statement of the scope of legal professional privilege?

Anticipated evasion: “The boundaries can be difficult to determine…”

Follow-up: I am asking about the principle. Please answer yes or no: does legal professional privilege extend to commercial, strategic, or policy advice provided by lawyers?

Question 23: Mixed Advice

When you provide advice to the States that contains both legal elements and non-legal elements (such as policy recommendations, strategic options, or commercial considerations), do you accept that only the legal advice portions attract privilege?

Anticipated evasion: “The advice forms a coherent whole…”

Follow-up: The law is clear that privilege attaches to legal advice, not to other forms of advice that happen to be in the same document. If a document contains both legal analysis and policy recommendations, can the policy recommendations be withheld from Deputies on grounds of privilege?

Question 24: Identifying Legal Advice

When advice is withheld from Deputies on privilege grounds, what process is followed to ensure that only genuinely privileged legal advice is withheld, and that commercial, strategic, or policy advice is not improperly withheld?

Anticipated evasion: “We assess each case on its merits…”

Follow-up: Please describe the specific test you apply to distinguish legal advice (privileged) from commercial, strategic, or policy advice (not privileged). Who makes this determination, and is it documented?

Question 25: Redaction vs Complete Withholding

If a document contains both privileged legal advice and non-privileged strategic or policy advice, should the non-privileged portions be made available to Deputies with the privileged portions redacted, rather than withholding the entire document?

Anticipated evasion: “This could make the advice misleading…”

Follow-up: The question is not whether it is convenient but whether it is legally proper. If non-privileged material is withheld on the basis that it appears in the same document as privileged material, is this not an improper extension of privilege beyond its proper scope?

Question 26: Feasibility and Proportionality

Section 2.4 of the MoU states you are “to advise the States of Guernsey on whether it may or may not claim legal privilege; and to explain why in a format that can be published if necessary and agreed.”

When advice contains both privileged and non-privileged material, have you ever advised the States that privilege can be claimed over the legal advice whilst the commercial, strategic, or policy elements should be disclosed to Deputies?

Anticipated evasion: “Each case depends on its facts…”

Follow-up: I am asking whether you have ever advised separation of privileged from non-privileged material in this way. If not, why not?

Question 27: The “Political Advice” Problem

Advice on what the States should do as a matter of policy is political advice, not legal advice. Legal advice addresses what the States may or may not lawfully do.

If you advise that a proposed course of action is lawful but unwise, or lawful subject to certain conditions, can the “unwise” or policy elements be withheld from Deputies on privilege grounds?

Anticipated evasion: “Legal and policy considerations are often intertwined…”

Follow-up: Intertwined does not mean indistinguishable. If you advise “Option A is lawful but we recommend Option B on policy grounds,” the legal analysis may be privileged but the policy recommendation is not. Do you accept this?

Question 28: Commercial Advice

The MoU (section 1.1) lists “commercial law services” as among the services you provide.

When you provide commercial advice (as opposed to legal advice on commercial matters), such as negotiation strategy, value for money assessments, or commercial risk analysis, can this be withheld from Deputies on grounds of legal professional privilege?

Anticipated evasion: “Our commercial advice is informed by legal considerations…”

Follow-up: That may be so, but it does not make the commercial advice itself privileged. If you advise “this contract price is too high” or “this negotiation strategy is recommended,” is that legal advice attracting privilege, or commercial advice that does not?

Question 29: Legislative Drafting Advice

Section 1.1 lists “legislative drafting for the Bailiwick” among your functions.

When you advise on drafting options for proposed legislation, distinguishing between:

(a) “This wording would be legally effective” (legal advice); and

(b) “This wording would be clearer/simpler/preferable as a matter of drafting practice” (drafting advice)

Can category (b) be withheld from Deputies on privilege grounds?

Anticipated evasion: “Drafting advice and legal advice are inseparable…”

Follow-up: Style, clarity, and drafting conventions are not legal issues. If Deputies request sight of alternative drafting options that are all legally effective, can you properly refuse on privilege grounds?

Question 30: The Overbreadth Problem

Has advice ever been withheld from Deputies on privilege grounds when that advice contained substantial non-legal elements (policy, commercial, strategic, or drafting advice) that should not have been withheld?

This is a killer question – it asks them to audit their own past practice.

Question 31: Current Practice Review

Will you undertake to review current practices to ensure that:

(a) Only genuinely legal advice is withheld on privilege grounds?

(b) Commercial, strategic, policy, and drafting advice is made available to Deputies?

If not, why not?

PART H: PRACTICAL IMPLICATIONS AND REMEDIES

Question 32: Current Practice Justification

If legal advice on a States policy matter is provided to the executive but withheld from Deputies on grounds of privilege, and if (as the MoU states) Deputies are part of the client, please explain the legal basis for this practice.

This question forces them to either:

Concede the practice is wrong, or
Claim Deputies aren’t really part of the client (contradicting the MoU), or
Provide some novel legal theory

Question 33: Remedy

If the current practice of restricting Deputies’ access to legal advice is inconsistent with the MoU’s definition of the client, what steps will you take to rectify this?

Strategic Notes

Question Structure and Purpose

Questions 1-3 establish client status using the MoU’s own language

Questions 4-6 establish who holds and can waive privilege

Questions 7-12 challenge the professional propriety of Law Officers controlling privilege assertions rather than advising the client who decides, and expose the tripartite convenience amongst Law Officers, executive, and civil service

Questions 13-16 apply the client definition to Deputies’ access rights

Questions 17-21 expose the Crown conflict issue, force clarification of dual capacities, and demand an unequivocal answer

Questions 22-31 establish that much advice being withheld probably isn’t privileged anyway because it’s not legal advice

Questions 32-33 force acknowledgment of practical implications and demand remedies

The Multiple Lines of Attack

Line 1 (Questions 1-3): Who is the client? The MoU says it’s the States.

Line 2 (Questions 4-6): The States hold and can waive privilege.

Line 3 (Questions 7-12): Lawyers don’t control privilege – clients do. A practice whereby lawyers control whether privilege is asserted is professionally improper. Moreover, the arrangement may be a tripartite convenience allowing Law Officers, Committees, and civil service to avoid accountability.

Line 4 (Questions 13-16): Deputies are part of the client per the MoU.

Line 5 (Questions 17-21): If the Crown is also a client, there are irreconcilable conflicts that the MoU ignores.

Line 6 (Questions 22-31): Much of what’s being withheld probably isn’t privileged anyway because it’s not legal advice.

Line 7 (Questions 32-33): What will you do about this?

The Core Trap

If the Law Officers claim they merely advise on privilege whilst the client controls it, then:

The States are the client
Deputies are part of the States (per the MoU)
Therefore Deputies can demand access to advice
The executive cannot invoke privilege to refuse, because Deputies are part of the client who holds that privilege

If the Law Officers claim they control whether privilege is asserted, they must justify:

Why Guernsey lawyers have powers over their political clients that would be considered improper anywhere else in the common law world; and
Why the States should continue to retain lawyers who assert such improper control, rather than instructing different lawyers who properly recognise that privilege belongs to the client.

The actual practice may be worse than either scenario: a tripartite arrangement where Committees hide behind “the Law Officers say no,” the Law Officers hide behind “we’re protecting privilege,” and the civil service hides behind “section 2.4 requires Law Officers’ agreement.” All three benefit from keeping Deputies ignorant whilst none takes responsibility for that decision.

Immediate Practical Impact

Questions 22-31 provide an immediate basis for Deputies to demand disclosure of:

Policy advice
Strategic advice
Commercial advice
Drafting preferences
Any advice on what should be done (as opposed to what may lawfully be done)

This is advice that cannot be withheld on privilege grounds regardless of who the client is or who controls privilege.

Publication Strategy

These questions and any responses should be published in full. The Deputy should make clear that:

Questions will be asked in writing
Written responses are expected
Both questions and responses will be published together
Non-responsive answers will be identified as such and the question repeated
A reasonable deadline (for example, 28 days) will be set for substantive responses

The Deputy could also state:

“I am aware that legal professional privilege applies only to legal advice, not to commercial, strategic, policy, or drafting advice. I therefore request immediate disclosure of all non-legal advice that may have been improperly withheld on purported privilege grounds, pending resolution of the broader questions about client status and privilege ownership.”

If They Refuse to Answer

If the Law Officers refuse to answer or provide evasive responses, this itself demonstrates that the current arrangements are indefensible.

Follow-Up Actions

If responses are unsatisfactory:

Request for Policy & Resources Committee debate
Formal amendment to MoU clarifying that:
- The States are the client for government advisory work
- Deputies are entitled to access legal advice on matters they must vote upon
- Only genuine legal advice (not policy/commercial/strategic advice) can be withheld
- The client (States), not the lawyer (Law Officers), controls privilege
Standing Orders amendment requiring legal advice on any proposition be made available to all Deputies at least 7 days before debate
External legal opinion from a leading administrative law silk on the proper scope of privilege and Deputies’ access rights
Public interest disclosure if the executive continues to use privilege improperly to restrict legislative scrutiny

The questions are designed to be unanswerable without either conceding that current practice is wrong, providing contradictory answers that expose the incoherence of the position, or admitting to a tripartite arrangement that serves Law Officers, executive, and civil service at the expense of democratic accountability.

An earlier article of mine that may be informative:

https://stateofguernsey.com/guernsey-civil-service-who-holds-the-privilege

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