One of the first things they teach you in law school is the importance of legal professional privilege.
The Cabinet Manual, which I presume that Bridges has read, says this about legal professional privilege.
Legal professional privilege is a term applied to the protection of confidential communications between a lawyer and a client. If legal advice is protected by legal professional privilege, it may be protected from disclosure under the Official Information Act 1982 and the Privacy Act 1993, and will not be required to be produced for inspection during discovery in legal proceedings (see section 9(2)(h) of the Official Information Act and section 29(f) of the Privacy Act). It is therefore important that legal professional privilege in legal advice provided to the government is maintained, and not inadvertently
waived.
It is important. If advice is published or released it could severely compromise the rights of the person claiming the privilege. For instance litigation may get much more difficult and new ways of attacking a decision may appear.
The cabinet manual says this about requests from requests for information:
Ministers and their officials are expected to meet requests from committees to produce documents and to provide information, unless it is not in the public interest to do so.
The same sorts of considerations apply to senior public servants. I am sure the Solicitor General would rather crawl through broken glass than publicly disclose legally privileged information provided to the Government.
Which is why Bridges latest stunt, to threaten to issue summonses requiring the Solicitor General to present to the Epidemic Response committee legal advice concerning the issue of notices seeking legal advice concerning the lockdown.
From Yvette McCullough at Radio New Zealand:
The Epidemic Response Committee is to issue summonses to the Solicitor-General, the Director-General of Health, and the Police Commissioner seeking the legal advice for the lockdown.
The unprecedented move follows repeated public requests from the Opposition for this information over the past five weeks.
The committee chair, National Party leader Simon Bridges, said it was “inexplicable that the advice hasn’t been made public”.
“Serious concerns have also been raised by academics, lawyers and the Law Society.
“The people of New Zealand have given up their freedoms for this lockdown. We all deserve to know what the legal basis was for that,” Bridges said.
Parliament has never before summonsed the Solicitor-General.
All legal advice on the legality of lockdown and ongoing restrictions has been sought.
He will have a few problems. My reading of Parliament’s standing orders is that Mallard as speaker has to sign the summons and direct its service and I can imagine him not wanting to.
The original Health Act notice is being challenged in court. To be frank the argument has some merit and I would not guarantee that it would fail. As has been pointed out by Andrew Geddis when you read the enabling provision you wonder if it has been stretched out of shape by being applied nationwide, when it appears to be targetted at localised breakouts of disease. If there is no Covid-19 on Stewart Island or the Chatham Islands then why should they have been subject to the lockdown.
Having said that I believe that the decision was the right decision. But time will tell if legally it was robust and I would not rule out retrospective legislation.
As Geddis concludes:
[The lockdown] imposes the most extensive restrictions on New Zealanders’ lives seen for at least 70 years; perhaps ever. No matter how ‘necessary’ these may be, we should expect such restrictions to have a clear, certain basis in law and be imposed through a transparent and accountable process.”
He also considers that the Government has shown care in the handling of subsequent Health Act notices:
We recognise that the government is alert to these sorts of concerns, and has taken some good steps to try and address them. The orders establishing our level three lockdown are well designed and drafted. And the attorney-general’s cabinet paper setting out the legal issues involved in moving to level three shows a commendable engagement with the relevant legal challenges. Any claim that the government simply doesn’t care about what the law requires of it is neither true nor fair.
But such subtleties do not matter to Bridges. He is just trying to make a name for himself.
To compound things he chose to attack universally beloved Director General of Health Dr Ashley Blomfield. From Anna Whyte at Television New Zealand:
A fiery select committee meeting today saw National leader Simon Bridges accuse Director-General of Health Dr Ashley Bloomfield of attempting to control information flow.
It was an assertion Dr Bloomfield rejected, saying communications with the public around Covid-19 had been “absolutely fundamental”.
During the meeting, Dr Bloomfield was questioned by Mr Bridges over communications from the Ministry of Health.
“Here’s the point, the Government suspended the OIA (Official Information Act) and we’ve been waiting over two weeks for your department to answer written questions,” Mr Bridges said.
“Why don’t you answer simple health questions to the one parliamentary committee on this remarkably significant issue?
“I’ll be quite frank with you: I don’t think it’s a resourcing issue.
“I think it comes down to one simple thing. You don’t want to answer because you want to control the information flow and do this in a time and a way convenient to you and the Government,” Mr Bridges said.
Dr Bloomfield said he rejected that assertion.
“Part of my role as a public servant, and I’ve been one for many years, is to ensure there is good information and right from the start of this response we’ve been very open and communicating very regularly with the public.
“However, if there is an issue I will personally take that up with the clerk of the committee, with what is the questions still outstanding and I will work with my team to get those responses as soon as possible.
“Communications with the public have been absolutely fundamental and I made myself available on almost a daily basis to media because I felt that was an incredibly important part of ensuring all New Zealanders knew what was going on.”
Every day it appears that Bridges is becoming more and more trumpian in his behaviour.
His complaint against Blomfield is especially ridiculous when you remember what John Key said about OIA requests:
Sometimes we wait the 20 days because, in the end, Government might take the view that’s in our best interest to do that”.”
By all means the public service should supply MPs with requested information. But throwing a tantrum because the Director of Health in the middle of a pandemic who has hopefully overseen the eradication of the disease has not answered emails quickly is not very Prime Ministerial.
National strategists must be tearing their hair out. Bring on the election.
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