6.1 Throughout this paper, the Commission has raised issues concerning the desirability or otherwise of releasing legal advice requested and received by government. If, after further research and consideration of the responses to this paper, the Commission determines that legal advice to government should be released, practical questions remain as to how the advice should be circulated. This chapter seeks views on the more practical issues involved in how legal advice should be released.

SHOULD ADVICE BE CIRCULATED OR MADE AVAILABLE?

6.2 If advice is to be made more widely available, an issue arises as to whether this is a positive or active duty to distribute the advice to all interested parties or merely a passive obligation to make the advice available on request. Another related issue is whether this obligation or duty rests on the provider of the advice, the receiver of the advice or some other person.

ISSUES FOR DISCUSSION
• Assuming that there are certain categories of advice which should be circulated, should this advice be actively circulated, or merely made available to those government departments and agencies or members of the public who request the advice?
• Who should be subject to the duty either to circulate the advice or make the advice available?

HOW SHOULD ADVICE BE DISTRIBUTED?

6.3 If legal advice to government is to be circulated to various government agencies or to the public generally, the issue of how the information is made available needs to be considered. One possibility is that all advice given by the Law Officers or the Crown Solicitor to Ministers and other branches and departments of government should be published or made available on the Internet so that it is publicly accessible. Advice could also be made available through government circulars or bulletins, or the Government Gazette. The Commission seeks advice as to how government agencies and members of the public should have access to government legal advice.

ISSUES FOR DISCUSSION
• If advice is to be disclosed within government, how should it be disclosed - in a government gazette, departmental circulars, newsletter or elsewhere?
• If advice is to be disclosed to the general public, how should it be disclosed - on the Internet, in government newsletters or elsewhere?
• What mechanisms could ensure that those government departments or members of the public to whom the advice is relevant actually have access to the advice?

RESTRICTIONS ON USE OF THE ADVICE

6.4 If legal advice to government is circulated to selected agencies or persons, such as contractors,¹ it may be necessary to restrict the use to which the advice is put by these parties. The nature of these restrictions, if any, and the practicalities of ensuring that they are adhered to are matters on which the Commission seeks comment.

ISSUE FOR DISCUSSION

If legal advice is made more widely available, should any restrictions be placed on the use to which the advice is put?

How feasible is it to ensure that such restrictions are adhered to?

FOOTNOTES

1. As discussed in paras 3.17, 3.29, 4.6-4.7, 4.11.