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Allowing the lawyers to speak

What the News International authorisation may and may not mean.

It would appear that News International has authorised the law firm Harbottle & Lewis to answer questions in respect of its now famous advice of 2007 in respect of whether a cache of emails revealed any wrongdoing. The precise wording of the relevant part of statement reads:

"News Corporation's management and standards committee can confirm that News International has today authorised the law firm Harbottle & Lewis to answer questions from the Metropolitan Police Service and parliamentary select committees in respect of what they were asked to do."

However, this is not as clear as it perhaps looks. It carefully avoids the word "waiver" and uses "authorisation" instead. This may mean that no legal professional privilege is being waived at all. If it is only an authorisation, then the statement is saying no more than the obvious: any client can authorise (or instruct) a lawyer to answer questions on the client's behalf.

The authorisation (or waiver) also does not seem to be a complete one, which would allow Harbottle & Lewis to discuss the affairs of News International freely. Instead, it is an authorisation on terms limited to answering the questions of the police and the select committees of the House of Commons. The authorisation does not mention dealing with press enquiries.

Furthermore, the authorisation does not expressly permit Harbottle & Lewis to fully co-operate with the police or parliamentarians, but only to answer questions. Accordingly, any information so obtained will only be as good as the questions asked. The statement also omits to mention whether Harbottle & Lewis will be entitled to provide documents in addition to answers.

The questions and answers are likely to be in written form in any case, as the partner responsible for the letter of advice is no longer with the firm. There is probably no one still at the firm who can give relevant oral evidence. And one can envisage how "lawyerly" the written answers may well be. There is also no mention of whether Harbottle & Lewis will be able to answer questions free from any prior consultation or discussion with News International.

It may well be that Harbottle & Lewis make the most of this opportunity to provide information to the police and the select committees; after all, this highly-regarded firm has suffered severe criticism for the content of that letter of advice. Any answers (and documents) that they do provide will be covered by parliamentary privilege. News International will not be able to bring any civil action to stop them and, depending on the precise terms of the authorisation, there would be no regulatory or disciplinary sanction News International can threaten either.

The statement issued yesterday by News International does not necessarily mean that the full circumstances of the 2007 advice will now come to light. But there is a rich and intriguing possibility that something interesting may well result from this. As lawyers tend to say when pressed: it all depends.

 

David Allen Green is legal correspondent of the New Statesman. He is the author of the Jack of Kent blog and can be followed on Twitter and on Facebook.