Allowing the lawyers to speak
What the News International authorisation may and may not mean.
By David Allen Green Published 21 July 2011 18:47
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.
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12 comments
The Great British Public want to see another top head roll, and James is the most likely candidate. Even his old man has lost confidence in him. And its a bit insensiive to go after an old man who is clearly past it. So James is to be the NI official scapegoat; only then will attention switch from corruption in the Media and the Police and Govt to the more important and pressing matters of saving the Eurozone and addressing the massive deficeit and resolving the Wars in Afhghanistan Iraq and the rest of the Middle East.
I'd expect that there might be some very lawyerly answers which H&L will be able to give. Ones that other lawyers might consider to be inconsistent with NI's line. However, I also suspect that the answers will have to be so finely crafted and caveated as to be difficult to translate and communicate in such a way as to build public perception against the Murdoch account.
Can't the emails be seized legally as evidence and part of the hacking case?
I mean the emails & correspondence between H&L and NI on this matter not the emails handed over?
Lou: Not if LPP is in effect.
Thank you Matt.
Why can't the fact that those papers lodged with H&L were put there by NI - who were surely committing a crime of witholding information and evidence from the police - nullify the privilege?
There's been a theme of incredibly carefully chosen words in this scandal.
Looks like the 'Clnton Defence' is being rolled out again. Its inappropriate.
Very clever. They "authorised the law firm". Someone should get back to them and ask for more, i.e. "authorise" the lawyers involved then, and to be able to ask what they in fact did or did not. Would be interesting to get a reaction. And could they not be summoned anyway? (And in case of committee could maybe someone make sure the menschly interrogators can read and that their question is not built around short-lived lie or questionable quotation.) Questions should be built to somehow include what was asked between the lines!?
I see Colin Myler and Tom Chone have issued a statement, contradicting James Murdoch's testimony.
Colin Myler must be getting sick of the Murdoch's misrepresenting him.
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