Legal professional privilege for PCO communications questioned
A proposal to give legal professional privilege to communications between clients of the Parliamentary Counsel Office and the Office’s counsel has been questioned by the New Zealand Law Society.
In its submission on the Legislation Bill, the Law Society notes that the Bill declines to include the provision of “free and frank advice” among the functions of the Parliamentary Counsel Office (PCO) – even though that was recommended by the Law Commission.
The submission says it is difficult to see why the proposal to confer legal professional privilege is either necessary or appropriate. The expression “a client of the PCO” is not defined, and it is arguably wrong to characterise the PCO as acting for “clients” in relation to its functions.
“More fundamentally, it is submitted that the PCO when drafting, examining and advising concerning legislative instruments, is acting as a state agency with special functions, and thus acts effectively for the public of New Zealand and not for any sectional interest,” the Law Society says.
“That is so even if the Bill in question is not a Government Bill, but instead an approved Member’s Bill or a local or private Bill. Now that Cabinet papers, which often contain initial drafting instructions for legislation, are available upon request and routinely disclosed, there seems no reason why drafting instructions and communications with ‘any client of the PCO’ or drafts of legislation prepared by or on behalf of the PCO should be treated as confidential, far less privileged.”
The Law Society says such drafting instructions and communications plainly form part of the legislative history. There does not seem to be any compelling reason for “throwing a cloak of privilege” over this class of documents.
The submission states that restrictions and protections in the Official Information Act – to which the PCO will be subject – and provision for advice to be given and received under confidentiality pursuant to Parliament’s Standing Orders both give a sufficient safeguard without the need for the proposal to confer legal professional privilege.
The Law Society submission states that the Society very much supports the goals of the Bill. Along with the comments on legal professional privilege, the submission provides suggestions on refinements to drafting of provisions for legislation publication, disallowable instruments and the qualifications of the Chief Parliamentary Counsel.