The history by which Parliament was (I think) misled bears investigation. It begins with Tim Parker reportedly telling the relevant government minister (Baroness Neville-Rolfe) close to the time the report is delivered, “the QC is about to report. He had found no systemic problem. TP thought the issue might have passed it [sic] peak interest”
Richard, on the privilege point, I agree with your observation in fn14 about the approach being contradictory. There is a broader impression of it being all a bit convenient as well. However, trying to reconstruct how the law was understood some 6+ years ago (i.e. early 2016), I can at least envisage how it might have been thought that there was a real risk of losing privilege, thanks to the uncertainty of the law at the time.
1) The starting point is that the Swift report does not appear to have been for the dominant purpose of either the Bates litigation or for 'actual or contemplated' criminal litigation. So I can envisage the adviser concluding that it's 'legal advice privilege' (LAP) territory i.e. not the (stronger) 'litigation privilege.'
2) The key decision is that of the CA of Three Rivers No. 5 (3R5) [2003] EWCA Civ 474, limiting LAP to communications for the purpose of legal advice between the lawyers and the 'client' - with the latter defined narrowly as the people tasked with instructing the lawyers. The CA did not envisage that communications to boards or senior executives would be an exception to this principle - indeed, they distinguish the narrow 'client' in that case (the BIU) from "any single officer however eminent he or she may be."
So, to sum up so far, I think it could have been envisaged that there was a real risk of losing privilege given that the Swift report's opening words identify the POL Chair as, in effect, 'the client' (in the 3R5 sense).
3R5 was widely criticised, but the HL refused leave to appeal in that case. And when a different point went to the HL in 3R6, it refused to overrule 3R5. This issue received huge attention in law firm briefings etc and would probably have been on the POL GC's radar.
3) The third point is this. There was a first instance decision of Mann J shortly after 3R5 in which he distinguished it by ruling that it only applied to information gathering for the purpose of legal advice, not to the circulation of legal advice. That's the USP Strategies case, [2004] EWHC 373 (Ch). In early 2016, however, I'm not aware of other authorities on that point, and it may well have been thought that there was a risk of it being rejected by the CA on the basis that the 3R5 applied to LAP generally, not just to a sub-category of LAP material. In the much later case of Jet 2 [2020] EWCA Civ 35, the CA approved Mann J's decision, but acknowledged at para 56(ii) that the law is 'out of line' because of the tension between Mann J's rule and the original rule laid down in 3R5. The CA in 2020 can live with that, however, because it clearly thinks that 3R5 was wrongly decided and should be overruled by the Supreme Court when the opportunity arises.
But the simple point for present purposes is that someone trying to figure this out in early 2016 might well have concluded that there was a real risk of the 3R5 rule being interpreted consistently i.e. treating advice the same as info-gathering for the purpose of advice.
One could certainly argue the toss on all the above. Since early 2016, the law has been clarified on point 3, and there have also been a series of CA decisions casting doubt on 3R5 more generally and distinguishing it where possible (though, to date, I believe it still stands, technically). One can also say with hindsight that the GC should have sought an independent opinion (e.g. from Swift's junior).
And one can also say the Chair should have accepted the risk anyway, or insisted on a second opinion.
So, lots of important points that can still be made in support of your critique.
But I think the legal position on privilege at the time was a little messier than perhaps the blogpost suggests.
Richard, on the privilege point, I agree with your observation in fn14 about the approach being contradictory. There is a broader impression of it being all a bit convenient as well. However, trying to reconstruct how the law was understood some 6+ years ago (i.e. early 2016), I can at least envisage how it might have been thought that there was a real risk of losing privilege, thanks to the uncertainty of the law at the time.
1) The starting point is that the Swift report does not appear to have been for the dominant purpose of either the Bates litigation or for 'actual or contemplated' criminal litigation. So I can envisage the adviser concluding that it's 'legal advice privilege' (LAP) territory i.e. not the (stronger) 'litigation privilege.'
2) The key decision is that of the CA of Three Rivers No. 5 (3R5) [2003] EWCA Civ 474, limiting LAP to communications for the purpose of legal advice between the lawyers and the 'client' - with the latter defined narrowly as the people tasked with instructing the lawyers. The CA did not envisage that communications to boards or senior executives would be an exception to this principle - indeed, they distinguish the narrow 'client' in that case (the BIU) from "any single officer however eminent he or she may be."
So, to sum up so far, I think it could have been envisaged that there was a real risk of losing privilege given that the Swift report's opening words identify the POL Chair as, in effect, 'the client' (in the 3R5 sense).
3R5 was widely criticised, but the HL refused leave to appeal in that case. And when a different point went to the HL in 3R6, it refused to overrule 3R5. This issue received huge attention in law firm briefings etc and would probably have been on the POL GC's radar.
3) The third point is this. There was a first instance decision of Mann J shortly after 3R5 in which he distinguished it by ruling that it only applied to information gathering for the purpose of legal advice, not to the circulation of legal advice. That's the USP Strategies case, [2004] EWHC 373 (Ch). In early 2016, however, I'm not aware of other authorities on that point, and it may well have been thought that there was a risk of it being rejected by the CA on the basis that the 3R5 applied to LAP generally, not just to a sub-category of LAP material. In the much later case of Jet 2 [2020] EWCA Civ 35, the CA approved Mann J's decision, but acknowledged at para 56(ii) that the law is 'out of line' because of the tension between Mann J's rule and the original rule laid down in 3R5. The CA in 2020 can live with that, however, because it clearly thinks that 3R5 was wrongly decided and should be overruled by the Supreme Court when the opportunity arises.
But the simple point for present purposes is that someone trying to figure this out in early 2016 might well have concluded that there was a real risk of the 3R5 rule being interpreted consistently i.e. treating advice the same as info-gathering for the purpose of advice.
One could certainly argue the toss on all the above. Since early 2016, the law has been clarified on point 3, and there have also been a series of CA decisions casting doubt on 3R5 more generally and distinguishing it where possible (though, to date, I believe it still stands, technically). One can also say with hindsight that the GC should have sought an independent opinion (e.g. from Swift's junior).
And one can also say the Chair should have accepted the risk anyway, or insisted on a second opinion.
So, lots of important points that can still be made in support of your critique.
But I think the legal position on privilege at the time was a little messier than perhaps the blogpost suggests.