The Freedom of Information watchdog has rejected a News Letter attempt to secure the release of the legal advice which Peter Robinson used to return as First Minister in 2010 – meaning that the advice is unlikely to ever be published.
The advice from the then QC Paul Maguire – who is now a High Court judge – was requested by Mr Robinson in the wake of the January 2010 BBC Spotlight programme which revealed that his MP wife, Iris Robinson, had secured £50,000 from two property developers for her then lover.
The programme alleged that by his actions and level of knowledge about what had been going on, Mr Robinson had broken the ministerial code of conduct.
Under huge political and personal pressure, the then DUP leader stepped aside from his position as First Minister and – via the DUP-run Department of Finance and Personnel (DFP) – commissioned legal advice as to whether he had broken his ministerial obligations (Stormont has no individual who can adjudicate on alleged breaches of the ministerial code).
The day after the Spotlight programme, Mr Robinson said he would be happy to publish the advice, but that has never happened. When the legal opinion was received the next month, Mr Robinson said that the QC had given “detailed” advice which involved “a thorough and comprehensive examination of all of the issues” and had found that “there were no breaches whatsoever by me [of the various codes]”.
Soon after, Mr Robinson showed the advice to UTV political editor Ken Reid. He reported that it included the phrase from Mr Maguire: “I’m unable to conclude that the First Minister has breached the ministerial code or the ministerial code of conduct or the pledge of office”. When asked at the time by this newspaper why the advice was not being published, a DUP spokesman said that there were a number of “legal impediments” but the First Minister “is very keen that the advice can be released in as transparent and complete a form as possible”.
Under the Freedom of Information Act, the News Letter had initially requested – and been refused access to – a copy of the advice in 2010. Then, in 2014 the Assembly’s standards committee published a report into the Spotlight allegations. In it, Mr Robinson referred to the advice in support of his contention that he had done nothing wrong. But the Standards Commissioner said that DFP refused to show him the advice.
At that point, the News Letter again requested the advice, arguing that Mr Robinson had waived legal privilege by showing it to a journalist and then quoting part of the advice himself to the Standards Commissioner.
DFP again refused the request and we appealed that decision to the Information Commissioner. As part of the commissioner’s investigation, he had to order DFP to hand over the withheld information to him so that he could take a view on whether it should be released. The commissioner has now ruled that the instructions to Mr Maguire should be withheld, as well as his advice, as both attract legal professional privilege.
The commissioner also reveals that initial advice had been received from the then departmental solicitor, Oswyn Paulin, which he also says should be withheld. The commissioner has revealed that “the legal advice provided by [Mr Paulin] was in response to a different set of instructions than those provided to Paul Maguire”.
DFP argued that as Mr Robinson was still First Minister at the time of the request, “disclosure of the withheld information would be potentially unfair to Peter Robinson, and to the wider interests of government”.
DFP argued – and the commissioner agreed – that legal privilege had not been waived by Mr Robinson because Sammy Wilson had shared the advice with him on a “confidential basis” and was unaware that it was to be shown to a journalist.
The commissioner said that because “only a small part of the advice was disclosed into the public domain via the journalist’s report”, legal privilege was not lost, despite what he said was the “considerable public interest in disclosure”.
However, the commissioner has ordered the department to release a series of other documents, including those which relate to the “presentational issues” about the advice.