The latest documents released by the WikiLeaks website are cables from diplomats, not lawyers, but many lawyers will empathise with the argument that policymakers should be able to rely on candid advice remaining private – just as advice to their own clients should attract privilege.
In-house lawyers in particular are right to be furious that the European Commission fails to recognise that advice to their clients should be privileged. And it is correct that diplomacy cannot be conducted in the full permanent glare of publicity.
But there are other ways in which lawyers will approve of a one-off leak of this type and scale. There are positive impacts for the rule of law, and for anyone who opposes bribery and corruption. The public interest is clearly served by some revelations.
Take the revelations over Prince Andrew’s views on bribery and corruption, for example, made at a lunch for businessmen in Kyrgyzstan. The Prince’s seemingly complaisant attitude to bribery and corruption is profoundly unhelpful to businesses which are trying to do things ‘by the book’, or indeed change following a past transgression.
No company that has had such compliance problems in the past, and is trying to show the world it has changed, would want such a champion – even a Royal one. If these revelations put Prince Andrew back in his box on this subject, then the fact is that US Ambassador Tatiana Gfoeller’s cable on the subject has been helpful to supporters of the rule of law.
A previous batch of leaks, consisting of military field and incident reports, also included some information that falls squarely in the whistleblowing tradition, which has a place in law and for which there are public interest arguments. Information on troops whose conduct fell short of what it should have been is surely something that victims and their relatives have a right to know.
In aggregate terms, the public has an interest in whether war is being waged as described by the generals and policymakers who serve them. And it is also a matter in the public interest to know if the governor of the Bank of England exceeds his brief.
There is one more way in which a rare bit of sunlight has been a good thing here. We live in an age of direct diplomacy when, more than ever before, world leaders make agreements one-on-one.
Direct diplomacy can have dramatic results – witness the secret wartime meetings of Churchill, Stalin and Roosevelt. But in the modern media age, such meetings are public and cannot be seen to fail – failure here is defined as rudeness, being snubbed, or an inability to agree a communiqué. The pressure to reach an agreement and maintain pleasantries leads to issues like a state’s record on corruption being glossed over by heads of other states. Likewise human rights, as we saw from the knots prime minister David Cameron and business secretary Vince Cable tied themselves in on their recent trade trip to China.
To have states’ faults on such points laid out with the clarity and eloquence exhibited in these cables is, in the short term, awkward for the cables’ authors and their subjects. But the rare bit of pressure that this awkwardness places on the subjects is a positive thing. Many lawyers, and supporters of the rule of law, should be pleased that these cables have been put in the public domain.