QUEEN'S BENCH DIVISION
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B e f o r e :
| HM Treasury
|- and -
|The Information Commissioner
- and -
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Timothy Pitt-Payne (instructed by The Office of the Information Commissioner) for the Respondent
Anthony Speaight QC and Elspeth Owens for the Interested Party.
Hearing dates: 9 July 2009
Crown Copyright ©
The Hon Mr. Justice Blake :
"I am unable to confirm or deny whether the Treasury holds any information relating to the provision of advice by the Law officers or relating to any request for advice by the Law Officers. This should not be taken to indicate that the Treasury did or did not consult the Law Officers. Section 35(1)(c) of the Freedom of Information Act 2000 provides that information is exempt if it relates to the provision of advice by any of the Law Officers or any request for the provision of such advice. Section 35(3) and section 2(1)(b) together provide the duty to confirm or deny does not arise in respect of information which is exempt (or would be exempt) under section 35(1) if the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether or not the Treasury holds the information. In applying this exemption we have had to balance the public interest in excluding the duty to confirm or deny against the public interest in disclosing whether the Treasury holds the information. In this case we have concluded that the public interest in neither confirming nor denying outweighs the public interest in disclosing whether the Treasury holds the information. This is because of the importance of the government being able to consult its most senior legal advisers without fear that either the advice itself, or the fact that the advice was requested will be disclosed. Disclosure of the occasions when advice has been sought from the Law Officers would have the effect of disclosing various matters which the government judges to have a particularly high political priority, or are assessed to be of particular legal difficulty. There is a strong public interest in ensuring a government department is able to act freely from external pressure in deciding what sort of legal advice it obtains, at what stage, from whom, and in particular whether it should seek advice from the Law Officers. This strong public interest is reflected in the long-standing Convention (recognised in paragraph 24 of the Ministerial Code), neither the advice of Law Officers nor the fact that their advice has been sought, is disclosed outside the government."
"Section 35(3) was not applicable and that the public authority should disclose to the complainant whether it holds Law Officers' advice in relation to the subject matter of the complaint's request".
The Freedom of Information Act 2000
"(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him…"
The duty of a public authority to comply with section 1(1)(a) is referred to as 'the duty to confirm or deny' (s.1 (6)). But the duty is not an absolute one. Section 2 (1) provides:
"Where any provision of Part II states that the duty to confirm or deny does not arise in relation to any information, the effect of the provision is that where either –
(a) the provision confers absolute exemption, or
(b) in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information,
section 1(1)(a) does not apply…".
"Information held by a government department or by [the Welsh Assembly Government] is exempt information if it relates to:-
a) the formulation or development of government policy,
b) Ministerial communications,
c) the provision of advice by any of the Law Officers or any request for the provision of such advice, or
d) the operation of any Ministerial private office …
As the material fell within section 35(1)(c) above, then section 35(3) applied which provides that:
"The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1)."
The exemption however is subject to the overriding balance required to be performed by section 2. It was common ground that where the strength of the public interest in disclosure was as strong as the public interest in maintaining the exemption then it could not be said that the latter outweighed the former and the consequence would be disclosure.
The Law Officers' Convention
"neither the fact that the Law Officers have (or have not) advised nor the content of their advice may be disclosed outside government without their consent. This has been observed by successive governments to enable them to obtain frank and full legal advice in confidence and without revealing which matters are assessed within government to be most politically or legally sensitive such as to merit an approach to the Law Officers (and without revealing, by inference where the law offices advice is not sought, which issues are thought within government to be less politically or legally sensitive). The effect of the convention means that Law Officers' advice, being confidential is not usually laid before parliament, cited in debate, provided in evidence to select committees or made available to the public. It is necessarily inherent in the convention that it applies regardless of whether any law officers' advice exists and (if it does exist) regardless of the content of that advice."
"the fact and content of opinions of advice given by the Law Officers including the Scottish Law Officers either individually or collectively must not be disclosed outside government without their authority".
"Conventions seem to arise in ordinary day usage and develop over a period of time culminating in a general recognition and acceptance. Once a convention is accepted and then followed it becomes an acceptable form of good practice. Little is known about why conventions are actually obeyed. They do not normally imply any sanction for their breach and ….they have a remarkable ability to survive and change…"
"It is a mistake to confine the discussion of conventions to merely good political practices and thereby beyond constitutional significance. Although unwritten in form and unclear in existence, they offer important guidance over the behaviour of government."
"46. ….to disclose, other than exceptional cases, whether the Law Officers have advised or not would subject this process to inappropriate and undesirable pressure. On the other hand it could lead to their advice being sought for the wrong reasons (for example, in order to provide a minister or department with political 'cover', rather than because of the nature of the issue itself): this in turn would risk unduly politicising the role of the law officers and lead to their being held responsible for essentially political decisions. On the other hand it could lead to the Law Officers' advice not being sought (e.g. because of the fear this would imply that a department was uncertain about the strength of its legal position and possibly invite legal challenge), even though this would be justified by the issue in question.
47. I consider such consequences would risk seriously undermining the processes by which the government obtains legal advice, and in particular the Law Officers' role as the government's chief legal advisers. This would, in my view, be inimical to the public interest in good governance and the maintenance of the rule of law within government, which the convention against disclosure against Law Officers' advice is designed to protect.
48. Against that it is difficult to see what countervailing public interest benefit would be achieved by disclosing whether or not the Law Officers have advised in a case such as this. To disclose that fact would not provide access to the legal advice itself, which would in any event, of course, be subject to legal professional privilege. There may sometimes be a legitimate public interest in knowing the legal basis for key government decisions and actions. However, merely revealing whether the Law Officers did or did not advise would not advance that interest. Equally, it is not necessary for anyone to know who gave the advice to be able to question a minister or hold him to account for the legality of his conduct, whether through Parliament, the courts or ultimately the electoral system".
"However, the principal reason [why the advisory role is rarely visible] arises from the well-established convention (the 'Law Officers' convention') whereby neither the substance of any advice tendered by the Law Officers nor even the fact they have given any advice may be disclosed outside government circles save in exceptional circumstances and as will be shown later in this article this convention has been invoked on numerous occasions to prevent MP's (or others) from unearthing details as to any advice tendered by the law officers on sensitive questions of law. As a result the academic lawyers who have written about the advisory function of the Law Officers … had to confine their analysis to subjects such as the confidential nature of law officers' opinions. In fairness to the Law Officers of today, it must be admitted they are displaying far more openness than many, if not all, of their predecessors."
The Passage of the Financial Services and Markets Act 2000.
The other evidence of Paul Rankin
The Decision of the Information Tribunal
"the Tribunal remains mystified as to why the convention took no account of the evident impact of FOIA in the period leading up to the publication of the 2007 edition. At the end of this judgment the Tribunal will make some recommendations as to the manner to which the convention could perhaps be reviewed in the light of FOIA mindful of the observations made by the commissioner in his decision notice".
"repeated its surprise at the omission of any reference to the FOIA in the Code and this surprise was not lessened by the fact that section 35(1)(c) specifically refers to the subject matter of the Convention itself."
It then said at :
"At the heart of the Tribunal's concerns however, remains the question of consent. Quite apart from the effect of reviewing the history as to the party or parties whose consent was required for the period leading up to Westland Affair in 1986, the fact that disclosure of information which is otherwise clearly the subject of a FOIA regime should be dependant on the sole approval of the very party who holds the information is completely at odds with the spirit and letter of the FOIA. There can be no doubt of the Tribunal's view that the convention became subject to the 2000 Act".
" disclosure of the fact of seeking advice from the Law Officers would have provided reassurance to the public that fully informed decisions were being made on the basis of the best possible legal advice; equally, if advice had not been sought there would have been a 'very strong' public interest in that fact being disclosed as it would have raised 'legitimate and important issues' about the basis on which the government was satisfied that the bill was compatible with the Human Rights Act."
Ground 2 the public interest in maintaining an exemption.
"Be that as it may, if it is interpreted literally, I do not think that section 35 creates a presumption of a public interest in non-disclosure. It is true that section 2 refers to 'the public interest in maintaining the exemption', which suggests that there is a public interest in retaining the confidentiality of all information within the scope of the exemption. However, section 35 is in very wide terms and interpreted literally it covers information that cannot possibly be confidential. For example a report of the law commission being considered by the government with a view to deciding whether to implement its proposals would be or include information relating to the formulation or development of government policy yet there could be no public interest in its non-disclosure. It would therefore be unreasonable to attribute to parliament an intention to create a presumption of public interest against disclosure."
"the impression given… is that the Tribunal did set up a hurdle or threshold of proof of actual particular harm which forms no part of the statutory test which I should apply. If I had been satisfied that the error was central to its decision I would have allowed the appeal and remitted the issue to be determined afresh by the Tribunal.
….The considerations are not.. ulterior: they are at the heart of the debate which these cases raise. There is a legitimate public interest in maintaining the confidentiality of advice within and between government departments on matters which will ultimately result, or are expected to result in a ministerial decision. The weight to be given to those considerations will vary from case to case. It is no part of my task today to attempt to identify those cases in which greater weight will be given and those in which less weight may be appropriate but I can state with confidence that the cases in which it will not be appropriate to give any weight are those considerations will, if they exist at all, will be few and far between".
"48. In the light of the consistent line taken by the Tribunal as to the weight to be attached to the public interest against disclosure inbuilt into legal professional privilege (an approach I have found to be the correct one) it was incumbent upon the Tribunal in the instant case to give significant weight to that interest. Further, the Tribunal was obliged to consider whether the weight to be given to the public interest considerations militating against disclosure were countered by considerations of at least an equal weight which supported an order for disclosure."
"53… The inbuilt public interest in withholding information to which legal professional privilege applies is acknowledged to command significant weight. Accordingly, the proper approach for the Tribunal was to acknowledge and give significant weight to be afforded to the exemption in any event; ascertain whether there were particular or further factors in the instant case which pointed to non-disclosure and then consider whether the feature supporting disclosure (including the underlying public interests which favour disclosure) would have equal weight at the very least"
"The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would involve the disclosure of any information (whether or not already recorded) in respect of which such a claim could be maintained in legal proceedings".
"the Commissioner considers that there is a public interest in disclosing both whether the Law Officers have provided advice to the government and, where this is the case, the disclosure of that advice. However, the Commissioner accepts the DCA's public interest argument supporting the exclusion of the duty to confirm or deny. As such he has reached the conclusion the conduct in the context of Law Officer's advice, there must be exceptional circumstances for the public interest in disclosure in order for that exclusion from the duty to confirm or deny to be over-ridden. The Commissioner does not consider the subject matter of the complainant's request to be of such exceptional public interest to match the DCA's arguments that the maintenance of the exclusion from the duty to confirm or deny."
Conclusions on Ground 2
i) By failing to conclude that Parliament intended real weight should continue to be afforded to this aspect of the Law Officers' Convention:
ii) By failing to conclude that the general considerations of good government underlining the history and nature of the convention were capable of affording weight to the interest in maintaining an exemption even in the absence of evidence of particular damage.
iii) By failing to conclude that the evidence of the two witnesses before it, supported with detailed arguments the reasons why the general principles applied in this case, deserved some weight as emanating from senior civil servants with experience of the requirements of government in this field. This does not mean that the Tribunal were bound by these decisions or prevented from reaching their own conclusion upon the issue. Since preparing a draft of this judgment I have became aware of the decision of Keith J in Home Office v Information Commissioner QBD  EWHC 1611 (Admin) where he rejected any suggestion of deference being required on the facts in that case at . I see no inconsistency with the conclusion I have reached on the facts of the present case.
iv) The Tribunal were unduly and wrongly influenced by a misdirection that the FOIA had tended to modify the Law Officer's Convention, as opposed to preserve it but render it amenable to being out-weighed by greater considerations of the public interest requiring disclosure of information in either limb of the Convention.
v) The Tribunal misdirected itself that the way the Convention worked operated as a trump card in the hands of the Ministerial department concerned as to whether or not to disclose but could be deployed for its advantage. If this were the case I would agree with the Tribunal's comments that this is inconsistent with the principled reasoning and the interests of transparency required by the FOIA. The history of the convention and the evidence of Mr Jones precisely in point demonstrated that it was not. Where Ministers had disclosed without the prior consent of the Law Officers this was considered to be a breach rather than an application of the convention and a matter for reprimand.
Ground 3 Irrelevant considerations taken into account
Ground 1 failure to assess the public interest in disclosure
Conclusion and remedies