Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  GIA/5619/2014

ADMINISTRATIVE APPEALS CHAMBER

 

1. This is an appeal by Mr Amin, the information requester, brought with my permission, against a decision of a First-tier Tribunal made on 12 June 2014, [2014] UKFTT 2013_0103 (GRC). For the reasons set out below that decision was in my judgment wrong in law. I allow the appeal, set aside the First-tier Tribunal’s decision and remit the matter for redetermination by an entirely differently constituted First-tier Tribunal.

 

Introduction

2. Mr Amin is a director and co-founder of Request Initiative, a not-for-profit organisation founded in 2010 which makes requests for information on behalf of charities, NGOs and the like.

 

3. On 5 April 2012 Mr Amin, at the instigation of Greenpeace, made a request (“the Request”) under the Environmental Information Regulations 2004 (EIR) for (so far as now material) communications, in the period 1 October 2011 to 5 April 2012, between the Second Respondent (DECC) and (i) the Department for Business, Innovation and Skills and (ii) the Treasury “in relation to proposals for the introduction of new emissions performance standards for fossil fuel power stations.”

 

4. DECC responded to the Request on 2 July 2012, stating that it held information within the scope of the Request, but that it was withholding the information under the exceptions in regulations 12(4)(d) (incomplete information) and 12(4)(e) (internal communications) of the EIR.

 

5. Following an internal review Mr Amin complained to the Information Commissioner (IC), who found that those exceptions were engaged and that the public interest in maintaining the exceptions outweighed the public interest in disclosing the withheld information. He did not therefore require the withheld information to be disclosed.

 

6. Mr Amin appealed to the FTT. DECC was added as second respondent to that appeal. Two civil servants, Mr Spurgeon and Mr Ibbett, made open witness statements on behalf of DECC. Mr Spurgeon’s witness statement contained, however, a closed annex in which he referred to and commented on the specific significance of the withheld information and the prejudice to the public interest which he contended disclosure of it would have caused.

 

7. The FTT held an oral hearing of the appeal, at which Mr Amin was represented by Mrs Julianne Kerr Morrison of counsel, the IC by Mr Christopher Knight of counsel and DECC by Miss Justine Thornton of counsel. DECC’s witnesses were cross-examined by Mrs Morrison in open session.

 

8. The FTT had before it a bundle of the withheld information. It also heard additional evidence from DECC’s witnesses, and submissions from counsel on behalf of the Respondents, in a closed session from which Mr Amin and those acting for him were excluded.

 

9. As I understand it, there was not time for counsel to make closing submissions orally before the end of the time allotted for the hearing, and the Tribunal therefore requested counsel to make their closing submissions in writing. Mr Knight made both open and closed closing submissions. Miss Thornton made her closing submissions in one document, from which substantial passages were redacted in the version provided to Mr Amin and his advisers.

 

10. By a majority decision the FTT dismissed the appeal, on the ground that the public interest in maintaining the exceptions outweighed the public interest in disclosing the withheld information. The FTT did not consider it necessary to issue any part of its decision in closed form.

 

11. I held an oral hearing of the appeal to the Upper Tribunal on 14 July 2015, at which the same counsel appeared on behalf of each of the three parties as had appeared before the FTT. Counsel for the Respondents had each provided both open and closed skeleton arguments. I held a brief closed session attended only by persons present on behalf of the Respondents.

 

12. It is not possible for me properly to explain the reasons for my decision without setting out some of the reasons in closed annexes which are to be provided only to the Respondents, their representatives and the new FTT.

 

The EPS and the grandfathering period

13. In July 2011 DECC had published a White Paper, 138 pages long, setting out the details of “the Government’s commitment to transform the UK’s electricity system to ensure that our future electricity supply is secure, low-carbon and affordable” (para. 1 of Executive Summary). These proposed reforms were described collectively as “Electricity Market Reform” (EMR). One element of the policy was the Emissions Performance Standard (EPS), which was dealt with in Chapter 2.4 of the White Paper. The summary at the beginning of that section included statements that

 

·         the EPS will initially be set at a level equivalent to 450g CO2/kWh (at baseload) for all new fossil fuel plant, except Carbon Capture and Storage (CCS) demonstration plants. It will not be retrospective.

·         The EPS will be subject to regular reviews as part of the process of three-yearly reports on decarbonisation under the Energy Act 2010.

·         Any changes in the level of the EPS will not apply to plant consented under the framework for a specified period. Details of this ‘grandfathering’ period will be determined following further engagement with stakeholders.

 

14. The immediate background to the Request was that on 17 March 2012 DECC issued a Press Release, the primary purpose of which was to announce the Government’s decision as to the appropriate ‘grandfathering’ period. The kernel of the Release was the following:

 

“The Energy and Climate Change Secretary set out measures to be included in the Electricity Market Reform legislation to provide certainty to gas investors:

 

·         The level of the Emissions Performance Standard, designed to limit the emissions from individual plant, will be enshrined in primary legislation. Power stations consented under the 450g/kWh-based level would then be subject to that level until 2045, a process called ‘grandfathering’ which provides long-term certainty to gas investors.

·         The Capacity Market will be designed to bring forward sufficient investment in new reliable capacity, including gas, in order to ensure security of electricity supply. This will help to ensure that there is sufficient capacity in place to cope with peaks and troughs in demand.

 

The Government intends to bring forward this legislation, subject to the Queen’s Speech, in the next Session of Parliament.”

 

15. The Press Release then went on to set out quotations from the Chancellor of the Exchequer (Mr Osborne) and the Secretary of State for Energy and Climate Change (Mr Edward Davey), essentially as to the rationale for the grandfathering period and the continuing importance of gas fired power stations. There were then some footnotes containing or referring to explanatory material.

 

16. The sequence of events from around the end of 2010, when DECC had launched a consultation on the EMR, including EPS, and 18 December 2013, when the Energy Act 2013 received Royal Assent, was set out in the evidence and submissions before the FTT. An outline chronology was set out in para. 15 of Miss Thornton’s skeleton argument to the FTT. At this stage I draw attention merely to the following. On 22 May 2012 (i.e. between the making of the Request and DECC’s response) the draft Energy Bill was published for pre-legislative scrutiny, and an impact assessment in relation to the effect of the grandfathering period was published. The Energy and Environment Select Committee’s report on pre-legislative scrutiny of the Bill was published on 12 July 2012. A revised version of the Energy Bill was introduced into Parliament on 29 November 2012.

 

The Environmental Information Regulations 2004

17. The EIR provide, so far as directly material, as follows:

 

“5(1) Subject to ……. a public authority that holds environmental information shall make it available on request.

 

 

12(1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if –

 

(a) an exception to disclosure applies under paragraphs (4) or (5); and

(b) in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.

 

(2) A public authority shall apply a presumption in favour of disclosure.

 

(4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that:

 

……….

(d) the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data;

(e) the request involves the disclosure of internal communications.”

 

18. The EIR were enacted pursuant to the UK’s obligations under EC Directive 2003/4, which includes the following recitals:

 

“(1) Increased public access to environmental information and dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment.

 

(16) The right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases. Grounds for refusal should be interpreted in a restrictive way, whereby the public interest served by disclosure should be weighed against the interest served by the refusal ….”

 

The withheld information

19. By way of reasoning (for the benefit of the Respondents and the new tribunal) it is necessary for me to describe, in Part 1 of the Closed Annex to this decision, what seems to me to be the essence of the withheld information. It is common ground that the withheld information is “environmental information” within the scope of the EIR, and that it constituted “internal communications” within reg. 12(4)(e).   

 

20. The Appellant was informed that the withheld information included communications between Ministers and a draft “Impact Assessment”. The final version of the Impact Assessment was some 20 pages long and was published on 22 May 2012. It considered the impact of 3 possible grandfathering periods, namely Option 1: grandfathering for the operational life of each plant, whenever built; Option 2: grandfathering until 2018; Option 3: grandfathering until 2045. In relation to Option 3 the published version noted that “grandfathering the level of the EPS until 2045 means that the later that a new fossil plant become(s) operational within the period 2014-45, the shorter the period of clarity over the emissions limit.” The Appellant has throughout accepted that the draft Impact Assessment fell within reg. 12(4)(d). That is the only document to which that exception is relevant. It also fell within reg. 12(4)(e), in that it had been enclosed with one of the Ministerial communications.

 

DECC’s evidence in relation to the prejudice to the public interest which disclosure would cause

21. In para. 43 of his witness statement Mr Spurgeon, having referred to the public interest in favour of disclosure, said:

 

“………. I think that there are two countervailing considerations which outweigh the factors in favour of disclosure of Cabinet correspondence and other internal communications in the particular circumstances of this case:

 

(a) the importance of protecting collective Cabinet responsibility; and

 

(b) ensuring a ‘safe space for policy making’ for Ministers and civil servants

 

given the live Parliamentary consideration of a controversial aspect of the EPS and ongoing policy consideration in response to the ongoing policy debate. The release of the disputed information could undermine and result in harm to the policy making process and Parliamentary handling of the Energy Bill.”

 

22. Mr Spurgeon’s paras. 44 to 49 set out an entirely general (i.e unrelated to the circumstances of the present case) summary of the significance of collective Cabinet responsibility and the need for ‘safe space’. Those paragraphs focused almost entirely on the need to ensure that Ministers and officials could express their views openly and with candour, and on the likely consequences in the future, in terms of loss of frankness and candour, and consequent damage to the quality of decision-making, if they felt that their views were likely to be made public. The effect in terms of loss of frankness and candour (sometimes referred to as “the chilling effect”) is not, however, something which has been put at the forefront of the Respondents’ submissions, or the FTT’s decision.

 

23. Then in paras. 50, 52 and 53 Mr Spurgeon said:

 

“50. If collective deliberations on the EPS policy were to be released to the public, that would make it much more difficult to debate and defend the collective Government position. It could also make any amendments during the legislative process more difficult to justify.

 

52. In weighing up the balance of the public interest, we took account of the arguments in favour of disclosure and non-disclosure. The importance of maintaining confidentiality for policy discussions involving Ministers or officials has long been recognised consistently and accepted as a working principle that such information will be protected. The central importance of confidentiality for the frank and open exchange of views has underpinned successive administrations as a key principle of Government. This is widely recognised by Ministers and officials in Government and also from third parties outside government looking independently and objectively at the justification for confidentiality of policy discussions.

 

53. In weighing up the public interest balancing test, we came to the view that disclosure of the disputed information would not lead to greater public understanding of the EPS policy given the information already in the public domain. In particular, where documents have been withheld under Regulation 12(4)(d) on the basis that they are draft versions (including a draft version of an impact assessment), it would not be in the public interest for these documents to be disclosed as it could undermine public confidence in the final version of the relevant document. It would not be in the public interest to disclose various iterations of a document where the final document has been published, as this could undermine public confidence in the final version and would not aid public understanding of the relevant information.”

 

24. In Part 2 of the Closed Annex to this Decision I  set out (i) some of the details of the oral evidence of DECC’s witnesses given in closed session, as appearing from the redacted parts of Miss Thornton’s closing submissions to the FTT and (ii) some of the comments made about the withheld information in the closed annex to Mr Spurgeon’s witness statement. That closed evidence, and Miss Thornton’s submissions to the FTT in relation to it, were essentially designed to make good, by reference to the contents of the withheld information and the particular circumstances in which it came into being, the points made, in very general form, in para. 50 of Mr Spurgeon’s witness statement.

 

 

 

The FTT’s Decision

25. The FTT’s decision runs to some 11 pages. I have read the whole of it, as it is particularly important to do in the case of this decision, many times. It will be necessary for me to refer again to particular passages in the decision when dealing with the issues in this appeal. For the moment I draw attention to the following.

 

26. In paragraphs 1 to 15, and then paragraphs 19 to 22 the FTT set out the factual background, the legal framework, and referred to some of the evidence and submissions.

 

27. In para. 16 the FTT said that “the public interest factors in this case are finely balanced”, and that the Tribunal was divided and would set out the majority view and then the minority view.

 

28. Then in paragraph 18 the Tribunal said that there were three issues, namely (a) Was the EPS Policy “live”? (b) Was the convention of collective Cabinet Responsibility engaged? (c) Whether or not the disputed information would materially increase public understanding? Those three “issues” to an extent mirrored the way in which the matter was dealt with in Mr Knight’s written open closing submissions on behalf of the IC, and then in Mrs Morrison’s written submissions in reply on behalf of the Appellant. But the ultimate issue was of course whether the public interest in maintaining the exceptions outweighed the public interest in disclosure.

 

29. In para. 23 the FTT considered issue (a). It started by saying that “the Tribunal agrees the issues here are finely divided”. Its conclusion at the end of that paragraph was:

 

“The Tribunal deliberated on this question of fact at length and find in the circumstances of this particular case, as outlined above, the EPS policy on balance in our opinion was “live”. However there was not agreement on the weight which should be given to the “live” nature of the policy discussion. The majority view within the Tribunal was that the “live” nature of the policy making carries significant weight in favour of non disclosure.

 

That is not the end of the matter. The argument for safe space is engaged.”

 

30. I agree with counsel for the Respondents, as I think Mrs Morrison was disposed during her oral submissions to do, that the better view is that the FTT was unanimous in agreeing that the EPS policy was “live” (but disagreed as to the weight which should be attributed to that fact). That was also confirmed by the chairman of the FTT when refusing permission to appeal.

 

31. The FTT in fact, somewhat strangely to my mind, set out the majority’s conclusion on the ultimate issue in the final two sentences of para. 24, the paragraph which according to its heading deals with issue (b). The whole of para. 24 is very important, and I therefore set it out in full at this point:

 

“The Tribunal acknowledges that the arguments pertaining to safe space and collective Cabinet Responsibility are also finely balanced in the particular circumstances of this case. It is clear that the presumption is in favour of disclosure and it is true that the subject matter is such that the public interest requirement for full and frank disclosure is very significant. However the Tribunal has heard the evidence of the civil servants advising Ministers on these issues and the clear opinion held by them is that in the particular circumstances of this case the Public Interest in non disclosure of the disputed information outweighs disclosure.

 

The Tribunal accepts that in many cases such as non controversial or low profile pieces of legislation a Government with a majority is unlikely to be adversely affected by disclosure of argument or sensitive compromise by ministers or the like. However in the circumstances of this particular case, which is a high profile, controversial and contentious piece of unfinished legislation (at the time of the request), there is a much greater risk of damage to the public interest by disclosure of detail of possible compromise and consensus. The evidence of Mr Ibbett confirmed this assertion and indicated that the Energy Bill and the EPS provisions within it were more likely to lead to rebellions against whips. He suggested this is particularly so in a coalition Government and in the House of Lords. The Tribunal are not entirely convinced that a coalition government is any more susceptible than a majority government would be so affected but accept the need for room for climb down, compromise and (sic) make concessions is all the more real in the context pertaining in the circumstances of this case. Regardless of the make up of the Cabinet, Ministers need to be able to state their position on a policy issue but be prepared ultimately to accept and support the majority view if and when it differs from his or her own view. These discussions would be much less robust and effective if they were conducted with one eye to the response of the opposition, the media and the public to what a particular minister or civil servant may have said or what he or she may have eventually been prepared to accept. There could be a temptation, rather than risk finding themselves in an untenable position, to not argue [or] put on record an unpopular view or a reservation. The Tribunal accept the need for safe space and the application of the convention of collective Cabinet Responsibility but were not all convinced by the evidence that the public interest in disclosure was outweighed in this case. Accordingly, the Tribunal held a majority view that in this case, the need for safe space outweighed the need for disclosure. The Tribunal emphasises that this is not an absolute consideration but applies on the particular facts of this case in light of the evidence considered herein.”

 

32. Then in paragraph 25 the Tribunal dealt with issue (c):

 

“The Tribunal notes the arguments made on this issue and has considered carefully the disputed information and the closed hearing and submissions. On balance the Tribunal, by a majority decision, considers that in relation to the public interest balance, there is less weight in favour of disclosure of the disputed information than in non disclosure. As outlined earlier DECC has disclosed a significant amount of material to enable public understanding of the decision making process in relation to EPS policy inter alia:

 

[material set out]

 

Inter alia DECC argue that the information in the public domain provides detail on the rationale, considerations and supporting analysis for the development of EPS policy. We agree that the draft impact assessment does not add any further information than already provided and was only a draft at a very rough stage of working. Finally, it is on balance, the majority view of this Tribunal that the disputed information would not significantly or materially add to the public interest.”

 

33. Then in quite a lengthy paragraph 26 the Tribunal set out the minority view, held by one of the lay members. I agree with counsel for the Respondents that it is permissible, and in my judgment in this case important, to have regard to the whole of this paragraph because it throws light on the reasoning of the majority set out earlier in the decision. The minority’s conclusion was set out at the end of the paragraph:

 

“In conclusion, the minority view of this panel was that neither the evidence or the submissions from the Respondents were strong enough to tip the scales against disclosure. In those circumstances, it is the minority view that the balance of the public interest lay in favour of release.”

 

34. In relation to the issue whether the EPS policy was “live” the minority member’s conclusion was expressed to be that

 

“The second Respondent’s witness described the position as ‘fluid’. This does not go very far in providing evidence that subsequent events may demonstrate that a policy was ‘live’ at an earlier time. The evidence of the need for safe space at the time of the request was in the minority view, therefore, unconvincing.”

 

35. In relation to issue (b) this paragraph states:

 

“The second element relied on by both Respondents was the need to preserve the convention of collective Cabinet responsibility. The Appellant submitted that both Respondents appear to treat the application of the convention as automatically amounting to a significant or weighty public interest in preserving the exemption. Previous Tribunals have not agreed with this (e.g. Scotland Office). The fact that information may be covered by the convention does not inevitably mean that there is a strong public interest against disclosure. It depends on the facts of each case. Only one of the two witnesses addressed this point and in essence the evidence (given in closed session) did not strongly focus on the convention. Again, the evidence, in the minority view, was unconvincing and did not support the need, in this instance, to give significant weight to the convention.

 

36. As to issue (c), the reasoning was:

 

“Given the minority view conclusions above that the first two elements did not carry as much weight as the Respondents contended, the third element would have had to be substantial to weigh against the presumption of disclosure. DECC’s argument was that there was already sufficient information in the public domain for Greenpeace and others to understand why the Government has proposed the policy it had. In addition, disclosure of the draft impact assessment would have been a significant distraction and evidence was given that an explanation of the surrounding context would have had to be given. This, in the minority view, was unpersuasive.”

 

The errors of law in the FTT’s decision

37. In my judgment the FTT’s decision was wrong in law in at least the following respects. But before setting out those respects I emphasise again that I have read the whole of its decision many times, with a view to trying to make sense of the passages which cause me difficulty.

 

 

The public interest factors in favour of disclosure

38. First, in my judgment the FTT’s reasoning contains an important inconsistency or inclarity on the issue of the weight of the public interest in favour of disclosure. In order to explain that inconsistency it is necessary to refer to the following background.

 

39. In para. 20 of his decision the IC had said that “the subject matter of this information is a valid factor in favour of disclosure of this information of very significant weight”, and in para. 22 that “the Commissioner agrees with the complainant that there is a strong public interest in the disclosure of this information given its subject matter.” In para. 30 the IC expressed his conclusion on the public interest balancing exercise as follows:

 

30. In conclusion, the Commissioner has recognised a very significant public interest in favour of the disclosure of this information based on its subject matter. However, it is also necessary to take that subject matter into account when considering the arguments against disclosure. The view of the Commissioner is that the public interest factors in this case are finely balanced and that the presumption in favour of disclosure described in regulation 12(2) must also be taken into account. When considering how closely the arguments concerning harm to the policy making process relate to the process recorded in this information, the Commissioner finds that the public interest in the maintenance of the exception outweighs the public interest in disclosure. DECC is not, therefore, required to disclose this information.”

 

40. Mr Knight’s skeleton argument before the FTT did not appear to indicate any wish to depart from the acceptance that there was a strong public interest in favour of disclosure. Paras. 28 and 29 were as follows:

 

“28. All these points combine to mean, as accepted by the Commissioner in the DN, that the public interest in disclosure of the information sought has very significant weight. ……………………………..

 

29. However, the Commissioner remains of the view that – although the public interests are relatively finely balanced – the public interest favouring the maintenance of the exemption outweighs that which favours disclosure.”

 

41. However, it is right to point out that in para. 52 of the Skeleton Mr Knight said:

 

“52. …the Commissioner has seen the Disputed Information. The content of that information goes to support the point that contributions were made in a free and frank manner. However, the information is not of the nature which render the public debate about the EPS policy choices stifled or misconceived by its non-disclosure. The Commissioner is content to say in open submissions that the Disputed Information does not significantly assist the matter set out in W/S Garman at para. 61.”

 

42. However, in paras. 28 and 29 of his open closing submissions, following the hearing before the FTT, Mr Knight appeared to depart from the previous acceptance that there was very significant public interest in disclosure:

 

“28. The Disputed Information would not significantly or materially add to the public interest. The information is not of a nature which would render the public debate about the EPS policy choices stifled or misconceived by its non-disclosure. However, it can be said that the Disputed Information does not significantly assist on the questions and matters raised by Mr Garman in W/S Garman at para. 61.

 

29. There must be a public interest in seeing the Disputed Information in issue: this information. The point is enhanced when the amount of material already in the public domain is recalled, and in the context of the need for Ministerial statements and explanations of policy choices found in the Bill. Those matters reduce the public interest in disclosure of the Disputed Information.”

 

43. In para. 33 of her closing submissions to the FTT Mrs Morrison referred to that apparent change of position and said that:

 

 “these assertions on the part of the [IC] are surprising to the Appellant………….. To suggest now that disclosure of the disputed information would be futile, or at least of limited utility, is inconsistent with the [IC’s] former assessment of the disputed information. The view taken by the Commissioner in the DN is also at odds with the position of DECC in its Closing Submissions.”

 

44. In para. 8 of its decision the FTT said:

 

“For all of the reasons canvassed by the Appellant (and not disputed by the Respondents), the Tribunal agrees that the public interest in disclosure of the information sought has very significant weight.”

 

45. To similar effect was para. 13:

 

“The evidence of Joss Garman that EPS has implications on levels of emissions and the cost of energy and environmental footprint, are of great public interest and supported the case for disclosure. It was uncontroversial in that regard. The Respondents and the Tribunal accept there is a very high interest in disclosure on the facts pertaining to this case.

 

46. In para. 14 the FTT noted, in relation to Mr Spurgeon’s evidence that

 

 “in relation to the public interest in the Disputed Information, while recognising the importance of the public interest in understanding of the development of Government policy and all of the points the Appellant makes in that regard, he is of the opinion that there are two countervailing considerations which outweigh the factors in favour of disclosure ……”

 

47. In para. 16 the FTT said:

 

“The Tribunal agree with the Commissioner in his analysis of the Public Interest Test in that we too recognise a very significant public interest in favour of disclosure of the disputed information based on its subject matter and the public interest factors in this case are finely balanced (see DN and above).”

 

48. In para. 24 the FTT said:

 

“It is clear that the presumption is in favour of disclosure and it is true that the subject matter is such that the public interest requirement for full and frank disclosure is very significant.”

 

49. I have set out above the FTT’s reasoning in para. 25, relating to issue c):  “whether or not the disputed information would materially increase public understanding?” In the final sentence of that paragraph the FTT said:

 

“Finally, it is on balance, the majority view of this Tribunal that the disputed information would not significantly or materially add to the public interest.” 

 

50. In my judgment the FTT’s decision lacks internal consistency in that in paras. 8, 13, 16 and 24 it states that it accepts the IC’s conclusion that there is “a very significant public interest in disclosure of the disputed information based on its subject matter” and that the competing public interest factors are “finely balanced”. In para. 25, however, it finds that the withheld information “would not significantly or materially add to the public interest”. It is contended on behalf of the Respondents that there is nothing illogical or inconsistent in reasoning that, although the content of the particular information would “not significantly or materially add to the public interest”, the public interest in disclosure of the information carries “very significant weight” by reason of its subject matter.  However, in agreement with Mrs Morrison’s submissions, I find those two positions difficult to reconcile. The weight of the public interest in disclosure must be considered by reference to the contents of the particular information. Mr Knight submits in his skeleton argument that “there can be a significant public interest in information, because of the context of it, or its class, even where the information itself is anodyne or relatively anodyne”. Stated in the abstract, that may possibly be so. But in my judgment, at the end of the day, the reader is left in a state of uncertainty as to whether or not the majority of the Tribunal did accept that there was a substantial public interest in the disclosure of the withheld information, and if so why.

 

The public interest factors in support of maintaining the exception

51. In my judgment the FTT failed sufficiently to explain whether the majority accepted the evidence of DECC’s witnesses, given in closed session, as to the particular reasons why they considered that the public interest, in terms of policy making and the progress of the Energy Bill, would or might have been damaged by disclosure. In my judgment it further failed sufficiently to indicate whether, if it did, it had critically examined that evidence by reference to the contents of the withheld information. I cannot fully explain my reasoning in relation to this error of law in the open part of this decision, and my full reasoning is therefore set out in Part 3 of the Closed Annex to this decision. The following is all that I can properly say in the open part of this decision.

 

52. The central importance which DECC attached to the closed evidence was acknowledged by Miss Thornton when she said, in the initial summary of DECC’s case in para. 3 of her closing submissions to the FTT, that “the evidence given in closed demonstrates that the public interests are firmly tilted in favour of not disclosing the information.”

 

53. The crucial paragraphs in the FTT’s decision are really paragraphs 23 and 24, and to some extent the minority view as set out in para. 26.

 

54. Para. 24 of the FTT’s decision included the following:

 

“….the Tribunal has heard the evidence of the civil servants advising Ministers on these issues and the clear opinion held by them is that in the particular circumstances of this case the Public Interest in non disclosure of the disputed information outweighs disclosure.

 

The Tribunal accepts that in many cases such as non controversial or low profile pieces of legislation a Government with a majority is unlikely to be adversely affected by disclosure of argument or sensitive compromise by ministers or the like. However in the circumstances of this particular case, which is a high profile, controversial and contentious piece of unfinished legislation (at the time of the request), there is a much greater risk of damage to the public interest by disclosure of detail of possible compromise and consensus. The evidence of Mr Ibbett confirmed this assertion and indicated that the Energy Bill and the EPS provisions within it were more likely to lead to rebellions against whips. ……………………….” (My underlining)

 

55. In para. 15 the Tribunal had referred to the fact that it “also heard closed evidence from the two witnesses on behalf of [DECC] and have the benefit of studying the closed bundle containing the disputed information.”

 

56. It is contended on behalf of the Respondents that the decision must be read against the background that the FTT were aware of the contents of the withheld information, and that the FTT’s reasoning, and in particular the passages which I have underlined in the extract from para. 24 set out above, sufficiently indicates that the majority accepted the evidence, open and closed, of DECC’s witnesses, save where otherwise specified. However, for the reasons set out more fully in Part 3 of the Closed Annex, I do not accept that.

 

57. I accept, of course, that it would only have been possible to deal in terms with these contentions if the FTT had given part of its decision in closed form, in which case the reasoning would not have helped Mr Amin to understand the decision. But the purpose of setting out a tribunal’s reasoning is of course not only to enable the party who has lost to understand why. Sufficient reasoning is also necessary because it should form part of the process of arriving at a conclusion and because it is necessary if an appellate body is to be able to determine whether there has been an error of law in the course of arriving at the decision.

 

58. In my judgment there was a further error of law here in that, if the Tribunal did accept the contentions in the closed evidence, it seems to me that it very arguably followed that that was also a factor which weighed on the side of the public interest in disclosure. My reasoning is set out in Part 4 of the Closed Annex to this decision.

 

59. The next error of law arises out of the FTT’s acceptance of the Respondents’ contention that, in determining (in the context of the “safe space” argument) to what extent the matters which were the subject of the withheld information were “live”, it was important to take into account that the information request was not limited to information related to the ‘grandfathering decision’, but was for information “in relation to proposals for the introduction of new emissions performance standards for fossil fuel power stations.” In para. 19 of its decision the FTT said:

 

“……………[The request] was neither limited to how the EPS level of 450g/KWh was reached nor limited to the 2045 grandfathering date. The request is wide and related to the EPS policy generally. It is accepted that this means that it may capture more information and extend beyond the information in the 17 March 2012 joint statement which referred only to a limited part of the overall policy.”

 

60. In para. 23 the FTT concluded that “the EPS policy on balance in our opinion was “live””.

 

61. However, in my judgment the fact that the Request extended beyond grandfathering was irrelevant unless the withheld information had potential significance in relation to aspects of EPS policy additional to those announced in the Press Release.

 

62. In my judgment the FTT’s reasoning does not sufficiently indicate that it examined critically DECC’s contention that it was significant, in the context of determining whether the relevant policy was “live”, that the Request extended beyond grandfathering, or why it accepted that contention. My reasons are set out in Part 5 of the Closed Annex to this decision.

 

63. The next error of law arises out of the FTT’s discussion, in para. 24 of the decision, of the convention of collective Cabinet responsibility. In my judgment the FTT did not make it sufficiently clear what significance it attached to the Convention when considering the weight of the factors in favour of maintaining the exception.

 

64. As the Tribunal had noted in para. 14 of its decision, the Convention had been relied upon in Mr Spurgeon’s witness statement. However, in para. 26, when setting out the minority view, the Tribunal said that “only one of the two witnesses addressed this point and in essence the evidence (given in closed session) did not strongly focus on the Convention.”

 

65. At the beginning of para. 24 (which as I have noted was headed “Was the convention of collective Cabinet Responsibility engaged?”) the FTT said that “the Tribunal acknowledges that the arguments pertaining to safe space and collective Cabinet responsibility are also finely balanced in the particular circumstances of this case.”  I do not understand what it meant by that. It could be referring to the outcome of the overall public interest balancing exercise, but if so the language is very odd in that there is no reference to the public interest in favour of disclosure. Or it could be referring simply to the question whether the public interests around safe space for policy formulation, and the Convention, were material, on the facts.

 

66. Later in para. 24 the FTT reiterated the point made by Mr Spurgeon in his witness statement as to the general significance of the Convention, namely that if ministerial communications were disclosable there would be a risk to candour in that dissenting or unpopular views might not be put on record.

 

67. Then the FTT concluded  para. 24 by saying:

 

“The Tribunal accept the need for safe space and the application of the convention of collective Cabinet Responsibility but were not all convinced by the evidence that the public interest in disclosure was outweighed in this case. Accordingly, the Tribunal held a majority view that in this case, the need for safe space outweighed the need for disclosure. The Tribunal emphasises that this is not an absolute consideration but applies on the particular facts of this case in light of the evidence considered herein.”

 

68. I accept Mrs Morrison’s submission that it is unclear to what extent, if any, the FTT attached weight to the Convention separate from that which it considered to attach to the need for “safe space” for policy formulation. The implication from the penultimate sentence of para. 24, set out immediately above, seems to be that the FTT considered that on the facts of this case the Convention did not give rise to any separate factor in favour of maintaining the exception, over and above the need for ‘safe space’, but this is not at all clear.  The question was of potential importance in that, on one view at least, the issue whether a policy is “live” is of less significance in relation to the Convention than in relation to arguments based on the need for ‘safe space’ for policy formulation generally. Thus, in para. 64 of his Guidance on reg. 12(4)(e) the IC states that:

 

 “whether or not the issue is still ‘live’ will not reduce the public interest in maintaining collective responsibility (although it will affect the weight of related safe space arguments). This is because the need to defend an agreed position will, by its very nature, continue to be relevant after a decision has been taken, and because of the constitutional importance of maintaining the general principle of collective responsibility for the sake of government unity.”

 

69. It is further unclear whether the FTT attached importance to the “chilling effect” which disclosure might have on future ministerial communications, which the FTT had referred to earlier in para. 24.

 

70. A further respect in which the reasoning is unclear is one which I cannot attempt to explain in the open part of this decision, and is therefore set out in Part 6 of the Closed Annex to this decision.

 

The draft Impact Assessment

71. I have set out above para. 53 of Mr Spurgeon’s witness statement, relating to the reasons for refusing to disclose the draft Impact Assessment.

 

72. In Part 7 of the Closed Annex to this decision I set out the relevant part of the closed annex to Mr Spurgeon’s witness statement, and paras. 5, 40 and 41 of Miss Thornton’s closing submissions to the FTT (including the redacted parts of those paragraphs).  

 

73. In its decision the FTT dealt with the draft Impact Assessment very briefly. In para. 14 it said, in the context of Mr Spurgeon’s evidence:

 

“In relation to the draft Impact Assessment he said that release of it “… would create confusion and would not really help inform the public interest one way or another” and he confirmed “I say this having read the documents””.

 

74. In para. 25 the FTT said:

 

“We agree that the draft Impact Assessment does not add any further information than already provided and was only a draft at a very rough stage of working.”

 

75. When setting out the minority view in para. 26 the Tribunal said:

 

“The third element in support of non disclosure was the utility (or lack of it) of the requested information. ………….DECC’s argument was that ………………disclosure of the draft impact assessment would have been a significant distraction and evidence was given that an explanation of the surrounding context would have had to be given. This in the minority view was unpersuasive.”

 

76. I have noted that the published Impact Statement was some 20 pages long. It is a somewhat strange document, and very complicated. I started trying myself to understand what the significance of the differences between the two versions might be, but soon gave up. I doubt whether the FTT had the material or the expertise to attempt to determine what the significance of the differences between the two versions might be. Mrs Morrison obviously could not make any submissions about that. In my judgment it is therefore very doubtful whether the Tribunal was in a position to say that “we agree that the draft Impact Assessment does not add any further information than already provided.” The draft showed what the draftsman’s thinking was at the time. It is arguable that in the circumstances the FTT was unable properly to determine where the balance of public interest lay, and that it should simply have applied the presumption of disclosure. However, it seems to me, on balance, that the FTT was entitled to take the broad brush view that as it was no more than a working draft, in the course of evolution, it was unlikely to have been in the public interest for it to be disclosed. Its reasoning was very thin, and arguably unsatisfactory in the respect which I have noted, but probably just about adequate.

 

Closed material: some general principles.

77. The errors of law which I have identified in the present case may justify re-iterating some general principles arising out of the use of closed material.

 

(i) The FTT must examine critically submissions based on closed material

78. First, it will generally be incumbent on the FTT critically to examine the closed evidence and any submissions based on it. The information requester and his representatives may (depending on the nature of the closed evidence and what it is possible for the FTT to tell them about it) be either wholly unable to make submissions about it, or be severely hampered in doing so. In pursuance of its investigative duty the FTT must seek to ensure that the information requester is not thereby disadvantaged. That might involve pursuing lines of questioning, whether of the witnesses or of the public authority’s advocate, which it might not have considered necessary had the information requester and his advocate been privy to all the evidence.

 

(ii) Duty of maximum possible candour in writing the reasoned decision.

79. In Browning v Information Commissioner [2014] EWCA Civ 1050 Maurice Kay LJ said at para. 35:

 

“What is also important is that when the FTT excludes both a party and his legal representative it does its utmost to minimise the disadvantage to them by being as open as the circumstances permit in informing them of why the closed session is to take place and, when it has finished, by disclosing as much as possible of what transpired in order to enable submissions to be made in relation to it. The same commitment to maximum possible candour should also be adopted when writing the reasoned decision.”

 

80. A facet of maximum possible candour when writing the reasons is that the information requester must be told whether the closed material has been relied upon in arriving at the decision, and as much as possible about the significance which the closed material played in the reasoning. The primary purpose of reasons is to tell the parties why they have won or lost. If there was material before the FTT to which one of the parties was not privy, he needs at least to know whether, and as far as reasonably possible without giving the content of the material away, to what extent, that material made a difference.

 

81. In my judgment the FTT in the present case further erred in law in that its reasoning did not attempt to give the Appellant such indication as it could of the significance which the closed material had played in its decision. It can be inferred that the contents of the withheld information were important – they nearly always will be. But there is not really any indication as to whether the oral evidence of DECC’s witnesses given in closed session, or the closed annex to Mr Spurgeon’s witness statement, made a difference. On the face of it the FTT’s reasoning leaves the Appellant and his advisers in the puzzling position where the FTT found that the disputed information would not materially increase public understanding, yet there was found to be a risk of substantial damage to the public interest if it were disclosed. If the explanation for that apparent discrepancy were clearly apparent to me, reading the reasoning in the light of all the evidence, I could of course remedy that particular defect in the reasoning by setting out, in this decision, such broad indication as it is possible to give (without disclosing the contents of the information) as to whether the closed evidence made a difference. But, as I have said, it is not sufficiently clear to me whether the majority accepted the evidence given in closed session.

 

(iii)  Closed reasoning may be necessary.

82. The requirement (referred to in para. 35 of Browning) of “maximum possible candour ……. when writing the reasoned decision” may (as appears to have happened in this case) lead the tribunal to attempt to explain its reasons without making use of a closed annex to its decision. If it does that, the information requester will at least know that there is no reasoning which he has not seen. But the danger of doing that is of course that the reasoning may not be sufficiently clear, even to those (including the Upper Tribunal) who are able to read it with knowledge of the closed material. The FTT’s primary task is to make its reasoning comprehensible. If it can do that without closed reasoning, so much the better. But if it cannot then the FTT must bite the bullet and make use of closed reasoning, to the extent necessary. It will generally be better to do that than run the risk that its decision is held to be wrong in law for inadequacy of reasoning. The closed reasoning will of course not assist the information requester to understand why he has lost, but that is not the only purpose of providing reasons. Additional purposes are (i) (at any rate in a case where the decision is made at the time when the reasons are provided) to assist in the process of arriving at the right conclusion and (ii) to enable the Upper Tribunal or a higher appellate court to determine whether the reasoning contains an error of law. As to the latter, see APPGER v. IC and FCO [2013] UKUT 560 at [43].

 

83. In the present case the chairman of the FTT, when refusing permission to appeal, said that “there is an inherent inhibition on disclosure of any information that is to remain exempt which restricts the explicit reasoning for the panel’s decision on the balance in favour of non-disclosure.” One interpretation of the underlining (which is mine) is that the chairman did not even consider the possibility of providing closed reasoning. But whatever he meant, it was not a justification for providing reasons which are not sufficiently clear for an appellate tribunal to understand.

 

Did the FTT go wrong in law in taking into account events during the subsequent Parliamentary process?

84. Mrs Morrison submits that the Tribunal misdirected itself that it could rely upon events post-dating the date of the Request (i.e. events during the subsequent Parliamentary process) to reach the decision that the policy-making process was “live”.

 

85. As the Respondents now submit, it is generally accepted that the time for applying the public interest balance is the time down to the date when the request is refused: see, for example, DCLG v IC and WR [2012] UKUT 103 (AAC) at [66]; GW v IC and the LGO [2014] UKUT 130 (AC)  at [74] and [76].

 

86. However, on the facts of this case I doubt whether there was any significant difference between the position at the date of the Request (5 April 2012) and at the date of refusal (2 July 2012).

 

87. In my judgment it was permissible to look at events after those dates in so far as they could properly be considered to throw light on the state of affairs as at those dates, and in particular the likelihood, viewed then, that it would be necessary to revisit grandfathering (or other relevant EPS) policy: see GW v IC and the LGO at [77]; R (Evans) v A-G [2015] UKSC 21 at [72-3].. It does not seem to me that the FTT exceeded what was permissible in this respect.

 

The need for ‘safe space’: was the FTT’s decision wrong in principle?

88. Mrs Morrison contends that it was not permissible for the FTT to find that EPS policy was at the material time sufficiently ‘live’ to justify attaching significant weight to the need for ‘safe space’ in formulating policy. She submits that it was not permissible to reason that the EPS policy remained ‘live’ merely because it remained subject to the Parliamentary process.

 

89. In her grounds of appeal she summarised her contentions on this point as follows:

 

“The Tribunal/Majority mis-directed itself that the Parliamentary process, involving mere alterations to some unspecified aspects of the EPS policy and the keeping under review of a policy could render a policy ‘live’ such as to justify the granting of a ‘safe space’ – which is granted for policy formulation and development. The Tribunal mis-directed itself that the Parliamentary process in effect equated to the policy-making process. The Tribunal/Majority accepted the flawed argument put forward by DECC and the Information Commissioner that simply because the Parliamentary process was on-going, the need for a safe space automatically arises. The need for a safe space is recognised for policy formulation and development. A “safe space” is not afforded to the Government to implement policies or to pass (contentious) legislation. The Tribunal’s/Majority’s reasoning is inconsistent with the Aarhus Directive and the Aarhus Convention.”

 

90. In a later submission she submits:

 

“The authority has to demonstrate that policy formulation and development is on-going on the facts (i.e. explain what is being thought about) – and why this on-going formulation and development justifies a need for a safe space in the light of the policy decisions it has made public.”

 

91. In effect this is a contention that the FTT was perverse in finding that the relevant aspects of the EPS policy were at the relevant time sufficiently “live” to warrant the conclusion that there was still a need to withhold disclosure by reason of the need for ‘safe space’.

 

92. At the outset of her oral submissions Mrs Morrison indicated that her clients regarded these points as important points of principle, of potential significance in relation to other cases.

 

93. The exception in reg. 12(4)(e) of the EIR permits a public authority to refuse to disclose information “to the extent that the request involves the disclosure of internal communications.”

 

94. The IC’s Guidance (Version 3) on reg. 12(4)(e) notes (at para. 10):

 

“10. The underlying rationale behind the exception is that public authorities should have the necessary space to think in private. The original European Commission proposal for the Directive (COM(2000)0402) explained the rationale as follows:

 

“It should also be acknowledged that public authorities should have the necessary space to think in private. To this end, public authorities will be entitled to refuse access if the request concerns [….] internal communications.”

 

11. However, the exception is drafted broadly and covers all internal communications, not just those actually reflecting internal thinking. It is a class-based exception, meaning there is no need to consider the sensitivity of the information in order to engage the exception. A wide range of internal documents will therefore be caught, although in practice the application of the exception will be limited by the public interest test.

 

12. The exception has no direct equivalent in [FOIA]. However, many arguments about protecting a private thinking space will be similar to those made under section 35 (formulation of government policy) and section 36 (prejudice to the effective conduct of government affairs) of FOIA.”

 

95. Mrs Morrison relies, in particular, on the analysis in Dept of Health v IC and Healey [EA/2011/0286 and 0287] 126 BMLR 110, which related to requests for two “Risk Registers” (a “TRR” and a “SRR”) which had been drawn up in November 2010 and February 2011 respectively for the purpose of assessing the risks posed by the recently elected Coalition Government’s radical NHS structural reforms. Those reforms were set out in a White Paper published in July 2010. The requests were made very shortly after the compilation of the Registers, and responded to in December 2010 and March 2011 respectively. The first reading of the Health Bill took place in January 2011, but there were over 100 divisions in the House of Commons in a short period thereafter, and in April 2011 the Government halted progress of the Bill, saying that it would engage in a listening exercise, and the NHS future Forum was established in June 2011.

 

96. The Tribunal recorded that all parties were agreed that s.35(1)(a) of FOIA was engaged – the Risk Registers clearly “related to” the formulation or development of Government policy. In considering the public interest balancing exercise the Tribunal found (at [34]) that the policy decision had been reached at the White Paper Stage. It further found that the purposes of the two Registers were different: the TRR contained what the Tribunal referred to as “largely implementation/operational type risks”, whereas the SRR “contains risks which need to be brought to the attention of ministers so that if necessary policy decisions can be made.”

 

97. The Tribunal said:

 

“24. The tribunal has considered s.35(1)(a) on many occasions. In Dept for Education and Skills v IC and Evening Standard (‘DFES’) it was first established that the exemption had a broad construction and that government is entitled to a ‘safe space’ in order to consider policy options. During this period it would be very unlikely to be in the public interest to disclose information, unless there was evidence of wrongdoing. In DfES the Tribunal stated at para 75(v) that “a parliamentary statement announcing the policy …. will normally mark the end of the process of formulation.’

 

25. In other cases the tribunal has found that the formulation and development of government policy has come to an end by the time a Bill receives the Royal Assent. The tribunal has tried to distinguish between the formulation and development stages of policy and the implementation of the policy. It has also established that the need for a safe space is at its highest during policy formulation and that once the policy has been announced that need diminishes over time depending on the amount of development still taking place, but that the same safe space is not needed by the time the policy is being implemented.

 

26. ………………………

 

27. The IC has accepted in his recent guidance that “with the classic policy formulation process of turning a White Paper into actual legislation, the formulation of policy can be ongoing right up to the Bill receiving Royal Assent.”

 

28. We are prepared to accept that there is no straight line between formulation and development delivery and implementation. We consider that during the process of a government introducing a new policy that the need for a safe space will change during the course of a Bill. For example while policy is being formulated at a time of intensive consultation during the initial period when policy is formed and finalised the need for a safe space will be at its highest. Once the policy is announced this need will diminish but while the policy is being debated in Parliament it may be necessary for the government to further develop the policy, and even undertake further public consultation, before the Bill reflects the government’s final position on the new policy as it receives the Royal Assent. Therefore there may be a need to, in effect, dip in and out of the safe space during this passage of time so government can continue to consider its options. There may also come a time in the life of an Act of Parliament when the policy is reconsidered and a safe space is again needed. Such a need for a policy review and development may arise from implementation issues which in themselves require ministers to make decisions giving rise to policy formulation and development. We therefore understand why the UCL report describes the process as a ‘continuous circle’ certainly until a Bill receives the Royal Assent. However the need for safe spaces during this process depends on the facts and circumstances in each case. Critically the strength of the public interest for maintaining the exemption depends on the public interest balance at the time the safe space is being required.”

 

98. The Tribunal concluded that the public interest in maintaining the exemption did outweigh the public interest in disclosure in relation to the SRR, but not the TRR. It found:

 

“84 …………. The [TRR] request was refused at a time when consultation had ceased and policy seemed to be fixed. At this time the strength of the public interest in the need for a safe space had lessened. The [SRR] request was refused at a time when the reforms were being strongly questioned in Parliament and outside and the government would have been re-evaluating its position which was why not long afterwards it went back into a consultation phase. During this period there would have been a very strong public interest again in the government having a safe space to consider whether its policy needed to be reformulated.”

 

99. Much of the reasoning in Healey proceeds on the assumption that, because ‘safe space’ for policy formulation is only needed while policy is actually being formulated, the public interest in favour of maintaining the exemption in reg. 35(1)(a) of FOIA will necessarily disappear or substantially diminish if by the time when the request is answered the policy has been decided, even if there is later a need to reconsider the policy. Hence the reference in para. 28 of Healey, adopted by Mrs Morrison in her submissions, to the possible need to “dip in and out of the safe space”.

 

100. But what if, although there is no policy formulation going on at the time when the request is answered, it is likely that there will be a need to revisit that policy during the Parliamentary process, and disclosure would be in some way prejudicial to that later reconsideration? And what if disclosure would be prejudicial to the conduct of public affairs in some way other than a likely disruption to the process of policy formulation?

 

101. Mrs Morrison submits that the fact that a policy decision is controversial, or the fact that the public authority or the government may have to re-consider its position at a later point in time, does not justify the maintenance of a safe space for policy-making.

 

102. Where the exception in reg. 12(4)(e) is relied upon, the public authority must identify the prejudice to the public interest which would occur if the information were to be disclosed. There is no presumption that there will be some such prejudice merely because the information falls within the definition of “internal communications”. But nor is the prejudice to the public interest which can be relied upon limited to any particular kind of prejudice, or prejudice arising in any particular way. It is not limited to the need for ‘safe space’ for ‘policy formulation and development’. It seems to me that it is sufficient that disclosure would in some way prejudice the effective conduct of public affairs (cf. the catch-all provision in s.36(2)(c) of the Freedom of Information Act 2000). The only limitation, it seems to me, is that the prejudice must be related to the fact that the communications are internal ones.

 

103. There may in those respects be a difference between reg. 12(4)(e) and s.35(1)(a) of FOIA. As the IC notes in para. 23 of his Guidance (Version 2.0) relating to s.35(1)(a):

 

“The purpose of section 35(1)(a) is to protect the integrity of the policymaking process, and to prevent disclosures which would undermine this process and result in less robust, well-considered or effective policies. In particular, it ensures a safe space to consider policy options in private.”

 

104. But even under s.35(1)(a), it may well be that the prejudice which can be relied upon is not limited to damage to the policymaking process. Thus, the IC acknowledges at para. 80 that:

 

“Although the focus will generally be on the policymaking process, if the department can make convincing arguments that disclosure would directly harm the effectiveness of the policy itself, that will also carry some weight.”

 

105. What exactly is the harm against which the maintaining of “safe space” for policy formulation is meant to guard? There has been relatively little consideration of this in the authorities.

 

106. It is not, of course, primarily a question of law. It is for the public authority in each case to state and establish what the nature of the prejudice to the public interest would be on the facts of that case, were disclosure to be directed, and then for the IC or tribunal to decide (i) as a matter of fact, whether it accepts that prejudice would be likely to occur and (ii) if so, whether as a matter of law that prejudice is of a nature which can be taken into account under the particular exemption(s) relied upon. But in relation to section 35(1)(a), which of course applies only to the formulation or development of government policy, and in relation to reg. 12(1)(e) where government policy is concerned, the same sorts of prejudice, supported by the same sort of evidence, are likely to be relied upon, and therefore ruled upon, repeatedly, and in the interests of consistent decision making principles will become established: cf. Jacobs, Tribunal Practice and Procedure, 3^rd ed (2014) at13.24 to 13.37.

 

107. In a much quoted passage, the Tribunal in the DfES case said (at para. 75(iv)):

 

“We fully accept the DFES argument, supported by a wealth of evidence, that disclosure of discussions of policy options, whilst policy is in the course of formulation, is highly unlikely to be in the public interest, unless, for example, it would expose wrongdoing within government. Ministers and officials are entitled to time and space, in some instances to considerable time and space, to hammer out policy by exploring safe and radical options alike, without the threat of lurid headlines depicting that which has been merely broached as agreed policy. We note that many of the most emphatic pronouncements on the need for confidentiality to which we were referred are predicated on the risk of premature publicity ….”

 

108. In DEFRA v IC and The Badger Trust [2014] UKUT 526 (AAC) the Upper Tribunal said:

 

“49. In this case DEFRA raise and rely on what has come to be known in the application of the statutory schemes introduced by FOIA and EIR as issues of ‘safe space’. Especially in the context of EIR, we prefer to refer to a public authority having “space to think in private”.

 

50. We accept that:

 

(a) commonly while many policies are being worked out there is a public interest in government having a “space to think in private”,

 

(b) the disclosure of the robust or other discussions and of the risk assessments during that process may cause harm to efficient decision making and thus be against the public interest,

 

(c) …………………………….”

 

109. In Dept of Health v IC and Lewis [2015] UKUT 159 (AAC) Charles J (sitting in the Upper Tribunal) referred (at [31]) to “the likelihood of harm from distracting and counter-productive discussion based on disclosure before a decision is made.”

 

110. The ‘safe space’ is therefore needed at least in part in order to prevent the counter-productive disruption and distraction to the policy-making process which would be likely to occur if the recorded thoughts of officials in the course of working out the policy were to be made public. That disruption and distraction would most obviously be likely to result from a perceived need to react to criticism based on previously imperfected thoughts and ideas. Disruption to the policy making process itself can obviously only occur while policy is actually being worked out. But it does not in my judgment follow that the likelihood of it could only constitute prejudice in relation to a request answered while policy formulation is going on. It seems to me that, if the government provides evidence to the effect that, even though no policy formulation was occurring at the time when the request was answered, it was likely that the policy would need to be reconsidered during the Parliamentary process ,and that in the event of that happening a previous disclosure of the withheld information would or might well have given rise to unproductive disruption and distraction, there is no reason why the likelihood of such prejudice could not be taken into account.

 

111. That point was in substance accepted by the Upper Tribunal in the Badger Trust case:

 

“51. …… to the extent that there may be a need for a space to think in private concerning Departmental deliberations, no-one doubts that generally speaking the need to maintain that privacy diminishes over time. There have been suggestions in First-Tier Tribunals in the past that once a policy had been formulated and announced there could be no further public interest in withholding information from publication. We do not accept that (see OGC v Information Commissioner [2010] QB 98 at paragraph 101). It all depends on the facts and circumstances of the individual case.

 

53. Put in the context of this case, our task is not to ask whether around about September 2012 DEFRA had a current need for a ‘space to think privately’. Rather, we must ask whether at that date the public interest in keeping the 2010 thinking private outweighed the public interest in its disclosure. It all depends on the facts and circumstances. …..”

 

112. Further, for the reasons I have given above, it seems to me that the sort of prejudice which can be relied upon can extend to anything which would or might result in the policy being formulated less efficiently or less well. It could include anything tending to result in the policy makers having to pay undue regard to matters not directly related to the merits of the policy arguments. Further, it could extend to matters other than disruption of the process of formulating policy.

 

113. In my judgment, therefore, in so far as it is contended in the grounds of appeal in the present case that the FTT’s decision must be perverse because at the time of the Request (or when it was answered) there was no policy formulation going on, but merely the possibility that the policy (and in particular the appropriate grandfathering period) would need to be reconsidered during the Parliamentary process, that contention is not correct.

 

114. But, as has been repeatedly emphasised, in determining whether disclosure would prejudice the public interest all will depend on the precise nature of the withheld information and the extent to which the IC or tribunal accepts the government’s contention that prejudice will or would have been caused in the particular case. Reg. 12(1)(b) itself states that the public interest balancing exercise is to be performed by weighing the competing interests “in all the circumstances of the case.”

 

115. I have already referred to the fact that in para. 50 of his witness statement Mr Spurgeon said:

 

“If collective deliberations on the EPS policy were to be released to the public, that would make it much more difficult to debate and defend the collective Government position. It could also make any amendments during the legislative process more difficult to justify.”

 

116. That was necessarily stated at a high level of generality. The withheld information was necessarily closed evidence, and DECC relied, in the closed annex to Mr Spurgeon’s witness statement, and in oral evidence given by Mr Spurgeon and Mr Ibbett in closed session, on the risk of prejudice arising in particular ways, which I have referred to in detail in Closed Annex 3 to this decision. I am certainly not able to say, on what is before me, that it was not open to the FTT to accept that evidence.

 

117. I have already noted that in para. 23 of its decision the FTT expressed its conclusion on what it saw as the first issue (“Was the EPS Policy ‘live’?”) as follows:

 

“The Tribunal deliberated on this question of fact at length and find in the circumstances of this particular case, as outlined above, the EPS policy on balance in our opinion was “live”. However, there was not agreement on the weight which should be given to the ‘live’ nature of the policy discussion. The majority view within the Tribunal was that the ‘live’ nature of policy making carries significant weight in favour of non-disclosure.

 

That is not the end of the matter. The argument for safe space is engaged.”

 

118. The reference in para. 23 to “the particular circumstances of this case, as outlined above”, seems to be a reference in particular to para. 21, in which the FTT had said:

 

“The EPS policy had been subject to various changes during the drafting and passage of the Bill. Mr Spurgeon and Mr Ibbett gave detailed evidence of the ongoing and often controversial changes that demonstrate that the policy was, on balance ‘live’.”

 

119. The Tribunal seems to have regarded it as necessary to answer the particular question whether the EPS policy was ‘live’. I think that that was mistaken because it is not necessarily possible to say of a particular policy that it is either ‘live’ or not ‘live’. There is in reality a broad spectrum of possibilities as regards the degree of finality of a policy, and there is not a particular degree of ‘liveness’ which must still exist if prejudice to the public interest by reason of impingement on the safe space for policy formulation is to be capable of being found significant. As Mr Knight submitted: “There is no binary distinction between a policy being ‘live’ or ‘not live.’”

 

120. It may be different under s.35(1)(a), because it may be necessary to decide whether that subsection is engaged at all, and therefore whether the withheld information relates to “the formulation or development of government policy”, as opposed to its implementation, and that question admits only of a yes or no answer.

 

121. But I do not think that that particular feature of the FTT’s reasoning gave rise to an error of law because the FTT did go on to recognise in para. 23 that it needed to determine what weight should be attached to the ‘live’ nature of the policy discussion. It recognised that its answer (yes or no) to the question whether the policy was ‘live’ did not mean that significant weight should necessarily be attached to the public interest in maintaining the exception in reg. 12(4)(e).

 

Disposal

122. Having set aside the FTT’s decision as wrong in law, it would plainly not be appropriate for me to re-make the FTT’s decision, and the matter must therefore be remitted to a new First-Tier tribunal, as directed in paragraph 1 above.

 

 

Charles Turnbull

Judge of the Upper Tribunal

22 September 2015