Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

This decision is given under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007:

Although the decision of the First-tier Tribunal under reference EA/2014/0197, made on 21 December 2014, involved the making of an error on a point of law, it is NOT SET ASIDE.

Reasons for Decision

A.        History and background

1.         In 2009, I referred questions to the Court of Justice of the European Union concerning the presence and residence conditions for incapacity benefit in youth. The Court gave its answer in Stewart v Secretary of State for Work and Pensions [2011] EUECJ C-503/09. As a result of that decision, the Department introduced a requirement for a genuine and sufficient link with the United Kingdom’s social security system in some social security benefits.

2.         On 20 June 2013, the European Commission commenced infringement proceedings against the United Kingdom: Infringement No 2009/2139. A letter was written to the Commission on behalf of the United Kingdom, setting out its position in those proceedings.

3.         Sir Roger wanted to know what was in that letter in order, as he told me, to do his job as a Member of Parliament and decide what submissions, if any, he should make to the Commission. He asked for the information by way of a Parliamentary Question and then under the Freedom of Information Act 2000 (FOIA), both without success. On complaint to the Information Commissioner, the Commissioner upheld the Department’s refusal. The First-tier Tribunal allowed his appeal, but I gave the Department permission to appeal to the Upper Tribunal.

4.         The appeal was held at an oral hearing before me on 19 October 2015. Oliver Sanders of counsel appeared for the Department. Heather Emmerson of counsel appeared for the Information Commissioner. Sir Roger spoke on his own behalf. I am grateful to all three for their arguments. Mr Sanders told me that the Commission had withdrawn the proceedings and that Sir Roger could now have a copy of the letter. He argued that the appeal should proceed in view of the Department’s concern at the approach taken by the First-tier Tribunal. In dealing with the arguments, I have concentrated on the manner in which that tribunal went wrong in law.

B.        Why the First-tier Tribunal’s decision involved an error of law

5.         The issue for the tribunal was whether disclosure of the information in the letter would, or would be likely to, prejudice relations between the United Kingdom and the European Commission for the purposes of section 27(1)(b) of FOIA. If the prejudice test is satisfied, a balance of public interest has to be applied under section 2(2)(b).

6.         The tribunal declined to decide the issue of prejudice by reference to the general classification of the document. It considered the content of the document, likening it to an academic article or advice from leading counsel. It decided that section 27 was not engaged, since the publication of the letter ‘would not disrupt relations with the EC, having regard to its character.’ The tribunal went on to mention that:

·                There was nothing apparently confidential in the contents.

·                It set out only the United Kingdom’s position.

·                It bore no confidentiality marking.

·                There was no evidence from the Commission.

·                Revealing the contents of the document would not give any legitimate cause for offence.

·                Refusal might be seen as a surprising erosion of the Convention right under Article 10 of the European Convention of Human Rights.

·                The Commission could not properly object to information released under domestic freedom of information legislation.

·                Release would not hamper compromise as that is in the common interests of the Commission and member States.

The tribunal then recorded that, even if section 27 had been engaged, it would have found that the public interest favoured disclosure.

7.         I deal briefly with the procedural issue of fairness and reject the argument that the Department was taken by surprise by the tribunal’s decision to deal with the issue of engagement of section 27. The tribunal had power to deal with the issue, even if it was not raised by the parties. Ms Emmerson told me that, unlike the Department, the Information Commissioner noticed the drift of the tribunal’s questions and made closing submissions on the issue. Sir Roger described the argument as risible. Mr Sanders (who did not represent the Department before the First-tier Tribunal) replied that the submissions would have been better made if the issue had been clearly put in issue by the tribunal from the outset. It is important to distinguish between good practice and fairness. It is good practice for any tribunal to make clear to the parties what issues it is considering, especially if there is scope of uncertainty on the point. But the Department was represented in this case by counsel, and counsel for a different party identified that the issue was in the mind of the judge and members of the panel. In those circumstances, I am satisfied that there was no ground for unfairness in the proceedings.

8.         I now come to the substantive issue of the tribunal’s analysis of the prejudice point. Mr Sanders criticised each and every element of the tribunal’s reasoning. Sir Roger characterised his argument as being that the Department did not like the outcome and thought it was unfair. Ms Emmerson presented an analysis designed to demonstrate the coherence and rationality of the tribunal’s reasoning when read as a whole. At some points, I felt she was rather more flattering to the tribunal’s reasons than their content justified or even allowed.

9.         As I said at the hearing, I am going to limit myself to issues that will be of significance in future and avoid dealing with issues that are peculiar to this individual case. Ms Emmerson argued that the tribunal was required to take account of the content and the context of the letter. I accept that. Mr Sanders argued that that was not enough, as it was also necessary to take account of the special status of the document. By status, Mr Sanders meant the type of the document and the fact that the proceedings were still open at the time of the request. I accept that argument. To that extent, the tribunal was wrong to reject as irrelevant the general classification of the document. The particular status of the document was a relevant factor to the effect that its disclosure might have on relations with the Commission; the tribunal should have considered it.

10.      It is always relevant to consider materiality, by which I mean whether an error would have affected the outcome of an appeal. It is possible that, if the tribunal had avoided this error, it might still have come to the same conclusion on prejudice and still have judged that the public interest balance favoured disclosure. Even making allowance for Mr Sanders’ detailed criticisms of the tribunal’s individual points, there was still much to be said for them in principle, and Ms Emmerson said most of it. But as I have said, I am not going to deal with them in detail, as they are not significant for the future.

C.        Why I have not set aside the decision

11.      I have not set aside the decision, because the issue of Sir Roger’s right to the contents of the letter is now academic. The infringement proceedings are at an end. In those circumstances, Mr Sanders accepted that Sir Roger was entitled to the information, subject to making a formal request. I trust that by now he has seen a copy of the letter. It would be as pointless to remit the case to the First-tier Tribunal for a rehearing on an issue that is no longer live as it would be unnecessary for me to go through the empty exercise of deciding whether Sir Roger was once entitled to information that he will be given.

12.      This does not mean that this decision has been entirely pointless. The Department wanted the issue of principle resolved as it might affect cases in the future. I have identified the principle on which the First-tier Tribunal made an error of law and this decision stands as a narrative declaration on that issue for the future.

D.       Finally an apology

13.      At the end of the hearing, I told the parties that I would write this decision before the end of the month (October). I did not do so and for that I am sorry.