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HM Treasury v The Information Commissioner

29 September 2009

In a case which the presiding judge described as "of considerable constitutional interest" the High Court has quashed the Information Tribunal's decision that section 35(3) of the Freedom of Information Act 2000 (FOIA) did not exempt the Treasury from confirming or denying whether it held Law Officer's advice, in response to a request for disclosure of legal advice sought by the government in relation to the Financial Services and Markets Bill.

Background

In April 2005 Mr Evan Owen wrote to HM Treasury asking to see "Counsel's Opinion supporting Mr Gordon Brown's declaration of the Financial Services and Markets Bill's compatibility with the Human Rights Act 1998…[and] any documentation and communications with the Treasury (Mr Brown in particular) has with regard to this compatibility with human rights".  The Treasury responded claiming that some of the information it held was exempt under section 42(1) and section 35(1)(b) of the FOIA.  It contended that it could neither confirm or deny whether it held the information relating to the provision of advice by Law Officers or relating to any request for advice by the Law Officers by virtue of section 35(1)(c) of the FOIA.  Moreover, a joint reading of sections 35(3) and 2(1)(b) of the FOIA indicated that the duty to confirm or deny did not arise in respect of information which would be exempt under section 35(1) of the FOIA if the public interest in maintaining the exclusion of the duty to confirm or deny outweighed the public interest in disclosing whether or not the Treasury held the information.

Mr Owen sought a review of the Treasury's decision.  The Information Commissioner and, subsequently, the Information Tribunal determined that the Treasury had incorrectly applied section 35(3) and that the Treasury should confirm or deny whether it held Law Officers' advice in relation to the subject matter of the request.  The Treasury subsequently appealed on a point of law to the High Court under section 59 of the FOIA. 

Before considering the High Court decision, it is useful to consider the discussion before the Commissioner and the Tribunal as to the existence and nature of the "Law Officers' Convention".  It was common ground that such a Convention did exist.  In the appeal before the Tribunal, the Treasury had lodged two witness statements that had not been before the Commissioner from Jonathan Guy Jones, the current director and head of the Attorney General's office and Paul Rankin, director of Financial Services at HM Treasury.  Mr Jones attested to the existence of a long-standing rule or Convention which appears to go back to the mid-nineteenth century.  The Convention was to the effect that "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".  Today the Convention is recognised in the guidance given to Cabinet Ministers including, since its inception, the Ministerial Code.  The Code which was current at the time of Mr Owen's request stated (at paragraph 24) that "the fact and content of opinions of advice given by the Law Officers…..either individually or collectively must not be disclosed outside government without their authority".

Mr Jones' witness statement gave examples of instances where the fact of advice and sometimes its content has been made public outside of government for exceptional reasons.  To his knowledge (and this was not contradicted by Counsel for the Information Commissioner) this had only happened on five occasions in the 40 years before 2008.  In each instance, these decisions had been taken at the highest level of government for exceptional and compelling reasons.  There did not seem to be an instance where the Convention had been over-ridden simply to disclose whether or not the law officers had been consulted about a particular matter.  In any event, whether or not the executive decides to disclose material in accordance with the Code, such a decision had to be taken with the consent of the Attorney General.  The Treasury contended that, unlike legal professional privilege, this was not an immunity that could be waived by the recipient of the advice. 
 
The High Court Appeal
 
In the High Court, Counsel for the Treasury advanced three interconnected submissions as to why the Information Tribunal's decision had been wrong in law:
  1. The Tribunal had not considered for itself whether there was a public interest in disclosure and, therefore, it could not have made a proper assessment of the weight that could be attached to that factor.  Insofar as the Tribunal had adopted the Commissioner's reasons on the question, the context of those reasons demonstrated material errors and/or had been supervened by the evidence of the Treasury's witnesses and/or in context no reasonable tribunal could have concluded that those reasons amount to weighty reasons for now ordering disclosure. 
  2. The Tribunal had misdirected itself as to the existence of a weighty matter in favour of maintaining the exemption from disclosure.  It had not regarded the statutory language of section 35(1)(c) as evidence of a statutory intention or even presumption that whether or not the Law Officers had advised was an exempt matter.  It gave no weight to general considerations in favour of maintaining the exemption and expressly disagreed with the proposition that in its own deliberations it should attach weight to the reasoning of the Treasury for maintaining the exemption. 
  3. The Tribunal's determination was materially influenced by the irrelevant consideration that the Ministerial Code of Conduct had not been updated in light of the obligations under the FOIA.  The Tribunal had erred in concluding that the FOIA had somehow operated as a matter of statute law to modify the Convention.  Instead the statute referred to the Convention precisely for the purpose of preserving its existence in the post FOIA world, whilst recognising that in particular cases there may be a greater public interest to override it.
Counsel for the Information Commissioner responded that, as to the first ground, although the Tribunal had not identified its own conclusions on the question, it must be assumed to have adopted the Commissioner's reasons.  Those reasons included that disclosure of the fact of seeking advice would have provided reassurance to the public.  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.  On the second ground, Counsel submitted that the Tribunal was entitled to reach that conclusion and that it was supported by both authority of the High Court and the language of section 2 of the FOIA.  As to the third ground, Counsel submitted that the views the Tribunal had set out as to the impact of the FOIA on the Code were irrelevant to its decision and could be severed from it without damaging the integrity of its reasoning.
 
The High Court's decision
 
Blake J decided to deal first with the second ground put forward by Counsel for the Treasury on the basis that, if the Tribunal had misunderstood one critical element in the performance of the balance between the maintenance of the exemption and the public interest, then this would have affected its whole approach to the case and would require the decision to set aside and re-determined.
 
Blake J criticised the Tribunal's approach in rejecting the proposition that, in such a case, there was generally a presumption of public interest in favour of non-disclosure.  The Information Tribunal had relied on obiter reasoning by Mr Justice Stanley Burton in Office of Government Commerce v Information Commissioner and HM Attorney General on behalf of the Speaker of the House of Commons (OGC) in rejecting the proposition (see paragraph 79 of that decision).  However, Blake J considered that the ground of exemption relied upon in the present case (section 35(1)(c)) was far more specific than that considered in OGC, where the judge had been considering the exemption relating to the formation or development of government policy (section 35(1)(a)).  Blake J noted that the government policy exemption considered in OGC appeared to have been so wide that any reliance on the words of the statute as an indication of the weight to be attached in a particular case was likely to have little or no value.  In contrast, he concluded that the fact that Parliament had, in section 35(1)(c), specifically identified as exempt the issue as to whether or not the Law Officers (a particular and small group of legal advisers) had given advice naturally fitted into a regime where there was an assumption of a good reason against disclosure.  The public authority had to consider the strength of the assumption and the weight to be attached to it and then balance this against the competing considerations in favour of disclosure. 
 
Blake J also considered that there was substance in the Treasury's complaint with regard to the third ground of appeal and concluded that the Tribunal had erred in determining that the Convention and the Code had been displaced by the FOIA.  Instead the effect of the FOIA was that, where previously the decision on disclosure would have been solely for the government, such a decision was now capable of being outweighed by other considerations on which the government did not have the last word.  However, this was not to suggest that the Law Officers' Convention or other examples of good government set out in the Ministerial Code were to cease to have relevance after the passage of the FOIA.
 
The Tribunal had also rejected the submission made to it that it should afford appropriate weight to the experience of those who have responsibility for a given subject matter in government and who have access to special sources of knowledge and advice.  It had concluded that the damage envisaged in the current case was likely to be minimal, if not non-existent, because it considered that disclosure would have had little if any impact on the over-all public perception of the government's stance on the legislation.  It had also dismissed the submission that weight should be given to general considerations against disclosure, concluding instead that actual damage would have to be shown on a case by case basis.
 
Blake J found that both of these conclusions were flawed.  If Parliament had intended to impose a requirement of proof of prejudice in the particular case it would have included appropriate wording in the statute.  He also relied on a number of decisions of judicial bodies applying the FOIA which had recognised the weight to be attached to general considerations (see paragraphs 44 to 53 of the judgment).  He concluded that there was an in-built assumption in section 35(1)(c) that the case for exemption was a substantial one.  This would then be subject to the weighing of the comparative public interests in the particular case, which would be fact-specific.

Blake J therefore concluded that the Tribunal had erred in considering how to approach the strength of public interest in maintaining the exemption from disclosure.  He thought that the tribunal had misdirected itself on five counts:
  1. By failing to conclude that Parliament intended real weight should continue to be afforded to the Law Officers' Convention;
  2. 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;
  3. By failing to conclude that the evidence of senior civil servants with experience of the requirements of government in the field deserved some weight (although it did not mean that the Tribunal was bound by this evidence or prevented from reaching its own conclusion upon the issue);
  4. By concluding 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.
  5. By concluding that the power to disclose the fact of advice, or the advice itself, was in the hands of the recipient rather than the Law Officers.
Blake J also decided that there was substance in the arguments against the Tribunal's decision in relation to Grounds 1 and 3.  In relation to ground 1, he emphasised the principle that it should be a free choice of the government as to whether or not and from whom it obtains legal advice based on the appropriate factors in each case. As a result of his findings, Blake J allowed the appeal and remitted the decision for reconsideration.

Comment
 
The case is obviously of significant interest in its discussion of the Convention and, in particular, the relationship between the Convention and statute and how the Convention should operate in a post-FOIA world.  However, it may also have wider impact in connection with the ability to rely on general considerations weighing against disclosure versus the need to show specific harm in the particular case.  These arguments are potentially relevant to all qualified exemptions where, although it may be difficult to show specific prejudice from disclosure in those particular circumstances, the public authority might still suffer prejudice more generally if it was to become standard practice to disclose information of that type. 

Reproduced from PLC Financial Services with the permission of the publishers.  For further information visit www.practicallaw.com or call 0207 202 1200.
Andrew Denny

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