HM Treasury v Information Commissioner

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
Judgment Date21 July 2009
Neutral Citation[2009] EWHC 1811 (Admin)
Docket NumberCase No: CO/5642/2008
Date21 July 2009

[2009] EWHC 1811 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Before: Mr Justice Blake

Case No: CO/5642/2008

Between
Hm Treasury
Appellant
and
The Information Commissioner
Respondent
and
Evan Owen
Interested Party

Jonathan Swift and Clive Sheldon (instructed by Treasury Solicitor) for the Appellant

Timothy Pitt-Payne (instructed by The Office of the Information Commissioner) for the Respondent

Anthony Speaight QC and Elspeth Owens for the Interested Party.

Hearing dates: 9 July 2009

The Hon Mr. Justice Blake:

Introduction

1

On 6 April 2005 Mr Owen, the interested party in this matter, applied to HM Treasury to see counsel's opinion supporting Mr Gordon Brown's declaration that the Financial Services and Markets Bill was compatible with the Human Rights Act 1998 and related documentation. On 5 May, the Treasury responded in the following terms:

“I am unable to confirm or deny whether the Treasury holds any information relating to the provision of advice by the Law officers or relating to any request for advice by the Law Officers. This should not be taken to indicate that the Treasury did or did not consult the Law Officers. Section 35(1)(c) of the Freedom of Information Act 2000 provides that information is exempt if it relates to the provision of advice by any of the Law Officers or any request for the provision of such advice. Section 35(3) and section 2(1)(b) together provide the duty to confirm or deny does not arise in respect of information which is exempt (or would be exempt) under section 35(1) if the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether or not the Treasury holds the information. In applying this exemption we have had to balance the public interest in excluding the duty to confirm or deny against the public interest in disclosing whether the Treasury holds the information. In this case we have concluded that the public interest in neither confirming nor denying outweighs the public interest in disclosing whether the Treasury holds the information. This is because of the importance of the government being able to consult its most senior legal advisers without fear that either the advice itself, or the fact that the advice was requested will be disclosed. Disclosure of the occasions when advice has been sought from the Law Officers would have the effect of disclosing various matters which the government judges to have a particularly high political priority, or are assessed to be of particular legal difficulty. There is a strong public interest in ensuring a government department is able to act freely from external pressure in deciding what sort of legal advice it obtains, at what stage, from whom, and in particular whether it should seek advice from the Law Officers. This strong public interest is reflected in the long-standing Convention (recognised in paragraph 24 of the Ministerial Code), neither the advice of Law Officers nor the fact that their advice has been sought, is disclosed outside the government.”

2

That response summarises the issues in this case. Mr Evans was dissatisfied with it and he accordingly made representations to the Information Commissioner for directions that there be disclosure for the material that he sought under the Freedom of Information Act 2000 ( FOIA), which had come into force on 1 January 2005. On 22 May 2007 the Information Commissioner issued his decision. He concluded that insofar as the Interested Party was seeking disclosure of the substance of legal advice the application was correctly refused under section 42(1) FOIA 2000 that concerned legal professional privilege. However, he also concluded:

“Section 35(3) was not applicable and that the public authority should disclose to the complainant whether it holds Law Officers' advice in relation to the subject matter of the complaint's request”.

3

The Treasury appealed that decision to the Information Tribunal. On 15 May 2008 the Tribunal upheld the Commissioner's decision and dismissed the Treasury's appeals. This is an appeal on point of law against that decision of the Tribunal.

The Freedom of Information Act 2000

4

FOIA section 1 (1) grants members of the public two new rights:

“(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b) if that is the case, to have that information communicated to him…”

The duty of a public authority to comply with section 1(1)(a) is referred to as 'the duty to confirm or deny' (s.1 (6)). But the duty is not an absolute one. Section 2 (1) provides:

“Where any provision of Part II states that the duty to confirm or deny does not arise in relation to any information, the effect of the provision is that where either –

(a) the provision confers absolute exemption, or

(b) in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information,

section 1(1)(a) does not apply…”.

5

The subject matter of the Commissioner's ruling did not attract absolute immunity. Neither did it fall within the general provisions for exemption by reason of the fact that disclosure would be likely to prejudice specified interests relating to law enforcement ( FOIA s.31). It did not fall to be treated as exempt because “in the reasonable opinion of a qualified person” disclosure would be likely to prejudice the Convention of the collective responsibility of Ministers ( FOIA s.36(2)(a)) or the effective conduct of public affairs (s.36(2)(c)) or would be likely to inhibit the free and frank provision of advice of exchange of views for the purposes of deliberation (s.36(2)(b)). Rather by FOIA s.35 (1):

“Information held by a government department or by [the Welsh Assembly Government] is exempt information if it relates to:—

a) the formulation or development of government policy,

b) Ministerial communications,

c) the provision of advice by any of the Law Officers or any request for the provision of such advice, or

d) the operation of any Ministerial private office …

As the material fell within section 35(1)(c) above, then section 35(3) applied which provides that:

“The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1).”

The exemption however is subject to the overriding balance required to be performed by section 2. It was common ground that where the strength of the public interest in disclosure was as strong as the public interest in maintaining the exemption then it could not be said that the latter outweighed the former and the consequence would be disclosure.

The Law Officers' Convention

6

In support of its appeal to the Information Tribunal the appellant lodged two witness statements that had not been before the Information Commissioner from Jonathan Guy Jones, a barrister and senior civil servant, presently director and head of the Attorney General's office and Mr Rankin, director of Financial Services at HM Treasury. Mr Jones' witness statement attests to the existence of a long-standing rule or convention 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. This has been observed by successive governments to enable them to obtain frank and full legal advice in confidence and without revealing which matters are assessed within government to be most politically or legally sensitive such as to merit an approach to the Law Officers (and without revealing, by inference where the law offices advice is not sought, which issues are thought within government to be less politically or legally sensitive). The effect of the convention means that Law Officers' advice, being confidential is not usually laid before parliament, cited in debate, provided in evidence to select committees or made available to the public. It is necessarily inherent in the convention that it applies regardless of whether any law officers' advice exists and (if it does exist) regardless of the content of that advice.”

7

The convention appears to be a long-standing one going back to the mid-nineteenth century. It is referred to in memoirs of past holders of the office of Attorney General, and in speeches made both within and without the Houses of Parliament by previous holders of that office. Its existence is noted in Erskine May Parliamentary Practice 23 rd Edition 2004, page 443 where it is said “the purpose of the convention [is] to enable the government to obtain full and frank legal advice in confidence”.

8

Since at least the 1950's there has been guidance to Cabinet Ministers on the conduct of their duties. In July 1997 the Cabinet Office published the Ministerial Code, a code of conduct and guidance on procedures for ministers. This was the code current at the time of the events that were the subject of Mr Owen's request, the passage of the Financial Services Bill. Paragraph 22 of the Code sets out the circumstances where it will normally be appropriate to consult the Law Officers. Paragraph 24 is in the following terms:

“the fact and content of opinions of advice given by the Law Officers including the Scottish Law Officers either individually or collectively must not be disclosed outside government without their authority”.

9

The Ministerial Code published by the Cabinet...

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