The Cabinet Office GIA 1313 2014
| Jurisdiction | UK Non-devolved |
| Judge | Judge C. Turnbull |
| Judgment Date | 20 October 2014 |
| Neutral Citation | 2014 UKUT 461 AAC |
| Subject Matter | Information rights |
| Respondent | Information Commissioner |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GIA 1313 2014 |
| Appellant | The Cabinet Office |
IN THE UPPER TRIBUNAL Case No. GIA/1313/2014
ADMINISTRATIVE APPEALS CHAMBER
1. This is an appeal by the Cabinet Office (“the CO”), brought with my permission, against a decision of a First-tier Tribunal made on 27 November 2013. For the reason 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. I held an oral hearing of the appeal at which the CO was represented by Mr James Eadie QC and Mr Rory Dunlop of counsel, and the Information Commissioner (“the Commissioner”) was represented by Mr Robin Hopkins of counsel.
3. On 21 August 2012 a journalist working for the BBC, made a request to the CO for the following information:
“How many times has the Reducing Regulation Committee met since it was established?”
The first meeting of that Committee (the RRC) was on 1 July 2010, and the request was therefore for the number of times the RRC had met over an approximately two year period.
4. The FTT summarised the role of the RRC as follows:
“In May 2010 the current coalition government published a document entitled “the Coalition: our programme for government”. It included detail of a programme to cut unnecessary red tape in the rules and regulations affecting members of the public. In the same month the government established a sub-committee of the Cabinet, the Reducing Regulation Committee, to maintain oversight of its objective of improving the regulatory framework by scrutinising, challenging and approving all new regulatory proposals. The RRC is chaired by the Secretary of State for Business Innovation and Skills and its membership includes a number of senior ministers.
The RRC operates at the top end of a process designed to create a culture of lighter touch regulation replacing the traditional “command and control” approach. Its work includes:
a. Supervising the government’s “one-in-two-out” rule for domestic regulation (under which government departments may not propose new primary or secondary legislation without identifying for repeal existing regulations having an equivalent cost for business or civil society organisations).
b. Receiving proposals for regulatory reform from government departments in response to input from the public provided through the “Red Tape Challenge”, a web-based crowd-sourcing programme.
c. Considering opinions proffered by the Regulatory Policy Committee (“RPC”). This is an external body manned by independent individuals with expertise in business, employee and consumer issues. It provides independent scrutiny of all proposed regulations and prepares an opinion for the RRC on the impact assessment provided by the department sponsoring each such proposal.”
5. The CO responded to the request on 11 September 2012, confirming that it held the information sought, but advising that the information fell within the scope of s.35(1)(a) and/or (b) of the Freedom of Information Act 2000 (FOIA) and explaining that it considered that the public interest in maintaining those exemptions outweighed the public interest in disclosing the disputed information. Following the internal review requested by the applicant the CO maintained its position.
6. However, following a complaint by the applicant to the Commissioner, the Commissioner issued a Decision Notice dated 13 May 2013 requiring the CO to disclose the requested information to her. The Commissioner accepted that the exemptions in s.35(1)(a) and (b) were engaged, but concluded that the public interest in maintaining those exemptions did not outweigh the public interest in disclosing the information, because he considered that “the disclosure of the withheld information would not have the detrimental effect envisaged by the [CO].”
7. The CO appealed against the Commissioner’s decision.
8. In support of the appeal the CO provided a witness statement from Dr Geoffrey Baldwin, a senior civil servant responsible for the business of the Economic Affairs Committee of the Cabinet, including the RRC. He stated that he had been working in the CO on issues relating to economic and domestic policy since July 2011. He described the prejudice which he considered would arise if the information requested were to be disclosed. The FTT summarised Dr Baldwin’s evidence in relation to prejudice as follows:
“17. ………………..He suggested that, against a background of transparency and engagement with the public, the number of times the RRC had met would not reveal anything significant and might well be misleading about the Government’s priorities on reducing regulation and/or ministerial engagement with the process. Dr Baldwin explained that Ministers and their advisers engaged with policy issues in many different ways, including correspondence and informal discussions, so that the number of formal meetings provided a potentially misleading impression of their commitment to reducing regulation.
18. Dr Baldwin feared that disclosure of the requested information would cause Ministers to focus on procedural issues, rather than the policy outcome. His context was the twin constitutional principles of, first ministerial accountability to Parliament for decision making and, secondly, the requirement for members of the government to support official policy, once adopted, even if the individual had argued against it during its development. The consequence, he said, was that Ministers needed to have confidence in the method and process adopted for policy development and in the secrecy of debate on the topic. Maintaining the confidence necessitated keeping secret both the detailed discussions and the timing and frequency of those discussions.
19. A further concern of Dr Baldwin was that, although the requested information might appear anodyne, its disclosure would cause the public to base its interpretation of ministers’ commitment to reducing regulation on the number of RRC meetings and to ignore the other elements of the decision-making process. This misleading impression would run counter to both the spirit and practice of democratic accountability underpinning government in the UK. Disclosure would also undermine ministerial accountability. If a Minister is to be accountable for a decision then he or she needs to have full control over the process for reaching the decisions. It would be counter-productive if informal rules were to be developed as to the number and frequency of meetings as this would undermine flexibility in determining the best way to reach a decision.”
9. The FTT held an oral hearing of the appeal, at which the CO was represented by junior counsel (not Mr Dunlop) and the Commissioner was represented by Mr Hopkins.
10. At the outset of that hearing the FTT asked to be told the what the number of RRC meetings in fact was, which was done in closed session. I did not consider that I needed to know that information in order properly to decide this appeal to the Upper Tribunal, and I therefore do not know what the number of meetings was.
11. Dr Baldwin attended the FTT hearing and provided (in the FTT’s words) “clear and helpful answers to a number of questions put to him” by the FTT. However, he was not cross-examined by Mr Hopkins on behalf of the Commissioner.
12. The FTT dismissed the appeal. In para. 27 of its decision it summarised the effect of its findings in relation to the CO’s case as to the prejudice which would result from disclosure as follows:
“27. It follows from what we have said that we regard the Cabinet office’s case on the harm likely to result from disclosure to be weak and incapable of carrying significant weight in the public interest balancing test.”
13. As regards the public interest in disclosure, the FTT reasoned as follows:
“28. The Cabinet Office acknowledged that there was a public interest in improving public understanding of the development of government policy and the way Cabinet government operates more generally. However, it argued that disclosure of the withheld information would not contribute materially to public understanding, particularly in the light of the information that had already been made publicly available. The argument depended, to some extent, on the fear that the information would not be understood, which we have already dealt with. If it were properly understood, possibly assisted by being accompanied by an appropriate explanation of its context, it would add to the public information on the decision-making process on this issue. Without the withheld information the process described in “Reducing Regulation Made Simple” might be described as rather formulaic and theoretical. But when information is provided about the number of meetings, the process may be seen by the public as having practical application. The information may not be as informative in that respect as, for example, the number of opinions submitted to the RRC by the RPC (which has been put into the public domain) but it does have some value, in our...
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Home Office
...the Commissioner has noted the position set out by the Upper Tribunal in the case of Cabinet Office v Information Commissioner [2014] UKUT 461 (AAC) (20 October “[57]. Even where the information sought itself falls squarely within the definition of “ministerial communications”, as opposed t......