The Cabinet Office GIA 4281 2012
| Jurisdiction | UK Non-devolved |
| Judge | Judge D. Williams |
| Judgment Date | 21 October 2013 |
| Neutral Citation | 2013 UKUT 526 AAC |
| Subject Matter | Information rights |
| Respondent | The Information Commissiner and Gavin Aitchison |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GIA 4281 2012 |
| Appellant | The Cabinet Office |
THE UPPER TRIBUNAL Appeal No. GIA 4281 2012
ADMINISTRATIVE APPEALS CHAMBER
Cabinet Office v Information Commissioner and Gavin Aitchison
DECISION
Appeal dismissed.
Directions concerning publication of the closed information are set out at the end of the decision.
A closed annex to this decision is issued separately. As noted below, it does not affect the formal decision given in this appeal.
REASONS FOR DECISION
1 Gavin Aitchison is a senior journalist with The Press newspaper in York (previously The Yorkshire Evening Press). In 2008 he decided to revisit the takeover in 1988 by the Nestlé group of companies of the business activities of Rowntree Mackintosh and in particular the business previously known as Rowntree and based in York. This had been covered in detail by The Press as it happened. He sought further information from the Cabinet Office about the takeover, but was met with a refusal. He applied to the Information Commissioner, who secured the release of some information and ordered that further information be provided. The Cabinet Office appealed against that decision to the First-tier Tribunal. The First-tier Tribunal confirmed the decision of the Information Commissioner. The Cabinet Office applied for permission to appeal against that decision and was granted permission by a First-tier Tribunal judge.
2 I held an oral hearing of the appeal on 14 June 2013 at Field House, London. The Cabinet Office was represented by James Cornwell of counsel, instructed by the Treasury Solicitor. The Information Commissioner was represented by Robin Hopkins of counsel. Mr Aitchison attended the open session of the hearing and represented himself. Following the hearing I prepared a draft decision. This was circulated to the Appellant and the Commissioner (in part to ensure no unintended release of closed information) and then to Mr Aitchison. I am grateful to all for their comments and have taken account of all of them in issuing this final decision.
The nature of this appeal
3 Mr Cornwell for the Cabinet Office pressed upon me a series of reasons why the decision of the First-tier Tribunal was wrong in law. Mr Hopkins for the Information Commissioner urged restraint in scrutinising the reasoning of the First-tier Tribunal (referred to in this decision as the Tribunal). As part of that submission he took me to statements from the highest courts about the extent to which appellate courts and tribunals should interfere with the decisions of the First-tier Tribunal. This case is one that illustrates the problems of balancing the extent of the appellate function as it involves consideration of constitutional conventions and government and public policy. It is not merely an exercise in fact finding and statutory interpretation.
4 In the light of those submissions and factors, I emphasise that my task in this appeal is not to re-evaluate the policy decisions of the Commissioner and the Tribunal. It is to ensure that the Tribunal did not err in law in its detailed consideration of the policy issues it considered relevant in assessing the public interests for and against requiring the Cabinet Office to release certain documents and either to confirm or to deny that there were Cabinet discussions about the Nestlé takeover of Rowntree.
5 I was taken to the recent comments of the Supreme Court about my task as a judge of a specialist appellate tribunal. At paragraph [46] of the decision of the Supreme Court in R(Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19, [2013] 2 WLR 1012 Lord Carnwath cited a passage from a paper of his published extra-judicially. While it can be argued that this was not part of the core decision of the Court in that case, it is in my view of considerable significance that Baroness Hale, Lord Sumption and Lord Walker all expressly agreed with the judgement of Lord Carnwath.
6 Lord Carnwath repeated comments from an article of his published at [2009] Public Law 48 on the constant problem for a tribunal such as the Upper Tribunal on distinguishing an issue of law from a matter of fact:
“… what if there is an intermediate appeal on law only to a specialist appellate tribunal? Logically, if expediency and the competency of the tribunal are relevant, the dividing line between law and fact may vary at each stage. Reverting to Hale LJ’s comments in Cooke v Secretary of State for Social Security [2002] 3 All ER 279, [5] – [17], an expert appellate tribunal, such as the Social Security Commissioners, is peculiarly fitted to determine, or provide guidance, on categorisation issues within the social security scheme. Accordingly, such a tribunal, even though its jurisdiction is limited to “errors of law” should be permitted to venture more freely into the “grey area” separating law from fact, than an ordinary court.”
7 Mr Hopkins also took me to remarks to similar effect about restraint in criticising specialist tribunals by Lord Neuberger in BBC v Sugar [2010] EWHC Civ 715 (affirmed on other grounds in the Supreme Court at [2012] UKSC 4) and by Toulson LJ in HM Revenue and Customs v Procter & Gamble Ltd [2009] EWCA Civ 405, both reflecting the comments of Baroness Hale in Secretary of State for the Home Department v AH (Sudan) [2007] UKHL 49, [2008] 1 AC 678.
8 In this case I am asked to venture into an area that is arguably neither law nor fact, namely the specific weighing of conflicting public policy factors. That raises the question how far the weighing exercise is an issue of law. I do not accept that the entire exercise of identifying and then weighing policy considerations is an exercise in law. At the same time, it is a question of law whether something is or is not relevant, and there is some authority for the argument that to some extent the weighing of individual relevant factors is a question of law. The extent to which this is a question of law, or at least one within the somewhat wider scope suggested by Lord Carnwath, is directly in issue here. I approach this decision from that perspective.
9 I take from this that I should approach the arguments presented by Mr Cornwell and Mr Hopkins (and, at the general level Mr Aitchison) taking into account, first, any binding authority together with any relevant decisions of the Administrative Court. While technically such decisions are not binding, I would normally expect to follow any decisions of that Court where relevant. I take that approach to both the decision of Blake J in the Law Officers case and that of Wyn Williams J in the DBERR case both noted below.
10 Second, and equally, it is in my view proper that I look at whether the reasoning of the Tribunal in this case is consistent with the reasoning of the First-tier Tribunal in similar cases. The First-tier Tribunal sits in information cases as a panel of three members and to that extent exercises what might be termed a jury function as well as a judicial function. Further, as Blake J illustrates in the Law Officers case, it is also useful to see the approach of the Commissioner to such decisions. That is particularly important where a tribunal has conducted its own balancing exercise in the light of previous decisions of that tribunal and in doing so has reached a similar decision to that of the Commissioner when he also has issued a decision consistent with his previous decisions. That is precisely the position here. If the Upper Tribunal has, as above, a guidance function in cases such as this, I take that function to be one of seeing how the tribunals below – and the Commissioner - are performing these functions and of commending or criticising, where appropriate, the approaches being taken. Where it is clear that both have adopted consistent approaches in a series of similar cases without being challenged on appeal, then that is itself of relevance to my task. That must, however, be read subject to the warning rightly given in the Upper Tribunal in London Borough of Camden v Information Commissioner and YV [2012] UKUT 190 (AAC). While consistency is to be valued, “there are dangers in paying too close a regard to previous decisions. It can elevate issues of fact into issues of law or principle.”
11 Subject to that proviso (noted by the Tribunal in this case), the parties were right to take me not only to the authority provided by the courts but also to the directly relevant decisions of the First-tier Tribunal and its predecessor on the policy issues relevant to section 35(1)(a) and (b) and section 35(3). And it is of value to hear the views of the Commissioner about his decision in those contexts.
Mr Aitchison’s requests for information
12 As part of his investigations, Mr Aitchison made a request in 2008 under the Freedom of Information Act 2000 (FOIA) to the Cabinet Office for:
“Copies of any and all documentation held … dated between 1 April 1988 and 1 August 1988 relating to the takeover of Rowntree chocolatiers. This should include, but not be limited to, minutes of meetings; copies of letters sent/received by the then Prime Minister and other ministers; copies of any memos or speeches which were
either drafted or issued; and copies of any other...
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