The Home Office GIA 5688 2014
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 24 June 2015 |
| Neutral Citation | 2015 UKUT 308 AAC |
| Subject Matter | Tribunal procedure and practice (including UT) |
| Respondent | The Information commissioner and The Bingham Centre for the Rule of Law |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GIA 5688 2014 |
| Appellant | The Home Office |
DECISION BY THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to allow the appeal.
The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 19 September 2014, following a hearing on 10 September 2014, under file reference EA/2014/0097, in relation to the Appellant’s appeal against Decision Notice FS50503882, involves an error on a point of law. The First-tier Tribunal’s decision is accordingly set aside. The case is remitted to be reheard by a different First-tier Tribunal, subject to the Directions below.
This decision is given under section 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.
DIRECTIONS
The following directions apply to the re-hearing:
(1) The re-hearing should be at an oral hearing;
(2) The new tribunal should be differently constituted from the First-tier Tribunal which made the decision dated 19 September 2014;
(3) The new tribunal should re-hear afresh all issues arising out of the appeal against Decision Notice FS50503882.
These directions may be supplemented by later case management directions issued by or on behalf of a Tribunal Judge in the General Regulatory Chamber (Information Rights) of the First-tier Tribunal.
REASONS
The parties before the Upper Tribunal
1. The Appellant before the Upper Tribunal in this information rights appeal is a public authority, in this instance the Home Office, which was not a party at the hearing before the First-tier Tribunal. The First Respondent is the Information Commissioner. The Second Respondent is the Bingham Centre for the Rule of Law (“the Bingham Centre”), which is the requester and was the Appellant before the First-tier Tribunal.
The disputed information in this appeal
2. The disputed information in question, as requested from the Home Office by the Bingham Centre under the Freedom of Information Act 2000 (FOIA), is the independent legal advice referred to in the report presented to Parliament by the then Home Secretary under the title Intercept as Evidence: A Report (Cm 7760, December 2009).
3. The issue of whether, and if so how, intercept material can or should be used as evidence in criminal trials is obviously a matter of very high importance in the justice system. Following the report to the Prime Minister and the Home Secretary by the Privy Council Review of Intercept as Evidence (Report, Cm 7324, January 2008) the then Government commissioned a programme of work to implement the recommendations of the Privy Council Review. The Home Secretary’s subsequent report in December 2009 set out the findings and conclusions of this programme of work. According to the Home Secretary’s foreword,
“These confirm the potential gains from a workable scheme for intercept as evidence and that, while requiring significant additional funding, the model developed would be broadly consistent with the operational requirements identified. However, it is also the case that the model would not be legally viable, in terms of ensuring continued fairness at trial. The result would not only be potential miscarriages of justice and more expensive and complex trials but also more of the guilty walking free.”
4. On that basis the then administration announced that “no responsible Government could proceed with implementation on this basis” (p.4). The report stated that “the sensitivities involved mean that the full weight of supporting evidence cannot be made public” (p.6). This was said to include legal advice from independent Counsel (p.7) – hence the request made under FOIA by the Bingham Centre.
The Home Office response and the Information Commissioner’s decision
5. The Home Office’s initial response to the Bingham Centre’s FOIA request was two-fold. First, the Home Office asserted that the information was exempt from disclosure by virtue of sections 24(1) (national security), 31(1)(a) (law enforcement), 35(1)(a) (formulation of government policy) and 42(1) (legal professional privilege), each of which is a qualified exemption (and so, if at least one exemption was engaged, the public interest balancing test came into play). Second, under section 23(5) the Home Office neither confirmed nor denied whether it held any of the requested information by virtue of that absolute exemption (information supplied by, or relating to, bodies dealing with security matters).
6. The Home Office reaffirmed that position on internal review, with the caveat that the original response “could have made it clearer that section 42 applies to all of the information.” The Bingham Centre then lodged a complaint with the Information Commissioner.
7. In the course of the Information Commissioner’s investigation, the Home Office’s position shifted somewhat. First, it expressly dropped any reliance on the qualified exemptions under section 24(1) and 31(1)(a). Second, it also dropped its former reliance on section 23(5), instead contending that the absolute exemption in section 23(1) applied to discrete parts of the disputed information. Third, however, it repeated and elaborated upon its reliance on sections 35(1)(a) and 42(1) and the public interest balancing exercise.
8. On 24 March 2014 the Information Commissioner issued a Decision Notice (FS50503882), which concluded that the Home Office had correctly applied section 42(1); the exemption was engaged and the balance of public interest favoured maintaining the exemption. The Information Commissioner recorded that, given his decision on the section 42(1) exemption, he had not gone on to consider the public authority’s reliance on the other exemptions it had claimed.
The First-tier Tribunal proceedings
The parties before the First-tier Tribunal: the initial position
9. The initial position was that the only parties to the First-tier Tribunal proceedings were the Bingham Centre and the Information Commissioner. The Commissioner’s formal response, drafted by Counsel (and dated 28 May 2014), resisted the appeal and added as a preliminary point the following helpful suggestion:
“5. This appeal will turn to a material extent on the details of the Government’s ongoing consideration of the potential use of intercept evidence in trials. The Commissioner will not be in a position fully to assist the Tribunal with all relevant points. Moreover, the Home Office may wish to rely on other exemptions as alternatives to section 42(1). The Tribunal will need to hear from the Home Office. The Commissioner therefore respectfully suggests that the Home Office be joined as the Second Respondent to this appeal.”
10. The First-tier Tribunal Registrar, in a case management note dated 1 July 2014, asked the Information Commissioner to confirm (i) when the Home Office had been notified of the appeal; and (ii) whether the Home Office had been sent a copy of the Commissioner’s response. She added the following observation:
“3. At present, the Home Office has not contacted the Tribunal to ask to join as a party. It does not seem appropriate to me to burden the Home Office with the cost of joining as a party when they have not asked to join, particularly as during the course of the investigation they may have covered the other exemptions on which they may seek to rely.”
11. The next day the Solicitor to the Commissioner confirmed by e-mail “that the Home Office was notified of the existence of this appeal, but no papers relating to the appeal have been sent to it." There is nothing on file to indicate that the Information Commissioner’s reply was brought to the attention of the Registrar or otherwise acted upon.
The First-tier Tribunal’s hearing and decision
12. On 10 September 2014 the First-tier Tribunal held an oral hearing of the appeal at which submissions were made by both the Bingham Centre and the Information Commissioner, but no live witnesses called. In its decision dated 19 September 2014, the First-tier Tribunal allowed the Bingham Centre’s appeal and substituted a new decision notice requiring the Home Office to provide a copy of the disputed information.
The parties before the First-tier Tribunal: the subsequent position
13. On 17 October 2014 the Treasury Solicitor (now the Government Legal Department) wrote to the First-tier Tribunal applying to be joined as a party and applying for permission to appeal to the Upper Tribunal. Judge Warren, the then Chamber President, invited the Bingham Centre’s comments – however, the requester argued that both applications should be refused. In a ruling dated 7 November 2014 Judge Warren joined the Home Office as a party but deferred its application for permission to appeal, inviting further submissions on whether the First-tier Tribunal should review its decision. As there were competing contentions from the parties as to whether the Tribunal’s decision was erroneous in law, Judge Warren then gave permission...
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