Reference: FS50503882
IN THE MATTER OF AN APPEAL
TO THE FIRST-TIER TRIBUNAL
(INFORMATION RIGHTS)
BETWEEN:
THE BINGHAM CENTRE
FOR THE RULE OF LAW
Appellant
and
THE INFORMATION COMMISSIONER
Respondent
__________________________________
GROUNDS OF APPEAL
__________________________________
1. This is an appeal under section 57 of the Freedom of Information Act 2000 ('the Act')
against the Commissioner's decision notice of 24 March 2014. Although the Appellant
does not dispute that the exemption under section 42(1) of the Act is engaged, it submits
that the Commissioner‟s assessment of the balance of the public interest under section
2(2)(b) was seriously flawed for the reasons set out below.
Factual background
Intercept as evidence
2. On 30 January 2008, the Privy Council Review of Intercept as Evidence published its
report (Cm 7324) which recommended, inter alia, that „intercept as evidence should be
introduced‟ (para 204). It also set out certain operational tests that would have to be met
in order to meet the concerns of the intelligence services, among others.
3. Following the report of the Privy Council review committee, the government
commissioned a programme of work to implement its recommendations, focusing on a
1
model known as „Public Interest Immunity Plus‟. This Implementation Team was led by
the Office for Security and Counter Terrorism in the Home Office, and was carried out
under the supervision of an Advisory Group of Privy Counsellors.
4. In December 2009, the Secretary of State for the Home Department published „Intercept
as Evidence‟ (Cm 7760) which stated that “despite best efforts to design, build and test
the model, it does not provide a viable basis for implementation, without breaching the
operational requirements set out by the Privy Council review” (para 23). Among other
things, the Home Secretary‟s report referred to „independent legal advice‟ which stated
that, once intercept evidence was permitted, it may not be possible to reinstate the
existing ban (para 22). The 2009 report nonetheless stated that the government was
“committed to the principle of using intercept as evidence” and that the Implementation
Team would continue its work to “try to identify a way forward” (para 25).
5. In May 2010, the new government published its coalition agreement which stated that it
would “seek to find a practical way to allow the use of intercept evidence in court” (May
2010, p24). On 26 January 2011, the Home Secretary issued a written ministerial
statement that a further programme of work would be undertaken to assess “the likely
balance of advantage, cost and risk of a legally viable model for use of intercept as
evidence”, assisted and overseen by the Advisory Group of Privy Counsellors.
6. The Justice and Security Green Paper (Cm 8194) published in October 2011 noted that
“work on [intercept as evidence] continues to be overseen by the cross-party Advisory
Group of Privy Counsellors” (p11).
7. On 18 October 2012, the Home Office minister James Brokenshire MP told the House of
Commons that the review of intercept as evidence was “still ongoing” and that it was
being overseen “by the independent cross-party Privy Council group, chaired by Sir
John Chilcot, which was reappointed by the Government” (Hansard, HC Debates, col
589).
8. In a written answer to an MP‟s question published in June 2013, the Home Office
Minister James Brokenshire told Parliament that the government was continuing to
review the use of intercept as evidence, “under the guidance of the cross-party group of
2
Privy Counsellors” and that it would “report back to the House in due course” (6 June
2013, col 1229W). As of yet, there has been no subsequent report.
The Appellant’s request
9. On 13 November 2012, the Appellant asked the Home Office to supply it with “a copy of
the independent legal advice referred to in the report „Intercept as Evidence‟ (Cm 7760)
(December 2009)‟”.
10. On 11 January 2013, the Home Office refused the Appellant‟s request on the basis that
the requested information was exempt from disclosure under section 24(1) (national
security), section 31 (law enforcement), section 35(1)(a) (formulation or development of
government policy) and section 42(1) (legal professional privilege). In addition, the
Home Office also relied on section 23(5) (information supplied by, or relating to, bodies
dealing with security matters) to neither confirm nor deny whether it held relevant
information.
11. On 11 January 2013, the Appellant requested an internal review of the Home Office‟s
decision. On 18 June 2013, the Home Office upheld its earlier refusal.
12. The same day, 18 June 2013, the Appellant complained to the Information
Commissioner. Subsequent to this, the Home Office dropped its reliance on sections
23(5), 24(1) and 31(1)(a).
Decision Notice
13. On 24 March 2014, the Information Commissioner found that:
(i) The advice merits the protection of legal advice privilege on the basis that it
covers confidential communications between a legal adviser and client made for
the dominant purpose of seeking or giving legal advice (Decision, para 19);
(ii) Although the Home Office had disclosed a summary of the advice it received, it
“had not itself divulged the detail of the legal advice set out in the withheld
3
advice” (Decision, para 22). The “substance and scope” of the withheld
information “remains unknown” (para 23) and therefore the Home Office had
not waived privilege (para 24);
(iii) In relation to public interest arguments favouring disclosure of the requested
information, there was not only an inherent public interest in the disclosure of
official information but that “disclosure of legal advice to government could
contribute to a better informed debate of the issues of the day” (para 26);
(iv) There are also “weighty issues of considerable public importance regarding the
use of intercept material as evidence in open court proceedings” and disclosure
of the advice would not only “facilitate a fuller understanding of the thinking of
the government around the issues under dispute” but also “enable other lawyers
to engage in a better informed debate about the legal arguments made to
government and address the specific legal issues raised in the advice” (para 27);
(v) There was evidence that the UK is the “only common law jurisdiction with a
statutory bar against the use of intercept evidence” and that the Home Office‟s
conclusions in this matter “appeared to be at odds with the broad consensus of
legal opinion in the UK and in the Council of Europe and in other common law
jurisdictions” (para 28);
(vi) In relation to public interest arguments in favour of maintaining the exemption,
the Commissioner noted the Home Office‟s claims that disclosure “would
undermine the long standing convention which affords protection to confidential
dialogue between legal advisers as clients”. The Commissioner concluded that
“this is of no less importance for a government department than for a private
individual” (para 30);
(vii)
The Commissioner also noted the Home Office‟s arguments that disclosure
would “prejudice its position by placing it a disadvantage in developing and
delivering potential policy options” and that intercept was a “live policy issue at
the time of the information request” (para 31);
4
(viii)
Assessing the balance of the public interest, the Commissioner concluded that
– despite the weighty arguments favouring disclosure – the disclosure of a
summary and the live nature of the policy issue weakened the case for disclosure
(para 33).
(ix) Against this, the Commissioner reiterated the inherent general public interest in
maintaining the exemption “due to the importance of the principle of
safeguarding openness in communications between a legal adviser and client to
ensure that there can be access to full and frank legal advice, which in turn is
fundamental to the administration of justice” (para 33). On this basis, the
Commissioner found that the balance of the public interest favoured maintaining
the exemption under section 42(1).
14. On the basis of the Commissioner‟s conclusions regarding section 42(1), he did not
proceed to consider the application of the exemptions under section 23(5).
Grounds of appeal
Legal professional privilege
15. The Appellant does not dispute that the exemption under section 42(1) is engaged on the
basis that the disputed information is covered by legal advice privilege. Nor does the
Appellant argue that the Home Office waived privilege by publishing a brief summary
of the advice. This appeal is therefore concerned solely with the balance of the public
interest under section 2(2)(b) of the Act.
16. The Appellant also does not dispute that, despite the absence of any apparent progress
for several years, the use of intercept as evidence remains a „live‟ issue in the sense that
either the current government or a future government may wish to legislate on this
issue. Indeed, as its original request made clear, the Appellant is keen to ensure that the
issue does not remain unresolved.
17. The Appellant nonetheless submits that the Commissioner‟s assessment of the balance of
the public interest was flawed in several respects:
5
(a) The Commissioner concluded that the importance of safeguarding confidential
communications between a lawyer and client was “of no less importance for a
government department than for a private individual” (para 30). While the
Appellant is happy to concede that this is true in relation to the overwhelming
majority of policy matters, in which disclosure of legal advice may well damage a
government‟s ability to pursue its legislative agenda at the expense of the
opposition, it is plainly false in relation to the issue of intercept as evidence.
Intercept evidence is a matter which has, by mutual consent of the main political
parties, been placed beyond the ordinary sphere of party politics and dealt with
instead on a cross-party basis. Successive governments – both Labour and
Coalition – have sought to implement the findings of the cross-party Privy
Council review committee. This implementation, moreover, continues to be
overseen by “the independent cross-party Privy Council group”. The
Commissioner makes no mention of the role of the Privy Council, both in terms
of setting out the original framework for legislating on intercept and in terms of
overseeing the continuing work on implementation. It is clear, therefore, that any
legal advice that the government received in 2009 was not obtained in pursuance
of ordinary political objectives but in relation to a matter wholly beyond partisan
politics. There is therefore no analogy between the legal advice obtained in this
case and that obtained by a private individual;
(b) The
Commissioner
also
found
that
disclosure
could
“prejudice”
the
government‟s position “by placing it a disadvantage in developing and
delivering potential policy options” (para 31). As the Appellant made clear in its
original request, however, it is impossible to see “how disclosure of the
independent legal advice could in any way prejudice the development of policy
nor the bringing forward of legislation in future”, nor did the Commissioner
indicate any way in which such prejudice may arise. As before, the independent,
cross-party nature of the implementation work means that any possibility of
prejudicing competing political interests does not arise;
(c) For the same reason, the “live” nature of the legal advice – normally a relevant
factor in assessing the balance of the public interest under section 42(1) – has no
6
bearing to the balance of the public interest in this case. In the circumstances,
therefore, there is no possibility that disclosure would in any way undermine or
impair the Home Office‟s ability to defend its interests in future litigation, nor
would. disclosure have any adverse impact on the administration of justice;
(d) Moreover, the Commissioner has failed to consider whether disclosure may in
fact assist the implementation work and strengthen – rather than prejudice – the
development of government policy by exposing its legal advice to the scrutiny of
independent experts;
(e) On the same basis, the Commissioner failed to consider whether disclosure
would not ultimately benefit the administration of justice by enabling more
accurate public discussion of an important legal issue and thereby fostering a
major legal reform that would reduce unfairness in civil and criminal
proceedings;
(f) The Commissioner further erred in concluding that the summary of the advice
given at para 22 of the 2009 report was a factor against disclosure in this case. As
the Commissioner himself noted, the legal advice was “very detailed” and the
summary failed to divulge any of that detail (para 22), and its “substance and
scope” remains unknown. Among other things, it contained precious little in
terms of legal reasoning and cited no authorities of any kind. It is therefore
provides no meaningful assistance in understanding the legal basis for the
conclusions advanced in the 2009 report.
Information supplied by, or relating to, bodies dealing with security matters
18. In its original request, the Appellant asked as follows:
If you are unable to meet this request in full, we would ask whether it would be
possible to release the requested material with appropriate redactions where these
are necessary to protect (i) the identity of the author of the advice; and (ii) any
technical details concerning covert interception capabilities or other sensitive matters
whose disclosure would damage national security.
7
19. Although the Commissioner did not address the coverage of the exemption under
section 23(5), the Appellant reiterates that it does not seek any information concerning
sensitive matters of national security. On this basis, it submits that it should therefore be
possible to provide a redacted copy of the requested information in order to prevent the
disclosure of any material contrary to section 23.
ERIC METCALFE
Monckton Chambers
22 April 2014
8
Reference: FS50503882
IN THE MATTER OF AN APPEAL TO THE
FIRST-TIER TRIBUNAL (INFORMATION
RIGHTS)
BETWEEN:
THE BINGHAM CENTRE
FOR THE RULE OF LAW
Appellant
and
THE INFORMATION COMMISSIONER
Respondent
_____________________________________
GROUNDS OF APPEAL
_____________________________________
Bingham Centre for the Rule of Law
British Institute for International and
Comparative Law
Charles Clore House
17 Russell Square
London WC1 5JP
9