The Law Officers’ Convention and the Ministerial Code – High Court Judgment

The recent judgment in HM Treasury v Information Commissioner and Evan Owen [2009] EWHC 1811 (Admin) saw the High Court quash a decision by the Information Tribunal requiring HM Treasury to disclose whether or not it held advice from the Law Officers on the compatibility of the Financial Services and Markets Bill with the Human Rights Act.

By a long-standing constitutional Convention – recognised in the Ministerial Code – the fact that the Law Officers have been consulted is not disclosed outside government without the consent of the Attorney General. This is specifically accommodated in the qualified exemption under section 35(1)(c) FOIA. The Tribunal, however, had upheld the Commissioner’s decision that the public interest favoured disclosure in this case.

Blake J held that, in so doing, the Tribunal failed to afford due weight to three factors. First, the fact that section 35(1)(c) aimed not to supplant the Convention, but to preserve it subject to a public interest test. Secondly, the views of experienced civil servants on the consequences of departing from the Convention. Thirdly, those factors counting against disclosure that were based on generalised rather than specific harm. The Tribunal had also failed to evaluate for itself the strength of the public interest in disclosure in light of the extensive legal advice that had already been publicised on this issue.

Given that similar factors have been discussed in a number of other High Court judgments referred to by Blake J, this judgment makes a notable contribution to the jurisprudence on the public interest balancing test.