Blair, Bush, Iraq, oil: two new Upper Tribunal decisions

The Upper Tribunal has handed down two decisions on Iraq and section 27 FOIA, which raise some interesting procedural points – FCO v Information Commissioner and Plowden GIA/2474/2012 and Cabinet Office and Information Commissioner v Muttitt GIA/0957/2012.

In Plowden, the disputed information was a letter which was relevant to a telephone call on 12 March 2003 between Tony Blair and George Bush during which it was said that they had agreed to say that it was the French who had prevented them securing a UN resolution. The Information Commissioner had ordered the FCO to disclose the information provided by Mr Blair to Mr Bush, but not also the information provided by Mr Bush to Mr Blair. The Tribunal broadly agreed with the Information Commissioner, deciding the appeal under sections 27(1) (international relations) and 35(1)(b) (formulation of Government policy) of the Freedom of Information Act 2000. The Upper Tribunal first considered two preliminary matters, which are of general importance:

  1. Closed hearings. Judge Jacobs found that he could have set aside the Tribunal’s decision on ground that evidence had been given in closed session which could have been given in open session. He emphasised that as much evidence as possible should be given in open session and that, after evidence has been given in closed session, the other party should be told of any evidence that could properly be disclosed (paragraph 10).
  2. Respect for the Tribunal’s expertise. The Upper Tribunal generally will be reluctant to interfere with the (specialist fact-finding) First-tier Tribunal’s assessment of the public interest (paragraph 11). However, less respect will be due where the Tribunal does not have relevant specialist knowledge, for example in relation to the diplomatic consequences of disclosure (paragraph 12).

Having dealt with those preliminary issues, Judge Jacobs went on to set aside the First-tier Tribunal’s decision. It had failed to take account of the benefits of disclosure when assessing the public interest. It had also erred in considering the information line by line, instead of as a package; it was unrealistic to isolate one side of a conversation from the other. The appeal was remitted to the First-tier Tribunal for rehearing. To comply with Article 6 ECHR, that rehearing will be a full reconsideration of the issues which were before the Information Commissioner and it will not be limited to arguments raised by the appellant (paragraph 18).

Judge Jacobs had considered section 27 (international relations) a month earlier, in the Muttitt case. Again, this raised a preliminary issue of general procedural importance. Judge Jacobs found that the parties were not entitled to rely on the reasons given by the First-tier Tribunal for refusing permission to appeal (paragraph 4). These did not supplement the original reasons given by the Tribunal on determining the appeal, which was the decision under challenge. Turning to the substantive issues in the appeal, the disputed documents related to a vist by Mr Blair to Iraq in May 2006. Judge Jacobs found that the Tribunal had erred in law when ordering disclosure, in that it had failed to take into account the nature of the information (in contrast to its content). Reading the First-tier Tribunanl’s reasons as a whole, either it had failed to take account of the circumstances in which the documents came into existence or it had failed to give adequate reasons for its analysis of the information in light of those circumstances.  Judge Jacobs set aside the decision and remitted it for a rehearing of all of the issues raised by the appeal.

In Plowden, Julian Milford of 11KBW was led by James Eadie QC and represented the FCO, with Robin Hopkins of 11KBW representing the Information Commissioner.  In Muttitt, Julian Milford represented the Cabinet Office, Robin Hopkins represented Mr Muttitt and Ben Hooper of 11KBW prepared a written submission on behalf of the Information Commissioner.

Rachel Kamm, 11KBW