Truly, Madly, Deeply (Confused about NCND) – Savic (Garden) in the Upper Tribunal

December 22nd, 2016

There is just about still time in 2016 for the Upper Tribunal to weigh in on a couple of FOIA appeals concerning the UK’s military activity in Kosovo and Serbia in 1999. These give rise to a number of issues, exemptions and passing judicial comment which warrant notice and, in some cases, a degree of head-scratching.

The two appeals are both released under Savic v Information Commissioner & Attorney General’s Office & Cabinet Office [2016] UKUT 534 (AAC) (‘Savic 1’) and [2016] UKUT 535 (AAC) (‘Savic 2’). Savic 1 concerned a request for the legal advice provided at the time by the Attorney General, and therefore the s35(1)(c) exemption (along with ss42 and 27(1)). Savic 2 concerned a request to the Cabinet Office for all records of the decision to commence military action, including any Cabinet minutes and inter-Departmental correspondence. That resulted in a neither confirm nor deny response under s35(3) in relation to Cabinet minutes, under s23(5) for any possible involvement of the security bodies, and general reliance on s27(1).

The appeals had been transferred directly to the Upper Tribunal, and were accordingly heard by Charles J, Judge Lane and Ms Chafer. An important context to both appeals was that proceedings have been started in the QBD in respect of the UK’s aerial bombardment: see Kontic v Ministry of Defence [2016] EWHC 2034 (QB). (The appellant in Savic was the solicitor to those claimants.)

Savic 1 is both shorter and rather easier to follow. The UT observed, at [27], that there was an obvious link between the public interests underlying the s35(1)(c) exemption for advice of the Law Officers, and in s42. It also observed, quite rightly, that FOIA had made both exemptions qualified, and so marked a departure from the common law’s more absolutist approach to the protection of legal professional privilege (‘LPP’). There is no right to withhold privileged information, but the UT agreed with the long-standing case law that identified powerful public interest factors served by the exemptions: at [31]. The balance will be more likely to favour non-disclosure where the information “is relevant to, or might be or might have been of use in, existing, concluded or contemplated legal proceedings”: at [35]. Advice of the Law Officers involved additional weighty factors. It will be sought in matters of “particular complexity, sensitivity and constitutional importance. This enhances the need for full and candid instructions”. The advice is more likely to occur in respect of “high levels of Government decision making…that engage the high public interest in the Government acting in compliance with the Rule of Law”: at [37].

In carrying out the balancing exercise, the UT emphasised that each case was fact sensitive, and the passage of time may weaken the public interest factors against disclosure (see at [52]), but that the balance came down “decisively” against disclosure: at [49]. The existence of the QBD proceedings meant that the factors engaged by the exemptions were still active, and the wider debate it generated ironically undermined the appellant’s argument that the military action was purely historical. Interestingly, the UT specifically noted at [50] that the withheld information itself did not materially add anything to the open arguments on the public interest factors (a truth very often engaged but very rarely acknowledged by parties, particularly requestors who have not seen it).

Savic 1 is, therefore, unlikely to set the FOIA world alight but has a useful summary of the approach to be taken to LPP material, and particularly Law Officer advice.

Savic 2 is a much harder – in places, impenetrable – read. In particular, the UT spends a very great deal of time on the application of the NCND provisions in terms which prove difficult to understand. The end result was that the Cabinet Office had not been entitled to NCND whether or not there were Cabinet minutes on the military action, on the perfectly reasonable basis that either a confirmation or a denial of the level of Government decision-making told the public something very important indeed: at [79]-[82].

Getting to that stage involved the UT making a number of comments on the application of the NCND provisions. Not all of those comments are necessarily incontestable. The UT took the view that the public interest considerations in relation to an NCND response were different to a substantive response, and that it was inappropriate to assess an NCND response on an open basis by reference to the content of the withheld information: at [47]. This latter aspect is a key legal development from Savic 2, and it is repeated a number of times by the UT. It is not a ‘contents-based’ harm analysis, but to be carried out on a purely hypothetical basis (i.e. the Tribunal ought not to know whether or not the information is actually held), and if the Tribunal needs practical examples of information which is held to test the hypothesis it should see them in closed and generally without any open indication of having done so: at [48]. (This latter part of the reasoning will obviously be of concern to requestors and no authority is cited for it.) The public interest balancing involved in an NCND response is directed to the process adopted by Government in making a decision, rather than the reasons for that decision, such that the issue is not consideration of the impact of disclosure of the substantive discussions: at [61]-[62].

It is evident from the judgment’s treatment of the arguments that the nature of the Cabinet Office’s position shifted significantly (see at [70]) to an approach the UT considered more appropriate, but which undermined the basis of the position somewhat given the swathe of points abandoned. The UT appears to have accepted that there may in principle be a distraction argument in play where requests are made for the topics discussed at Cabinet, but held that the force would change over time, there would be no harm caused by unnecessary burdens and would not prompt debates on the confidence in Ministers: at [73]-[77].

The UT also had to consider s23(5) and the NCND provision concerning the security bodies, which was run with s24(2) in the alternative. The ICO had accepted them both, and it appears that their application was not seriously challenged by the appellant. Nonetheless, the UT issued a lengthy set of questions about the operation of the NCND provisions in ss23(5) and 24(2) separately and together, which evidently indicate serious appellate difficulties with how they are to be applied (including, as a result, the correctness of the ICO’s guidance on them). It is unnecessary to set out those questions here, but anyone looking to run those exemptions will need to carefully consider the matters raised at [98]-[100]. A further hearing was ordered to consider the extent to which reliance was maintained on those provisions in respect of Cabinet minutes and/or any other material. A Savic 3 may beckon.

The final, briefer, part of the judgment in Savic 2 considered the application of s27(1) (prejudice to international relations), which resulted in the sparse but clear conclusion that the application to the withheld information was “self-evident”: at [112]. Given that the context was about military action abroad, and in conjunction with other states, one see how that might be so. The UT considered the “balanced and cogent” evidence given by the Cabinet Office about the effect on relations with the USA and Serbia, and reiterated the weight to be given to such views: at [116]. The information itself would add little to the material in the public domain, but would directly trigger the public interest against it: at [127]. One suspects that this part of the reasoning will be highly relevant to the considerable number of requests and appeals working their way through the system concerning US-UK relations.

Overall, various morsels of food for thought can be fished out of both Savic judgments, although it is fair to say that neither are easy to follow in all respects. Heavy weather has been made, in particular, of the NCND provisions with further confusion caused on the very important ss23/24 versions. Important reading to be done then, but probably best to wait until after Christmas Day, lest too much indigestion takes hold.

Julian Blake acted for the Attorney General’s Office and the Cabinet Office.

Christopher Knight

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