s35 FOIA Updates from the Upper Tribunal

A couple of recent Upper Tribunal cases have been handed down on the section 35(1) FOIA exemption for the formulation or development of government policy and for Ministerial communications. Both concern documents produced at the highest levels of Government. Both nudge the jurisprudence on a little bit, and both are worth being aware of for those concerned.

Cabinet Office v Information Commissioner & Webber [2018] UKUT 410 (AAC) concerned a request made in July 2016 for information concerning the application of the public duties cost allowance – usually paid to former Prime Ministers – to Nick Clegg, the former Deputy Prime Minister. The Cabinet Office appealed to the Upper Tribunal, having lost in part in the FTT, over a memorandum from the Cabinet Secretary to the Prime Minister.

The most interesting part of Judge Markus QC’s judgment is her consideration of the common and vexed issue of how the status of the formulation of the policy in question affects the public interest balance. She helpfully recounts the key appellate case law at [22]-[25], and the principles they set out. The issue was of importance on the facts, as one might guess, because the FTT had given weight to the fact that the decision to include Mr Clegg had been taken. Judge Markus QC considered that parsing the FTT’s language was not helpful: both the decisions in relation to Mr Clegg and for ex-Prime Ministers had taken place in the past, even if the point in time differed. That was not the same as treating the Clegg decision has a drawbridge after which no safe space could apply.

Judge Markus did not disagree with the proposition from per Amin v Information Commissioner & Department for Energy & Climate Change [2015] UKUT 527 (AAC) at [119] that there is not a binary distinction between ‘live’ and ‘not live’, but did not consider that an FTT would err in law for giving considerable weight to a status as being past, or relying on that status: the importance of the distinction will depend on the ease with which one can say a policy is live or not (which was difficult in Amin): at [32]. The fact that the Clegg decision could be relevant to decisions on future Deputy Prime Ministers did not mean the FTT was wrong to see the information about that decision as relating to a past decision.

Judge Markus also rejected a further ground of appeal, in which the Cabinet Office argued that the memorandum gave rise to particularly weighty concerns because of the level of Government at which the parties to it sat. Leaving aside that the Cabinet Office had not made this point below, Judge Markus held that this risked creating an absolute exemption for information from senior officials, that it was that level where the public expected most candour, and those involved would be most aware of the risk of future disclosure: at [40], citing the permission decision in Cabinet Office v Information Commissioner & Lamb [2016] UKUT 476 (AAC).

On a related basis is Department for Education v Information Commissioner & Whitmey [2018] UKUT 348 (AAC), where the DfE had appealed the FTT in relation to a letter concerning revised independent school standards sent to Cabinet sub-committees as part of the Ministerial write-around. The DfE relied on the Ministerial communications exemption in section 35(1)(b) – which was plainly engaged – and sought to bolster the strength of its public interest arguments by emphasising that the information fell within the scope of the convention on collective Cabinet responsibility. The FTT had accepted the relevance of the convention, but held the risk of harm to the convention when the contents were considered meant the weight to be attached to it was lower than usual.

The decision of Judge Jacobs contains a welcome dose of reality. At [12] he reasons that there “is surely no one who believes that all ministers agree with all Government policy or that there are no compromises. It is a truth universally acknowledged that their collective responsibility is a stance.” He agreed that evidence was not needed to be aware of leaks, briefings, interviews and memoirs all in breach of the convention. The convention, and communications generally, became after FOIA a qualified ideal, but it still “better maintains [the convention] than the unregulated leaking, briefing and the like”: at [13]. In other words, if the convention has left the realms of the ideal, those who seek to benefit from it are largely to blame.

Judge Jacobs accepted that the FTT had agreed with the DfE’s evidence on the general importance of the convention and confidentiality, but that it had not accepted that evidence about the effect of disclosure of the particular information in issue. He also endorsed the FTT’s scepticism about inferences being drawn from disclosure of one letter, because it should be no surprise that Ministers discuss, disagree and compromise, and if speculation may be dangerous in some cases it was not in this case: at [20].

Both Webber and Lamb reiterate, in the context of section 35, the importance of being able to identify harm arising from the particular contents of the information: recourse to general propositions – be they the convention of collective responsibility, or a policy being live or not live – will take the public authority only so far (and not very far at that). Both underline in slightly different ways an unwillingness to accept the idea that the higher up the Governmental tree the information goes, the greater the protection required: quite the reverse. And both are robust refusals to interfere with fact-finding first instance tribunals based on abstract arguments of law.

Robin Hopkins acted for the Cabinet Office in Webber.

I acted for the Information Commissioner in Whitmey.

Christopher Knight​