HM Treasury v The Information Commissioner & Anor

The court considered whether the Treasury was obliged under the Freedom of Information Act 2000 (FOIA) to confirm or deny whether it held advice from the Law Officers concerning the Financial Services and Markets Bill and related compatibility statements under the Human Rights Act 1998. The key statutory provisions were FOIA s.35(1)(c) (information relating to the provision of advice by the Law Officers), s.35(3) (exclusion of the duty to confirm or deny), and the public interest balancing requirement in s.2. The Tribunal had held that the public interest favoured disclosure of whether Law Officers had been consulted. The High Court found the Tribunal had misdirected itself by under-appreciating the weight to be afforded to the Law Officers' Convention as reflected in s.35(1)(c), by treating the Ministerial Code and the effect of FOIA as having displaced the convention, and by failing to assess for itself the public interest in disclosure in light of the Treasury's evidence. The Tribunal's decision was quashed and the matter remitted for reconsideration by the Tribunal so that it may apply the correct approach to the public interest balance.

This was an appeal by HM Treasury against an Information Tribunal decision upholding an Information Commissioner determination ordering disclosure as to whether the Treasury held Law Officers' advice on the compatibility of the Financial Services and Markets Bill with the Human Rights Act 1998.

Background and parties:

• The interested party requested disclosure from HM Treasury of counsel's opinion and whether Law Officers had been consulted in relation to the Treasury ministerial statement of compatibility under s.19 HRA.
• The Treasury refused to confirm or deny on the basis of FOIA s.35(1)(c) and s.35(3); the Information Commissioner ordered confirmation whether such advice was held but accepted that the substance of legal advice was protected by legal professional privilege (s.42).
• The Treasury appealed to the Information Tribunal which dismissed the appeal; the Treasury then appealed to the High Court on points of law.

Issues framed by the court:

• What weight should be given to the Law Officers' Convention as reflected in FOIA s.35(1)(c) when carrying out the public interest balance under s.2?
• Did the Information Tribunal misdirect itself by treating the FOIA and Ministerial Code as having displaced or diminished the convention?
• Had the Tribunal properly evaluated the public interest in disclosure in the particular factual matrix of this request (including extensive prior parliamentary scrutiny of the Bill and the Treasury's witness evidence)?

Reasoning and findings:

• The court held that Parliament had specifically identified whether Law Officers had been consulted as falling within s.35(1)(c), and that this specificity meant there was an inbuilt statutory recognition of a significant public interest against disclosure which must be given real weight in the balancing exercise.
• The Tribunal erred by treating the FOIA as having largely displaced the convention and by failing to give appropriate weight to the evidence of Treasury witnesses and to general considerations of good government that support the convention. The Tribunal also failed properly to assess for itself the public interest in disclosure in light of the Treasury's evidence and the particular history of parliamentary scrutiny of the Financial Services and Markets Bill.
• The court accepted that the exemption is not absolute and that the public interest balancing remains case-specific; it was not possible on the material before the court to conclude that no reasonable tribunal could have reached the conclusion that disclosure was required.

Relief sought and disposition: The Treasury sought to quash the Tribunal's decision. The court allowed the appeal to the extent of quashing the Tribunal's decision and remitting the matter for reconsideration by the Tribunal, directing that the Tribunal should apply the correct approach to the public interest balancing under FOIA.

Appeal allowed in part. The High Court concluded the Information Tribunal had materially misdirected itself in (i) failing to recognise and afford appropriate weight to the statutory reflection of the Law Officers' Convention in FOIA s.35(1)(c), (ii) misapprehending the effect of FOIA and the Ministerial Code on that convention, and (iii) failing to assess for itself the public interest in disclosure in light of the Treasury's evidence. The Tribunal's decision was quashed and the matter remitted for reconsideration.

Information Commissioner issued decision 22 May 2007 ordering that the public authority disclose whether it held Law Officers' advice in relation to the request. HM Treasury appealed to the Information Tribunal which dismissed the Treasury's appeal on 15 May 2008. HM Treasury appealed to the High Court (this judgment, [2009] EWHC 1811 (Admin)), which quashed the Tribunal decision and remitted the matter to the Tribunal for reconsideration.