John Kirkhope v The Information Commissioner & Anor

Legal advice privilege under section 42 of the Freedom of Information Act 2000 may protect advice given by Parliamentary Counsel even where litigation is absent. The qualified exemption requires a comparative assessment of the public interests, rather than any requirement for exceptional circumstances.

Transparency, accountability and the disclosed interest of a requester may favour disclosure, but they do not automatically prevail over the public interest in candid legal advice and effective legislative drafting. The age of advice is a potentially relevant factor, but cannot be used to circumvent the statutory historical-record regime.

Dr Kirkhope sought material held by the Cabinet Office concerning the drafting of three statutory provisions affecting the application of legislation to the Crown and the Duchy of Cornwall. The Cabinet Office refused disclosure. The Information Commissioner upheld that refusal under section 42 of the Freedom of Information Act 2000, on the basis of legal professional privilege.

The First-tier Tribunal, in appeals EA/2015/0034, EA/2015/0074 and EA/2015/0098, upheld the Commissioner’s decisions on 15 October 2015. Dr Kirkhope appealed to the Upper Tribunal. The central issue was whether the First-tier Tribunal had erred in its assessment that the public interest in maintaining legal advice privilege outweighed the public interest in disclosure.

1. Appeals dismissed. The First-tier Tribunal made no error of law in upholding the section 42 exemption under the Freedom of Information Act 2000.

2. Legal advice privilege was capable of applying to advice given by Parliamentary Counsel although no litigation was contemplated. Its public-interest value extends beyond the content of particular advice. It protects the candour needed for departments and Parliamentary Counsel to identify policy aims, expose difficulties and produce effective legislation: Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610.

3. Section 2(2)(b) requires a comparative assessment of the significance of the competing public interests. Legal professional privilege is not an absolute exemption, and disclosure does not require exceptional circumstances. Transparency and governmental accountability are public interests favouring disclosure, but they do not automatically override the policy of confidential legal advice: Department for Business, Enterprise and Regulatory Reform v O’Brien and the Information Commissioner [2009] EWHC 164 (QB); HM Treasury v Information Commissioner and Owen [2009] EWHC 1811 (Admin).

4. The tribunal correctly accepted the value of candour in legislative drafting, while being entitled to reject the evidence that disclosure following the proper operation of FOIA would have a chilling effect. Those involved in legislative drafting have acted since FOIA came into force subject to the possibility that the statutory public-interest balance may eventually require disclosure.

5. The tribunal was entitled to find that the closed material did not materially illuminate the policy decision to confer immunity or disclose a standard drafting approach. Its assessment that the public interest in disclosure was less significant than the public interest in preserving privileged drafting communications was rational and correct. The age of the material was relevant but did not alter that conclusion.

• Upper Tribunal (Administrative Appeals Chamber): Dr Kirkhope’s appeals were dismissed. The First-tier Tribunal’s decisions were confirmed as involving no error on a point of law.
• First-tier Tribunal: In references EA/2015/0034, EA/2015/0074 and EA/2015/0098, the tribunal upheld the Information Commissioner’s decisions that the requested information was exempt under section 42 of the Freedom of Information Act 2000.
• Information Commissioner: Upheld the Cabinet Office’s refusals to disclose the requested information.