![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Queen's Bench Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Department for Business Enterprise & Regulatory Reform v O'Brien & Anor [2009] EWHC 164 (QB) (10 February 2009) URL: https://www.bailii.org/ew/cases/EWHC/QB/2009/164.html Cite as: [2009] EWHC 164 (QB), [2011] 1 Info LR 1087 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
DEPARTMENT FOR ![]() ![]() ![]() ![]() |
Appellant/ Claimant |
|
- and - |
||
(1) DERMOD ![]() ![]() (2) THE INFORMATION COMMISSIONER |
Respondents/ Defendants |
____________________
First Respondent appeared in Person
Ms Anya Proops (instructed by The Information Commissioner) for the Second Respondent
Hearing dates: 22 January 2009
____________________
Crown Copyright ©
Mr Justice Wyn Williams:
Relevant Background
"Holders of judicial offices
17. These Regulations do not apply to any individual in his capacity as the holder of a judicial office if he is remunerated on a daily fee-paid basis."
"Although the Department has decided not to disclose the documents to you, it may helpful if I set out some of the background to Regulation 17. As you will appreciate, those who we customarily call part-time (or fee-paid) judicial office holders have not been considered in the past as workers for the purposes of domestic law, nor have they generally been considered as "part-timers" in the conventional sense of the term. The Government therefore took the view that certain of the benefits of the kind that are provided to part-time employees are not appropriate to the particular circumstances of fee-paid judicial office holders, the great majority of whom are practitioners otherwise engaged in the legal practice. The Government takes the view that fee-paid judicial officers are not workers for the purposes of the part-time work directive [a reference to the Part-Time Workers Framework Directive 1997/81/EC] and, on the basis of previous precedent, there would have been no expectation that the Regulations would have had application to fee-paid judicial officers. However, because of the uncertainty that arose in respect of other regulations, it was felt appropriate in implementing the Directive to include a specific exemption for the avoidance of doubt."
"The complainant made a request to the former Department of Trade and Industry (DTI) for release of the information which led to the inclusion of Regulations 17 in the Part-Time Workers Regulations 2000. DTI refused to release the information relying upon the exemptions in sections 35 and 42 of the Act. DTI also sought to apply the exemption in section 36 in respect of one document after the Commissioners' investigations had commenced. The Commissioner has examined the exempt information and is satisfied that the public authority has correctly applied the exemptions above. However the Commissioner finds, in respect of one document withheld under section 35(1)(a) [document B2] that the public interest in maintaining the exemption does not outweigh the public interest in disclosure and accordingly orders release of it……
Statutory Framework
"(1) Any person making a request for information to a public authority is entitled–
(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him.
(2) Subsection (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14."
By section 2:-
"(1) (1) Where any provision of Part II states that the duty to confirm or deny does not arise in relation to any information, the effect of the provision is that where either–
(a) the provision confers absolute exemption, or
(b) in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information,
section 1(1)(a) does not apply.
(2) In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that–
(a) the information is exempt information by virtue of a provision conferring absolute exemption, or
(b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
(3) For the purposes of this section, the following provisions of Part II (and no others) are to be regarded as conferring absolute exemption"
A number of exemptions are then listed.
Part II of the Act contains the following provisions which are relevant to the instant case. By section 35 the Act provides:-
"(1) Information held by a government department ……….. is exempt information if it relates to–
(a) the formulation or development of government policy,
(b) Ministerial communications,
(c) the provision of advice by any of the Law Officers or any request for the provision of such advice, or
(d) the operation of any Ministerial private office."
"Ministerial communications" are defined under sub-section (5) to mean any communication between Ministers of the Crown and includes, in particular, proceedings of the Cabinet or any committee of the Cabinet.
Section 42 deals with legal professional privilege. Its provisions are: -
"(1) Information in respect of which a claim to legal professional privilege …….. could be maintained in legal proceedings is exempt information.
(2) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would involve the disclosure of any information (whether or not already recorded) in respect of which such a claim could be maintained in legal proceedings."
The Second Respondent's Decision.
The Hearing Before Me
Grounds of Appeal and Discussion
"The exemptions in section 35 are "class" exemptions. The public interest underlying them is, in the widest sense, also good government. As to section 35(1)(a), there is a public interest in maintaining the confidentiality of discussions and advice within and between government departments on matters leading to a policy decision: this is to allow ministers and officials to have a full and frank exchange and to have the time and space to explore options and "hammer out" policy safe from the threat of lurid headlines see paras 38 and 40 of ECGD decision, paras 100 -101 of OGC decision and para 17 of Secretary of State for Children, School and Families [2008] EWHC 1199 (Admin) so that they can reach good policy decisions. As to section 35(1)(b) there is also a specific interest in maintaining the confidentiality of ministerial communications arising from the convention of collective responsibility of Ministers of the Crown, which is that once a policy decision has been reached by the Government it has to be supported by all ministers whether they approve of it or not unless they resign: that convention and the free discussion between ministers may be prejudiced by "premature disclosure" of the views of individual ministers (see Attorney General v Jonathan Cape [1976] 1 QB 752 at 764E, 771B-D to which we were referred by Ms Proops). The convention obviously applies with extra force in relation to Ministers or members of the Cabinet."
"I accept the submission of Ms Olley [Counsel for the Appellant Government Department] that the public interest is best served by the maintenance of an environment in which ministers can receive free and frank advice from their advisers. Officials and advisers need to be able to put forward their views which are frank and candid, and to express their views freely, and this process should be protected from inhibiting factors arising from the knowledge or fear of subsequent disclosure………"
"We were referred to a large number of cases on the proper approach to the public interest test in relation to the section 35 and 42 exemptions, mainly decisions of this Tribunal. The only relevant binding authorities are two recent High Court decisions namely [ECGD and OGC]; those decisions referred to and approved passages from the decisions of this Tribunal in DfES (EA/2006/0006, 19.02.07) and Secretary of State for Work and Pension (EA/2006/0040, 5.3.07). We propose to follow the approach set out in those cases and the general guidance in the early Tribunal decision in Hogan ……"
"……. There is a legitimate public interest in maintaining the confidentiality of advice within and between government departments on matters that will ultimately result, or are expected ultimately to result, in a ministerial decision. The weight to be given to those considerations will vary from case to case. It is no part of my task today to attempt to identify those cases in which greater weight may be given and those in which less weight may be appropriate. But I can state with confidence that the cases in which it will not be appropriate to give any weight to those considerations will, if they exist at all, be few and far between."
"(1) What it has described as the "in-built public interest in legal professional privilege itself", the "in-built weight that must be given to legal professional privilege" and "the heavy hurdle – the in-built weight" which must be overcome if disclosure is to be ordered……
(2) The strength of the public interest in-built into the privilege itself ….."
"What is quite plain, from the series of decisions beginning with Bellamy … is that some clear, compelling and specific justification for disclosure must be shown, so as to outweigh the obvious interest in protecting communications between lawyers and client, which the client supposes to be confidential".
"36 The Tribunal's consideration of the application of LPP [legal professional privilege] to the facts of this case follows below, however, the Tribunal does not agree with Mr Rosenbaum that LPP merits only "some weight" or that in his general approach the Commissioner has overstated this. From the cases referred to above, this Tribunal is satisfied that LPP has an in-built weight derived from its historical importance, it is a greater weight than inherent in the other exemptions to which the balancing test applies, but it can be countered by equally weighty arguments in favour of disclosure. If the scales are equal disclosure must take place."
The approach consistently taken by the Tribunal, as summarised by Mr Havers QC above, is based squarely upon decisions of courts of the highest authority upon the importance to be attached to the concept of legal professional privilege. It suffices that I simply identify two such decisions; R v Derby Magistrates Court ex parte B [1996] 1 AC 487 and R(Morgan Grenfell and Co Ltd) v Special Commissioner for Income Tax [2003] 1AC 563.
"16. This Respondent respectfully deprecates the practice of extensive citations which illustrate rather than explain applicable principles. The Tribunal was right not to add a yet further excursus reviewing the case-law on the in-built public interest in maintaining the LLP exemption. It was not in issue that such a public interest exists. When the Tribunal referred in para 24 to preferring the approach of the Tribunal in Mersey Tunnel it was referring to paras 35-51 of that decision which deal in terms with "the central argument of the in-built weight that must be given to the legal professional privilege" in the balancing exercise.
17 Like the Tribunal this Respondent adopts those paragraphs. It is not suggested in the present case that the Tribunal was wrong to adopt them."
I should add for completeness that the First Respondent said nothing in his oral submissions which was inconsistent with that position.
"24. None of those cases deal directly with the application of the public interest test in a legal professional privilege case. In relation to this we were referred to a series of Tribunal cases, namely Bellamy ……. Mersey Tunnel ….. (which itself quotes extensively from the decision in Pugh…… and Fuller…. If and in so far as there is any conflict in the approach adopted by the Tribunal in those cases we prefer the approach adopted in the Mersey Tunnel case. We make only two observations:
(1) Even in a section 42 case all the circumstances of the case must be considered and the public authority's disclosure obligation will only be disapplied if the public interest in maintaining the legal professional privilege outweighs the public interest in disclosure in that particular case;
(2) Legal professional privilege clearly includes not only "litigation privilege" but also legal advice privilege; the existence or threat of litigation is therefore not necessary for section 42 to apply but may well be a highly relevant factor in assessing where the public interest balance lies.
25. We were invited (in effect) to resolve a continuing debate of principle between the Commissioner and Government department relating to the relative strengths of public interest underlying the exemptions in section 35 and 42. We do not think that it is necessary or helpful to take up that invitation and to add to the length of this decision and the Tribunal's already quite extensive jurisprudence on these issues. Rather we prefer to approach matters simply by (a) reminding ourselves of the rationale underlying the relevant exemptions and the nature of the respective public interests to be weighed; (b) identifying the relevant circumstances of this case and (c) asking ourselves the statutory question raised by section 2(2)(b) as at the relevant date, which is the date of the DTI's review of the decision, June 2005."
"As to the information covered by legal professional privilege, we set out relevant considerations under Rider D in the Annex, which can be read into the decision at this point."
"We are therefore of the view that the public interests underlying legal professional privilege are unlikely to be damaged by disclosure in this particular case and that the public interest in maintaining the exemption is therefore of less weight in this case than many others."
"17. Whilst it is not a matter upon which BERR has focussed particularly in its appeal, the Commissioner takes this opportunity to note his concern as to the approach which the Tribunal took to the question of whether the disputed information should be treated as falling within section 42, section 35 or both.
(1) The content of some 11 documents was in issue before the Tribunal (those documents having been labelled B1 and B3-B12)
(2) The Commissioner had approached the information in these documents on the basis that information in some documents fell within the ambit of section 42, whereas the information in other documents fell within the ambit of section 35 (or section 36) – see §§24-50 of the Commissioner's decision (OB 56-61).
(3) In its decision, the Tribunal states as follows: 'We do not think it is possible to categorize the information document by document in the way the Commissioner has done but we are quite satisfied that (apart from some paragraphs in documents which do not come within MrO'Brien's request at all which we note in para. 40 below) the information in all those documents and in documents B11 and B12 was exempt by virtue of sections 35(1)(a) and/or (b) and/or 42' (§19).
(4) The Commissioner contends:
(a) that it is not appropriate for the Tribunal to adopt an 'and/or' approach to categorising information in this context; and
(b) that the Tribunal should instead state clearly which information it considers falls within the ambit of which exempting provisions;
(c) that this is important not least because, when it comes to applying the public interest test, it is essential that there be clarity as to which exempting provision is in issue; and
(d) that the Tribunal ought to have approved the categorisation of the information which the Commissioner adopted in his Decision Notice (see further §19 of the Tribunal's decision where this categorisation is summarised)."
Paragraph 19(7) is in the following terms:-
"Moreover, he invites the Court to approve an approach to the application of the public interest test which entails the Tribunal systematically;
(a) identifying the public interest factors in favour of disclosing the particular information;
(b) identifying the public interest factors which favour maintaining the particular exemption; and then
(c) analysing whether the latter interests outweigh the former."