HM Treasury v The Information Commissioner: Admn 21 Jul 2009

Disclosure of Government’s Legal Advice

The interested party sought to obtain the legal opinion on which the Prime Minister had based his assertion that the Financial Services and Markets Bill complied with Human Rights. The respondent refused claiming protection under the section, and refused to say whether any advice had been taken. The respondent now appealed a decision by the Commissioner that it should disclose whether in fact advice had been taken.
Held: There had been a convention against the publication of law officer’s advice. The Tribunal had misdirected itself in considering how to approach the strength of the public interest in maintaining the exemption from disclosure of the information whether the Law Officers have advised or not. In particular it had not recognised the weight intended to be given by the Act to the protection of legal professional privilege, nor the expert advice given to the court. By seeking to modify the convention rather than make it amenable to being out-weighed by weightier considerations, and
‘Where Ministers had disclosed without the prior consent of the Law Officers this was considered to be a breach rather than an application of the convention and a matter for reprimand.’ It was not clear what would have been the Tribunal’s conclusion if properly directed.
‘ The Law Officers’ Convention will now operate subject to the principles of the FOIA, which means that neither the government department that may have sought or received the advice or the Law Officers that gave it will any longer make final or binding decisions on what, whether and when information may be disclosed.’ Despite the long time taken by the case it should remitted to the tribunal.

Blake J
[2009] EWHC 1811 (Admin), [2010] 2 WLR 931, [2010] 2 All ER 55, [2010] 1 QB 563, [2009] ACD 73
Freedom of Information Act 2000 35(1)(c)
England and Wales
CitedHuang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
CitedExport Credits Guarantee Department v Friends of the Earth Admn 17-Mar-2008
The court considered the balancing of interests when making a disclosure order under the 2004 Regulations.
Mitting J said: ‘the impression given . . is that the Tribunal did set up a hurdle or threshold of proof of actual particular harm which . .
CitedDepartment for Business Enterprise and Regulatory Reform v O’Brien and Information Commissioner QBD 10-Feb-2009
The court considered a claim for legal professional privilege by the Department.
Held: The Tribunal had properly directed itself that there was a strong public interest in non-disclosure inbuilt into legal professional privilege but: ‘In the . .
CitedOffice of Government Commerce v Information Commissioner and Another Admn 11-Apr-2008
The Office appealed against decisions ordering it to release information about the gateway reviews for the proposed identity card system, claiming a qualified exemption from disclosure under the 2000 Act.
Held: The decision was set aside for . .

Lists of cited by and citing cases may be incomplete.

Information, Constitutional

Updated: 31 October 2021; Ref: scu.349093