JUSTICE v Information Commissioner

The proceedings were held via the Cloud Video Platform. All parties joined remotely. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way.

The Tribunal considered an agreed open bundle of evidence for both appeals comprising 2060 pages, a closed bundle, written submissions from both parties and a bundle of authorities.

The Appellant is a cross-party law reform and human rights charity which works for a UK justice system that is fair, accessible, and respects the rights of all. An overview of the Appellant’s work is provided in the witness statement of its CEO, Fiona Rutherford, prepared for this appeal:-

These appeals concern requests for information by the Appellant for statistical ethnicity, age and gender information held by Merseyside Police and West Midlands Police (collectively referred to in this decision as ‘the Police Forces’) in respect of referrals made by the Police Forces to the Prevent programme. The information was withheld by those forces under ss24(1) and 31(1)(a) and (b) Freedom of Information Act 2000 (FOIA).

The Information Commissioner (the Commissioner) upheld those decisions, by decision notices IC-238174-K3Z5 and IC-236219-M4B3 relying solely on the exemption in s24(1) FOIA. The Appellant now challenges the application of s24(1) and s31(1) FOIA to its requests.

The Appellant had ascertained from the Home Office (in respect to previous requests for information about Prevent) that ethnicity data concerning referrals to the Prevent programme may be held by the Counter Terrorism Policing Head Quarters. The Appellant made further FOIA requests to Merseyside Police and West Midlands Police which were expressed as follows:

On 6 January 2023, Merseyside Police responded. Their response confirmed that at least some of the information sought was held but they refused to provide the data in question citing s24(1) and s31(1)(a) and (b) FOIA. In particular, in setting out the harms associated with disclosure, Merseyside Police observed:-

On 20 January 2023, West Midlands Police responded in near identical terms to Merseyside Police. (Footnote: ¹) The exact same wording was used to set out the overall harm and the public interest tests relating to the exemptions.

On 9 February 2023, the Appellant sought an internal review of both responses explaining in detail its concerns with the applications of both exemptions.

On 24 February 2023, Merseyside Police provided their internal review response and refused to provide the information on the basis of ss24 and 31 FOIA stating: -

On 3 March 2023, West Midlands Police responded to the request for an internal review. They maintained the exemptions too. They also claimed that their position was supported by a recent ICO Decision Notice IC-159785-M8Z8.

The right of access provided by FOIA is set out in section 1(1) and is separated into two parts. Section 1(1)(a) gives an applicant the right to know whether a public authority holds the information that has been requested. Section 1(1)(b) gives an applicant the right to be provided with the requested information if it is held. Both rights can be the subject to the application of exemptions.

Section 24(1) FOIA reads, relevantly, as follows:-

Section 24(1) FOIA, then, will only apply to such information that does not fall within the scope of s23(1) FOIA (which is about information relating to the security services) but is information required for the purpose of safeguarding national security.

By virtue of s2(2)(b) FOIA, s24(1) is a qualified exemption. Even if information falls within the description of the exemption, it is then necessary to consider whether in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

The expression ‘national security’ is not defined in FOIA. However, the decision in Secretary of State for the Home Department v Rehman [2001] UKHL 47 set out that ‘national security’ means the ‘security of the United Kingdom and its people’ (paragraphs 50 and 64); the interests of national security are not limited to action by an individual which can be said to be ‘targeted at’ the United Kingdom, its system of government or its people (paragraph15); the protection of democracy and the legal and constitutional systems of the state is a part of national security as well as military defence; action against a foreign state may be capable indirectly of affecting the security of the United Kingdom; and reciprocal co-operation between the United Kingdom and other states in combatting international terrorism is capable of promoting the United Kingdom’s national security (paragraphs 16-17).

Despite the wide application of the term ‘national security’ as set out above, at paragraph 54 of Rehman, Lord Hoffmann explained that, in an appeal before a tribunal, there must be a factual basis for the executive’s opinion that ‘national security’ matters are engaged.

The consideration of the engagement of the exemption under s24(1) thus involves a consideration of the engagement of section 24(1) FOIA to all the withheld information; and the harm element requiring non-disclosure to ‘safeguard’ national security.

General principles applicable to s24 FOIA are set out by the Upper Tribunal in FCDO v IC, Williams, Wickham-Jones & Lownie [2022] 1 WLR 1132 at paragraph 31:

By Notice and Grounds of Appeal dated 24 July 2023, the Appellant appealed against the DNs asking that both appeals be heard together. The Appellant relied on identical grounds of appeal in each case. By case management directions dated 20 September 2023 the appeals were listed together.

On 18 October 2023 the Commissioner filed open responses in both appeals. On 1 November 2023 the Appellant filed a joint reply to both open responses. The Police Forces have not participated in the appeal and have not filed or served any open evidence.

The Appellant seeks to argue that the section 24(1) FOIA exemption is not applicable in this case or, if the Tribunal finds that it does apply, then the public interest favours disclosure of the information in any event.

In relation to applicability the Appellant argues that the Tribunal must analyse both the extent of the engagement of s24(1) FOIA and the harm element requiring non-disclosure to ‘safeguard’ national security.

As to extent, the Appellant says that itis not in a position to determine the extent of the engagement of s24(1) FOIA having not had sight of the requested information and that the Tribunal would need to interrogate in closed session, including by considering whether any of the information could be disaggregated.

As to harm, the Appellant argues that the decision notices significantly overstate the potential harm to national security that would result from the disclosure of the data in question, without any cogent basis for the findings of potential harm and without addressing the key factual matter of disclosures by the Home Office.

Specifically, the Appellant argues that:-

The Commissioner’s response on the applicability of s24(1) FOIA confirms that the Commissioner’s assessment was based on the Police Forces’ responses to the requests, including that:-

In relation to the ‘cookie-cutter’ arguments raised by the Appellant the Commissioner’s skeleton argument (paragraph 56) states that the Commissioner:-

The Commissioner argues that as in many s.24(1) FOIA cases, the Police Forces have applied the exemption on the basis of a predictive assessment as to how the requested information might be used by a hostile actor or motivated intruder, and the harm which might arise as a result. The Commissioner ‘considers that this is an exercise which [the Police Forces] are particularly well-placed to carry out’. The Commissioner relies on the acceptance by the Court of Appeal case R (Campaign Against Arms Trade) v Secretary of State for International Trade [2017] EWHC 1754 (Admin) at paragraph 29, that the nature of the assessment is indeed predictive. The Upper Tribunal has emphasised that it is important to consider the gravity of the harm should it occur, and that even if the likelihood of its occurrence is small, a precautionary approach is generally required when dealing with potential threats to national security and public safety (All Party Parliamentary Group on Extraordinary Rendition v IC & FCO [2015] UKUT 377 (AAC) at paragraphs 101 & 103).

The Commissioner does not accept the Appellant’s points made about the nature of the information disclosed by the Home Office about Prevent or the effect of a comparison with the information sought in this case. The Commissioner’s view is that the requested information in this case provides a more granular level of detail, from which additional insights can readily be extrapolated. It is argued that much of the Home Office data has been supressed (where numbers are less than 10, or could reveal numbers that are less than 10). The Home Office data by ‘ethnicity’, ‘age’, ‘gender’, ‘type of concern’ and ‘sector of referral’ are national figures, as opposed to figures relating to one particular police area. The Home Office data broken down region encompasses a larger area than the figures requested from the Police Forces. MP is one of six police forces in the ‘North West’ region and WMP is one of four police forces in the ‘West Midlands’ region.

In relation to the public interest balance the Appellant points out that the requests are made against a backdrop in which Prevent has become the subject of serious political debate and criticism as set out above and in which the Government has indicated its full support for the recommendations in the Lammy Review, including the publication of ethnicity data in the criminal justice system.

The Appellant relies on the public interest in (a) transparency and accountability; (b) good data governance and evidence-based policymaking; (c) ensuring justice and fair treatment for all; and (d) public confidence in the integrity of policing. Much of the really helpful witness and other evidence filed by the Appellant address these issues, and the witness evidence is discussed further below.

The Appellant’s case is that the key and overarching public interest factor weighing heavily in favour of disclosure is transparency and accountability. The publication of relevant data would allow the public to assess the efficacy of Prevent, both in meeting its stated goals, as well as in terms of its consequences, unintended or otherwise. The Appellant prays in aid the Shawcross Review which stated that:-

The public interest in good data governance and evidence-based policymaking is described as one of the other public interest factors that flow from the public interest in transparency and accountability. Publication of ethnicity data on Prevent would represent good data governance so as to understand the programme better and take steps to ameliorate it. This is linked to proper evidence-based policy making.

The public interest in ensuring justice and fair treatment for all, is placed in the context of real concern as to whether ethnic disparities exist as a consequence of the exercise of police powers, particularly in the context of Prevent. The Appellant argues that it is important that measures are in place to mitigate, if not fully address, those concerns. The importance of accessing reliable data on ethnicity in this respect is indispensable, as recognised both in the Lammy Review and the UK Government’s response to it. The terms of reference for the Independent Review by Sir William Shawcross also emphasised the goal of assessing ‘how effectively and efficiently is Prevent being delivered at both the local and national levels’. Publication of datasets, including in relation to ethnicity, will enable that assessment to take place. The witness evidence also addressed this aspect of the public interest. It is also important that the wider public are made aware of whether the data bears out these experiences of targeting and discrimination. As the Joint Committee on Human Rights has noted ‘…the only way for [myths about Prevent] to be dispelled is for there to be rigorous and transparent reporting about the operation of the Prevent duty’.

There is a public interest in all sectors of the public having confidence that policing is being conducted fairly so that the police can continue to police by consent. Although the police forces suggest that publication of the requested information may fuel perceived grievances such as the view that young Muslims are being targeted, the Appellant argues that this fails to appreciate that those grievances are fuelled by not publishing this data, as the reticence by the police forces gives rise to an inference that there is information within the datasets that the police forces are uncomfortable with revealing.

The police forces are also under a duty under s149 of the Equality Act 2010 to have ‘due regard’ to the statutory equality objectives, including the need to eliminate discrimination. The Appellant argues that the publication of the requested information would enable the police forces to demonstrate compliance with that public sector equality duty.

In relation to the public interest test, the Commissioner points out that the Police Forces refer to potentially enabling ‘those wishing to counter’ Prevent and engaging ‘in activity to disrupt and jeopardise the successful delivery of ongoing work’. It is stated that this ‘could threaten the successful delivery of Prevent and the government’s counter terrorism strategy and lead to the public being at increased risk of terrorism’. It is further stated that disclosure ‘would enable those intent on engaging in terrorist activities to determine on a national level which areas within the UK may be a vulnerable area to target’.

The Commissioner remains satisfied that the public interest factors against disclosure in these appeals are very strong. The Commissioner argues that even if the risk of harm is relatively low, the nature of the risk (i.e. the seriousness of the consequences) is such that there is a ‘very strong’ public interest in avoiding that risk: FCDO v IC, Williams, Wickham-Jones & Lownie [2022] 1 WLR 1132 at paragraph 31(6) (set out above). The Commissioner says that:-

Further, the Commissioner’s skeleton argument states that:-

The Appellant filed and served the witness statements of Fiona Rutherford (CEO of JUSTICE), Dr Layla Aitlhadj (Director of Prevent Watch) and Zara Mohammed (Secretary General of the Muslim Council of Britain (MCB)). All three of these witnesses gave brief supplementary oral evidence at the hearing, but the contents of their witness statements were essentially uncontested.

Fiona Rutherford’s statement (already referred to at the start of this decision) emphasises that ‘[e]quality and non-discrimination are cornerstone principles of a society that respects the rule of law’ (para 17) and that ‘if criminal justice system agencies (and by extension police forces) cannot provide an evidence-based explanation for apparent disparities between ethnic groups then reforms should be introduced to address those disparities’ and that the provision of better data is an important part of this process. Ms Rutherford refers to a number of reports produced by the Appellant which address apparent disparities, and notes ‘the real dearth of publicly available equality and ethnicity data across the criminal justice system’ (para 21) and ‘the striking lack of Prevent ethnicity data published by the Government or other public bodies’ which led to the current (and other requests) (para 24).

Ms Rutherford states that (paras 31-37) implementing good data governance and working with the most complete data possible is critical for good policymaking. She observed (para 35) that:-

Ms Rutherford’s evidence also discussed the positive example of the Crown Prosecution Service harnessing detailed data to investigate the extent to which there are demographic disparities in the outcomes of its decision-making and to formulate actions to increase transparency and fairness in its ongoing examination of its charging decisions: (paras 51-52). Publication of ethnicity data on Prevent would thus represent good data governance so as to understand the programme better and take steps to ameliorate it. This is linked to proper evidence-based policy making. Ms Rutherford explained that ‘…without sufficient evidence and data, which allows you to identify where the biggest problems are, it is not possible to work out what the correct or most effective intervention is likely to be’: (para 41). She continued by observing that:-

Publication of ethnicity data on Prevent would thus shine an important light on whether or not there is a problem with how Prevent is working. It follows that there is a clear public interest in publication of the requested information to ensure that policy can be improved in light of such evidence.

Ms Rutherford noted that the importance of transparent and thorough police data governance was recognised and highlighted by an inspection report published on 5 August 2023 by HM Inspectorate of Constabulary and Fire & Rescue Services (‘HMICFRS’) on race disparity in police criminal justice decision-making (included in our bundle) which observed that there ‘was a lack of published data on disparity, both at force level and throughout England and Wales’ and explained that it is ‘…very important that all forces gather and publish good quality data. This also helps Government and other organisations be aware of any potential disparity and the potential impact on community confidence’.

In relation to the public interest in the public confidence in the integrity of policing Ms Rutherford states (para 47) that:-

In relation to the public interest in ensuring public authorities comply with the public sector equality duty, Ms Rutherford explains at para 44:-

On this point Dr Aitlhadj’s statement also expresses concerns about how the guidance issued to those subject to the Prevent referral duty fails to address the interaction between that duty and other public sector duties such as those under the Equality Act 2010 (para 47). Publishing the withheld information would thus further the public interest in ensuring the public can understand the equalities impacts of Prevent and address concerns about such issues.

Dr Aitlhadj’s evidence sets out the important work that Prevent Watch carries out for those who feel they are adversely affected by the Prevent programme, and associated research and report writing. She notes (para 22) in particular how Prevent operates in schools and how for some children and young people ‘the relationship between teacher and pupil has become one of securitisation as a result of the Prevent referral duty’.

She notes that ‘…there is generally a real lack of transparency surrounding the operation of Prevent’ and there ‘…is a tendency of the Home Office and other public bodies like the police to cite national security as a reason not to disclose information relating to Prevent’: (paras 50-51). She noted that in this regard, Amnesty International has recommended that the Government collect and publish data relating to Prevent’s operation, disaggregated by ethnicity and religion. Its research observed that the lack of transparency around Prevent compounds all of the impacts of a referral (paras 52-53).

Dr Aitlhadj explained her view that the Prevent system is ‘inherently discriminatory’ and ‘what is perceived to be a ‘risk’ to those subject to the Prevent duty [teachers, social workers, police etc] is obviously influenced by what they see and hear in the media and in general discourse’. Prevent is highly intrusive within British Muslim communities and among children and young people in particular. Those subject to the Prevent referral duty are tasked with identifying ‘vulnerable’ young people and adults at risk of ‘radicalisation’ and being drawn into criminal offences, as defined in the legislation concerning terrorism offences.

Her statement (para 36) also explains the fear, stigma and social isolation caused by Prevent to members of the Muslim community:-

Dr Aitlhadj notes (paras 45-46) the financial burden caused by referrals: §44; and the impact a referral can have in later life. Dr Aitlhadj also notes that the lack of transparency is all the more frustrating when organisations, including the Police Forces in the current matter, describe Muslims and others as having ‘perceived grievances’ when it comes to Prevent. She explains (para 54) that ‘…if this was really the case, I would expect the Home Office and other public bodies to be as transparent as possible with how Prevent works, as that would be the obvious way to counter the ‘perceived grievances’ that the Muslim community is said to have’.

Zara Mohammed, in her statement, explains that the MCB is the UK's largest and most diverse national representative Muslim umbrella body. It has over 500 members with national, regional and local remits, including mosques, charities, schools, businesses and other networks. The MCB's aims are, in summary, to advocate for the rights and interests of Muslims, to build and strengthen communities and to work towards a successful and cohesive future British society that works for everybody. The job of the MCB is not just to serve Muslim communities, but also British society more generally.

Ms Mohammed notes (para 32) that:-

Ms Mohammed also explains the MCB’s perspective on the challenges faced by British Muslims in connection with security and counterterrorism which form the context for Prevent, in particular providing some examples of the detrimental impact of Prevent on the everyday life of British Muslims. Her evidence (para 28) further describes her view that the main problem with Prevent is that it:-

As well as hearing and considering witness evidence and also submissions in OPEN, the Tribunal also considered the withheld material and submissions from the Commissioner in closed and a gist was provided as follows:-