Conradh Na Gaeilge v Information Commissioner & Anor

Belfast City Council (the Council) adopted and published a language strategy in 2018 for the period 2018-2023. It built on previous work – a language policy adopted in 2006 in the light of guidance from the Department of the Environment (Local Government Division) on the implementation of the European Charter for Regional or Minority Languages (‘the European Charter’). In 2017 the Council consulted on a draft policy on Linguistic Diversity and a Proposed Language Framework and after considering the results of consultation adopted the 2018 strategy. It was in part a response to the evolving legal framework, including legal advice that it should have a strategy for the implementation of the European Charter (even it was not required in law to act in accordance with the Charter) and a decision of the High Court in 2017 on a judicial review application brought by Conradh Na Gaeilge of the Executive Committee of the NI Assembly which found that it had failed to comply with obligations flowing form the NI Act 1998 requiring it to adopt a strategy in respect of the Irish language. The 2018 strategy recalled the provisions of the Good Friday Agreement which underpins the constitutional arrangements of Northern Ireland “All participants recognise the importance of respect, understanding and tolerance in relation to linguistic diversity, including in Northern Ireland, the Irish language, Ulster-Scots and the languages of the various ethnic communities, all of which are part of the cultural wealth of the island of Ireland.” And aspired to “create a place where linguistic diversity is celebrated and respected, and where those who live, work and visit Belfast can expect to access what Belfast has to offer, using forms of language with which they are familiar and comfortable.” As part of that strategy with respect to Ulster Scots the Council displays many signs across the city emphasising the importance of Robert Burns’ poetry in the cultural life of the city over the last two hundred years.

In the implementation of its language strategy the Council decided on 11 October 2019 to have a city-wide consultation on the signage of the four leisure centres designated with a city-wide catchment. It received the results of its consultation on the proposal to erect “Bilingual/Multilingual External Naming and Internal Directional Signage in Andersonstown, Lisnaharragh, Olympia and Templemore Leisure Centres” with an options paper on 22 January 2020 in its Strategic Policy and Resources Committee. The results of the consultation were marked not for publication by virtue of paragraph(s) 3 of Part 1 of Schedule 6 of the Local Government Act (Northern Ireland) 2014. At that meeting some decisions were made (including to have discussions with interested parties) and further consideration was deferred. Following the disruption caused by the Covid SARS2 pandemic the matter returned to committee in September 2021. A decision was made toapprove Irish and English Welcome and Directional Signage at Olympia Leisure Centre which was then subject to “Call in” a mechanism in local government where, if there is sufficient opposition to a committee decision it may be brought before the full Council.

Reflecting the post-conflict issues affecting public administration in Northern Ireland the arrangements for Call in laid down by Section 41(1) of the Local Government Act (Northern Ireland) 2014 mean that a decision of the Belfast City Council or one of its Committees can be called in for reconsideration if at least 15% (9 Members) of the total number of Members request it on the basis that the decision:

Where a request for a Call in meets the threshold of support required the Chief Executive is required to seek independent legal advice on the validity of the Call in. Where the opinion confirms that the Call in has merit the opinion is circulated to Council members and the decision of the Committee is included in the next meeting of full Council for decision; the matter under review is ground (b) then subject to decision by a qualified majority vote of at least 80% of the members present and voting to support the decision. On this occasion the request for a call in was made on both grounds. The independent legal advice was that ground (a) was not made out, but ground (b) the decision “would disproportionately affect adversely any section of the inhabitants of the district” was established.

While the decision was publicly known the legal opinion and the material considered by the lawyer was not available to the public. On 8 February 2022 the Appellant sought information. It argued that the Equality Commission had refined its objective of Promoting good relations:“Promoting good relations between different groups in society entails fostering mutual respect, understanding and integration while continuing to combat discrimination and intolerance” arguing that “This new definition clearly demonstrates that ‘good relations’ should not be deliberately misinterpreted in an attempt to veto anything politically controversial.” The Appellant argued that an ‘adverse impact’ refers to something which immediately has or will lead to a discriminatory detriment to one or more groups of people, and that the erection of bilingual signage across all city-wide leisure centres is in keeping with the guidance outlined in the European Charter for Regional or Minority Languages. In the light of this the Appellant sought:

The Council responded identifying s42 as an exemption. The Appellant submitted detailed arguments on this, noting that what the Council had received was not advice as we would normally understand (which can be ignored) but had the effect of binding the Council; in the event of a judicial review of the decision-making the Council would have to disclose the legal advice, it was undesirable that councillors’ decision-making should be shrouded in secrecy, the call-in depended on the interpretation of statutory criteria, “adversely affect” and “disproportionate”. Ms Nic Liam argued:-

She argued for the need for legal certainty and that interpretations of statute law should be consistent with ECHR. The rights of members of the Irish speaking community were engaged. A public understanding of how the decision was reached was important and she raised concerns as to the reasoning in the opinion:

The Council responded on 11 April upholding the refusal and identifying the specific reasons why the material should not be disclosed:

The Appellant sought an internal review arguing:

The Appellant complained to the Information Commissioner who, after a cursory investigation, upheld the Council’s position. The Commissioner’s reasoning correctly identified the key issues: the importance of the client lawyer relationship to the administration of justice and the need to find a substantial public interest to outweigh that confidentiality:

The Appellant argued in applying to the tribunal that the effect of the legal opinion was that it constituted a binding adjudication as to whether the conditions for a call in were met; accordingly it should not be viewed as advice obtained in a solicitor client relationship but rather a step in a governmental process. Relying on legal privilege “precludes the public from seeing the basis on which council made its decision to allow a decision to be called in and does not give the public access to any basis upon which that decision could be vulnerable to legal challenge” and “it precludes developing precedents for when the call in process can or should be invoked leaving the standard of whether a decision disproportionately affects adversely any section of the inhabitants of the district up to the interpretation of a single individual in each instance without a check on the consistency of its interpretation and application. Even if this document is characterised as an opinion and is excluded under section 42 FOIA there is an overriding public interest in disclosing the information that underlies, in a significant way, legislative decision-making, which should be transparent”

The Appellant argued that the decision was inconsistent with UK obligations under the Charter for Regional or Minority Languages and the Framework Convention for National Minorities it further argued that the phrase “disproportionately affected adversely” had been interpreted in a way that is inconsistent with the U.K.’s treaty obligations. Without access to the opinion it was impossible to know whether the Council had met its obligations in relation to language rights and engaged in the necessary balancing of interests that would be appropriate given the nature of the decision that was the subject of the call in. The Appellant also criticised the ICO for failing to address adequately the public interest arguments.

In resisting the appeal the Commissioner reaffirmed the argument that the material in question was confidential communication between the Council and a lawyer for the purpose of seeking advice and accordingly met the criteria for attracting legal privilege. The Commissioner argued that since the 2014 Local Government Act did not require the Council to follow the advice the advice could not be seen as a binding decision. The limited circulation of the advice (to Council members) and the brief description of its contents meant that the advice had not lost its confidential character.

In considering the public interest the Commissioner emphasised the inbuilt weight of the privilege and relied on Lord Hoffman’s comment in Morgan Grenfell that ‘such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice’ and noted that in Savic the significance of whether the advice “is relevant to, or might be or might have been of use in, existing, concluded or contemplated legal proceedings” noting that the process to which the advice related was continuing.

In resisting the appeal the Council emphasised the significance of legal privilege, that the advice was not determinative of the decision on signage and that the international agreements relied on by the Appellant were not enforceable in law.

Cuisle Nic Liam a language rights co-ordinator for Conradh na Gailge (a forum of the Irish language community) works to promote the Irish language especially in the public services. The organisation views the use of bilingual signage as politically neutral and a method of promoting access to the language. She referred to critical comments by a Council of Europe body; the Advisory Committee on the Framework Convention for the Protection of National Minorities at paragraph 147 of its third report on the UK published 22 December 2011 which systematically addressed in detail a wide range of legislative, policy and other issues across the whole of the UK. (For completeness a number of relevant paragraphs of the third report together with extracts from the Fifth Report submitted by the United Kingdom in response to the fourth report of the Advisory Committee pursuant to Article 25, paragraph 2 of the Framework Convention for the Protection of National Minorities to the Council of Europe on 4 November 2021 are set out in an appendix to this decision).

Cuisle Nic Liam set out her concerns as to the significance of the issue:

Claire Donnelly, the head of an Irish Language primary school gave evidence as to the value of dual language signage:

Eoghan Ó Garmaile is a community projects worker involved in various projects intended to normalise the use of Irish including Turas, working on bringing the Irish language to Protestant communities. He commented:

Seán Ó Heacháin is head of Irish language at Colaiste Feirste an Irish language secondary school with nearly thousand pupils less than a mile from the Olympia leisure centre. The pupils are conscious of their language and the extent of its use on signs around the city. He has promoted the Irish language to adult groups in many locations across Belfast. He is frustrated and has a sense of despair at the decision and unable to see how the signage can be offensive. As a citizen he feels that for elected representatives to vote for this, “it seems a strange thing to happen”.

While there has during this appeal been some confusion as to the scope of the request; by the time of the hearing that confusion had resolved itself. The request captured the material sent to the independent lawyer for consideration, the advice itself and certain other documents relating to this process. The Call in request itself was within scope of the request, however it was put into the public domain by the Council in response to another request in 2023. The Appellant in submissions relied on decisions of the European Court of Justice on “Regulation(EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents” in which legal advice, which impacted on formal decision-making, was disclosed despite the Regulation having explicit protection from disclosure for legal advice. While (as Counsel for the Council emphasised to the tribunal) this is not binding on this tribunal, it is suggestive of the complexities arising from the different roles of legal advice and the different considerations which arise within a similar legal framework that grants rights of access to documents held by a public body where there is (as in FOIA) a protection of legal advice from disclosure. Similarly, while the international instrument on minority languages may not be binding on the tribunal, its existence and the obligation on His Majesty’s Government to give an account of its implementation in the UK is a matter of some weight.

The tribunal was satisfied that the material fell within s42 for the reasons stated by the Commissioner. However, s42 is a qualified exemption subject to a public interest test. Too frequently public bodies and the Commissioner regard the inbuilt weight of the exemption as tantamount to an absolute exemption. It is not and the detailed circumstances may mean that the balance lies with disclosure. In this case the Appellant’s arguments that the material is not privileged are more properly considered as an exploration of public interest factors supporting disclosure.

The Council did not call any witnesses or submit any witness statements in support of its case. It relied on the Commissioner’s decision and the statutory exemption from disclosure contained in s42 FOIA. In its submission to the Information Commissioner (which was uncritically accepted) it listed the matters going against disclosure but did not explore them in depth:-

With respect to circumstances, information which had been used by the Council to make a decision was submitted to a lawyer to determine whether a threshold condition had been met. The lawyer determined on one limb of the test it had not, and on the other – disproportionately adversely affecting a section of the community – it had. Despite the protestations of the Council to the contrary this had a significant effect and, given the divisions in the Council it was close to a de facto determination of the outcome of the process which was different from the outcome in the absence of the Call in. It is not entirely unreasonable to suggest that the significant decision which originally been made by councillors to introduce the signs has been made (in the short term – now over two years during which a substantive decision has not been made) by a lawyer. While in principle a tribunal might, on a personal level, not find this inappropriate; a relevant distinction is that a tribunal issues its reasoning (which may be accessed by any concerned individual) based on evidence considered in public. Analogous processes, for example a legal assessor advising a regulatory disciplinary committee or the Clerk to the Magistrates advising a bench of Lay Justices give advice which is (or ought to be) available to the parties. In this case the provision of advice in a certain direction requires the Council administration to conduct the decision-making on the basis of 80% of members supporting the proposal rather than the usual more than 50%, without public evidence or reasoning.

With respect to the age of the information and the timing of the request, the request was made soon after the issue became apparent in order to advance public information on a significant issue. If (as is perhaps hinted by the Appellant) there is an argument that the advice is deficient then it is clearly in the public interest that either concerns are allayed by publication or an error is rectified. The Savic relevance to current events or possible litigation is paradoxical, but for the advice it is likely that the process would now be over, because of the advice there is continued uncertainty.

The significance and sensitivity of the information was clear to the tribunal from the evidence of the Appellant’s witnesses and the Council’s language strategy. While this consideration may well, in cases relating to commercial questions, point towards non-disclosure, in this case it does not arise and the question of public confidence in decision-making takes centre stage.

The amount of information already in the public domain was a question the tribunal explored with Counsel for Belfast Council. There was a paucity of information, he identified the Council’s language strategy (discussed in paragraph 1) and speeches in Belfast Council (the extent to which they are reported was not explored). An extensive consultation on signage had not been disclosed; the details of the Call in were not released until long after the refusal.

Whilst the Tribunal recognise the need to safeguard confidentiality to ensure access to full and frank legal advice; in these circumstances Lord Hoffman’s comment in Morgan Grenfell is of little relevance; the Council would not be discouraged from obtaining advice; the Council has a statutory obligation to seek advice on the Call in, like Martin Luther it can do no other. If it were disclosed it would still have to seek advice on the next occasion; the possibility of publicity for the advice would if anything be an incentive to ensure that the advice was as robust as possible.

While there is significant inbuilt weight in non-disclosure of legally privileged material the factors identified by the Respondents as supporting non-disclosure do very little in that direction.

In assessing the balance of public interest the Council has not established significant interest in withholding the information beyond the inbuilt interest in the protection the relationship between the client and the legal adviser. The circumstances of the case, the fact that the legal advice effectively overturned the majority vote in the Council points towards the value of a public explanation. The Appellant’s witnesses stressed the positive aspects of the use of the Irish language for its speakers and their aspiration to use it as a means of reaching out to other communities. The Council’s language strategy recites the Good Friday Agreement “All participants recognise the importance of respect, understanding and tolerance in relation to linguistic diversity” and sets out the aspiration to “create a place where linguistic diversity is celebrated and respected”. In respect of its duties the guidance of the Equality Commission indicates what it should be doing: “Promoting good relations between different groups in society entails fostering mutual respect, understanding and integration while continuing to combat discrimination and intolerance”. This resembles the aspiration of Robert Burns “For a’ that, an’ a’ that, It’s comin yet for a’ that, That Man to Man the warld o’er, Shall brithers be for a’ that.”

The concern expressed by a Council of Europe body (Advisory Committee on the Framework Convention for National Minorities) in 2011 (see paragraph 28 in the appendix) sets out as a policy objective a public interest in protecting and promoting minority languages and a rejection of the proposition that promoting the Irish Language is discrimination against the majority population. Against that background the Appellant finds it difficult to comprehend the legal and evidential basis for a decision that erecting Irish Language signs in leisure centres would cause a disproportionate adverse effect on a part of the population. While the agreements relating to Minority Languages may not be directly enforceable in UK courts they are a significant matter of public interest.

The ability and preparedness of UK bodies to explain to their own population how they are (or are not) meeting their aspirations is a substantial matter of public interest far outweighing the public interest of legal privilege and, given the circumstances, doing no harm to that interest.

The decision of the Information Commissioner is not in accordance with the law and the appeal is allowed.