Decision Savic v (1) ICO, (2) AGO and (3) CO
AG Appeal [2016] UKUT 0534 (AAC)
DECISION
(1)This decision addresses the Appellant’s appeals against:
the First Respondent’s decision of 13 January 2015 (in respect of the Appellant’s request for information from the 2nd Respondent dated 30 July 2013 (the AGO Request), and
the First Respondent’s decision of 13 January 2015 on one document that is the subject of the Appellant’s appeal which contains information within the ambit of the Appellant’s request for information from the 3rdt Respondent dated 14 August 2013 (the CO Request) namely the document that the First Respondent concluded fell within the scope of s. 42 of FOIA (Legal professional privilege).
(2)The appeals are dismissed.
REASONS
Introduction
These appeals were transferred to the Upper Tribunal on 12 June 2015. They are against two decisions made by the 1st Respondent (the Commissioner) relating to requests made under the Freedom of Information Act 2000 (FOIA).
The first request was made on 30 July 2013 and was addressed to the 2nd Respondent (the AGO). It requested:
details of the advice given to [HMG] in respect of its decision to take military action against the Serbian / FRY authorities in Kosovo in 1999 --------------- together with any documents that were material to the decision of [HMG] to commence aerial bombardment ofKosovo and Serbia
We shall refer to this as the AGO Request. As can be seen from its terms it is directed to advice about a specific decision or decisions. It has been common ground that it was a request for the advice given by the Attorney General of the time (Lord Morris).
The initial response to the AGO Request was a response neither confirming nor denying (NCND) whether information within the scope of the request was held. This response was based on s. 35(3) of FOIA. The Commissioner decided that the fact that the Attorney General (the AG) had given such advice was in the public domain when the request was made and so in effect that as the “cat was out of the bag” the public interest did not favour neither confirming nor denying whether information within the scope of the AGO request was held. Unsurprisingly, this decision was not appealed and on 26 March 2014 the AGO responded confirming that it held information within the scope of the request but withholding it in reliance upon the exemption set out in s. 35(1)(c) (Law Officers’ Advice). This was part of the disputed information in the closed bundle before us (the Disputed Information).
By a decision notice dated 13 January 2015 (the AGO Decision) the Commissioner upheld the AGO’s reliance on s. 35(1)(c).
On the appeal against the AGO Decision reliance is also placed on s. 42(1) (LPP) and s. 27(1) (International Relations). These additional claims are unsurprising because LPP clearly applies to the legal advice of the Law Officers and s. 27 is likely to be engaged by information included in instructions for and the content of the relevant advice.
The second request was made on 14 August 2013 and was addressed to the 3rd Respondent (the CO). It requested:
copies of all records concerning the decision to commence a military air campaign against Serbia and Kosovo on 24 March 1999. Specifically we request copies of:
1. Minutes of Cabinet meetings, during which that decision was discussed.
2. Memorandum between relevant Government Departments and specifically the Foreign and Commonwealth Office and the Ministry of Defence.
3. Any other records relating to the decision
So this request (the CO Request) is directed to information about a defined decision. It is framed in wide terms and is for records (not information) and specifically requests minutes of Cabinet minutes. Before us it was accepted that this related to minutes of any meetings of the full Cabinet and of Cabinet committees.
The Commissioner’s decision in respect of the CO Request is dated 13 January 2015 (the CO decision) and by it the Commissioner held that the CO was entitled to rely on:
the exemptions in ss. 27(1)(a) to (d) and 42(1) in respect of the information it had confirmed it held and had provided on a closed basis, and
its NCND responses.
Procedure
At one stage the two appeals were to be held separately. A factor relating to this was the existence of proceedings in the Queen’s Bench Division by Claimants, who are clients of the Appellant (who is a solicitor) against the Ministry of Defence (the QB proceedings). Those claimants are the widows of Serbs abducted or murdered in or near Pristina, between 16th June and 5th July 1999. The teenage son of one of the Claimants was murdered alongside his father and, in very short summary, the Claimants allege that British forces “failed to protect their family members or properly investigate [the killings] and to date the perpetrators remain at large”. On 4th August 2016, Irwin J handed down a judgment on a number of preliminary issues in the QB proceedings ([2016] EWHC 2034 (QB)). . Irwin J decided the preliminary issues against the Claimants and the issue whether they will be given permission to appeal remains alive.
The relevant date for our purposes is the time when the requests were responded to by respectively the AGO and the CO and so, after internal reviews, respectively May 2014 and January 2014 (see AGGPER v IC and FCO [2015] UKUT 0377 (AAC) at paragraphs 43 to 59).
We gave directions that the Disputed Information was to be closed material and any argument or evidence that disclosed its content was to be advanced and held on closed basis. Further, we directed that if the AGO or the CO wanted to rely on any further closed material or evidence they were to make an application for that purpose. In the events that happened they did not seek to rely on any further closed material or evidence.
Evidence was given on behalf of the AGO by a statement made by the Director General of the AGO (the AGO witness) and on behalf of the CO by two statements of a senior civil servant who had been Director General, Civil Service Group in the CO (the CO deponent).
We did not hear any oral evidence from the persons who had made statements filed by the Appellant.
The Appellant had provided a list of questions that she would want to be put to the Respondents’ witnesses in any closed session. The vast majority of them could be and were put in open session. After each of the witnesses had finished their open evidence we clarified with the Appellant what she wanted us to ask in closed session and then heard closed evidence from each witness. Having done so we reported back to the Appellant.
In particular the Appellant wanted us to look at the timing of the advice given by the AG and the content of what was considered by him and by those who saw the Disputed Information provided by the CO. This links to her public interest arguments. We reported back that we had done this and had considered whether aspects of the timing or content favoured disclosure.
The Commissioner, through Counsel, put questions in closed session on the premise that if the Appellant had been there, and so was aware of the contents of the closed material, she would have asked such questions. We told the Appellant that this has been done.
We also asked whether documents referred to in the information that the AGO had confirmed it held but were not before us were likely to be held by the AGO and so had been overlooked. We were satisfied that this was unlikely.
We record that in our view:
It was appropriate for the public interest arguments to be addressed only in open evidence and so we do not share the surprise expressed in the Commissioner’s skeleton concerning this approach.
It meant that the closed exercise was limited to checking that the open arguments linked with the contents of the Disputed Information.
As it was convenient to do so through the witnesses in closed session this is what we did.
This exercise could also have been done by submission and there was no closed evidence that added to or detracted from the open evidence and arguments on the relevant public interest balances. This was because once it was established that the claimed exemptions applied and that the public interest arguments could be founded on the contents of the Disputed Information, which was obvious on any reading of it, the public interest arguments were not affected by particular aspects of the contents.
Having given this account of the proceedings in respect of the appeals against both the CO Decision and the AGO Decision, this decision is confined to the Appellant’s appeals against:
the AGO Decision, and
the CO Decision that one document held by the CO engaged the exemption in s. 42 (LPP) and that, applying that exemption, the information it contains should not be disclosed.
We have written a separate decision on the remainder of the appeal against the CO Decision.
The application of ss. 35(1)(c) and 42 to the AGO Request and of s. 42 to one document within the scope of the CO Request
The Commissioner concluded that s. 42 and not s. 27 applied to the information in one document within the scope of the CO Request (the CO s. 42 Document). The reasons for that conclusion of the Commissioner are set out in a confidential annex to the CO Decision.
In our view, there was no need for us to consider the reasoning in the confidential annex for that conclusion because we have dealt with the appeals on the basis that only s. 42 applies to the CO s. 42 Document (see paragraphs 19 and 56 hereof and our decision in the appeal against the CO Decision).
We were not invited to consider that reasoning at the hearing. Indeed that annex was not included in our papers for the hearing.
The Disputed Information includes the CO s. 42 Document and all of the documents provided on a closed basis by the AGO in response to the AGO Request (the AGO Disputed Information).
The application of ss. 35(1)(c) and s. 42 to the AGO Disputed Information is self-evident and requires no further explanation to anyone who has read that material. Indeed, this consequence flows from the terms of the AGO Request.
It is also self-evident to a reader of the CO s. 42 Document that s. 42 is engaged and that it relates to the provision of advice from the AG. Indeed this document is also included in the AGO Disputed Information.
A further open explanation is not necessary or practical without disclosing the content of these documents. In any event, the engagement of the exemptions as found by the Commissioner was not disputed on this appeal.
LPP and the s. 2(2)(b) public interest balance.
There is an obvious link between the public interests that found s. 35(1)(c) (Law Officers’ advice) and s. 42 (LPP). There are some additional factors that apply to Law Officers’ advice that we address separately.
In the context of what has to be disclosed in legal proceedings, and so when the public interest in favour of disclosure is the strong one that cases should be decided fairly and correctly having regard to all relevant evidence, the courts have concluded that the litigant has a right not to disclose relevant information / evidence covered by LPP (advice or litigation privilege). There are only a few exceptions to that right and its existence means that competing public interests do not have to be weighed, or that, save when such exceptions apply, the courts have decided that the public interests in favour of enabling the litigant to preserve the confidentiality of information / evidence covered by LPP will always outweigh those in favour of the disclosure and so admissibility of that relevant evidence in the proceedings.
From a similar starting point, namely the private and public benefits of preserving the confidentiality of (a) other communications of a litigant with, for example, a banker, accountant, doctor or priest, or (b) ministerial and other communications that could found a PII claim, the courts have taken a different view in that they have decided that the litigant does not have such a right. Accordingly, if relevant, such confidential communications must be disclosed in the proceedings unless it can be established that disclosure would be contrary to the public interest. In that balance the courts have decided that the public interest in preserving confidentiality is not of itself sufficient to found non-disclosure of relevant evidence.
FOIA has not followed the approach taken by the courts to LPP or confidential information in that it has introduced a public interest test for both.
This does not mean that the public interests in not disclosing LPP information identified in and by the courts are not relevant in the exercise of weighing the competing public interests required under FOIA. The relevance and weight of those factors have been recognised in a number of cases relating to FOIA (see for example BERR v O’Brien [2009] EWHC 164 (QB) in particular at para 53). Those cases provide authority for the conclusion, with which we agree, that those factors, and the approach of the courts to them, identify powerful public interest reasons in favour of the non-disclosure of LPP information. However, it must be remembered that the conclusion reached by the courts on the balance of the competing public interests in respect of LPP does not apply to the FOIA balancing exercise.
Many may think that the public interest in the disclosure of relevant evidence to do justice is stronger than the general public interest in favour of disclosure under FOIA, but as Parliament did not make LPP an absolute exemption it recognised and intended that in some cases the public interest would favour disclosure under FOIA of LPP information.
The existence of proceedings and the need for the LPP information to be relevant to those proceedings are central factors in the courts’ approach and conclusion that the litigant has a right to refuse to disclose LPP information in those proceedings. However, in some and perhaps many cases there will be no realistic connection or overlap between a FOIA request and existing litigation or litigation that can be reasonably contemplated and it seems to us that this is likely to be one of the reasons why Parliament decided that under FOIA LPP was not to be an absolute exemption.
We take the view, in line with earlier authority, that:
the factors identified by the courts in favour of the non-disclosure of LPP information provide powerful reasons for a refusal of a FOIA request, but
it must be remembered in the FOIA context they do not found a right, and so
in the FOIA context a fact sensitive weighing of the competing public interests must be carried out (see for example BERR v O’Brien at paras 41 and 58 relating to the approach to the public interest test and para 64 of the judgment in HM Treasury v ICO cited below).
In that weighing exercise we take the view that if the information sought under FOIA is relevant to, or might be or might have been of use in, existing, concluded or contemplated legal proceedings this adds to the weight of the factors against disclosure because, although FOIA is applicant and motive blind, the disclosure would effectively deny the public authority to whom the FOIA request is directed its right as a litigant in proceedings to refuse disclosure and so cause damage to the manner in which proceedings are, have been or might be conducted, and thus to the administration of justice.
Law Officers’ advice and the s. 2(2)(b) public interest balance.
As noted in HM Treasury v IC [2009] EWHC 1811 (Admin); [2010] QB 563 s. 35(1)(c) and s. 35(3) reflect the Law Officers’ Convention. We are not concerned with s. 35(3) and so the NCND aspect of the Convention but with the parts of it that relate to the disclosure of the contents of the information relating to the advice ( e.g. the instructions for it and the advice itself). This aspect of the Law Officers’ Convention clearly overlaps with the LPP exemption with the result that the general factors in favour of maintaining the confidentiality of information seeking and giving legal advice apply to it as they apply more generally.
But the role of the Law Officers (the providers of the advice) and the importance of the Government acting in accordance with the Rule of Law are additional factors to be taken into account. As to those additional factors:
The advice of the Law Officers is regularly sought in respect of matters of particular complexity, sensitivity and constitutional importance. This enhances the need for full and candid instructions being given to them about such matters and for properly reasoned and balanced advice.
It is axiomatic that such advice is likely to be necessary and sought at, and in respect of, high levels of Government decision making in respect of national and international issues that engage the high public interest in the Government acting in compliance with the Rule of Law (nationally and internationally).
The AGO witness told us and we accept that:
permission to disclose the advice of a Law Officer would be sought from the Law Officers at the time it was sought rather than of the Law Officer who gave the advice. This accords with the approach described by Lord Morris in the passages in his autobiography included in the evidence and with the nature of the advice i.e. it is advice to Government,
if a Law Officer was of the view that his or her advice should be sought or has been sought and has not been followed appropriately, and that situation was not remedied, the political repercussions of his or her resignation would be enormous and so the views of the Law Officers for the time being on such matters have considerable force, and
the circumstances in which the advice of the AG in respect of the taking of military action in Iraq was disclosed were very materially different to the circumstances in this case, and one of those differences is the point that, in the case of Iraq, there had been a partial, inaccurate leak to the media and it was considered that this was a significant factor in favour of disclosing the full advice and so an accurate account of its content.
More generally we would like to thank the AGO witness for her balanced and well-reasoned evidence based on considerable relevant experience.
The public interest in favour of disclosure
The public interest in favour of disclosure is founded on the public interest in openness and in understanding and evaluating on an informed basis the reasons for decisions made by public authorities.
In this case, as accepted by the AGO (and the CO), the nature of the decision to start a military campaign and its consequences mean that there is a strong public interest in knowing as much as possible about why the decision was taken and so the matters of fact and law that were taken into account, the reasoning of the legal advice that was given and whether that advice was followed and was factually justified. We too accept this.
We also accept the Appellant’s points that advice about the decision to commence military action affected the public at large, resulted in considerable cost to the public purse and loss of life and that, at the time, it was proclaimed to the world by the UK Government that the military action taken was legal.
Additionally the Appellant placed reliance on the following:
Paragraph 64 of the judgment of Blake J in HM Treasury v ICO where he said:
Nothing in this judgment is intended to undermine the important new principles of transparency and accountability that the FOIA has brought to government in many ways. 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 binding decisions on what, whether and when information may be disclosed. I can certainly contemplate, for example, that the context for the commencement of hostilities in Iraq was of such public importance that irrespective of the decision of government to make partial disclosure, strength of public interest in disclosure of the advice as to the legality of the Iraq war might well have outweighed the exemption in its general and particular aspects.
Although it was accepted that (a) the Law Officers’ Convention was important and should be given weight, and (b) the information now sought about the legal advice given could not properly have been sought at the time, 17 years have now passed (and we add about 14 years had passed at the relevant dates in 2014 for our purposes – see paragraph 10 above) which greatly weakens the public interest against disclosure, and founds the view that it would do no harm.
The extent of the disclosure of the advice given by Lord Morris in his autobiography.
The statements put in the public domain that she maintains do not withstand scrutiny. For example, the statement to the UN Security Council on 24 March 1999 that:
The action being taken is legal. It is justified as an exceptional measure to prevent an overwhelming humanitarian catastrophe ----------
Every means short of force has been tried to avert this situation. In the circumstances, and as an exceptional measure on the grounds of overwhelming humanitarian necessity, military intervention is legally justifiable.
.
A number of statements from responsible and informed bodies and persons (a) supporting the assertion of the Appellant that the military action in Kosovo was not justified in fact or law, and (b) to the effect that it caused a humanitarian catastrophe and was not a justifiable and lawful reaction to one.
The disclosure of the advice of the AG relating to the taking of military action in Iraq in which it was stated that the AG of the time had taken account of military action taken on earlier occasions, including in Kosovo in 1999.
There was no rational basis for disclosing the advice in respect of Iraq and not that in respect of Kosovo.
The Iraq Inquiry and Report show that there is a weighty public interest in disclosure of all the factors and reasoning behind a decision to take military action and the extent of the disclosure about and relating to the invasion of Iraq supports the disclosure sought in this case. (The Report post-dates the relevant dates for our purposes but we accept that as at those dates in 2014 (see paragraph 10 above) these points can be made by reference to the situation that then existed).
We acknowledge that the combination of those factors identifies an arguable case that disclosure of the information sought by the AGO Request and the s. 42 CO Document would be in the public interest.
However, on the points listed in paragraph 43 we comment:
In our view Blake J is going no further than saying that there may be cases in which the public interest may favour disclosure and so the approach we set out in paragraph 34 above.
The points accepted by the Appellant recorded in point (ii) about contemporaneous disclosure also recognise the fact sensitive approach that must be taken, as does the point on the passage of time.
We accept the evidence and submission of the AGO that Lord Morris’ account is not an official account and that it is self-serving. It contains indications that he would have liked to say more, but its tenor is that he thought that his advice was appropriately sought and followed which is confirmed by the fact that he remained in office. In our view, his account has some internal inconsistencies, but what he says does not conflict in any way with the public announcements made at the time of the reasons for the military action.
It is clear that the Government’s firm position is that it does not accept that as a matter of fact and/or law the decision to take the military action was not justified. It is clear that at the relevant times in 2014 (and now) this dispute of fact and law may be relevant in the QB Proceedings and could be relevant in other proceedings in this country or an international court.
It is a common feature of private and public affairs that an assertion of the legality of a course of action is made on the basis of legal advice. This does not waive LPP. Indeed, LPP protects the disclosure of the instructions seeking and the contents of that advice.
We have already set out that we accept the circumstances relating to the disclosure of the AG’s advice concerning the Iraq campaign are materially different. And, in any event, we do not accept that disclosure in one arguably similar case necessarily points to disclosure in another. Indeed, there is force in the point that it is only in exceptional circumstances that a disclosure of such advice is in the public interest and so an argument based on similarities has little weight absent a pattern of disclosure.
Absent such a pattern the exceptionality of any case is free standing. Here that exceptionality is founded on the nature of the decision about which the legal advice was sought and given and its impact, and so the public interest in knowing the matters referred to in paragraph 41 above.
The public interest against disclosure
The points we make relate to the AGO Request and the s. 42 CO Document.
The acknowledged factors relating to LPP and the disclosure of Law Officers’ advice referred to above are all in play and all have weight.
The exceptionality argument in favour of disclosure flows from the nature and effect of the decision about which advice was sought and given and so it is founded on the same points as those which found the additional points relating to advice from the Law Officers (and so all the legal advice in question in this case) set out in paragraphs 36 to 38 above.
The balance of the public interest
In our view this comes down decisively in favour of non-disclosure.
We have read the relevant information and nothing in it adds to or detracts from the competing arguments for and against disclosure.
So the core argument is between exceptionality factors for and against disclosure. In our view, notwithstanding the passage of time these come down firmly in favour of non-disclosure because the weighty public interest arguments in favour of maintaining confidentiality of instructions for and legal advice relating to an issue of particular complexity, sensitivity and constitutional importance outweigh the counter arguments based on the same premise and so the public interest in openness and in understanding and evaluating on an informed basis the reasons for decisions of this character made by the Government.
We acknowledge that the passage of time can weaken the weight of the arguments for non-disclosure. But in this case the existence of the QB Proceedings, and the prospect of other proceedings in this country or in an international court on disputed issues of fact and law relating to the published reason for taking the military action in Kosovo, mean that the weighty factors favouring non-disclosure are still actively engaged.
So, in our view the strongly held views of the Appellant (and no doubt others), and their current wish to challenge the announced reasons for the military action in Kosovo and its legality, weaken their public interest arguments in favour of disclosure because it means that it cannot be said that the counter arguments are historical.
We have not investigated whether there would be an equivalent to LPP in any proceedings in an international court; but, if there is, the point made in paragraph 35 above would apply to them as well as to the QB Proceedings. But, if it only applies to the QB Proceedings, in our view it is a powerful factor against disclosure.
Section 27
The application of this exemption (international relations) was raised on the appeal. As mentioned above, we have not considered the Commissioner’s reasoning that s. 27 did not apply to the CO s. 42 Document.
Given our conclusion on the application of ss. 35(1)(c) and s. 42 to the AGO Disputed Information and the CO s. 42 Document there is no need for us to consider the alternative argument for their non-disclosure based on s. 27.
However, we record that, as one would expect given the subject matter of the advice sought and given, a reading of the AGO Disputed Information shows that the information in those documents that is within the ambit of the AGO Request contains information that also engages the exemption in s. 27. We have dealt with the public interest balance relating to s. 27 information in our decision relating to the CO Request.
Signed on the original
Mr Justice Charles
Upper Tribunal Judge
Peter Lane
Anne Chafer
30 November 2016