Line to take - LTT159 - Law Officer’s Advice and similarity with Legal Professional Privilege

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  • Section/Regulation: s35(1)(c)
  • Issue: Law Officer’s Advice and similarity with Legal Professional Privilege
  • Source: High Court
  • Details HM Treasury / IC & Evan Owen (21 July 2009)
  • Related Lines to Take: LTT15
  • Related Documents: [2009] EWHC 1811 (Admin)
  • Contact: HD
  • Date: 26/10/2009
  • Policy Reference: LTT159
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT

Line to take

Section 35(1)(c) can be treated in a similar way to legal professional privilege under s42 in that there will always be a strong element of public interest inbuilt into the Law Officers’ advice exemption. However it is not an absolute exemption and where there are equal or weightier countervailing factors, then the public interest in maintaining the exemption will not outweigh the public interest in disclosing the information.

Further Information

Section 35(1)(c) of the FOIA states:

35. — (1) Information held by a government department or by the Welsh Assembly Government is exempt information if it relates to —
(a) ...
(c) the provision of advice by any of the Law Officers or any request for the provision of such advice ...

In the case of HM Treasury v the Information Commissioner and Evan Owen, the complainant made a request for Counsel’s opinion which supported Gordon Brown’s declaration that the Financial Services and Markets Bill was compatible with the Human Rights Act 1998. The Commissioner rejected the Treasury’s argument that s35(3) was applicable to exclude the public authority from confirming or denying whether the requested information was held and this decision was upheld by the Information Tribunal.

HM Treasury then appealed to the High Court where Mr Justice Blake commented on the fact that Parliament had specifically sought to single out the advice from Law Officers as being worthy of protection. At para 39 he said:

... Parliament has precisely identified as exempt the issue as to whether or not the Law Officers have given their advice this was statutory language intending to reflect the substance of the Law Officers’ Convention itself, a long-standing rule adopted by the executive for the promotion of good government. A consideration adopted by the draftsmen as a ground for exemption without having to prove specific prejudice, naturally fits into a regime where there is an assumption of a good reason against disclosure.

Further, the Judge also commented that this principle was not displaced by the introduction of the FOIA when he said that it is not the case that the “...the Law Officers convention or equivalent principles of good government set out in the Ministerial Code cease[s] to have substantial relevance or automatically have less weight the day after the passage of the FOIA” (para 40).

Thus, in the Evan Owen case the Judge concluded that the Tribunal had misdirected itself where it had failed to:

"...conclude that Parliament intended real weight should continue to be afforded to this aspect of the Law Officer’s Convention [and] by failing to conclude that the general considerations of good government underlining the history and nature of the convention were capable of affording weight to the interest in maintaining an exemption even in the absence of evidence of particular damage.” (para 54)

However, the Judge also commented that did not mean that the general considerations could never be overridden i.e. he did not wish to elevate the exemption to an absolute one. He said

"...Nothing in this judgment is intended to undermine the important new principle 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.... I can certainly contemplate, for example, that the context for the commencement of hostilities in Iraq was of such public importance that ... the strength of public interest in disclosure of the advice as to the legality of the Iraq war might well have out-weighed the exemption in its general and particular aspects” (para 64).

Thus, the Law Officers’ Convention can be considered in a similar way to the concept of legal professional privilege in that the general concept itself has some in-built weight which should be taken into account in any analysis but it is not an absolute exemption. Instead, it is a factor which will need to be considered in every case but which may be outweighed by other factors in the same way that the principle of legal professional privilege may be (see LTT15).