Tribunal rejects legal challenge over non-disclosure of Government submissions to Independent Review of Administrative Law

The First Tier Tribunal (FTT) has ruled that the Government is allowed to withhold from publication evidence submitted by ministers to the Independent Review of Administrative Law.

In a case brought by the Public Law Project (PLP) the FTT concluded the public interest in maintaining the section 35(1)(a) exemption outweighed that in favour of disclosure.

This section concerns information that “relates to...the formulation or development of government policy” and is intended to protect “the efficient, effective and high-quality formulation and development of government policy”.

Commenting on the ruling PLP said: “Although the tribunal agreed with the Public Law Project that there were strong public interest grounds in publishing this evidence, PLP was unsuccessful in its attempts to require the Ministry of Justice to disclose it.

“Having assessed the undisclosed evidence, the tribunal found that opinions expressed by ministers were sufficiently ‘wide ranging, frank and in some instances divergent, both in the views held … and the strength of those views’ that disclosure would have undermined collective cabinet responsibility.”

PLP Director Jo Hickman said: “The tribunal acknowledged that proposals for the reform of judicial review are matters of high constitutional significance and that disclosure would significantly assist Parliamentary engagement with the Judicial Review and Courts Bill.

“In their representations to the court, Government lawyers argued that disclosure would be damaging to Government, and the tribunal has clearly accepted that.”

Ms Hickman said it was disappointing that the imminent parliamentary vote on the Judicial Review and Courts Bill “will not be informed by the evidence that the Government considers relevant”.

Upper Tribunal Judge O’Connor noted the Information Commissioner's Office had concluded the unpublished submissions were exempt from disclosure under section 36(2)(c) of the Freedom of Information Act and that the public interest weighed in favour of maintaining the exemption.

Having heard PLP’s arguments and those of the Ministry of Justice, the judge said: “Bringing this all together, having carefully considered the parties’ submissions, the evidence of the witnesses, and the ‘open’ and ‘closed’ documentation we find, in relation to disclosure of the unpublished submissions as a whole, that the public interest in maintaining the section 35(1)(a) exemption outweighs the public interest in favour of disclosure."

Mark Smulian