Case No. UKUT-60-(AAC)

41. I am satisfied that the FTT did not err in law in finding that the requested information was exempt from disclosure pursuant to section 42 of FOIA having performed the public interest balancing exercise.42. The FTT properly cited, considered and applied the legal principles I have set out above. The FTT both considered the general in-built inherent weight against disclosure which arises for the LPP in any event (see [35] of its decision) and the other case specific additional factors, which the FTT thought the CPS had “overegged”, and which were only worth a degree of additional weight ([38]). 43. The FTT “largely” accepted the argument that no prejudice will be caused by the disclosure of the advice, but also correctly noted that prejudice was not necessary to engage the inherent weight ([45]). At [46] of the decision, the FTT noted the effect of the passage of time but also noted that an additional factor against disclosure was that the advice was current and was in relation to a live issue. The FTT found that the advice was true legal advice and did not amount to policy (para 47). 44. The final conclusion is at [48] where the FTT weighed the significant in-built general factor against disclosing LPP material on one side of the scales, and the transparency, accountability, lack of prejudice and constitutional importance factors in favour of disclosure on the other side of the scales. The FTT found at [41] that the pro-disclosure factors “do not, in fact, add up to very much”. It found that the pro-disclosure factors “were not strong enough to equal or override that significant ‘in-built’ prejudice, even in a case where I am prepared to accept that little or no prejudice would have been caused by disclosure”. 45. I am satisfied that the FTT properly directed itself as to the legal principles, properly applied the public interest test balancing exercise, and came to its own mixed decision of fact and law. It made an evaluative conclusion which it was entitled to reach on the evidence before it and for the reasons it gave. This conclusion discloses no error of law which might enable this Tribunal to intervene. 46. The Appellant’s Grounds of appeal largely rely on the same point, that the FTT erred in “almost entirely relying on the general principle in support of non-disclosure of LPP as the determinative factor and failing to give sufficient weight to the specific factors supporting the public interest in disclosure, particularly in light of the finding an absence of specific factors supporting non-disclosure” (para 5). Or put in other ways: having largely rejected the additional specific factors against disclosure, that the FTT placed too much weight (i.e. more than significant weight) on the inbuilt factor; or that the FTT erred in law because the in-built weight was not capable, on its own, of outweighing the specific public interest factors supporting disclosure.47. I reject each of these grounds of appeal.48. The FTT was entitled to decide for itself how much weight to apply to the individual factors (“the public interest is a matter of judgment of the Commissioner or a tribunal in the light of the background facts.” [75] Aitchison). It is not for the Upper Tribunal to second-guess or redecide those evaluations. Had the FTT fallen into the trap of treating the inherent weight as determinative or absolute (without consideration of any other factors) in the manner of an absolute exemption, then there would have been an error. Had the FTT failed to put the in-built weight on the non-disclosure side of the scales, then there would have been an error. Had the FTT, despite finding the pro-disclosure public interest factors did not “add up to very much” (para 41) nevertheless held that they weighed heavier in the balance than the inbuilt weight, then there would have been a legal error of a perverse outcome. The FTT noted the unchallenged evidence before it was that the advice in issue was only of “esoteric interest” (para 30 – also see para 22). 49. The FTT was entitled to reject many of the CPS’s additional factors (those addressed by the FTT at [41]-[47]) so as to, essentially, only leave the inherent weight in the “non-disclosure” side of the scales. There is no error of law in so doing – the authorities cited permit that the inherent weight afforded to non-disclosure of LPP material alone may outweigh the pro-disclosure factors.50. The fact that the CPS did not prove any prejudice, chilling effect or other factor against disclosure, did not mean that the inherent weight should not sit on the scales “in any event”. Whilst it is true that a decision maker should never ignore all other factors and only consider an inherent factor (as this might create an impermissible presumption of non-disclosure or would elevate the qualified exemption into an absolute exemption – see the approach of the FTT in Bellamy v IC and DBIS [2010] UKFTT EA_2009_0070 [38]) this is not what happened here. All factors were considered (including those put forward by the CPS) but, largely, on consideration of those factors by the FTT, only the inherent factor remained on the non-disclosure side of the scales. The question is then whether it outweighed the reasons in favour of disclosure. The FTT found, as it was entitled to do for the reasons it gave, that it did. 51. The FTT rejected the balance struck by the Information Commissioner who considered that the public interest in knowing what advice Senior Treasury Counsel had given the Director of Public Prosecutions in relation to the exceptionally rarely occurring question of whether the Sovereign is competent and compellable in her own courts outweighed the in-built weight in favour of not undermining the privilege which must subsist between those two key public officeholders (see para 48). The FTT was entitled to restrike that balance and come to its own conclusion, and it did so without any error of law. 52. By discharging its duty to put the inherent weight on one side of the scales, the FTT did not thereby start from a presumption of non-disclosure (as argued by the Appellant). The key is to start with an empty set of scales and a presumption of disclosure (again, see the approach of the FTT in Bellamy [38]). If however, once the scales are full of the relevant factors on both sides, the weight is greater on the non-disclosure side (regardless of the number of factors on each side) then that provides the answer. The weight to be attached to each factor is a matter solely for the FTT. 53. Further the FTT, at [48], recognised that if the weights were equal, and the scales perfectly balanced, the presumption in favour of disclosure, would carry the day (“were not strong enough to equal or override that significant ‘in-built’ prejudice”; see in relation to that principle, DH v IC and Lewis, [2017] EWCA Civ 374, [2017] 1 WLR 3330 at [46]). 54. In his oral argument, the Appellant relied on the argument that the FTT erred in finding that the constitutional importance of the advice was effectively cancelled out as a pro-disclosure factor, by the fact that advice of such importance ought to be withheld from disclosure. 55. However, the FTT did not err in finding that the constitutional importance of the advice “works both ways”, even though the CPS did not accept that the advice deserved such elevated status. The FTT’s conclusion that the constitutional importance of the legal advice is neutral and not simply a pro-disclosure factor is supported by the decision in Corderoy at [76]. However, in any event, as can be seen from the FTT’s decision at [48[, it is by far and away the inherent weight attached to LPP material, and not any additional factors which caused the balance to tip in favour of non-disclosure in this case. 56. The same point applies to age of the material, as age of the advice did not materially affect the balancing exercise undertaken by the FTT (see [46]– “I have given those little weight in any event”). In any event, the FTT found as a fact, by accepting the CPS’s evidence on the point, that the advice was still current and is about an issue which is still live ([46] based on evidence recorded at [30] – “He confirmed that the advice in this case still represented the CPS view of the law”). Put another way, if the issue of the competence or compellability of the monarch arose again, the advice would represent the CPS’s view of the law on that issue. 57. Even were I, as a judge of the Upper Tribunal, to disagree with the FTT’s findings of fact, characterisations of the evidence, or with its evaluative conclusions, unless any of them were reached as a result of an error of law, I may not interfere with the FTT’s decision. Even if I may have struck a different balancing exercise in evaluating the competing public interest factors, this alone would not be sufficient to demonstrate an error of law by the FTT.58. In this case there was a sensitive balancing exercise to perform between the pro-disclosure public interest in the public discovering what advice the CPS has received on the rare but constitutionally significant issue of the compellability and competence of the monarch, and the non-disclosure public interest in securing and maintaining legal advice privilege between two of the most senior prosecuting lawyers in the UK. The FTT performed its task skilfully. It weighed up the factors carefully and its reasoning was logical and well expressed. In conducting that exercise the FTT interpreted and applied the proper principles of law and reached evaluative conclusions it was entitled to reach applying on the evidence before it.59. The public interest balance struck by the FTT was not the product of any error of law. Therefore, its decision must stand that the requested information should not be disclosed being exempt LPP material for the purposes of section 42 of FOIA. Conclusion60. For the reasons set out above I dismiss the Appellant’s appeal. I am satisfied that there was no error of law in the FTT’s decision. I repeat my thanks to both parties for their assistance in deciding this appeal.