[2024] UKUT 178 (AAC)

I wish to make it very clear that I am not deciding any of the following questions:

whether MDH’s activities were licensable under the 2018 Regulations;

whether the Council failed properly to discharge its licensing functions under the 2018 Regulations or its statutory functions in relation to stray dogs;

whether the Council misrepresented, or made misleading statements about, operations at MDH;

whether the Council misrepresented or made misleading statements about legal advice given to it in connection with the licensing of dog kennels / accommodation;

whether or not legal professional privilege is being used to shield the Council from being held properly accountable for the exercise of its licensing functions.

The Commissioner argues that Mr Dally’s case before the Upper Tribunal seeks to rely on a matter that was not part of his case before the First-tier Tribunal. The Commissioner styles this as Mr Dally’s third formulation of the alleged misrepresentation namely that the Council misrepresented that it had received legal advice as to whether MDH required a licence under the 2018 Regulations.

Mr Dally’s submissions to the First-tier Tribunal included the following:

In my judgment, the only tenable reading of those submissions is that Mr Dally advanced a case by reference to the question whether, under the current regulatory regime (the 2018 Regulations), MDH carried on a licensable activity. When those submissions were advanced (and the prior request for information made), MDH’s activities could not have been licensable under the 1963 Act because that Act ceased to have effect in relation to England in October 2018. Given the phrasing of Mr Dally’s submissions, and his correspondence with the Council about licences and MDH, whose focus was not on the question whether MDH had been correctly regulated under the 1963 Act, it is in my view clear that Mr Dally’s case before the First-tier Tribunal included arguments that: the Commissioner erred by failing to address the question whether the Council received legal advice that MDH did not require a licence under the 2018 Regulations; if no such advice had been received, the Council’s had misled the local MP and the public; in assessing the competing public interests for and against disclosure of the withheld information, weight should be given to the fact that disclosure would confirm the extent to which the Council had misled the local MP and the public. I therefore reject the Commissioner’s argument that Mr Dally’s case before the Upper Tribunal is formulated in such a way as to rely on a point that was not part of his case before the First-tier Tribunal.

The Council’s email to Mr Dally of 20 February 2019 included the words, “despite our previous legal advice on this matter, we have recently clarified the position with DEFRA so that we could be certain that our information was correct”. The Council’s letter to the local MP/RSPCA said, “while we have taken previous legal advice on this matter, we have recently (in view of the interest which you have raised) sought further clarity from [DEFRA], so that we could be absolutely certain that our interpretation was correct”. The Commissioner’s decision notice revealed that the Council’s legal advice dated ‘from several years ago’ and the First-tier Tribunal itself said that it related to a time before the 2018 Regulations came into force. The First-tier Tribunal’s decision notice was dated 22 July 2020, and the 2018 Regulations came into force on 1 October 2018.

The First-tier Tribunal found that the Council’s letter to the local MP, which was in materially the same terms as its letter to the RSPCA, “explicitly states that the advice was taken some time ago”. By ‘some time ago’, the Tribunal meant before the 2018 Regulations came into force; that is shown by paragraph 11 of the Tribunal’s reasons which states that the current legality of MDH’s operations is “distinct from the question of the legal advice obtained some time before the [2018 Regulations] made some changes to the position of some kennels”.

The First-tier Tribunal’s finding that the Council had ‘explicitly’ stated that the legal advice was taken some time ago clearly lacked any evidential support. The only explicit statement made by the Council relating to the age of the legal advice was that it was ‘previous legal advice’. That would be of no consequence if the substance of the Tribunal’s finding – that the Council’s letter conveyed that legal advice was taken some time ago, before the 2018 Regulations came into force – was properly supported by the evidence and adequately reasoned. In my judgment, however, the finding was not adequately reasoned. Some intermediary explanation is required in order for ‘previous legal advice’ to be equated with ‘advice taken some time ago’. As Mr Dally argues, ‘previous legal advice’ could mean advice given a few days ago or decades ago. Since Mr Dally’s case before the Tribunal was that the Council had misleadingly given the impression that it had taken legal advice about whether MDH required a licence under the 2018 Regulations, the finding that the Council had itself said that the advice was taken ‘some time ago’ (which, according to the Tribunal, was before the 2018 Regulations came into force) needed to be explained because it dealt a severe blow to the prospects of Mr Dally’s appeal succeeding. This is because Mr Dally’s case was that that the public interest in disclosing the withheld legal advice was given weight by the Council having misrepresented that it had received legal advice about whether MDH’s activities were licensable under the 2018 Regulations. The absence of any explanation as to why ‘previous legal advice’ should be read as ‘advice taken some time ago’ renders the Tribunal’s reasons inadequate.

The other aspect of ground 1 concerns the First-tier Tribunal’s finding that “the Council has confirmed with DEFRA that its interpretation was correct”. Why was this relevant? As I understand it, Mr Dally’s case before the Tribunal included that the Council’s alleged misrepresentation of DEFRA’s communication provided further support for the argument that the Council had misleadingly sought to convey the impression that the legality of current arrangements at MDH was not in doubt.

The finding that the Council had confirmed with DEFRA that “its interpretation was correct” appears in paragraph 10 of the First-tier Tribunal’s reasons. That paragraph began by stating that Mr Dally “makes a number of claims about the current illegality of the arrangements” at MDH. The reference to ‘correct interpretation’ may have been intended to convey that the Council’s interpretation of the current legality of arrangements at MDH was confirmed by DEFRA. However, another possible reading is that DEFRA simply confirmed the Council’s understanding of the law relating to licensing of dog kennels, rather than confirmed the Council’s understanding of how the law applied to the circumstances at MDH. If paragraph 10 is considered in isolation, it is not possible to determine which reading of the Tribunal’s finding is correct (the reading which matches the meaning that the Tribunal intended to convey). However, the Council’s March 2019 letters gave a detailed description of relevant contractual arrangements before stating that DEFRA “has confirmed that the licensing regime does not apply to stray dog rehoming or reception centres of this nature” (emphasis added), which lends weight to the argument that the Tribunal’s finding was intended to convey that DEFRA had confirmed that MDH did not require a licence under the 2018 Regulations.

It is true that DEFRA’s email was consistent with the legal understanding expressed in the Council email that sought DEFRA’s advice. But Mr Dally did not argue otherwise. His argument before the First-tier Tribunal concerned the Council’s subsequent recounting of the content of DEFRA’s email. The Tribunal’s reasons do not address this argument and were therefore inadequate. It is not clear from paragraph 10 of the Tribunal’s reasons whether or not it accepted Mr Dally’s argument that the Council had misleadingly conveyed the impression that DEFRA had confirmed the legality of the current licensing situation at MDH. Since this was part of Mr Dally’s wider case on misrepresentation and, in consequence, the public interest in disclosing the legal advice, the argument should have been addressed. The fact that the DEFRA email, unlike the withheld legal advice, was disclosed to Mr Dally and put before the Tribunal, did not obviate the need to address this aspect of Mr Dally’s case.

So, I have decided that, in finding that the Council had stated that the legal advice was taken some time ago and that DEFRA had confirmed the correctness of the Council’s interpretation of the law, the First-tier Tribunal erred. Were these errors material and thus errors on points of law? The materiality question is whether, had the errors not been not made, the Tribunal could have made a different decision.

I do not accept the Commissioner’s argument that the First-tier Tribunal could not have arrived at a different decision had its decision been free of the errors just described. It is true, as reflected in the case law authorities, that the public interest in maintaining the exemption from disclosure for information that attracts legal professional privilege carries inherent weight. However, this is not an absolute exemption from disclosure and there are aspects of the case which lead me to conclude that, had Mr Dally made out his case regarding misrepresentation / misleading statements on the part of the Council, the Tribunal might have concluded that the public interest in disclosure outweighed that in maintaining the exemption. While the maintenance of legal professional privilege is undoubtedly very important (for the reasons described in the authorities cited by the Information Commissioner), it is necessary to be mindful of its capacity to shield a public authority from justified criticism and avoid the transparency and accountability that are the cornerstone of freedom of information laws. I should add that I express no view as to whether the Council’s actions may be open to justified criticism. My point is simply that, if Mr Dally establishes the misrepresentation which he alleged, he might be able to persuade a Tribunal that this adds weight to his argument that the public interest in disclosing the withheld information outweighs that in maintaining the exemption from disclosure. I also note that it is now clear (because the First-tier Tribunal said so in its open decision) that the withheld legal advice relates to licensing legislation that ceased to have effect in relation to England in October 2018. Accordingly, Mr Dally might be able to persuade a Tribunal that the fact that the advice does not relate to the Council’s current licensing functions (under the 2018 Regulations) adds further weight to the public interest in disclosing it. This is not intended to be an exhaustive list of matters that a Tribunal might be persuaded adds weight to the public interest in disclosing the withheld information.

Mr Dally submits that, in the event of this appeal succeeding, the Upper Tribunal should remit his appeal against the Commissioner’s decision notice to the First-tier Tribunal for re-determination. The Commissioner does not argue otherwise. I therefore direct that Mr Dally’s appeal against the Commissioner’s decision notice is to be re-decided by a differently constituted First-tier Tribunal (see the directions given above). I should add that, had I decided to re-decide the First-tier Tribunal’s decision, I would have invited the Council to apply to be made a party to the proceedings. As the beneficiary of the legal professional privilege which attaches to the withheld legal advice, fairness would have required the Council to be given the opportunity to participate in proceedings that might result in that privilege being lost. I also wish to record that the matters described in paragraph 59 above are not in any way intended to influence the First-tier Tribunal when it comes to re-decide Mr Dally’s appeal against the Commissioner’s decision notice nor to influence any party’s freedom to advance whatever case they wish before the First-tier Tribunal.

I shall now explain why I am not persuaded by those arguments advanced by the Commissioner that have not already been dealt with:

I do not agree that Mr Dally’s case is essentially factual. Mr Dally has established that the First-tier Tribunal gave inadequate reasons for his decision which is an error of law not fact;

as the Commissioner invited me to do, I have considered what the Commissioner considers to be the ‘core elements’ of the Council’s representations against the withheld information. In separate closed reasons for this decision, I explain why that exercise has not persuaded me to dismiss this appeal;

I do not need to deal with those of the Commissioner’s submissions which argue that the public interest in maintaining the exemption from disclosure outweighs that in disclosing the withheld information. This is because I am not re-deciding Mr Dally’s appeal against the Commissioner’s decision notice;

it is argued that the regulatory triggers under the 1963 Act and the 2018 Regulations are so similar that advice about one regulatory regime amounts in substance to advice about the other. That may (or may not) be the case. But, if it is the case, I do not consider that it deals a fatal blow to Mr Dally’s argument that the Council made a misleading statement that it received legal advice about the application of the 2018 Regulations to MDH and that such a statement adds weight to be public interest in disclosing the withheld information. Even if the regulatory triggers are effectively the same under both regulatory regimes, it does not necessarily follow that a statement that advice has been taken under one regime, when it has not, is incapable of being a misleading statement.