[2024] UKUT 178 (AAC)

even if the Upper Tribunal were to find a public interest in disclosure, that would not invalidate the Tribunal’s conclusion that disclosure would “erode the principle of legal professional privilege”. And even if there had been a misrepresentation, and disclosure would advance the public interest, it would only do so to a moderate extent. Disclosure could not necessarily be said to command significant weight in the public interest balancing exercise and, absent that, the Tribunal’s decision could not be considered unlawful. This is because disclosure would involve the erosion of “a fundamental condition on which the administration of justice as a whole rests”: DCLG v Information Commissioner & WR [2012] UKUT 103 (AAC), quoting R v Derby Magistrates Court ex parte B [1996] AC 487, at 507.

If Mr Dally wishes to challenge the Council’s exercise of its licensing functions, he may do so by, for instance, making a claim for judicial review. It follows that disclosure of the legal advice would serve little or no public interest and would in fact be contrary to the public interest given the inherent weight in favour of maintaining legal professional privilege. Furthermore, the legal advice sheds no light on the content of DEFRA’s advice so that “the transparency needed to see whether the LA correctly summarised DEFRA’s position is shown by disclosing DEFRA’s email of 19 February 2019”. That email has already been disclosed.