[2024] UKUT 178 (AAC)

The key issue before the First-tier Tribunal, submits the Commissioner, was whether the Council misrepresented the content of the “previous legal advice” to which it referred in correspondence. In this respect, the Commissioner argues that the Council’s representation contained three core elements: (i) MDH operates as a charity/rehoming centre to which stray dogs are transported from other licenced premises; (ii) the Council has no power to licence such premises; (iii) the Council had previously taken legal advice “with the implication that that legal advice confirmed its understanding that the LA had no power to licence such premises”. The Commissioner invites the Upper Tribunal to consider those core elements against the content of the withheld information (including the closed legal advice).

The Commissioner argues that, over the course of this case, Mr Dally’s description of the supposed misrepresentation has altered:

initially, Mr Dally argued for a compound misrepresentation: the Council misrepresented the facts of MDH’s operations to its own lawyer so that the Council’s repetition of the advice received misled the public;

during the Commissioner’s investigation, and before the First-tier Tribunal, Mr Dally questioned whether the Council had been advised that MDH did not require a licence, and, if no such advice had been received, the Council’s misled those with whom it corresponded about MDH. At this point, Mr Dally considered that the content of the advice had been misrepresented by the Council in connection with the Commissioner’s investigation;

Mr Dally argues that the misrepresentation arose because the Council indicated that the “previous legal advice” related to the 2018 regulations and not the predecessor licensing regime under the 1963 Act.

the issue for the Upper Tribunal is not whether it considers the Tribunal’s decision to have been correct, it is whether the decision was lawful and not an irrational conclusion;

the Tribunal’s finding that there was no particular public interest in disclosure rested on its conclusion that the real public interest issue concerned whether the Council and MDH had acted lawfully. Disclosure of the legal advice was not necessary to assess that, as the Tribunal explained in paragraphs 11 and 12 of its reasons. This was a finding that was open to the Tribunal on the evidence. Throughout, Mr Dally’s main concern has been whether the Council lawfully exercised its licensing functions. The Council has publicly stated its understanding of the law so that disclosure of the legal advice would serve little or no public interest. Indeed, disclosure would be contrary to the public interest given the inherent weight in favour of maintaining the protection of legal professional privilege;