[2025] UKUT 114 (AAC)

“Chilling effect” arguments

“Chilling effect” arguments were often raised in relation to s.35. It was well-established that such arguments “are to be treated with some caution”: Davies v IC and Cabinet Office [2019] UKUT 185 (AAC) at [25]. That was for two main reasons.

First, civil servants were expected to act robustly: see Davies at [26], where the Upper Tribunal endorsed [75(vii)] of DfES v IC (EA/2006/0006), where the Information Tribunal observed that:

“In judging the likely consequences of disclosure on officials’ future conduct, we are entitled to expect of them the courage and independence that has been the hallmark of our civil servants since the Northcote-Trevelyan reforms. These are highly-educated and politically sophisticated public servants who well understand the importance of their impartial role as counsellors to ministers of conflicting convictions. The most senior officials are frequently identified before select committees, putting forward their department’s position, whether or not it is their own.”

The expectation that civil servants would act robustly applied with greater force to senior civil servants. As the Upper Tribunal explained in DEFRA v IC and Badger Trust [2014] UKUT 526 (AAC) at [75] (see Davies at [26]): “We are not persuaded that persons of the calibre required to add value to decision making of the type involved in this case by having robust discussions would be inhibited by the prospect of disclosure when the public interest balance came down in favour of it …”

These observations were moreover consistent with the Civil Service Code, which explained that:

“As a civil servant, you are appointed on merit on the basis of fair and open competition and are expected to carry out your role with dedication and a commitment to the Civil Service and its core values: integrity, honesty, objectivity and impartiality. In this code:

- ‘integrity’ is putting the obligations of public service above your own personal interests

- ‘honesty’ is being truthful and open

- ‘objectivity’ is basing your advice and decisions on rigorous analysis of the evidence

- ‘impartiality’ is acting solely according to the merits of the case and serving equally well governments of different political persuasions”.

Second, candour and chilling effect arguments were inherently weak, as Charles J recognised in Lewis at [27-29] (see Davies at [27]):

“27.

The lack of a right guaranteeing non-disclosure of information, absent consent, means that that information is at risk of disclosure in the overall public interest (i.e. when the public interest in disclosure outweighs the public interest in non-disclosure). As soon as this qualification is factored into the candour argument (or the relevant parts of the safe space or chilling effect arguments), it is immediately apparent that it highlights a weakness in it. This is because the argument cannot be founded on an expectation that the relevant communications will not be so disclosed. It follows that if he is properly informed, a person taking part in the discussions will appreciate that the greater the public interest in the disclosure of confidential, candid and frank exchanges, the more likely it is that they will be disclosed. …

28.

… any properly informed person will know that information held by a public authority is at risk of disclosure in the public interest.

29.

In my view, evidence or reasoning in support of the safe space or chilling effect argument in respect of a FOIA request that does not address in a properly reasoned, balanced and objective way: (i) this weakness, (ii) the public interest in there being disclosure of information at an appropriate time that shows that the robust exchanges relied on as being important to good decision making have taken place, and (iii) why persons whose views and participation in the relevant discussions would be discouraged from expressing them in promoting good decision making and administration and thereby ensuring that this is demonstrated both internally and when appropriate externally, is flawed.”

Although these comments concerned s.35, the Upper Tribunal in Davies at [29] stated that they were “also relevant to the approach to an assessment by the qualified person of a likely chilling effect under section 36(2) and so to the question whether that opinion is a reasonable one.”

The Cabinet Office argued that the caution expressed in Davies should be tempered in light of observations made by the Upper Tribunal in two cases: Department of Work and Pensions v IC [2015] UKUT 0535 (AAC) at [13] and Alexander at [134-138]. However, the relevance of those passages was overstated. In the former case, the Upper Tribunal was dismissing a specific argument that the Department of Work and Pensions might establish a chilling effect by way of a comprehensive “paper trail”. In the latter, the Upper Tribunal was considering chilling effect arguments in the context of the applicability of the s.36(2) exemption, rather than the weight to be afforded to that exemption in the public interest balance.