[2025] UKUT 114 (AAC)

I therefore turn to the factors which militate against disclosure. Those factors do not exist in isolation and must be measured and applied in the light of previous decisions.

Firstly, as the 3 judge panel of the Upper Tribunal (by which a single judge of the Upper Tribunal sitting alone is bound) rightly observed in Davies at [25] (citing another 3 judge panel)

“25.

There is a substantial body of case law which establishes that assertions of a “chilling effect” on provision of advice, exchange of views or effective conduct of public affairs are to be treated with some caution. In Department for Education and Skills v Information Commissioner and Evening Standard EA/2006/0006, the F-tT commented at [75(vii)] as follows:

“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.”

26.

Although not binding on us, this is an observation of obvious common sense with which we agree. A three-judge panel of the Upper Tribunal expressed a similar view in DEFRA v Information Commissioner and Badger Trust [2014] UKUT 526 (AAC) at [75], when concluding that it was not satisfied that disclosure would inhibit important discussions at a senior level:

“75.

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 …

76.

… They and other organisations engage with, or must be assumed to have engaged with, public authorities in the full knowledge that Parliament has passed the FOIA and the Secretary of State has made the EIR. Participants in such boards cannot expect to be able to bend the rules.””

Those observations are entirely consistent with the Civil Service Code, the relevant extracts from which I have set out in paragraph 89 above.

Secondly, the strength of arguments about candour and chilling effect must be considered in the light of the comments of Charles J (sitting in the Upper Tribunal) in Lewis at [27-29] (as recognised in Davies at [27]) (with emphasis added):

“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 those 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.”

They are also relevant, in my judgment, to the weighing of the public interest balance once the s.36 exemption is engaged.

Mr Coppel KC sought to argue that the caution expressed in Daviesshould 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]. Alexander I will deal with immediately below. As for Department of Work and Pensions,the Upper Tribunal was there dealing with a specific argument that the Department might establish a chilling effect by way of a comprehensive paper trail before and after disclosure demonstrating such a chilling effect and it dismissed the argument stating that it was unlikely that the officials in question would admit what they were doing or provide a paper trail by which it could be demonstrated, but the decision goes no further than that.

As to the weight to be accorded to the evidence of Mr Madden as Director of Propriety and Ethics at the Cabinet Office, it seems to me that the correct test is to accord appropriate consideration to that evidence. As the Court of Appeal said in Zola at [55] (with emphasis added):

“It is clearly important that appropriate consideration should be given to the opinion of the qualified person at some point in the process of balancing competing public interests under section 36. No doubt the weight which is given to this consideration will reflect the Tribunal's own assessment of the matters to which the opinion relates.”

Although that was said in the context of the opinion of the qualified person in the process of the balancing of the competing public interests, it seems to me again that it applies equally well to the evidence given by another person, such as Mr Madden, in the context of the balancing of the competing public interests.

Mr Coppel KC relied on the statement of Upper Tribunal Judge Jones in Alexander at [76] to the effect that

“It is well recognised that, where a court has to make prognostic assessments it will nevertheless give great weight to the views of those with the relevant institutional expertise: R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2015] AC 945 ...”

and he laid some stress on the word “great” in that context.

When the decision in Alexander is read as a whole, however, I do not consider that the passage and the use of the word “great” has quite the significance that Mr Coppel KC attributed to it. Paragraph [76] was said in the context of setting out counsel’s submissions on the fourth ground of appeal. It is true that at [134] Judge Jones accepted that the fourth ground of appeal was made out for the reasons submitted by counsel, with which he agreed, but what he went on to say (with emphasis added) was that

“135.

I am satisfied that the FTT failed to take account of and/or give appropriate weight to the relevant evidence of Ms Jordan as to the impact of disclosure of the requested reports and failed to give sufficient reasons for rejecting her evidence.

...

142.

Insofar as, contrary to the above, the evidence of Ms Jordan was taken into account by FTT, I am not satisfied it was taken into account or given proper weight in determining whether prejudice would be caused by the release of the requested reports.”

I do not therefore consider that Judge Jones was laying down a rule of law that great (as opposed to appropriate) weight will be accorded to the views of those with the relevant institutional expertise. That is not to say that, in the appropriate case, a court or tribunal should not accord great weight to the views of those with the relevant institutional expertise, as the Supreme Court held in Carlile.

Carlile was a national security case and it was in that context that Lord Sumption said that

“32.

Rather different considerations apply where the question is not what is the constitutional role of the court but what evidential weight is to be placed on the executive’s judgment, a question on which the human rights dimension is relevant but less significant. It does not follow from the court’s constitutional competence to adjudicate on an alleged infringement of human rights that it must be regarded as factually competent to disagree with the decision-maker in every case or that it should decline to recognise its own institutional limitations. In the first place, although the Human Rights Act requires the courts to treat as relevant many questions which would previously have been immune from scrutiny, including on occasions the international implications of an executive decision, they remain questions of fact. The executive’s assessment of the implications of the facts is not conclusive, but may be entitled to great weight, depending on the nature of the decision and the expertise and sources of information of the decision-maker or those who advise her. Secondly, rationality is a minimum condition of proportionality, but is not the whole test. Nonetheless, there are cases where the rationality of a decision is the only criterion which is capable of judicial assessment. This is particularly likely to be true of predictive and other judgmental assessments, especially those of a political nature. Such cases often involve a judgment or prediction of a kind whose rationality can be assessed but whose correctness cannot in the nature of things be tested empirically. Thirdly, where the justification for a decision depends upon a judgment about the future impact of alternative courses of action, there is not necessarily a single “right” answer. There may be a range of judgments which could be made with equal propriety, in which case the law is satisfied if the judgment under review lies within that range. A case like the present one is perhaps the archetypal example. Fourthly, although a recognition of the relative institutional competence of the executive and the courts in this field is a pragmatic judgment and not a constitutional limitation, it is consistent with the democratic values which are at the heart of the Convention, because it reflects an expectation that in a democracy a person charged with making assessments of this kind should be politically responsible for them. Ministers are politically responsible for the consequences of their decision. Judges are not. These considerations are particularly important in the context of decisions about national security on which, as Lord Hoffmann pointed out in Rehman, “the cost of failure can be high”. It is pre-eminently an area in which the responsibility for a judgment that proves to be wrong should go hand in hand with political removability.”

In similar vein, Lord Neuberger stated that

“58.

The specific issue raised on this appeal arises from concerns about how the Iranian government is likely to react to a particular decision of the United Kingdom government, and whether the reaction could endanger the safety of individuals for whom our government has some responsibility, or could harm this country’s economic or international political interests. These are plainly matters which are entrusted under our constitutional settlement to the executive, and in particular to the Foreign Secretary, who, with the experience and sources of information available to his department internally and externally, is, almost literally, infinitely more qualified to form an authoritative opinion on such issues than a domestic judge, however distinguished and experienced he or she may be.”

However, he went on to say that

“68.

Accordingly, even where, as here, the relevant decision maker has carried out the balancing exercise, and has not made any errors of primary fact or principle and has not reached an irrational conclusion, so that the only issue is the proportionality of the decision, the court cannot simply frank the decision, but it must give the decision appropriate weight, and that weight may be decisive. The weight to be given to the decision must depend on the type of decision involved, and the reasons for it. There is a spectrum of types of decision, ranging from those based on factors on which judges have the evidence, the experience, the knowledge, and the institutional legitimacy to be able to form their own view with confidence, to those based on factors in respect of which judges cannot claim any such competence, and where only exceptional circumstances would justify judicial interference, in the absence of errors of fact, misunderstandings, failure to take into account relevant material, taking into account irrelevant material or irrationality.”

I entirely accept that it is inherent in the precautionary approach which is generally required in dealing with potential threats to national security and public safety that decisions must be based on inherently uncertain assessments of the future and that such assessments must be made by the executive, which is infinitely more qualified to form an authoritative opinion on such issues than a domestic judge, but that is not this case.

The weight to be given to the decision must depend on the type of decision involved and the reasons for it. In my judgment, this is just such a case based on factors on which a judge has the evidence, the experience, the knowledge and the institutional legitimacy to be able to form his own view with confidence. It is not a case based on factors in respect of which a judge cannot claim any such competence and where only exceptional circumstances would justify judicial interference (in the absence of errors of fact, misunderstandings, failure to take into account relevant material, taking into account irrelevant material or irrationality).

Accordingly, the correct test to accord to the weight of the evidence of Mr Madden as Director of Propriety and Ethics at the Cabinet Office is to give it appropriate consideration and weight, but no more.

I accept that the present case is one where the chilling effect of disclosure is likely to be particularly strong. The information sought relates to enquiries, deliberations and the advice of civil servants relating to allegations of misconduct against a very senior figure in government. The consequences of a finding of any breach of the Ministerial Code, both political and personal, can be very severe. In those circumstances, the effect of disclosure in deterring officials from freely expressing their views on such sensitive matters is an obvious and significant one.

I also accept that, in order to provide free and frank advice and exchange views for the purpose of considering the appropriate response to allegations relating to the Ministerial Code, civil servants require a safe space free from the pressure engendered by the risk of public disclosure.

In addition, I also accept that a safe space is important given that allegations that ministers (or former Ministers) have acted in breach of standards of behaviour expected of them can cause significant reputational damage to them as public figures and to the Government. I do not dissent from the proposition that unsubstantiated allegations about the conduct of ministers (or former ministers) can cause significant reputational damage. It would indeed be irresponsible and unfair to the individual minister concerned to disclose any information which would foster or encourage any such allegations. As against that, ministers are public figures who have great influence and power as to public policy and decisions which affect the lives of millions of citizens. The public are entitled to expect ministers to behave in accordance with the rules and codes of conduct which they agree to follow and adhere to. If there is serious and credible evidence to suggest that a minister may not have followed or adhered to the Ministerial Code or the BARs, he or she should expect a degree of legitimate and necessary transparency and accountability in relation to that conduct.

Whilst I give appropriate weight to those considerations, in my judgment there is a clear and strong public interest in knowing that ministers abide by and respect the Ministerial Code. Where there are strong and credible grounds for believing that minister may not have done so, there is an important public interest in transparency and accountability as to the consequences for any minister who has not abided by those obligations. That outweighs the countervailing considerations set out by Mr Madden and the Cabinet Office.