[2025] UKUT 251 (AAC)

in fact, the particular terms of s.51(5) serve a readily understandable legislative purpose: they provide an exception from the general power in s.51 to require the provision of LPP material where that material would give the IC an unfair advantage against the authority in a dispute between them: that was the view of the Tribunal in Ministry of Justice v Information Commissioner (EA/2007/0016, 6 August 2007) at [36] and [39]. The IC could not, faced with an appeal against a decision notice, use s.51 to obtain the authority’s legal advice on the merits of that appeal. But that is a very different, and specific, purpose to excluding the ability of the IC to exercise the functions placed upon him by FOIA.

Lord Taylor CJ recognised in R v Derby Magistrates’ Court at p.507 G-H, that one of only two exceptions to LPP (the other being the iniquity exception) is that imposed by statute: “Nobody doubts that legal professional privilege could be modified, or even abrogated, by statute”. The correct approach to the interpretation of legislation said to have this effect on LPP was reiterated by Lord Hoffmann in R (Morgan Grenfell & Co Ltd at [8]: “the courts will ordinarily construe general words in a statute, although literally capable of having some startling or unreasonable consequence, such as overriding fundamental human rights, as not having been intended to do so. An intention to override such rights must be expressly stated or appear by necessary implication.” Lord Hobhouse addressed the meaning of a necessary implication at [45] in the following terms:

“A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation” (original emphasis).

In R (Black) v Secretary of State for Justice [2018] AC 215, Lady Hale held at [36(4)] that Lord Hobhouse’s dictum “must be modified to include the purpose, as well as the context, of the legislation”.

Contrary to the PSNI’s assertion at [6(3)], this is not a question of “absolute necessity” (whatever that phrase is intended to mean, which is unclear), and insofar as it was put in those terms in SLCC v Murray [2022] CSIH 46 at [32] it is not consistent with the highest authorities and, if necessary, should not be followed in this respect. The test is as set out in Morgan Grenfell, read with Black, and as applied in this context by the Privy Council in B v Auckland at [58-59]. It was helpfully and accurately encapsulated in Murray at [32] in the formulation that the “implication must be demonstrably necessary for at least an important aspect of the legislation to achieve its purpose”.

Here, as set out above and as the Tribunal held at [72-75], that test is met by s.51. S.51 must be read in the context of the IC’s functions under FOIA and his specific duty to determine a complaint made under s.50 in relation to the handling of a s.1 request for information. This was also the conclusion of the Tribunal in the Cabinet Office case: at [42], [44-45], [52-53].

The Tribunal correctly held at [70] and [72-75] that any test of necessary implication was met. The application of s.51 to information which attracts LPP (but does not fall within the terms of s.51(5)) necessarily follows from the express provisions of FOIA – in particular, ss.1, 2, 42, 50, 51(5)-(6) and 57 – construed in their context and by reference to their purpose. Read with the express language of ss.42 and 2, there is, at the very least, a necessary implication that s.51 has the effect that the Notice sets out and that the Tribunal found.

The Tribunal was also, on this footing, plainly right to reject at [74] the suggestions advanced – again for the first time orally by the PSNI at the hearing – of alternatives to compliance which fell short of providing the information in question. The PSNI’s grounds do not explain how that rejection constituted an error of law. As in the Cabinet Office case at [56], the “alternatives” were little more than a rear-guard action to excuse non-compliance.

There was accordingly no arguable error of law on the part of the Tribunal in construing s.51(1) as permitting the IC to compel, by issue of the Notice, disclosure to him of information requested under FOIA which is said by the PSNI to engage LPP, in order for him independently to assess whether the qualified exemption in s.42 is engaged, and if it is, the balance of the public interest in all the circumstances of the case.

In the circumstances, the Upper Tribunal is invited to refuse permission to appeal or, if permission is granted, to dismiss the PSNI’s appeal and to uphold the Notice.