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suppose further that, as in the judgment at [72], the IC, in the course of his Trigger B Part I Enquiry, was not satisfied that s.42 was actually engaged. In such circumstances, it would be for the IC
suppose further that, as in the judgment at [72], the IC, in the course of his Trigger B Part I Enquiry, was not satisfied that s.42 was actually engaged. In such circumstances, it would be for the IC to show that he reasonably required to see material said by the PSNI to be covered by LPP. The PSNI would be entitled to argue that the IC did not have any such reasonable requirement, and in so contending, it could set out what, in its submission, did constitute material which it was reasonable for him to require. That is where the alternative method suggested by the PSNI, to which the Tribunal referred in [74], could be employed. That method was for the PSNI to take the following steps:
identify the issue(s) upon which legal advice was sought;
set out the classes of document/material in which the PSNI asserted (and did not waive) LPP, adapting the procedure for identifying documents which are privileged (but relevant) in the context of discovery/disclosure in High Court civil litigation, as provided in RCJ(NI) O.24 r.5 (the Northern Ireland equivalent of the English CPR 31.10(2)-(9) and CPR PD 31A);
state the date(s) on which the relevant legal advice was sought;
state the date(s) on which any legal advice in response to the said request(s) was received;
state whether the material supplied to the relevant legal advisor included material not subject to LPP and/or already in the public domain (identifying any such material);
set out the decision reached by the PSNI in compliance with its duty under s.2(2)(b), including the date on which that decision was reached, and the level within the PSNI at which it was reached.
if, following the steps set out at (4) above, the IC still considered that he reasonably required sight of LPP material, with the PSNI taking a contrary view, then that impasse would have to be resolved by the Tribunal;
the Tribunal held (wrongly) at [72] that any other finding would have made the PSNI the sole arbiter of its compliance with the Act
- Heading
- Section 1
- The Background
- The Information Notice
- The Statutory Framework
- The Decision of the Tribunal
- The Application and Appeal to the Upper Tribunal
- The Grounds of Appeal
- The Appellant’s Submissions
- if, however, he is undertaking a Part I Enquiry commenced by Trigger A, then he has “…an overall entitlement to require the production of LPP Material” (see [59])
- the public interest test which PSNI comes under a duty to apply under s.42 when considering a request for disclosure of LPP, is more accurately characterised as a weighting exercise, rather than a bal
- suppose further that, as in the judgment at [72], the IC, in the course of his Trigger B Part I Enquiry, was not satisfied that s.42 was actually engaged. In such circumstances, it would be for the IC
- it was never argued on behalf of the PSNI that the Tribunal could not (if so required in a particular case) see LPP Material: the PSNI’s case was and is that the IC is not empowered under the Act to s
- in Wiseman v HMRC [2022] UKFTT 00075 (TC) the First-tier Tribunal (Tax Chamber) was considering a notice which HMRC had issued to Mr Wiseman under paragraph 1 of Schedule 36 to the Finance Act 2008
- LPP is a fundamental right ( R v Derby Magistrates Court, B v Auckland ) any question of LPP being overridden by implication is to be tested by absolute necessity ( R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax & anr [2002] UKHL 2
- it must be demonstrably necessary for at least an important aspect of the legislation ( R (Morgan Grenfell & Co Ltd ) ) the principle of legality is important in this connection ( R v Secretary of State for the Home Department, ex p Simms [2001] 2 AC
- the more fundamental the right, the less likely it will be left to implication ( SLCC v Murray at [33])
- The IC’s Submissions
- The Application of the FOIA Regime
- where the public authority had, on the facts, waived LPP by analysing public statements against the content of the legal advice: Kirkaldie v Information Commissioner & Thanet District Council (EA/2006
- where legal advice from some 14 years earlier was still being used as the basis for a highly contested and doubtful use of public money, the public interest favoured disclosure: Mersey Tunnel Users As
- where legal advice has been used to formulate a policy of general application affecting a category of persons’ access to legal redress, such that transparency justified disclosure of the underlying ad
- where further the detailed exercise of review of information said to engage s.42 was carried out in All Party Parliamentary Group on Extraordinary Rendition v Information Commissioner & Foreign and Co
- The Factual Context to the Notice
- The Appeal
- 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 tha
- Discussion
- That situation stands in contrast to that set out in s.51(1) (b). In contrast, the IC is there exercising regulatory functions outside of the scope of an individual case, in a more thematic or systemi
- Conclusions