[2025] UKUT 251 (AAC)

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 systemic context (for example, if the IC became aware that a particular exemption was being routinely used, say s.40 to redact all names, which was not justified). That is particularly so in relation to s.51(1)(b)(ii) where the IC reasonably requires any information for the purpose of determining whether the practice of a public authority in relation to the exercise of its functions under this Act conforms with that proposed in the codes of practice under sections 45 and 46. In that case the power to require the provision of information is understandably rendered more narrowly. That, however, is a different function, which engages different policy and legal interests and it arises in a different, discretionary, context. In that context, Parliament understandably distinguished between the two different cases.

Mr Dunford KC argued that the strength of the Tribunal’s acceptance of that distinction was as a result of Mr Pitt-Payne KC’s concession, but it seems to me in the light of the clear statutory language that that concession was rightly made.

It seems to me that Mr Knight is right in his submission that s.51(1)(a) is concerned with an adjudicatory function of the IC and s.51(1)(b) with his regulatory function in a wider field, which is therefore more narrowly circumscribed. I do not accept Mr Dunford KC’s submission that Mr Knight’s distinction between the IC’s adjudicatory his and regulatory functions was a triumph of form over substance.

The Tribunal in Cabinet Office at [39] considered that there was more of an overlap between s.51(1)(a) and 51(b)(i). Mr Knight did not accept that there was an overlap and I do not need to decide that point on the facts of this case where the IC was clearly acting under s.51(1)(a), although I incline to the view that s.51(1)(a) and 51(b)(i) do not overlap in scope and are aimed at different scenarios, the former at an individual case arising under s.50 and the latter (significantly bracketed together with (b)(ii)) concerned with wider issues such as backlogs in dealing with requests, hence the language of the IC reasonably requiring information for the purpose of determining whether a public authority has complied or is complying with any of the requirements of Part I of the Act.

I do not therefore accept Mr Dunford KC’s submission that the inquiry under s.51(1) is the same inquiry, initiated only by different triggers, or that the sole distinguishing factor between s.51(1)(a) and s.51(1)(b) was the mode of initiation, and that it was therefore irrational to have two different tests depending on which trigger was pulled. That submission cannot stand in the face of statutory language used by Parliament and in any event I do not, for the reasons set out in paragraphs 98 to 100 above, accept the premise on which it is founded.

Nor do I accept Mr Dunford KC’s submission that the IC’s interpretation of s.51(1)(a) would give him an “untrammelled, unqualified power to compel the production of any information (including LPP Material) which he elects to seek” (see paragraph 37 above). As the Tribunal made clear in the Cabinet Office case

“36.

We do not accept this proposition. We bear in mind that as with the exercise of all statutory powers, the discretion to issue a notice pursuant to Section 51 is subject to the usual constrictions on the use of public power including what is normally referred to in shorthand as Wednesbury unreasonableness, or irrationality. We accept that parliament would have been aware of this when enacting Section 51(1).

37.

Further, the existence of that public law constraint on the use of the power answers the submission that the Commissioner's response is in effect that he is entitled to information regardless of whether it was reasonably required; we see no reason to conclude that the Commissioner is suggesting that the power to request information is not subject to the public law constraint that the power is exercised rationally.”

I should add that I did not derive much assistance in this context from the UKIP case, where the matter at hand was only obliquely touched on, but nothing that I have said is in any way inconsistent with what Judge Wikeley said in that case.

Recognising that an argument based on the Tribunal itself not being able to see the withheld information would be doomed to failure, Mr Dunford KC proposed an alternative solution, which would have recognised the Tribunal’s entitlement to see the material in dispute without the IC having sight of it.Beguilingly though it was presented, I do not consider that Mr Dunford KC’s solution based on the decision in Wiseman assists him.

The context in which Wiseman fell for decision was altogether different from the present case. In Wiseman an application was made under Regulation 5 of the Information Notice: Resolution of Disputes as to Privileged Communications Regulations 2009 (SI 2009/1916) (the “Regulations”) for the resolution of a dispute as to whether certain documents sought from the applicant by HMRC (under Paragraph 1 of Schedule 36 to the Finance Act 2008) were privileged from disclosure by virtue of Paragraph 23 of that Schedule.

Tribunal Judge Bailey explained the working of the Regulations as follows:

“The relevant part of the Regulations

9.

Regulation 3 of the Regulations provides:

3.

These Regulations apply where there is a dispute between HMRC and a person to whom an information notice has been given either—

(a)

during the course of correspondence, or

(b)

during the course of an inspection of premises under Schedule 36,

as to whether a document is privileged.

10.

Regulation 5 sets out the procedure to be followed to bring a dispute over whether a document is privileged to the resolution by the Tribunal.  That procedure has been correctly followed by the parties. 

11.

Regulation 8 provides:

8.

When an application is made under regulation 5(5) …, the First-tier Tribunal shall—

(a)

resolve the dispute by confirming whether and to what extent the document, is or is not privileged;

(b)

direct which part or parts of a document (if any) shall be disclosed.

12.

Regulation 7 provides that a person who has received an information notice and complied with the procedure under Regulation 5 shall be treated as having complied with the information notice in respect of any document in dispute until the First tier Tribunal has determined the status of that document.

13.

The role of the Tribunal in this application is to determine which of the disputed documents (or which parts of the disputed documents, as privilege will not necessarily apply to the whole of any document) are subject to privilege.  The Tribunal should then provide directions for the disclosure of any documents (or part documents) not subject to privilege.”

It is immediately obvious that the dispute in Wiseman arose in an altogether different statutory scheme for an altogether different purpose. As a general principle, it is rarely legitimate or appropriate to read across provisions from one statutory context into another altogether different context, but in my judgment it cannot legitimately be done in the present case. In the case of a dispute between the taxpayer and HMRC as to whether a document is subject to LPP or not, neither party can decide that issue unilaterally for itself in the case of that dispute and the resolution of the dispute can only be essayed by the Tribunal. The procedure under the Regulations for resolution of the issue by the Tribunal is therefore entirely understandable and appropriate.

By contrast, in the case of a FOIA dispute, the dispute between the requestor and the public authority is subject to the scrutiny of both the IC and, on appeal from him, the Tribunal. As I explained in paragraph 92 above, in the case of FOIA Parliament has given both the IC and the Tribunal the task of (and in terms of institutional competence – constitutional responsibility for) carrying out a critical examination of the evidence and argument on both sides of the public interest balance in determining whether a qualified exemption applies.

The fundamental problem with the Wiseman solution proffered by Mr Dunford KC is that it precludes the IC from seeing the material in question, thus diminishing both his institutional competence and his constitutional responsibility under FOIA and does not recognise the role of both the IC and the FTT as decision makers on the public interest assessment dictated by s.2(2)(b) of the Act.

The Tribunal was therefore right to conclude at [74] that the proposed alternative method would not actually provide the IC with the information which was sought under the information notice, that there was nothing save s.51(5) (which did not apply) to fetter the discretion of the IC regarding the information sought pursuant to that notice (subject to the points made in the Cabinet Office case at [36-37] and accordingly it was not open to the Appellant to propose an alternative means of providing the information requested by the IC or to provide lesser information than that sought by him.

Although it is not necessary for my conclusion, I also agree with Mr Knight, as set out in paragraphs 69 and 71 above, that it is any event apparent on the face of the Tribunal’s judgment that it considered that the IC did “reasonably require” sight of the information to fulfil his statutory functions and determine the s.50 application before him. That, as the Tribunal held at [72-73], [75] and [78], flowed from his statutory function under FOIA to act as the independent arbiter of whether information requested engaged an exemption, and if so, whether the public interest favoured disclosure or maintaining that exemption, questions which could not be answered without sight of the content of the requested information. As the Tribunal formulated the point at [75]: “sight of the information is required to make the necessary determination by the Commissioner and, where applicable, the Tribunal” (emphasis added).

It must therefore follow that, even if the Appellant could demonstrate that the Tribunal’s interpretation of s.51(1)(a) was wrong in law and that the “reasonably requires” test in s.51(1)(b) was to be imported into s.51(1)(a), that would not avail him because the Tribunal found in any event that compliance with the notice was “required”. If that be the case, any supposed error on the part of the Tribunal could not have been material in any event.

The second ground of appeal was that the Tribunal was wrong in law to find that, even if s.51(1)(a) did not expressly cover the IC’s power to seek disclosure to him of LPP material which was the subject of a s.50 application, the power nevertheless extended to LPP material as a matter of necessary implication.

As to that, the correct approach to the interpretation of legislation said to modify or abrogate LPP is that of 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”

and Lord Hobhouse at [45]:

“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).

That latter dictum should be read in the light of the judgment of Lady Hale in R (Black) at [36(4)] that what the latter said “must be modified to include the purpose, as well as the context, of the legislation”.

In short, the appropriate test for ascertaining whether there is a necessary implication that a statute has the effect of modifying or abrogating LPP is test is as set out in R (Morgan Grenfell & Co Ltd), read with (R) Black, as applied in this context by the Privy Council in B v Auckland at [58-59]. Properly interpreted, it is also accurately encapsulated in SLCC vMurray at [32] that the “implication must be demonstrably necessary for at least an important aspect of the legislation to achieve its purpose”. I did not understand the parties to be at odds to any significant extent, if at all, as to those principles or to the principle that the protection of LLP was a fundamental right of a constitutional character or a provision of fundamental significance.

When the entirety of SLCC v Murray at [31-33] is read in context, which relied on both the earlier authorities and in particular the dictum of Lord Hobhouse cited above, I do not understand the Lord Justice Clerk to be asserting a higher or narrower test of “absolute necessity” above and beyond the established tests for importing a necessary implication.

I am satisfied that the Tribunal was correct to hold that necessary implication was established in this case for the reasons which it set out at [71] and [72-75]. If the information sought by the IC is denied him, a predicate of the FOIA structure is fundamentally undermined. That consideration is of foremost importance in concluding that the necessary implication test is made out.

If the Appellant were correct that s.51 did not apply by necessary implication to material asserted by the public authority to attract LPP, s.51(5) would be entirely otiose. When I questioned Mr Dunford KC about that, I did not receive a convincing answer. If s.51 does not bite on material asserted by the public authority to attract LPP in the first place, there would have been no point in enacting s.51(5).

The particular terms of s.51(5) do in fact serve a readily understandable legislative purpose in providing a limited exception or derogation 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, which it is worth citing at some length so that the point can be readily understood.In short, 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 very appeal, but that is a very different, and a very specific, purpose to exclude the ability of the IC to exercise the functions placed upon him by FOIA in one limited context where he would otherwise be given an unfair advantage.

In that context the Tribunal explained that

“The DCA’s case

20.

The DCA’s position is that by reason of the exclusion in s 51(5)(a), the Commissioner has no power under 51(1) of the Act to require it to confirm or deny whether it holds advice from the Attorney General on the “public interest” test and its interpretation under the Act because it argues (the emphasis of the words in italics or underlined are those of the DCA):

(1)

the object of s 51(5) is to provide public authorities with protection based on legal professional privilege in respect of legal advice about matters in relation to which disputes involving authorities may be ruled upon by the Commissioner and/or the Commissioner may be a party (on appeal). It ensures that the Commissioner does not obtain an unfair advantage – on the very topics on which he has to rule and/or make submissions – vis-à-vis parties who appear before him and parties against which he makes submissions, by using his powers to allow him to be informed whether they have sought legal advice on those topics and what that legal advice might be. No court or opposing party in ordinary proceedings would have a right to be provided with such information, and Parliament has decided that the importance of the right of a party to protection of confidentiality in relation to his legal advice relevant to matters which are the subject of dispute before and/or with another interested person (be it court or opposing party) is such as to warrant this limitation in such circumstances upon the Commissioner’s powers;

(2)

this rationale covers both general legal advice received as to the authority’s rights and liabilities under the Act (the subject of s.51(5)(a)) and more specific advice in relation to proceedings or contemplated proceedings under the Act (s 51(5)(b)). In each case, a court or opposing party would not be entitled to the information in ordinary litigation, and s. 51(5) provides that the Commissioner (as “court” and, then, opposing party) should not be in any better position. The scheme of s. 51(5) makes it clear that Parliament intended both forms of advice to be covered by the exemption from the Commissioner’s powers under s. 51(1);

(3)

s.51(5)(a) covers both the advice itself and the information as to whether or not such advice was obtained/is held by the authority;

(4)

it is irrelevant whether or not any such advice given by the Attorney General to the Department was given to the Department in its capacity as the department responsible for the Act or in relation to the Department’s own liabilities under the Act.

21.

These points are developed in turn below.

(1)

The object of s 51(5)

22.

The DCA submits that the object of s.51(5) is to provide authorities with protection in respect of legal advice about matters in relation to which disputes involving authorities may be ruled upon by the Commissioner and/or the Commissioner may be a party (on appeal):

(1)

Having regard to the role of the Commissioner in adjudicating on disputes under the Act, and then potentially being a party to proceedings on appeal, s. 51(5) is concerned to prevent an authority from being required to disclose to the Commissioner legal advice (and information relating to it in the way specified) which may compromise its position before the Commissioner (and hence also potentially against the Commissioner – i.e. on appeal). Whilst such protection is in many ways akin to legal professional privilege, s.51(5) is of broader construction so as to recognise the importance of this principle. For example, unlike s.42, s.51(5) is not limited to legal advice in respect of which a claim for legal professional privilege could be maintained in legal proceedings;

(2)

this focus and object of s.51(5) is supported by: (i) the fact that the exemption applies to protect material from disclosure to the Commissioner regardless of whether the Commissioner undertakes not to make onward disclosure of the information to the complainant or third party (as in this case) and (ii) the fact that only legal advice relating to the client’s rights and liabilities/proceedings “under this Act” is covered. Where the Commissioner considers legal advice which does not relate to the client’s rights and liabilities/proceedings “under this Act”, it is not disputed that, as necessary, the Commissioner does have power under s. 51(1) to order provision to him of that advice in order to review the weighing exercise in relation to it under s. 2 and s. 42 of the Act. The point of s. 51(5) is precisely to delimit that power so as to exclude it in relation to legal advice on the very matters on which the Commissioner may have to rule in relation to the public authority as a party (“legal advice to the client with respect to his obligations, liabilities or rights under this Act”);

(3)

this interpretation (preventing the Commissioner from accessing information regarding legal advice in the limited class of case where the legal advice which has or may have been given is to a party before him and against which he may become an opposing party, and is about the very matters on which he may have to rule or present opposing submissions) is consistent – in that limited sub-category of case - with the absolute nature of the legal professional privilege (which ordinarily means that it cannot be overridden by some other higher public interest) and the particularly compelling public interest which that approach at common law reflects. Certainly, the absolute nature of the privilege has been overridden in the Act, in that legal professional privilege (s. 42) is not made an absolute exemption in relation to the general category of legal advice. However, the great force of the public interest in preserving confidentiality across that general category has been acknowledged and repeated by courts at the highest level, so that the courts will maintain non-disclosure of legal advice even where the exercise of the privilege may impede the proper administration of justice in the individual case: see e.g. Three Rivers DC v Bank of England (No 6) [2005] 1 AC 610, per Lord Scott at paras 25 and 34, per Lord Rodger of Earlsferry at para 54, and per Baroness Hale at para 61. Further, the strength of the public interest in maintaining legal professional privilege is such that it will not be treated as abrogated by general words used in a statute – rather, clear, specific and express language would be required: see R v IRC, ex p Morgan Grenfell [2003] 1 AC 563. It is thus unsurprising that, even though Parliament has in the context of the Act abrogated the common law rule to the limited extent of not making the exemption in s. 42 absolute (so that the public interest will fall to be applied – but, of course, reflecting when it is applied the strong public interest in non-disclosure which has been authoritatively identified by the courts), it has at the same time reflected and preserved in absolute terms in s. 51(5) the common law protection against provision of information about legal advice in that limited class of case which concerns those questions in respect of which the Commissioner is “judge” and potential opposing party; this is simply to observe that the limited abrogation of the absolute common law rule in the Act has itself been qualified by way of s.51(5) in the very class of case where the rationale against disclosure of the information to the Commissioner himself is at its most powerful and compelling. Once such information has been disclosed to the Commissioner (who is, in relation to it, a party with an interest), it cannot be undisclosed. The position in respect of this special class of case may be contrasted with the position in relation to legal advice falling outside the context where the Commissioner is himself to be regarded as a party with an interest in the information itself. Where the Commissioner has no interest himself in the topic of the legal advice which has or may have been given, he can properly be regarded as an a impartial adjudicator concerned to decide whether information which does not concern himself or the exercise of his functions should be disclosed into the public domain, and it is as such an impartial and disinterested adjudicator/regulator that it may be appropriate for him to require the provision of the information concerned in order to carry out that (impartial) refereeing function (s.51(1)(b)). But where the Commissioner himself has an interest in the subject of the legal advice, that model does not apply, and his powers under s.51(1) are accordingly limited to the extent of his own interest (s.51(5)).

...”

The Tribunal accepted those submissions as to the purpose and ambit of s.51(5):

“The Tribunal’s findings

36.

The Tribunal finds the DCA’s arguments as to why the Information Notice is subject to s.51(5) FOIA to be very persuasive. The basis of this limitation or exemption from compliance with an Information Notice is so as not to give the Commissioner an unfair advantage in matters he may be called to rule upon or be a party to.

37.

We accept the DCA’s detailed submissions in this case which are set out at paragraphs 22 to 25 above.

...

39.

The Tribunal appreciates the argument of the Commissioner where LPP is claimed that he may need to inspect privileged materials in order to establish whether or not the exemption is made out. An example might be where a local authority has taken legal advice on a planning appeal which then becomes the subject of a FOIA request. However where the legal advice relates specifically to the Act then s.51(5) comes into play and he cannot inspect the information because of the unfair advantage it may give him.”