DECISION BY THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal.

The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 19 September 2014, following a hearing on 10 September 2014, under file reference EA/2014/0097, in relation to the Appellant’s appeal against Decision Notice FS50503882, involves an error on a point of law. The First-tier Tribunal’s decision is accordingly set aside. The case is remitted to be reheard by a different First-tier Tribunal, subject to the Directions below.

This decision is given under section 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

DIRECTIONS

The following directions apply to the re-hearing:

(1)	The re-hearing should be at an oral hearing; 

(2)	The new tribunal should be differently constituted from the First-tier Tribunal which made the decision dated 19 September 2014;

(3)	The new tribunal should re-hear afresh all issues arising out of the appeal against Decision Notice FS50503882.

These directions may be supplemented by later case management directions issued by or on behalf of a Tribunal Judge in the General Regulatory Chamber (Information Rights) of the First-tier Tribunal. 

REASONS

The parties before the Upper Tribunal
1.	The Appellant before the Upper Tribunal in this information rights appeal is a public authority, in this instance the Home Office, which was not a party at the hearing before the First-tier Tribunal. The First Respondent is the Information Commissioner. The Second Respondent is the Bingham Centre for the Rule of Law (“the Bingham Centre”), which is the requester and was the Appellant before the First-tier Tribunal.

The disputed information in this appeal
2.	The disputed information in question, as requested from the Home Office by the Bingham Centre under the Freedom of Information Act 2000 (FOIA), is the independent legal advice referred to in the report presented to Parliament by the then Home Secretary under the title Intercept as Evidence: A Report (Cm 7760, December 2009).

3.	The issue of whether, and if so how, intercept material can or should be used as evidence in criminal trials is obviously a matter of very high importance in the justice system. Following the report to the Prime Minister and the Home Secretary by the Privy Council Review of Intercept as Evidence (Report, Cm 7324, January 2008) the then Government commissioned a programme of work to implement the recommendations of the Privy Council Review. The Home Secretary’s subsequent report in December 2009 set out the findings and conclusions of this programme of work. According to the Home Secretary’s foreword,

“These confirm the potential gains from a workable scheme for intercept as evidence and that, while requiring significant additional funding, the model developed would be broadly consistent with the operational requirements identified. However, it is also the case that the model would not be legally viable, in terms of ensuring continued fairness at trial. The result would not only be potential miscarriages of justice and more expensive and complex trials but also more of the guilty walking free.”

4.	On that basis the then administration announced that “no responsible Government could proceed with implementation on this basis” (p.4). The report stated that “the sensitivities involved mean that the full weight of supporting evidence cannot be made public” (p.6). This was said to include legal advice from independent Counsel (p.7) – hence the request made under FOIA by the Bingham Centre.

The Home Office response and the Information Commissioner’s decision
5.	The Home Office’s initial response to the Bingham Centre’s FOIA request was two-fold. First, the Home Office asserted that the information was exempt from disclosure by virtue of sections 24(1) (national security), 31(1)(a) (law enforcement), 35(1)(a) (formulation of government policy) and 42(1) (legal professional privilege), each of which is a qualified exemption (and so, if at least one exemption was engaged, the public interest balancing test came into play). Second, under section 23(5) the Home Office neither confirmed nor denied whether it held any of the requested information by virtue of that absolute exemption (information supplied by, or relating to, bodies dealing with security matters).

6.	The Home Office reaffirmed that position on internal review, with the caveat that the original response “could have made it clearer that section 42 applies to all of the information.” The Bingham Centre then lodged a complaint with the Information Commissioner.

7.	In the course of the Information Commissioner’s investigation, the Home Office’s position shifted somewhat. First, it expressly dropped any reliance on the qualified exemptions under section 24(1) and 31(1)(a). Second, it also dropped its former reliance on section 23(5), instead contending that the absolute exemption in section 23(1) applied to discrete parts of the disputed information. Third, however, it repeated and elaborated upon its reliance on sections 35(1)(a) and 42(1) and the public interest balancing exercise.

8.	On 24 March 2014 the Information Commissioner issued a Decision Notice (FS50503882), which concluded that the Home Office had correctly applied section 42(1); the exemption was engaged and the balance of public interest favoured maintaining the exemption. The Information Commissioner recorded that, given his decision on the section 42(1) exemption, he had not gone on to consider the public authority’s reliance on the other exemptions it had claimed.

The First-tier Tribunal proceedings
The parties before the First-tier Tribunal: the initial position
9.	The initial position was that the only parties to the First-tier Tribunal proceedings were the Bingham Centre and the Information Commissioner. The Commissioner’s formal response, drafted by Counsel (and dated 28 May 2014), resisted the appeal and added as a preliminary point the following helpful suggestion:

“5.	 This appeal will turn to a material extent on the details of the Government’s ongoing consideration of the potential use of intercept evidence in trials. The Commissioner will not be in a position fully to assist the Tribunal with all relevant points. Moreover, the Home Office may wish to rely on other exemptions as alternatives to section 42(1). The Tribunal will need to hear from the Home Office. The Commissioner therefore respectfully suggests that the Home Office be joined as the Second Respondent to this appeal.”

10.	The First-tier Tribunal Registrar, in a case management note dated 1 July 2014, asked the Information Commissioner to confirm (i) when the Home Office had been notified of the appeal; and (ii) whether the Home Office had been sent a copy of the Commissioner’s response. She added the following observation:

“3. At present, the Home Office has not contacted the Tribunal to ask to join as a party. It does not seem appropriate to me to burden the Home Office with the cost of joining as a party when they have not asked to join, particularly as during the course of the investigation they may have covered the other exemptions on which they may seek to rely.”

11.	The next day the Solicitor to the Commissioner confirmed by e-mail “that the Home Office was notified of the existence of this appeal, but no papers relating to the appeal have been sent to it." There is nothing on file to indicate that the Information Commissioner’s reply was brought to the attention of the Registrar or otherwise acted upon. 

The First-tier Tribunal’s hearing and decision
12.	On 10 September 2014 the First-tier Tribunal held an oral hearing of the appeal at which submissions were made by both the Bingham Centre and the Information Commissioner, but no live witnesses called. In its decision dated 19 September 2014, the First-tier Tribunal allowed the Bingham Centre’s appeal and substituted a new decision notice requiring the Home Office to provide a copy of the disputed information.

The parties before the First-tier Tribunal: the subsequent position
13.	On 17 October 2014 the Treasury Solicitor (now the Government Legal Department) wrote to the First-tier Tribunal applying to be joined as a party and applying for permission to appeal to the Upper Tribunal. Judge Warren, the then Chamber President, invited the Bingham Centre’s comments – however, the requester argued that both applications should be refused. In a ruling dated 7 November 2014 Judge Warren joined the Home Office as a party but deferred its application for  permission to appeal, inviting further submissions on whether the First-tier Tribunal should review its decision. As there were competing contentions from the parties as to whether the Tribunal’s decision was erroneous in law, Judge Warren then gave permission to appeal to the Upper Tribunal on 24 November 2014.

The proceedings before the Upper Tribunal
14.	On 18 December 2014 the Home Office lodged its appeal with the Upper Tribunal. On 17 February 2015 I issued initial observations and case management directions in which I proposed to allow the Home Office (HO)’s appeal, to set aside the Tribunal’s decision and to remit the entire case to the First-tier Tribunal for re-hearing, and invited the parties’ comments. The substance of my reasoning was as follows:

	‘2.	On one level there is something rather unattractive about the HO having apparently declined the opportunity to be joined in the First-tier Tribunal (FTT) proceedings, but now seeking essentially to re-open the case on appeal before the Upper Tribunal. In some respects it may also be said that the HO’s grounds of appeal seek e.g. to re-argue the public interest balancing test (see grounds at §11) rather than identify an error of law.

	3.	However, we are where we are. The HO has now been joined as a party and has been given permission. This is an error of law appellate jurisdiction. It is also an inquisitorial jurisdiction, so the Upper Tribunal may take new points which go to the legality of the FTT’s decision, even if they have not been raised by the parties. That applies even where the parties are professionally represented, as here, although in such cases the inquisitorial mode is typically more ‘light-touch’.

	4.	I have to say that on a reading of the Upper Tribunal file (including the submissions made to Judge Warren at the FTT) I have a number of reservations about the FTT’s decision in this case. The grounds of appeal are essentially four-fold.

	5.	The first concerns the s.42 exemption (LPP). It seems to me the reasoning of the majority is confined to para [23] of the reasons (para. [22] being little more than the assertion of a conclusion), and that reasoning is at best slim, given the importance and profile of the issue, and at worst inadequate (see further e.g. DCLG v IC and WR [2012] AACR 43). In addition, did the FTT have to resolve the question of whose LPP it was (the point raised at [14]), before entering into the balancing exercise? On the balancing test itself, I note that in APPGER v IC and MoD [2011] UKUT 153 (AAC) the Upper Tribunal held as follows (at [77]):

“Balanced against these very important considerations, we must also have regard to the strength of the inherent public interest in the s42 exemption where information is subject to legal professional privilege, and its strength in this particular case. The public interest that exists in enabling the Government to obtain frank and confidential legal advice is not lessened by the fact that the topic under consideration is one of legitimate strong public concern and is intimately concerned with respect for the rule of law, indeed in precisely such cases the public interest in the obtaining of frank and confidential advice will often be particularly strong.  In our view that consideration has particular force here. We follow the approach set out by Wyn Williams J in Department for Business Enterprise and Regulatory Reform v O’Brien [2009] EWHC 164 (QB) at paragraphs 37-39, 41 and 53.  We do not consider that in the present case the public interest in favour of disclosure is of sufficient strength to outweigh the strong public interest in maintaining the exemption for the particular material that is subject to legal professional privilege in the present case.”

	6.	The minority’s reasoning at [24] is even slimmer. This may in itself amount to an error of law; see Craven v ICO and DECC [2012] UKUT 442 AAC, although this case is under appeal to the Court of Appeal at present (C3/2013/1901; judgment awaited, but not known whether this issue of adequacy of minority reasons will be addressed by the Court).

	7.	The second and third grounds concern the alternative exemption under s.35. The FTT’s reasons recognised this had originally been raised by the HO (at [5]) but that the ICO decision notice was silent on the issue (at [7]). The FTT then decided it need not, or was bound not to, consider s.35 (at [13]).

	8.	The fourth relates to s.23 and the FTT’s failure to consider whether this applied to parts of the requested information. Again, the FTT’s reasons recognised this had originally been raised by the HO (at [5]). The reasons also stated that the HO had abandoned s.23(5) but continued to rely in part on s.23. The FTT wondered if the ICO decision notice’s reference to s.23(1) was actually a reference to s.35(1) (at [7]). There appears to be no further direct reference to s.23 in the FTT’s reasons.

	9. The second, third and fourth grounds raise at least two further issues.

10. First, given the FTT’s puzzlement at the situation (see reasons at [13]), should it not at least have considered an adjournment in order to establish for sure (i) whether the HO wished to be joined as a party and/or (ii) which exemptions it was still seeking to rely on?

11. Second, was the FTT right to say that its role was limited solely to considering whether s.42 applied when there was at least evidence of uncertainty as to whether other exemptions were still “live”? Was the FTT’s approach appropriate given the proper understanding of the tribunal’s role (see e.g. Guardian Newspapers and Brooke v IC, EA/2006/0011 and 0013) and the fact that s.58 of FOIA is a merits review jurisdiction, not one modelled on judicial review?

12. Taking into account all these factors, it seems to me there is a strong case for saying that this appeal to the Upper Tribunal is more than likely to succeed on one or more of the grounds identified above. If that is right, and bearing in mind the overriding objective under rule 2, then it seems sensible to get the case back in front of a new FTT to consider all the exemptions which remain live sooner rather than later. The directions below make provision for that. Obviously if one or more of the parties take issue with that I will consider what other next steps are appropriate.’

15.	Those observations and consequential case management directions are what are known in the trade as giving a pretty clear steer.

16.	The Information Commissioner took the heavy hint. His response was short and to the point: he had no objection to the First-tier Tribunal’s decision being set aside on those grounds and the case being remitted for re-hearing.

17.	The Home Office, rather more predictably, also took the same stance.

18.	The Bingham Centre’s response was two-fold. First, it had no objection to the Home Office’s reliance on the exemptions in sections 23(1) and 35(1)(a) being considered afresh (or rather for the first time) by the First-tier Tribunal. Second, however, it objected to the First-tier Tribunal’s decision on the section 42 exemption being set aside and remitted for rehearing, arguing that the decision displayed no error of law in that regard, and sought an Upper Tribunal oral hearing on that aspect of the appeal. 

19.	On 16 April 2015 I then issued further observations and directions on the appeal. In short, I doubted whether the First-tier Tribunal’s decision could be “salami-sliced” in that way, and invited further submissions on that point from all parties, also suggesting that an oral hearing before the Upper Tribunal would be disproportionate.

20.	The Information Commissioner simply responded along the same lines as previously (see [16] above), adding that he agreed it would be disproportionate to hold an Upper Tribunal oral hearing on the section 42 point if the matter was inevitably going back to the First-tier Tribunal in any event.

21.	The Home Office, again entirely predictably, has adopted the same position as the Information Commissioner.

22.	The Bingham Centre has filed a further written submission arguing that the appropriate outcome is to remit the case but to direct the First-tier Tribunal to consider only the sections 23(1) and 35(1)(a) exemptions afresh and so to leave undisturbed its previous finding on section 42(1).

23.	As a result of the parties’ helpful submissions to date, I have to resolve the following three matters in dealing with this appeal: (1) whether should there be an Upper Tribunal oral hearing; (2) whether the Upper Tribunal can remit part of a case for redetermination by the First-tier Tribunal; and (3) whether the First-tier Tribunal in the present case erred in its treatment of section 42(1).

(1) Should there be an Upper Tribunal oral hearing?
24.	I have a discretion as to whether to direct an oral hearing of this appeal, having regard to the parties’ views (Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698, rule 34(2)). 

25.	The Information Commissioner and the Home Office are both plainly of the view that the appeal at this level can be resolved on the papers.

26.	The Bingham Centre’s initial response applied for an oral hearing on the section 42 point. That application has not been referred to in the subsequent further response, and I shall assume the request still stands.

27.	It is fair and just to determine this appeal on the papers. This case is inevitably going back for a re-hearing; the only live question is the basis on which that occurs. The arguments have been fully and well canvassed in the written submissions. I can see no real added value from an oral hearing, or indeed in further written submissions being invited. 

(2) Can part of a case be remitted for redetermination by the First-tier Tribunal?
28.	The short answer to that question is yes.

29.	In retrospect I can see that my further observations on the appeal (summarised at [19] above) failed adequately to distinguish between the principle and the practicability of partial remittal.

30.	The Bingham Centre reminds me that section 12(3)(b) of the Tribunals, Courts and Enforcement Act (TCEA) 2007 provides that, when remitting a case to the First-tier Tribunal for reconsideration, the Upper Tribunal may “give procedural directions in connection with the reconsideration of the case by the First-tier Tribunal”. This includes, amongst other things, the power to direct the First-tier Tribunal to reconsider some issues and not others. 

31.	The Bingham Centre also relies on a decision of the Immigration and Asylum Chamber of the Upper Tribunal, EK (Article 4 ECHR: Anti-Trafficking Convention) Tanzania [2013] UKUT 00313 (IAC). In an earlier ruling in that same case the Upper Tribunal had directed that the issues relating to Article 4 of the ECHR and the Anti-Trafficking Convention could be re-heard in isolation, with no need to revisit other matters in respect of which the Immigration Judge below had been found not to have erred in law. That approach was confirmed in the Upper Tribunal’s subsequent decision on the appeal (at [12]):

“ … The argument that a direction made by the Upper Tribunal in the instant case unlawfully fetters its discretion fails however to take account of the power that the Upper Tribunal has to limit the ambit of a further hearing on the basis of error of law decisions that are made. Consequently it is equally open to the Upper Tribunal to remit to the First-tier or re-make the decision on the basis of limiting the issues before itself or the First-tier Tribunal.”

32.	The Court of Appeal has since also confirmed this approach; see Sarkar v Secretary of State for the Home Department [2014] EWCA Civ 195, where Moore-Bick LJ observed that “Remission, however, does not necessarily require the First-tier Tribunal to start all over again; the Upper Tribunal has power to give directions which limit the scope of the reconsideration” (at [15]).

33.	So where the Upper Tribunal allows an appeal and remits the case for re-hearing by the First-tier Tribunal, it may either direct a complete re-hearing or remit specific or limited issues. This is also consistent with the approach adopted in other tribunal jurisdictions: see e.g. Aparau v Iceland Foods plc [2000] ICR 341 at 350D per Moore-Bick J (employment tribunals) and Way v Poole Borough Council [2007] EWCA Civ 1145 at [21] per Dyson LJ (SENDIST before TCEA 2007). 

34.	It follows, as a matter of principle, that I undoubtedly have the power to allow the appeal and remit the case to the First-tier Tribunal solely to consider the Home Office’s reliance on sections 23(1) and 35(1)(a). There is no dispute that those issues at the very least must be remitted, given they were not adequately addressed in the decision now under appeal.

(3) Did the First-tier Tribunal in any event err in its treatment of section 42(1)?
35.	The Information Commissioner considered that the balance of the public interest favoured maintaining the exemption for legal professional privilege in section 42(1). Having reviewed the factors “for and against”, the Commissioner concluded as follows: 

“Balance of the public interest
32. The Commissioner recognises that in the matter of the use of intercept as evidence in open court proceedings there are issues of considerable public importance and therefore weighty arguments favouring disclosure. However he also notes that a summary of the advice has been made available to the public and that it is only the detailed reasoning underlying it has been withheld. He has also been assured that the policy issue remains live and considers that both of these considerations weaken the case for disclosure in this matter.

33. As regards maintaining the exemption, the Commissioner recognises that the general public interest inherent in this exemption will always be strong due to the importance of the principle of safeguarding openness in communications between a legal adviser and client to ensure that there can be access to full and frank legal advice, which in turn is fundamental to the administration of justice. This has been recognised in a succession of Tribunal decisions, for example in the case of Bellamy (Bellamy v Information Commissioner & the Secretary of State for Trade and Industry (EA/2005/0023)) where the Tribunal said that:

‘there is a strong element of public interest inbuilt into the privilege itself. At least equally strong countervailing considerations would need to be adduced to override that inbuilt public interest.’

34. In deciding this matter, while acknowledging the weight of the arguments for disclosure, the Commissioner nevertheless considers that the balance of the public interest favours maintaining the exemption.”

36.	The First-tier Tribunal started (in its reasons at [16]) by recognising that legal professional privilege is an absolute bar to disclosure at common law and that under FOIA disclosure required a “clear, compelling and specific justification that at least equals the public interest in protecting the information in dispute” (see e.g. Calland v ICO and Financial Services Authority (EA/2007/0136 at [37]). The Tribunal then summarised the various factors weighing either way in the public interest balancing exercise, but without any sustained analysis of these factors ([17]-[20]). The Tribunal’s conclusions are then set out in four paragraphs.

37.	First, the Tribunal (presumably unanimously) considered that the Information Commissioner had correctly identified the relevant factors in the public interest test, subject to one proviso. The Commissioner had argued that the Intercept as Evidence report already contained clear summaries of the legal advice sought, enabling others to engage with its reasoning, and this accordingly lessened the case for further disclosure. The Tribunal, however, took the opposite view: “partial disclosure of the advice was more likely a point in favour of disclosure since there had already been a significant partial waiver of LPP” (at [21]). There is, however, a fundamental difficulty with the Tribunal’s approach. Other than referring briefly to the Commissioner’s argument to the contrary, the Tribunal simply did not explain how it had concluded that there had been a “significant partial waiver” of legal professional privilege (indeed, there was no discussion of the Commissioner’s carefully argued express finding of fact that there had been no such waiver; see his Decision Notice at [21]-[24]). This seems to me both a failure to find sufficient facts and to provide adequate reasons. However, I do not rely on this point alone, not least as it has not been specifically argued in quite this way by the Home Office in its grounds of appeal.

38.	Second, the Tribunal recorded the majority’s conclusion that the factors in favour of disclosure “were weightier and more significant than the factors favouring maintaining the exemption” (at [22]). As I indicated in my initial observations on the appeal, this paragraph is “little more than the assertion of a conclusion” (see [14] above at (5)). 

39.	Third, the Tribunal recorded the minority member’s dissenting conclusion (at [24]). Again, this is simply the statement of a conclusion. There is ample authority to the effect that where there is a majority decision then at the very least as a matter of good practice the panel members’ competing views should be set out (see Parkers Bakeries Ltd v R E Palmer [1977] IRLR 215 and Stobbs v B Cookson Ltd [2002] UKEAT 560). Judge Mesher in Secretary of State for Work and Pensions v SS (DLA) [2010] UKUT 3834 (AAC); [2011] AACR 24 recognised (at [10]) that although the statutory obligation is:

“to give reasons for the decision, and the decision of the majority is the decision of the tribunal, it seems to me in these circumstances implicit in the basic principle of enabling the losing party to understand why he or she has lost that there should be some statement of in what respects the minority member would have decided in his or her favour. That can sometimes point up and clarify where the majority found the losing party’s case wanting. Sometimes it can expose a potential flaw in the majority’s reasoning.”

40.	As I noted in my initial observations ([14] above at (6)), this issue also arose in Craven v ICO and DECC [2012] UKUT 442 AAC, although in the event the matter was not addressed in the Court of Appeal’s subsequent decision (Dransfield v Information Commissioner and Devon CC; Craven v Information Commissioner and DECC [2015] EWCA Civ 454). In the light of Judge Mesher’s decision, the recording of the minority view in the present case was insufficient. The loser (the Home Office), the regulator (the Commissioner) and any other reader is not readily able to understand the difference between the majority and minority views. In particular, what were the findings and conclusions that led the dissenting member to the outcome that the public interest balancing exercise favoured maintaining the exemption? Again, however, I do not expressly rely on this matter as the Home Office’s grounds of appeal take no point on it.

41.	Fourth, and finally, the central reasoning in the conclusions of the Tribunal majority was as follows:

“23. A majority of the Tribunal, having read the actual legal advice which constitutes the disputed information, was strongly of the view that the arguments around whether intercept should be admitted as evidence should be public and that the difficulties in implementing a workable ‘intercept as evidence’ system should be an open public debate. All the arguments both for and against such a system should be aired in public with the various interest and pressure groups having an opportunity to consider existing legal (and other) opinions and to respond to them. The majority felt that there would be an ultimate benefit in developing a good sound workable ‘intercept as evidence’ system through such public debate and that the detrimental effect of disclosure was negligible if not non-existent.” 

42.	The Home Office attacks this passage in what is essentially a reasons challenge; it argues, amongst other matters, that the majority failed to take into account the chilling effect, the special weight to be attached to legal professional privilege and the fact that the subject-matter of the disputed information remains live and current in governmental policy-making.

43.	In my initial observations I described the majority reasoning in paragraph [23] of the Tribunal’s reasons as “at best slim, given the importance and profile of the issue, and at worst inadequate”.

44.	The Bingham Centre argues that the majority, having identified the factors “for and against” disclosure, conducted a careful analysis of whether the latter outweighed the former. Its reasoning, it says, was sufficient and in accordance with law. Thus the Bingham Centre contends “it would be disproportionate in the present case to set aside the conclusions of the First-tier Tribunal on section 42 in circumstances where the matter has already been fully ventilated in an inter partes hearing and where it has not been shown that its conclusions on that exemption contained any error of law” (Further submission dated 20 May 2015).

45.	My conclusion is that the majority’s reasoning on the section 42(1) exemption is not just slim but rather inadequate. In this context I recognise, of course, that “although a heavy weight is to be accorded to the exemption, it must not be so heavy that it is in effect elevated into an absolute exemption” (DCLG v IC and WR [2012] AACR 43 at [44]). That said, Judge Williams has observed that absent consent it is “difficult to imagine anything other than the rarest case where legal professional privilege should be waived in favour of public disclosure” (Cabinet Office v Information Commissioner and Aitchison [2013] UKUT 526 (AAC); [2013] 2 Info LR 336 at [58]. Ultimately, the weight to be accorded to the exemption will vary form case to case, depending on the facts. But as the very strong three-judge panel accepted in DCLG v IC and WR, if “the requested information is very old, or relates to matters no longer current, a disclosure may damage that confidence to a lesser extent than if the information was recent, or relates to matters still current” (at [45]).

46.	One problem with the Tribunal’s reasoning in this case is that it simply sets out a list of factors pointing one way or the other without any real analysis of each – factors which are essentially the same as those identified by the Commissioner in his Decision Notice, with one highly questionable exception (see [37] above) – before then coming to the contrary conclusion on the public interest balancing exercise. It is, of course, entirely possible that two reasonable decision makers might reasonably come to opposite conclusions in an open-textured process such as the public interest balancing exercise. However, in such cases the need for clear findings to underpin that process is all the more important. The majority in effect regarded the value of an “open public debate” as a trump card that outweighed all other considerations.

47.	As was the case in DCLG v IC and WR the (majority of the) First-tier Tribunal went wrong in law by failing to make it clear whether it attached any, and if so what, weight to the specific factors in favour of maintaining the exemption (not least the inherent value of legal professional privilege). The issue of timing is just one example. The decision noted the Commissioner’s argument that the subject matter was very much “live” (at [18]) and the requester’s argument that the “live” nature of the issue favoured disclosure as it would ensure public debate over potential legislative change. However, those considerations are stated rather than weighed by the First-tier Tribunal. Moreover, as the Upper Tribunal observed in APPGER v IC and MoD [2011] UKUT 153 (AAC) (at [77]), “The public interest that exists in enabling the Government to obtain frank and confidential legal advice is not lessened by the fact that the topic under consideration is one of legitimate strong public concern and is intimately concerned with respect for the rule of law, indeed in precisely such cases the public interest in the obtaining of frank and confidential advice will often be particularly strong.”

48.	I therefore conclude that the First-tier Tribunal erred in its treatment of the legal professional privilege qualified exemption in section 42(1) and the public interest balancing test. It follows that the Home Office’s appeal is allowed on this ground too. The First-tier Tribunal’s decision is set aside in its entirety and the case is remitted to be re-heard by a fresh First-tier Tribunal in relation to all the exemptions in play.

A coda: what if I am wrong on the section 42(1) point?
49.	If I am found to be wrong on the ground of appeal relating to the First-tier Tribunal’s treatment of section 42(1), the question then arises as to the basis on which the appeal should be remitted. As indicated above, a partial remittal is entirely possible.

50.	The Bingham Centre argues that a partial remittal in this appeal is both appropriate and proportionate. It contends that the section 42(1) issue is separable from the other issues under appeal. There is, it says, no legal or practical difficulty in partial remittal, especially if the matter was remitted back to the same First-tier Tribunal as before. Further, although there is some overlap in the public interest balancing test (as regards section 35(1)(a) and 42(1)), the exemptions are not identical.

51.	It is clear from the case law that partial remittal is only appropriate where the issue (or issues) to be remitted is (or are) genuinely severable from the matter on which no legal error is identified. In the present case I do not accept that such severance is feasible. Plainly there are different substantive issues that may arise in relation to e.g. the qualified exemptions under sections 35(1)(a) and 42(1). However, once the exemptions are engaged, the position as regards the public interest balancing test may be much more fluid. As Keith J observed in Home Office v Information Commissioner [2009] EWHC 1611 (Admin), “it is necessary to consider whether the aggregate public interest in non-disclosure outweighs the aggregate public interest in favour of disclosure. In other words, whatever may be said about individual components of the balancing exercise, it is nevertheless a broad judgment on where the balance lies which is required” (at [25]). The same position was adopted in Helstrip v IC (Freedom of Information Act 2000) [2013] UKFTT EA/2012/0201 (GRC) (at [54]), although the point was not actually necessary for the decision there. However, the Upper Tribunal has certainly also proceeded on this basis; in Evans v Information Commissioner [2012] UKUT 313 (AAC) the Upper Tribunal stated (at [207]):

“When assessing the public interest balance for the purposes of each exemption we take an approach under which we aggregate all public interests in non-disclosure. We reach our conclusion on the overall balance by assessing the weight of their cumulative effect against the weight we give to the public interests in disclosure.”

52.	In those circumstances it seems to me that the argument that the issues arising out of the qualified exemptions are severable, and the First-tier Tribunal majority’s decision on section 42(1) can be preserved in aspic on remittal, is doomed to failure, whatever the Upper Tribunal’s decision on the adequacy of reasoning as regards section 42(1).

A further postscript: three other matters
53.	The First-tier Tribunal’s failure to address sections 23 and 35(1)(a) and its inadequate treatment of section 42(1) and the public interest balancing test are grounds enough on which to allow the Home Office’s appeal, to set aside the decision now under appeal and to remit the case to the First-tier Tribunal for a complete rehearing. There are, however, three further matters which merit a mention. 

54.	The first is the point raised in my original observations at (10) (see [14] above). The First-tier Tribunal is under a continuing obligation to ensure that the proceedings are fair and just in accordance with the overriding objective. In the present case that included consideration of whether it was appropriate to proceed at all, given the particular circumstances and confusion about the exemptions in issue.

55.	The second is the matter mentioned in my original observations at (11) (see [14] above). It appears that the First-tier Tribunal here adopted a passive and non-interventionist stance which is not appropriate in an inquisitorial jurisdiction; see further Guardian Newspapers Ltd v Information Commissioner [2007] UKIT EA/2006/0013; [2011] Info LR 854 at [14].

56.	The third concerns the vexed question of joinder. In an information rights case, the other side (whether the public authority or requester) to a complaint before the Information Commissioner is not automatically a “respondent” when an appeal is lodged at the First-tier Tribunal. Accordingly, that “non-appellant”, if I can term them that, can only take part in the tribunal proceedings if joined as a respondent (Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI 2009/1976), rules 1(3) and 9). The Tribunal’s only statutory duty on receipt of a notice of appeal is to “send a copy of the notice of appeal and any accompanying documents to each respondent” (rule 22(5)).

57.	The other side to an Information Commissioner investigation may or may not wish to be involved in any appeal. Fairness dictates that they are at least put on notice about the appeal. The “work around” which appears to operate (see [10]-[11] above) is that the Commissioner informs the other side about the pending appeal, and presumably advises them to contact the First-tier Tribunal if they wish to be joined as a party. The obvious practical advantage of this procedure is that the Commissioner will have the relevant contact details. The disadvantage is that the First-tier Tribunal does not have direct control of the notification process, contents or timetable. This at least has the potential to cause difficulties, as may have been the case in this appeal. It might seem more natural for the tribunal office, rather than relying on a helpful intermediary (who is also a party), itself to advise other potential respondents to the effect that “A notice of appeal has been received from the appellant against the Information Commissioner’s decision notice; if you wish to be joined as a party, you should make an application by such-and-such date”. There may, of course, be data protection issues that arise. This may also be a matter which requires further consideration in terms of administrative processes or by the Tribunal Procedure Committee. I express no decided view.

58.	In the present case I simply note that the reasons for the Home Office not applying to be joined as a party at the outset are unclear. It may have been an informed, an uninformed or an ill-informed decision. But it is now joined as a party.

Conclusion
59.	It follows I allow the Home Office’s appeal. The First-tier Tribunal’s decision is set aside. I direct a complete re-hearing before a freshly constituted new Tribunal.

Signed on the original				Nicholas Wikeley
on 03 June 2015					Judge of the Upper Tribunal