Published:  21st December 2021

PLP has initiated a legal challenge over publication of the Government’s hidden evidence on judicial review so that the public and parliament can see it before the Judicial Review and Courts Bill is debated for the last time.

PLP is appealing to the First Tier Tribunal against the Information Commissioner’s Office (ICO) decision not to require the Ministry of Justice (MoJ) to disclose evidence submitted by central government departments to the Independent Review of Administrative Law (IRAL), the panel which informed Government proposals on judicial review.

The MoJ tasked the IRAL panel with finding evidence about the ‘burden’ of judicial review on government. The IRAL’s main question in its call for evidence – to which several central Government departments responded – was if judicial review allowed the executive and local authorities to ‘carry on the business of government’.

Jo Hickman, PLP’s Director said:

“The outcome of the panel’s recommendations and the subsequent Government consultation was a Bill that will make this and future governments less accountable for their actions and make it harder for people to defend their rights when the state steps out of line.

“There is an overwhelming public interest in publishing these submissions. They are likely to be a valuable source of information on critical questions about how judicial review functions – questions which the Government itself has asked. Disclosure would mean more informed public and parliamentary debate on the Government’s proposed legislative reforms to reform judicial review.

“The MoJ argued that disclosure would prejudice the conduct of public affairs and collective cabinet responsibility, claiming that departments could reasonably assume that their evidence would be treated confidentially and that this was a ‘safe space’ for discussion on policy. This is manifestly not right. The IRAL was explicit that it could make no assurance of confidentiality.

“There are plenty of ‘safe spaces’ for government, such as cabinet meetings, ministerial committees, and correspondence. These submissions were not part of any contributions to an internal debate in Government, they were drafted with the purpose of being sent outside Government to an independent panel.

“The Judicial Review and Courts Bill will make governments less accountable and transparent. It is deeply disappointing that the Government is choosing to develop legislation in this way. Law-making should be open and transparent, not secretive.”

Timeline

  • In response to an FOIA request by PLP in April this year, the MoJ refused to publish the central Government submissions in June, arguing that they were exempt from disclosure and citing Collective Cabinet Responsibility.
  • Following an internal review of that decision, PLP made a complaint to the ICO on 25 August about the MoJ’s decision not to publish.
  • The MoJ then wrote to PLP to say that it was now also relying on the ‘catch all’ exemption of ‘some other prejudice to the effective conduct of public affairs’.
  • On 15 November, the ICO published their decision not to uphold PLP’s complaint.

Legal argument

PLP is appealing the ICO’s decision in the First Tier Tribunal on two grounds:

  • Ground one is that the Government submissions are not ‘exempt’ information under the FOIA, either on the basis of collective cabinet responsibility or the conduct of public affairs.
  • Ground 2 is that even if the submissions were classified as exempt information, this is outweighed by the public interest.

In its grounds for appeal, PLP argues that the expectation of confidentiality – as claimed by the MoJ and implied by the principles of collective cabinet responsibility and the conduct of public affairs – was never present in the context of Government submissions to the IRAL.

As the IRAL call for evidence clearly stated:

“Information provided in response to this call for evidence, including personal information, may be published or disclosed in accordance with the access to information regimes (these are primarily the Freedom of Information Act 2000 (FOIA) . . . If we receive a request for disclosure of the information we will take full account of your explanation, but cannot give an assurance that confidentiality can be maintained in all circumstances.”

PLP argues:

The Unpublished Submissions were not communications in Cabinet or a Ministerial Committee, or indeed any sort of contributions to a debate internal to Government. Rather, the Unpublished Submissions were drafted (i) for the purpose of being sent outside Government, to a review panel that was expressly intended to be independent of Government. Para 22.8

Read more about the the challenge in the Law Society Gazette