Legal challenge to hidden government evidence in judicial review

PLP has launched a legal challenge over the release 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 final time.


PLP is appealing to the First Tier Court against the decision of the Information Commissioner’s Office (ICO) 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 group that informed the government’s proposals on judicial review.

The Justice Department tasked the IRAL panel with finding evidence of the “burden” of judicial review on the government. IRAL’s main question in its call for evidence – to which several central government departments responded – was whether judicial review allowed the executive and local authorities to “do government business”.

Jo Hickman, Director of PLP, said:

“The result of the panel’s recommendations and subsequent government consultation was a bill that will make this government and future governments less accountable for their actions and make it harder for people to stand up for their rights when the state goes out. of the line.

“There is overwhelming public interest in the publication of these submissions. They are likely to be a valuable source of information on critical questions about the operation of judicial review – questions that 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 Department of Justice argued that disclosure would harm the conduct of public business and the firm’s collective accountability, saying the departments could reasonably assume that their evidence would be treated confidentially and that it was a ‘safe space’ to discuss politics. Obviously that’s not fair. IRAL clarified that it could not guarantee confidentiality.

“There are many “safe spaces” for government, such as cabinet meetings, ministerial committees and correspondence. These observations were not part of any contribution to an internal government debate, they were written for the purpose of being sent outside of government to an independent panel.

“The Judicial Review and Tribunals Bill will make governments less accountable and less transparent. It is deeply disappointing that the government chooses to craft legislation in this way. Law-making should be open and transparent, not secret.

Chronology

  • In response to a FOIA request from PLP in April this year, the Justice Department declined to release the central government’s submissions in June, arguing that they were exempt from disclosure and citing the cabinet’s collective responsibility.
  • Following an internal review of this decision, PLP filed a complaint with the ICO on August 25 about the Justice Department’s decision not to publish.
  • The Justice Department then wrote to the PLP saying it was now also relying on the “catch-all” exemption from “some other harm to the effective conduct of public business”.
  • On November 15, the ICO published its decision not to uphold PLP’s complaint.

Legal argument

PLP is appealing the ICO’s decision to the First Level Court on two grounds:

  • The first ground is that government submissions are not “exempt” information under the FOIA, whether on the basis of collective firm responsibility or the conduct of public business.
  • Ground 2 is that even though the submissions have been classified as exempt information, this outweighs the public interest.

In its grounds of appeal, PLP argues that the expectation of confidentiality – as claimed by the Department of Justice and implied by the firm’s principles of collective responsibility and the conduct of public business – was never present in the context of government submissions to IRAL.

As the IRAL call for evidence made clear:

“Information provided in response to this call for evidence, including personal information, may be published or disclosed under freedom of information regimes (this is primarily the Freedom of Information Act 2000 (FOIA)…If we receive a request for disclosure of information, we will take your explanation fully into account, but cannot guarantee that confidentiality can be maintained in all circumstances.

PLP supports:

The unpublished submissions were not communications to Cabinet or a ministerial committee, or even contributions to internal government debate. Rather, the unpublished submissions were written (i) for the purpose of being sent outside of government, to a review committee that was expressly intended to be independent of government. Section 22.8

Learn more about the challenge in the Gazette du Barreau

Update News

cover page