A couple of years ago, it was all the rage to worry about the role of the Attorney General, and the government even consulted on the possibility of publishing the Law Officers’ advice. You can see the results of the consultation here, from paragraph 84. Most respondents said there shouldn’t be publication, generally speaking – a view I agree with – although it might be fair to say that many of that majority seemed to come from within government itself. As it turns out, the government’s doing nothing on that in its Constitutional Reform and Governance Bill – of which more in a later post.

But it’s worth noting this judgment yesterday from Blake J, in which the government successfully appealed against a decision by the Information tribunal ordering the disclosure not of Law Officers’ advice itself, but of whether or not they advised in relation to the bill that became the Financial Services and Markets Act 2000.

It’s quite a success for the government, this, I’d say: they’ve argued successfully that if you want to know whether the Law Officers have advised on a certain matter you must establish that there is a weighty public interest in such disclosure. In effect I think the ruling puts the burden on applicants to show the public interest in disclosure outweighs the public interest in non-disclosure – since Blake J says the starting point is to give weight to that except in very rare cases.

I think this is a sensible approach – though whether it’s really what Parliament intended in the Freedom of Information Act 2000, I’m less sure. What I think this shows, though, again, is that it would be much better for the freedom of information regime to set out clearly the circumstances in which the fact of Law Officers’ advice – and the content of that advice – should and should not be disclosed. It’s not good enough just for the government, the Information Commissioner and the Tribunal to make these decisions by weighing up two very airy and general idea of the public interest in disclosure and the public interest in non-disclosure. From what he says at paragraph 66 of his judgment, I suspect Blake J may agree.

The case also shows, though, of course, that neither the fact nor the content of the Law Officers’ advice can always be kept confidential. A weighty public interest can mean disclosure is required.

2009-07-22T13:02:00+00:00Tags: , |