Case Law: Department of Health v. Information Commissioner, Judge criticises “secretive culture” of public service – Mike Dodd

28 05 2015

Andrew-Lansley-NHS-uk-newA High Court judge has criticised the “secretive culture of the public service” and strongly criticised the evidence given by two senior civil servants in a freedom of information battle over the ministerial diary of former health secretary Andrew Lansley.

The comments came from Mr Justice Charles, President of the Upper Tier Tribunal, in the case of Department of Health v. Information Commissioner [2015] UKUT 159. as he rejected an appeal by the Department of Health over previous decisions by both the Information Commissioner and the First Tier Tribunal (FTT) that Mr Lansley’s diaries should be released.

A member of the public had requested Mr Lansley’s ministerial diary for the period from May 12 2010 to April 30, 2011 – a period when Mr Lansley’s principal policy focus was on the NHS reform programme – under the Freedom of Information Act (FoIA).

The Department of Health disclosed a redacted version of the diary. The Information Commissioner ordered the disclosure of most of the withheld information, and the FTT substantially upheld that decision when the department appealed.

The department then appealed to the Upper Tribunal, arguing that the FTT erred in law by rejecting its argument that its approach to the department’s evidence should reflect that adopted in Public Interest Immunity certificate cases, and by proceeding on the basis that the public interest in disclosure could generally be set out.

Both arguments were roundly rejected by Mr Justice Charles in a decision which was heavily critical of the Department of Health’s approach.

The First Tier Tribunal had heard evidence two senior figures – civil servant Sir Alex Allen, who became the Prime Minister’s Independent Adviser on Ministerial Interests, and Paul Macnaught, Director of Assurance at the Department of Health, the judge said.

One “surprising” argument they had put against disclosing the diary was that doing so would harm or give rise to a real risk of harming the public interest by encouraging Ministers and officials to adjust their appointment schedules by building in unnecessary and pointless or futile meetings or diary appointments for presentational purposes, for example to impress the press.

But the reasoning for the existence of this risk “is so flawed that it cannot be accepted and has to be explained as a failure by the witnesses to stand back and properly assess what they were saying”, said Mr Justice Charles, adding: “So, like the FTT, I cannot accept that there is any such risk of harm.  However, if there is, it would be a factor supporting disclosure in the public interest.

Flaws in the evidence relating to this alleged risk included a failure to address a number of issues, such as how the alleged risk of harm fitted with the proper performance by Ministers and their officials of their duties; whether either of the witnesses or this Minister would act in that way and how they would go about doing so; and if, as one would expect the two men would say that they would not, why it was being said that anyone worth his salt would act in such a damaging way.

“In my view, sadly these flaws mean that this aspect of evidence of the two witnesses falls way below the standards that the public and the FTT are entitled to expect of government departments and senior civil servants in advancing public interest arguments,” said Mr Justice Charles.

“Indeed, in my view, they show that this aspect of their evidence should be roundly rejected and taken into account as a factor that decreases the trust and reliance that can be placed on their overall evaluation of the public interest.

“If equivalent obvious flaws existed in the advice to a client from a lawyer, a doctor or other expert, the client would be fully entitled to seek, and would be unwise not to seek, a second opinion.

The FTT was clearly entitled to, and was right, to proceed on the bases that parts of the views and reasoning advanced by the Department’s witnesses were unconvincing and undermined the weight to be given to their objectivity, accuracy, and reasoning as a whole.

The judge said the thrust of the department’s argument on the FTT’s approach to its evidence was that it had erred in law “by not properly acknowledging and giving appropriate weight to the expertise and institutional competence of the Department and its witnesses”.

But the idea that the public interest against disclosure of information on a class basis – because it fell within a class rather than because of what it contained – had been “consigned to history”, he said, adding:

“It was therefore a matter of some considerable surprise to me to find out that a class approach was being taken in the context of FoIA as it seems to run directly counter to the thinking and underlying intention of Parliament when passing that Act.

The judge added: “In my view a class approach is wrong.”

It did not accord with the underlying purpose of the Act, flew in the face of recent developments, did not fit with equivalent balancing exercises in respect of the public interest, and created unnecessary problems in the difficult weighing or assessment of competing interests.

What was required was an assessment and comparison of actual harm and benefit.

The FTT made a number of serious, adverse and critical findings on the evidence of Sir Alex and Mr Macnaught, the judge said.

 “The upshot is that although the FTT accept parts of the evidence of those two witnesses and acknowledge their expertise in respect of relevant matters, they also give convincing reasons why important aspects of the assertions, reasoning and opinion of those witnesses, and so their assessments of the ingredients and the overall position of the competing public interest issues, were flawed and unimpressive. My reading of their witness statements led me to the same overall conclusion.”

Much of what Sir Alex and Mr Macnaught said warranted a “Mandy Rice Davies” side note, said the judge, referring to the Ms Rice Davies riposte when told in court that Lord Astor had denied having had an affair with her: “He would, wouldn’t he.”

The judge went on:

“They are reminders of the secretive culture of the public service that the House of Commons Select Committee reported that FoIA would help to change for good … and thus of an approach that there should be transparency but only on departmental terms which the civil service find convincing but which courts often did not. They leave out important factors and, taken overall, lack objectivity in that they advance a ‘party line’…”

The judge said that in effect the Department of Health had argued that, having regard to the novel subject matter of this FoIA request, the deference due to its two witnesses meant that what the FTT (and the Information Commissioner before it) should have done was “effectively accept the Department’s view, and thus the validity of the reasoning and opinions of its witnesses, without subjecting them to critical analysis or such a degree of critical analysis”.

The judge also rejected the Department of Health’s appeal against the FTT finding that it had held diary entries relating to Mr Lansley’s non-Ministerial activities at the relevant time.

This article originally appeared on the online subscription service Media Lawyer and is reproduced with permission and thanks.


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