Government refuses to release legal advice on Secret Courts Bill, claiming “public interest better served by withholding”

November 20, 2012

The Government is refusing to publish legal advice it has taken on whether its plans for secret courts conflict with the right to a fair trial, claiming that the “public interest” requires that it is kept secret.

The Government’s refusal follows the recent publication by the Equality and Human Rights Commission of legal advice from a QC which found that the Justice and Security Bill – which proposes to expand secret courts across the civil justice system – was at odds with both English Common Law and European Convention rights to a fair trial.

In response to a Freedom of Information request made by Reprieve, the Ministry of Justice confirmed that it holds legal advice on the issue, but claimed that “the public interest is better served by withholding this information…at this time” – despite the Bill facing the final stages of its passage through the Lords this week.

Reprieve’s Executive Director, Clare Algar said: “It is hard to see how the public interest is served by the Government’s refusal to release the legal advice it has been given on secret courts.  If ministers continue to withhold this, people are likely to conclude that they know what many of us have for some time: that this Bill is hopelessly at odds with the long-standing British right to a fair trial.  The Lords must vote against these dangerous plans – otherwise, we will be left living in a country where the Government is able to put itself above the law.”

ENDS

Notes to editors

1. For further information, please contact Donald Campbell in Reprieve’s press office: +44 (0) 7791 755 415 / donald.campbell@reprieve.org.uk

2. The Equality and Human Rights Commission’s legal advice on the Justice and Security Bill can be found here: http://www.equalityhumanrights.com/legal-and-policy/parliamentary-briefings/justice-security-bill-with-advice

3. The Justice and Security Bill is due to be debated at Report Stage by the House of Lords on Monday 19 and Wedneday 21 November.

4. The text of the Ministry of Justice’s response to Reprieve’s FOI request is as follows:

Thank you for your email of 1 November 2012 which has been handled under the Freedom of Information Act 2000 (FOIA). You asked for the following information from the Ministry of Justice:

“What legal advice the Government has taken regarding the compatibility of the provisions of the Justice and Security Bill with:

(1) The common law right to a fair trial

(2) Article 6 of the European Convention on Human Rights

And to request copies of any legal advice which the Government has taken on the above points.”

I can confirm that the Ministry of Justice (MoJ) holds information relating to both parts of your request. However, that information is exempt from release due to Section 42 (Legal Professional Privilege) of the FOIA.

In line with the terms of this exemption in FOIA, we have also considered whether it would be in the public interest for us to provide you with the information, despite the exemption being applicable.

When assessing whether or not it was in the public interest to disclose the information to you, we took into account the following factors:

Public interest considerations favouring disclosure

There is a general public interest in authorities being accountable for the quality of their decision-making and ensuring that decisions have been made on the basis of good quality legal advice is part of that accountability. Transparency in the decision-making process and access to the information upon which decisions have been made can enhance this accountability. It could also be seen that there is a public interest in some cases in knowing whether or not legal advice has been followed.

Public interest considerations favouring withholding the information

Section 42 reflects a strong public interest in the Department being able to communicate freely with its legal advisers to provide and receive advice in confidence. Government departments require high quality and comprehensive legal advice for the effective conduct of their business. That advice needs to be given in context and with a full appreciation of the facts, which is necessary to be sought and given in a timely fashion to ensure policy develops in a fully informed way. The legal adviser needs to be able to present the full picture to his, or her, departmental clients, which not only includes arguments in support of their final conclusions, but also the arguments that may be made against them. It is in the nature of legal advice that often sets out the possible “for and against” arguments a particular view of weighing up their relative merits. Without such comprehensive advice the quality of the government’s policy and decision-making would be much reduced.

Disclosure of legal advice provided in confidence also has a high potential to prejudice the Government’s ability to defend its legal interests, particularly when the advice has been fully considered and presented without fear or favour, which are neither in the public interest. To disclose such information could result in serious consequential loss, or at least, a waste of resources in defending unnecessary challenges. The latter may result in poorer decision making because the decisions may not be taken on a fully informed basis.

Therefore, in this case, we have reached the view that, on balance, the public interest is better served by withholding this information under Section 42 of the FOIA at this time.

You can find out more about Section 42 by reading the extract from the FOIA and some guidance points we consider when applying this exemption, attached at the end of this letter.

You can also find more information by reading the full text of the Act, available at http://www.legislation.gov.uk/ukpga/2000/36/section/42 and further guidancehttp://www.justice.gov.uk/information-access-rights/foi-guidance-forpractitioners/exemptions-guidance

However, it might be helpful to note that the introduction of the Justice and Security Bill in May 2012 was accompanied by a statement, made by Lord Wallace of Tankerness under section 19(1)(a) of the Human Rights Act 1998:

“In my view the provisions of the Justice and Security Bill [HL] are compatible with the Convention rights.”

A summary of the European Convention on Human Right (ECHR) memorandum was also published and is available at: http://consultation.cabinetoffice.gov.uk/justiceandsecurity/publications

You have the right to appeal our decision if you think it is incorrect. Details can be found in the ‘How to Appeal’ section attached at the end of this letter.

Disclosure Log

You can also view information that the Ministry of Justice has disclosed in response to previous Freedom of Information requests. Responses are anonymised and published on our on-line disclosure log which can be found on the MoJ website: http://www.justice.gov.uk/information-access-rights/foi-requests/latest-moj-disclosurelog

The published information is categorised by subject area and in alphabetical order.