AG: ID Cards & Advice Listing

Ms Heather Brooke

1 February 2005

Thank you for your two Freedom of Information requests of 2 January 2005, received on 5 January.

Your first request was for “the advice given by the Attorney General to cabinet ministers on the introduction of identification cards”, and the second for “a listing of all the topics on which the Attorney General has advised the Government in the past 12-month period from the time this request is answered”. I deal with these separately below.

The first request – ID cards

I am unable to confirm or deny whether this Office holds any legal advice given to the Government by Lord Goldsmith on ID cards. I consider that, in the circumstances of this case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether or not this Office holds the information.

Section 35(1)(c) of the Freedom of Information Act 2000 provides that information is exempt information if it relates to the provision of advice by any of the Law Officers or any request for the provision of such advice. Section 35(3) and section 2(1)(b) together provide that the duty to confirm or deny does not arise in respect of information which is exempt (or would be exempt) under section 35(1) if the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether or not this Office holds the information.

Section 35 is statutory recognition of the public interest in allowing government to have a clear space, immune from exposure to public view, in which it can debate matters internally with candour and free from the pressures of public political debate. This principle has also been judicially recognised (see, for example, Conway v Rimmer [1968] AC 910, 952 (Lord Reith); Burmah Oil Co Ltd v Bank of England [1980] AC 1090, 1112 (Lord Wilberforce), 1121 (Lord Salmon), 1126-1127 (Lord Edmund-Davies) and 1143-1145 (Lord Scarman)).

As part of this principle, there is a strong public interest in ensuring that a government department is able to act free from external pressure in deciding what sort of legal advice it obtains, at what stage, from whom, and in particular whether it should seek advice from the Law Officers. This strong public interest is reflected in the long-standing convention, observed by successive Governments, that neither the advice of Law Officers, nor the fact that their advice has been sought, is disclosed outside government. This convention is recognised in paragraph 24 of the Ministerial Code. It is also an interest which is recognised by the particular form of words used in section 35(1)(c) (contrast the general provision in relation to legal professional privilege in section 42(1)).

Since the Law Officers are the government’s most senior legal advisers, their advice has a particularly authoritative status within government. However, the need for government to obtain legal advice on a very wide range of matters is such that it would be impossible for such advice to be provided by the Law Officers in every case. Disclosure of the occasions when legal advice has been sought from the Law Officers would therefore have the effect of disclosing those matters which, in the judgment of the government, have a particularly high political priority or are assessed to be of particular legal difficulty. This would be directly counter to the strong public interest which underlies the whole of section 35 (see above). To disclose routinely whether the Law Officers have advised on particular issues would potentially create a two-fold detriment. On the one hand, to disclose that they have advised on an issue could be taken to indicate that particular importance was attached to it or even that the Government was in particular doubt about the strength of its legal position. Even if that impression were unfounded, the risk of creating it might deter the Government from consulting the Law Officers in appropriate cases. On the other hand, to disclose that the Law Officers have not advised on an issue might expose the government to criticism for not having consulted them, and hence having failed to give sufficient weight to the issue or to obtain the “best” advice. Again, even if unfounded this could lead to pressure to consult the Law Officers in inappropriate cases or in an unmanageably large number of cases.

We recognize that there is a public interest in citizens knowing that proposals which might affect civil liberties have been properly developed with the benefit of sound legal advice. However, in the circumstances of this case, this public interest does not outweigh the opposing public interest in maintaining the current convention.

The second request – listing of topics on which the Attorney General has advised

Section 12 FOIA makes provision for public authorities to refuse requests for information where the cost of dealing with them would exceed the appropriate limit. The limit has been specified in the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004. For central government the appropriate limit is set at £600. This represents the estimated cost of one person spending 3½ working days in determining whether the Department holds the information, and locating, retrieving and extracting it.

You have asked for “a listing of all the topics on which the Attorney General has advised the Government in the past 12-month period from the time this request is answered”. This Office does not hold such a list. In these circumstances, we are not obliged under the FOIA to comply with your request. I should also point out that we estimate that to locate, retrieve and extract all the Attorney General’s advice in the past year in order to list them would take us over the limit.

You may, however, choose to refine your request to narrow its scope. For example, you might choose to specify a time period and/or restrict the type of information you are requesting. I would like to point out that, should you submit a narrower request, my initial assessment is that this information may be exempt under section 35 of the FOIA for the reasons set out in respect of your first request. Other exemptions may also be relevant. However, until we receive a refined request, we are not in a position to give detailed consideration to any applicable exemptions, including the necessary consideration of the public interest in the release or protection of the information.

If you are unhappy with the decisions made in relation to your requests to us, you may ask for an internal review. If you wish to complain, you should contact Jonathan Jones, Legal Secretary, at the address given on my covering e-mail.
If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:
Information Commissioner’s Office
Wycliffe House
Water Lane

If you have any further queries about this matter, please contact me

Yours sincerely
Freedom of Information Officer

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