Benjamin Lakey v The Information Commissioner & Anor [2026] UKFTT 755 (GRC)

[2026] UKFTT 00755 (GRC)

Case Reference: FT/EA/2025/0047

FT/EA/2025/0120

First-tier Tribunal

(General Regulatory Chamber)

Date 21 May 2026

Information Rights

Before

JUDGE SOPHIE BUCKLEY

MEMBER MARION SAUNDERS

MEMBER EMMA YATES

Between

BENJAMIN LAKEYAppellant

THE INFORMATION COMMISSIONERRespondent

THE ATTORNEY GENERAL’S OFFICERespondent

Decision in FT/EA/2025/0047: The appeal is dismissed.

Decision in FT/EA/2025/0120: The appeal is dismissed.

REASONS

The first appeal – FT/EA/2025/0047

[1]The Attorney General’s Office is referred to as the AGO in this decision.

[2]This decision deals with two joined appeals.

[3]FT/EA/2025/0047 referred to in this decision as ‘the first appeal’ is an appeal against the Commissioner’s decision notice IC-314070-J0W3 of 10 December 2024 which held that:a. The AGO was entitled to rely on section 36(2)(b)(i) and (c) to withhold the requested information.

b. The AGO had committed procedural breaches.

[4]FT/EA/2025/0120, referred to in this decision as ‘the second appeal’, is an appeal against the Commissioner’s decision notice IC328322-J7H1 of 19 February 2025 which held that the AGO was entitled to rely on section 36 to withhold the requested information.

[5]This decision contains a short closed annex which is withheld from the appellant on the basis that it cannot be revealed without defeating the purposes of the appeal.

Factual background

[6]The Rt Hon Victoria Prentis KC MP was HM Attorney General between 25 October 2022 and 5 July 2024. She is referred to in this judgment as ‘the Attorney General’. Her husband is a judge in the Insolvency and Companies Court.

[7]The Attorney General was a founder of ‘Singing for Syrians’, which was part of the charity ‘Hands Up Foundation’ and organised fundraising carol concerts to raise money for those affected by the conflict in Syria. Hands Up Foundation provided assistance in Syria including providing prosthetic limbs.

[8]In 2024 the Hands Up Foundation was renamed Action Syria and the relevant fundraising exercise renamed Action Carols Syria.

[9]The Ministerial Code (‘the Code’) in force at the relevant time provided relevantly as follows:

“Ministers must ensure that no conflict arises, or could reasonably be perceived to arise, between their public duties and their private interests, financial or otherwise. … On appointment to each new office, Ministers must provide their Permanent Secretary with a full list in writing of all interests which might be thought to give rise to a conflict. The list should also cover interests of the Minister’s spouse or partner and close family which might be thought to give rise to a conflict. … The personal information which Ministers disclose to those who advise them is treated in confidence. However, a statement covering relevant Ministers’ interests will be published twice yearly.”

[10]The Independent Adviser, amongst other roles, advises on what should be published in the list referred to in the code (the ‘Published List’).

[11]The applicable terms of reference of the Independent Adviser contain the following:

“4.1 A Minister must provide the Independent Adviser with any information the Independent Adviser reasonably requires for the purposes of discharging the responsibilities set out in these terms of reference. 4.2 Information provided to the Independent Adviser for the purposes of the Adviser’s functions is provided to him in confidence. The Independent Adviser may publish information provided to him, including in summarised form, if it is necessary to discharge his responsibilities.”

[12]In the Published List in April 2023 the entry for the Attorney General contained, under the heading “Charities and non-public organisations” the following:

“Founder, Singing for Syrians (part of the Hands Up Foundation)”

. The next Published List in December 2023 did not contain any reference to Singing for Syrians.

[13]Each Published List stated the confidential nature of the process. The December 2023 Published List contained an introduction from the Independent Adviser which included the following:

“3. The declarations that ministers provide are treated in confidence. This allows for the fullest possible disclosure even where matters may not necessarily be relevant. The declaration is reviewed by the permanent secretary, who brings to bear an in-depth understanding of the minister’s portfolio and responsibilities and the associated activity of the department. The permanent secretary provides advice on any action that should be taken, including for example, a minister recusing themselves from decision-making on a particular issue. The declaration together with that advice is then shared with my secretariat. … 5. The Ministerial Code requires that a statement covering relevant ministers’ interests be published twice yearly. This statement takes the form of a List of Ministers’ Interests. A role of the Independent Adviser is to advise on what it is necessary to publish within the list. The list is not a register of interests and does not therefore include every interest that a minister has declared in relation to themselves and their family members. To do so would represent an excessive degree of intrusion into the private affairs of ministers that would be unreasonable, particularly in respect of their family members. The list instead documents those interests, including of close family, which are, or may be perceived to be, directly relevant to a minister’s ministerial responsibilities. The list also includes where ministers have roles in charities and non-public organisations, for example as a patron or trustee.”

[14]The AGO says the reference to Singing for Syrians and Hands-Up Foundation was removed from the Published List in consultation with the Independent Adviser because the Attorney General had no formal ongoing role in the organisation.

[15]The Attorney General’s husband is ICC Judge Sebastian Prentis (“the Judge”). In 2023, the Judge heard a multi-day trial in the Business and Property Courts in Lakey v Macabuag & ors

[2023] EWHC 1800 (Ch)

, handing down judgment on 19 July 2023. The Judge dismissed the claim.

[16]Mr Lakey, the appellant in this appeal, was the claimant in those proceedings. The litigation concerned the breakdown of relations between Mr Lakey and his business partners in connection with a business intended to develop medical prosthetics.

[17]The fifth respondent was a company called Koalaa Limited, who the appellant describes as ‘a key partner’ of Hands Up Foundation. The appellant says that Koalaa’s partnership with the Hands Up Foundation originated from an introduction by the co-founder of Singing for Syrians.

[18]Mr Lakey says that the Judge did not disclose any connection to Singing for Syrians prior to the trial. In October 2023 Mr Lakey submitted a witness statement in support of an application for the Judge to recuse himself. In that witness statement he states at paragraph 15 that ‘Victoria Prentis is actively and publicly involved in charitable work for a charity called the Hands Up Foundation’. He relies on and exhibits at paragraph 23 the applicable entries in the Published Lists of November 2021 and April 2023.

[19]He says that in October 2023 the Judge disclosed that he had attended a Singing for Syrians event at which one of the respondents presented to the attendees. The appellant asserts that the Judge had attended at least six Singing for Syrians concerts, singing in the choir.

[20]An article published in The Times on 20 February 2024 alleged that the Judge had failed to disclose a connection through his wife to a charity connected to litigation he determined. The article reported that, as of February 2024, an application had been made by Mr Lakey to the High Court to set aside the judgment.

[21]Mr Lakey says that evidence at the Permission to Appeal hearing showed that the Hands Up Foundation had a commercial partnership with Koalaa, a company involved in the High Court case which pre-dated the judge’s hearing of the High Court case. Mr Lakey said that substantial funds (£96,000) later went to Koalaa via the charity’s initiatives. He says that in December 2021, the Judge and the Attorney General attended a “Singing for Syrians” event where Nathan Macbuag, the first respondent presented Koalaa prosthetic limbs to attendees.

[22]The appellant made an application for the Judge to recuse himself and for a retrial at the consequential matters hearing on 16 October 2023. That application was dismissed by the Judge in an extempore judgment, rejecting the allegations of actual or apparent bias. The appellant applied for permission to appeal on 6 November 2023. It appears that the High Court refused permission on the papers. The appellant renewed his application at an oral hearing listed for 23 February 2024. The fact that the December 2023 Published List no longer included reference to Singing for Syrians was included in a witness statement in support of that application. The appeal was refused permission at that hearing.

[23]On 20 February 2024 the Times published an article which said that the Judge had failed to disclose a connection, through his wife to the charity and reported that an application had been made to the High Court to re-open the judgment in the light of that connection.

The request in the first appeal

[24]Mr Lakey made the following request to the AGO on 15 January 2024:

““Under the Freedom of Information Act 2000, I am requesting information concerning The Rt Hon Victoria Prentis KC MP, Attorney General, and her office's staff regarding their involvement with Singing for Syrians, a part of the Hands Up Foundation, and the subsequent removal of this interest from the ministerial interests list in December 2023. I seek: I seek: - Any communications (including emails and records of meetings) involving The Rt Hon Victoria Prentis KC MP or staff from her office regarding Singing for Syrians and the Hands Up Foundation. - Records of disclosures or declarations made by The Rt Hon Victoria Prentis KC MP and her office's staff about their roles in or involvement with these organisations. - Records of financial or non-financial support provided to these organisations by The Rt Hon Victoria Prentis KC MP and her office's staff. - Specific communications or documents relating to the decision to add The Rt Hon Victoria Prentis KC MP’s involvement with Singing for Syrians to the ministerial interests list. - Specific communications or documents relating to the decision to remove The Rt Hon Victoria Prentis KC MP’s involvement with Singing for Syrians from the ministerial interests list in December 2023. This includes any discussions, instructions, or decisions made to add or remove the interest.”

The response in the first appeal

[25]The AGO responded substantively on 26 February 2025. The AGO confirmed that it held information but withheld it under sections 41(1) FOIA (confidential information), 36(2)(b)(i) FOIA (free and frank provision of advice) and 36(2)(c) FOIA (prejudice to the conduct of public affairs). The AGO upheld its position on internal review.

The decision notice in the first appeal

[26]In a decision notice dated 10 December 2024 the Commissioner held that all the information could be withheld under section 36. He did not go on to consider section 41.

[27]The Commissioner was satisfied that the Solicitor General was the qualified person for the purposes of section 36 and that he had provided a reasonable opinion. On that basis he was satisfied that both limbs of section 36 were engaged.

[28]In relation to the public interest, the Commissioner acknowledged that the general public interest in openness and transparency would be served by disclosure, he found the public interest in protecting minister’s access to unfiltered and frank advice about their outside interests in protecting the overall scheme of ministers declaring their interests to be stronger. He concluded that the AGO was entitled to rely on section 36 (2)(b)(i) and (c) and did not go on to consider section 41.

Notice of appeal – the first appeal

[29]The grounds of appeal in essence are:a. Ground 1 - The Commissioner erred in concluding that the opinion of the QP was reasonable such that the exemptions under sections 36(2)(b)(i) and 36(2)(c) FOIA were engaged.

b. Ground 2 - the Commissioner erred in concluding that the public interest in maintaining the exemptions under sections 36(2)(b)(i) and 36(2)(c) FOIA outweighed the public interest in disclosure.

c. Ground 3 - the Commissioner erred in applying the exemptions in a blanket fashion and in failing to conclude that some of the withheld information was not exempt and could be disclosed.

[30]In particular:a. Mr Lakey argues that blanket withholding was not justified and that sensitive policy advice could have been redacted.

b. He argues that there is a strong public interest in transparency because the request implicates potential conflicts of interest at the highest level of government and the judiciary. He says that disclosure might shed light on whether the Attorney General’s role overlapped improperly with the subject matter of the trial or how staff managed potential conflicts.

c. He submits that there is a real possibility or the appearance of bias and that refusing to disclose shuts down legitimate questions about judicial and ministerial propriety.

d. The findings of procedural breaches undermine confidence that the AGO gave careful thought to partial disclosure or narrower redactions.

The Commissioner’s response – the first appeal

[31]The Commissioner relied on his decision notice.

[32]The Commissioner noted that it was not clear if the appellant argues that the qualified person’s opinion was not reasonable. The Commissioner submitted that he was entitled to find that the opinion was reasonable, noting that:a. the Solicitor General was particularly well placed to understand the likelihood of prejudice

b. the information was particularly recent, making it sensitive.

[33]In relation to the public interest, the Commissioner submitted, having seen the requested information, that the public interest in disclosure would be limited. He argued that any limited public interest in disclosure would be outweighed by the public interest in protecting ministers’ access to unfiltered and frank advice about their outside interests and in protecting the overall scheme of ministers declaring their interests. Appropriate weight must be given to the opinion of the qualified person.

[34]In relation to the argument that there was a blanket application of the exemptions, the Commissioner said that he was satisfied that the exemptions applied to all the withheld information.

[35]He submitted that it cannot reasonably follow that because a public authority is slow to respond to a request that it is less likely to have applied the exemptions correctly.

[36]The Commissioner noted that the AGO also relied on section 41.

The appellant’s reply to the Commissioner’s response – the first appeal

[37]The appellant contended that:a. The qualified person’s opinion was not shown to be properly or reasonably formed, failing to differentiate routine administrative communications from genuinely sensitive policy advice. He argued that the opinion is undermined if it was formed after the refusal. He said that the Commissioner’s response was silent on any potential conflict affecting the neutrality of the qualified person.

b. The public interest strongly favours transparency, given allegations of apparent bias or conflict at a senior ministerial/judicial level—an interest that outweighs speculative “safe-space” concerns. He said that the matter was no longer live because the interest listing had already been concluded. He said that sections of the withheld material likely reveal who decided to remove the reference on what basis which increases the public interest in disclosure. Accountability is a compelling factor.

c. Both the AGO and the Commissioner overlooked partial disclosure obligations, improperly withholding every record in full.

d. In relation to section 41, not all information would be obtained from another person. Section 41 cannot validly exempt either routine internal communications or material where a public-interest defence (the iniquity principle) might apply.

The AGO’s response – the first appeal

[38]The AGO stated that the totality of the information held by the AGO responsive to the request arises in connection with the Ministerial Interests process and the work of the Independent Adviser on Ministerial Interests under the Ministerial Code, all of which is acutely confidential. The AGO submitted that the Commissioner was right to find that sections 36(2)(b)(i) and (c) applied to the entire information and submitted that section 41 also applies to the entirety of the information.

[39]The AGO noted that the change in approach to the then Attorney General’s published Ministerial Interests was specifically explained in the response to the request. The AGO submitted that, given that the charity was a personal interest of the Attorney General, it is not surprising that the only information held arose in the one context in which that personal interest intersected with her Ministerial responsibilities, namely the duty to disclose Interests to the Independent Adviser for potential publication in the List.

[40]The AGO said that the basis for all three exemptions was the same: the information concerns the provision by the Attorney General to the Independent Adviser of information concerning her potentially relevant interests, the position of AGO officials in relation to those interests, and the position of the Independent Adviser and his officials in relation to those interests. The AGO submitted that that process is inherently confidential, as all of:(i) the Ministerial Code;

(ii) the Terms of Reference; and

(iii) the Published Lists themselves, explain in explicit terms to the Ministers participating in it.

[41]The AGO submitted that confidentiality is essential to the effective functioning of the Ministerial Interests Regime in that confidentiality:a. Provides reassurance and encouragement to Ministers to ensure that the fullest possible disclosure is made so that appropriate advice can be given.

b. Respects the judgments made by the Independent Adviser as to which interests are relevant, or potentially relevant, to the Minister’s role such that the interests of transparency require their inclusion in the Published List.

c. Recognises that those interests may change over time.

d. Protects the interests of family members, in relation to which the Minister may also be required to make declarations.

e. Strikes an appropriate balance between ensuring transparency in support of the standards set out in the Ministerial Code through the Published List, at the decision of the Independent Adviser, whilst protecting the details of discussions and advice in connection with that process.

[42]The AGO submitted that the Ministerial Interests process is confidential in the common law sense required by section 41(1), but even if that were wrong for any technical reason, the plainly confidential nature of the exercise (in the sense used by ordinary people rather than lawyers) requires that the advice provided (section 36(2)(b)(i)) and/or the engagement from the Minister (section 36(2)(c)) be protected from disclosure.

[43]The AGO argued that disclosure would undermine that confidentiality, adversely affecting Ministers’ confidence in engaging with it, the completeness of disclosure in sensitive or borderline cases, and the degree of persuasion or exchanges a Minister might require to enable the process to be completed to the Independent Adviser’s satisfaction. The AGO said that access to this type of information is strictly limited within government and handled sensitively throughout.

[44]The AGO said that the Commissioner was right to accept that the opinion of the then Solicitor General that the integrity and effectiveness of the declaration process would be undermined by disclosure was reasonable and could and should also have concluded that the withheld information was within a process publicly explained and understood by Ministers to be a confidential one (and for good reasons), such that disclosure would constitute an actionable breach of confidence and engage section 41(1).

[45]The AGO accepted that there was a public interest in transparency and in holding Government to account for its approach to Ministerial Interests and compliance with the Ministerial Code. It accepted that disclosure would contribute to transparency by showing how the declarations process operated in relation to the Attorney General’s interest in Singing for Syrians, and that the public interest may be said to be increased where an entry in the Published List has changed.

[46]However, the AGO contended that the public interest, whether under section 2 or within section 41(1), strongly favoured maintaining the exemptions. It emphasised the constitutional importance of preserving a safe and confidential space for the operation of the Ministerial Interests process under the Code, arguing that undermining that confidentiality would ultimately frustrate the transparency provided by the Published List. The AGO said there was significant weight in enabling Ministers to receive advice, convey views to, and engage in discussions with the Independent Adviser, and in giving effect to the reasonable opinion of the then Solicitor General. The AGO submitted that the public interest is heightened because the request was made very shortly after a Published List and the Minister remained in office.

[47]Finally, the AGO submitted that, to the extent necessary, the public interests against disclosure under both limbs of section 36(2) may be aggregated in accordance with Department for Business and Trade v Information Commissioner & Montague but accepted that such aggregation cannot extend to section 41(1).

The request in the second appeal

[48]Mr Lakey made the following request to the AGO on 31 May 2024:

“Under the Freedom of Information Act 2000, I am requesting all communications within the Attorney General's Office regarding the article published in ‘The Times’ on Tuesday, February 20, 2024, titled ‘Attorney-general's husband ruled on case “linked to her”.’ This includes, but is not limited to, emails, letters, memos, meeting minutes, and any other forms of communication discussing or referencing the content of the article. … Please include any communications that: 1. Reference the content of the article or its publication. 2. Discuss the implications of the article for the Attorney General's Office or its staff. 3. Include any responses or reactions to the article from within the Attorney General's Office. 4. Mention any actions taken or proposed in response to the article.”

Please include any communications that:

The response in the second appeal

[49]The AGO responded to the request on 5 July 2024. The AGO disclosed some information with redactions. The redacted information was withheld under section 40(2) FOIA (personal information) and sections 36(2)(b)(i) and (ii) and 36(2)(c) FOIA. The AGO upheld its position on internal review.

The decision notice in the second appeal

[50]In a decision notice dated 19 February 2025 the Commissioner held that the redacted information could be withheld under section 36. He did not go on to consider section 40(2).

[51]The Commissioner was satisfied that the Solicitor General was the qualified person for the purposes of section 36 and that he had provided a reasonable opinion. On that basis he was satisfied that section 36(2)(b)(i) and (ii) and 36(2)(c) were engaged.

[52]In relation to the public interest, the Commissioner considered that openness in itself was in the public interest. The Commissioner said that appropriate weight had to be afforded to the public interest in avoiding harm to the provision of advice to Ministers and senior civil servants regarding media enquiries. He said that the opinion of the Solicitor General carried considerable weight.

[53]The Commissioner said that the media article suggested that the legal case in question might be re-opened in the High Court, meaning that matters remained at least potentially live at the date of the request. He found that there was a real risk that disclosure at that point in time would inhibit the future free and frank provision of advice and exchange of views on related ‘live’ issues.

[54]He said that appropriate weight must be afforded to the public interest in avoiding harm to deliberation, Advisery and decision making processes. He said that there was a clear public interest in AGO officials having the freedom to thoroughly explore all options for responding to media enquiries. He said that poor or deficient advice may result in responses to media requests which are ineffective, uninformative or deficient in some way, which would not serve the public interest.

[55]The Commissioner concluded that the public interest in protecting Ministers and civil servants’ access to unfiltered and frank advice on how to manage and respond to media enquiries and in protecting the overall cross government process of responding to such queries outweighed the general public interest in openness and transparency.

[56]He concluded that the AGO was entitled to rely on section 36(2)(b)(i) and (c) and did not go on to consider section 41.

Notice of appeal – the second appeal

[57]The grounds of appeal are broadly similar to those in the first appeal:a. Ground 1 - The Commissioner erred in concluding that the opinion of the QP was reasonable such that the exemptions under sections 36(2)(b)(i) and 36(2)(c) FOIA were engaged.

b. Ground 2 - the Commissioner erred in concluding that the public interest in maintaining the exemptions under sections 36(2)(b)(i) and 36(2)(c) FOIA outweighed the public interest in disclosure.

c. Ground 3 - the Commissioner erred in applying the exemptions in a blanket fashion and in failing to conclude that some of the withheld information was not exempt and could be disclosed.

d. Ground 4 – not all the withheld information was personal data and the strong legitimate interest in transparency outweighs the minimal privacy interests of officials.

[58]In particular:a. Mr Lakey argued that the refusal and the decision notice are based on vague and generic chilling effect claims with no concrete explanation or evidence of how these specific communications would truly inhibit frank discussions in future.

b. He said that the AGO and the Commissioner gave insufficient weight to the pressing public interest in transparency surrounding potential judicial conflict of interest and that the Commissioner gave insufficient weight to the substantial time that had passed since the internal emails.

c. He argued that a blanket approach was taken and that more had been withheld than justified.

d. He said that the opinion should have been disclosed.

e. He argued that ‘by now’ any safe space argument is significantly weakened.

The Commissioner’s response – the second appeal

[59]The Commissioner relied on his decision notice.

[60]The Commissioner said that he was unable to go into detail on why the specific communications would truly inhibit frank discussions in the future without revealing the content of the withheld information. In any event, the threshold question under section 36 is not whether prejudice will or is likely to occur it is whether the opinion of the qualified person is reasonable.

[61]He said that the information was, at the material time, recent and therefore particularly sensitive. Having analysed the information and arguments presented to the qualified person, the Commissioner submitted that he was entitled to find that the opinion was reasonable. He confirmed that he was provided with the opinion and submissions.

[62]Having seen the information the Commissioner submitted that the public interest in disclosure would be limited. He argued that any limited public interest in disclosure would be outweighed by the public interest in protecting ministers’ access to unfiltered and frank advice about their outside interests and in protecting the overall scheme of ministers declaring their interests. Appropriate weight must be given to the opinion of the qualified person.

[63]In relation to liveness, the Commissioner noted that this was to be considered at the time of the response to the request.

[64]In relation to the argument that there was a blanket application of the exemptions, the Commissioner said that he was satisfied that the exemptions applied to all the withheld information.

[65]In relation to section 40(2), the Commissioner said that he understood that the exemption was applied only to the personal details of members of the public and junior civil servants. He said that the facts of this case the junior civil servants involved would have a reasonable expectation that their names and contact details would not be disclosed under FOIA. Such a disclosure would constitute a disproportionate and unwarranted level of interference with the rights and freedoms of the junior civil servants and members of the public named in the withheld information. He said that if there was a legitimate interest in disclosure, and that it was reasonably necessary to disclose the names and contact details of junior civil servants, this was outweighed by the legitimate interest in protecting the rights and freedoms of the junior civil servants. He said the same about members of the public.

The AGO’s response – the second appeal

[66]The AGO said that some of the information disclosed (and thereby some of the requested information which has been redacted) was contained in email chains predating the Article. Notwithstanding that these emails do not clearly fall within the scope of the request, the AGO has nonetheless treated them as doing so.

[67]The AGO said that in the course of the Commissioner’s investigation, the AGO recognised that the opinion obtained in June 2024 had not sufficiently clearly set whether the Solicitor General considered that disclosure of the requested information would, or instead would be likely to, lead to the identified prejudices. Accordingly, the AGO sought a further opinion in December 2024 from the new Solicitor General (the Hon Lucy Rigby KC MP) to clarify that issue.

[68]The AGO said that the basis for the engagement of section 36 was that officials should have the freedom to be able to react to specific media enquiries instinctively and frankly in suggesting how an enquiry to be handled, to draft responses to prepare advice for Ministers and to discuss wider communications handling around particular policies or decisions and not feel inhibited from giving full expression to their views. The AGO submitted that premature disclosure of such views would be likely to prejudice the frank and effective operation of officials and Government in responding to media enquiries and in developing appropriate responses.

[69]The AGO submitted that the nature of the assessment by the qualified person is necessarily a predictive one, not capable of ‘proof’. The AGO said that there was an overlap with the rationale in the first appeal.

[70]The AGO said that the Commissioner was right to accept that the opinion of the then Solicitor General that the integrity and effectiveness of handling of media commentary would be undermined by disclosure was reasonable.

[71]The AGO asserted that the request was made and answered in close temporal proximity to the application to set aside the Judge’s judgment and any potential right of appeal from it and the AGO does not accept that the issues was no longer live in July 2024.

[72]The AGO accepted that there was a public interest in transparency and that information that revealed deliberate or inadvertent wrongdoing on the part of a Minister or a judge or which revealed a conflict of interest might attract additional weight in the public interest balance. The AGO assured the appellant that the requested information contained no such material.

[73]The AGO submitted that the contents of the requested information concern second-order process matters and the information does not concern in any material way matters of greater public interest. The weight to be attached to their disclosure is not nearly so strong as the appellant suggests. The AGO submitted that the contents would not materially add to the public interest.

[74]In relation to section 40(2), the AGO submitted that the only personal data withheld was the personal data of those who were not senior civil servants and that it is neither fair nor necessary to disclose that data.

[75]Disclosure would contribute to transparency by showing how the declarations process operated in relation to the Attorney General’s interest in Singing for Syrians, and that the public interest may be said to be increased where an entry in the Published List has changed.

[76]Finally, the AGO submitted that, to the extent necessary, the public interests against disclosure under the limbs of section 36(2) may be aggregated in accordance with Department for Business and Trade v Information Commissioner & Montague, but accepted that such aggregation cannot extend to section 40(2) as an absolute exemption.

The appellant’s replies to the Commissioner’s response and the AGO’s response – the second appeal

[77]The appellant confirmed that he did not dispute the withholding of junior staff names or personal contact details.

[78]The appellant said that his concern is that entire passages of emails, documenting how the AGO managed credible conflict allegations involving the Attorney General and her husband remain hidden.

[79]He said that the facts that emerged at the permission to appeal hearing in the High Court case (set out under background facts above) create a reasonable perception of bias and involve serious questions of conflict at a high level, strongly triggering FOIA’s transparency principle.

[80]The appellant submitted that DWP v IC [2026] UKUT requires the qualified person’s opinion to be rooted in evidence. He said that no specific demonstration shows that releasing routine press-office communications would have a chilling effect.

[81]The appellant submitted that the issue was no longer live on 5 July 2024 because the Times story was four months old, the Attorney General had left her post and no rehearing was listed in the High Court. He submitted that ‘safe space’ weight was therefore minimal.

[82]The appellant said that the Commissioner underestimated the constitutional significance of a potential conflict at the top of Government legal advice.

[83]The appellant argued that large factual or logistical parts appear to have been withheld alongside any frank/Advisery content, whereas a line-by-line approach is required.

Legal framework

[84]Section 36 provides in material part that:

“36 Prejudice to effective conduct of public affairs (1) This section applies to— (a) information which is held by a government department … and is not exempt information by virtue of section 35, and … (2) Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act… (b) would, or would be likely to, inhibit— (i) the free and frank provision of advice, or (ii) the free and frank exchange of views for the purposes of deliberation, or (c) would otherwise prejudice, or would be likely to prejudice, the effective conduct of public affairs.”

[85]It is for the tribunal to assess whether the qualified person’s (QP’s) opinion that any of the listed prejudices/inhibitions would or would be likely to occur is reasonable, but that opinion ought to be afforded a measure of respect: Information Commissioner v Malnick

[2018] UKUT 72 (AAC)

, [2018] AACR 29 at paragraphs 28-29 and 47.

[86]In relation to ‘chilling effect’ arguments, the tribunal is assisted by the following paragraphs from the Upper Tribunal decision in Davies v IC and The Cabinet Office

[2019] UKUT 185 (AAC)

“25. There is a substantial body of case law which establishes that assertions of a “chilling effect” on provision of advice, exchange of views or effective conduct of public affairs are to be treated with some caution. In Department for Education and Skills v Information Commissioner and Evening Standard EA/2006/0006, the First-tier Tribunal commented at [75(vii)] as follows: “In judging the likely consequences of disclosure on officials’ future conduct, we are entitled to expect of them the courage and independence that has been the hallmark of our civil servants since the Northcote-Trevelyan reforms. These are highly-educated and politically sophisticated public servants who well understand the importance of their impartial role as counsellors to ministers of conflicting convictions. The most senior officials are frequently identified before select committees, putting forward their department’s position, whether or not it is their own.” 26. Although not binding on us, this is an observation of obvious common sense with which we agree. A three judge panel of the Upper Tribunal expressed a similar view in DEFRA v Information Commissioner and Badger Trust [2014] UKUT 526 (AC) at [75], when concluding that it was not satisfied that disclosure would inhibit important discussions at a senior level: “75. We are not persuaded that persons of the calibre required to add value to decision making of the type involved in this case by having robust discussions would be inhibited by the prospect of disclosure when the public interest balance came down in favour of it... 76. ...They and other organisations engage with, or must be assumed to have engaged with, public authorities in the full knowledge that Parliament has passed the FOIA and the Secretary of State has made the EIR. Participants in such boards cannot expect to be able to bend the rules.” 27. In Department of Health v Information Commissioner and Lewis [2015] UKUT 0159 (AAC), [2017] AACR 30 Charles J discussed the correct approach where a government department asserts that disclosure of information would have a “chilling” effect or be detrimental to the “safe space” within which policy formulation takes place, as to which he said: “27. ...The lack of a right guaranteeing non-disclosure of information ...means that that information is at risk of disclosure in the overall public interest ... As soon as this qualification is factored into the candour argument (or the relevant parts of the safe space or chilling effect arguments), it is immediately apparent that it highlights a weakness in it. This is because the argument cannot be founded on an expectation that the relevant communications will not be so disclosed. It follows that ... a person taking part in the discussions will appreciate that the greater the public interest in the disclosure of confidential, candid and frank exchanges, the more likely it is that they will be disclosed... 28. ...any properly informed person will know that information held by a public authority is at risk of disclosure in the public interest. 29. ... In my view, evidence or reasoning in support of the safe space or chilling effect argument in respect of a FOIA request that does not address in a properly reasoned, balanced and objective way: i) this weakness, ... is flawed.” 28. Charles J discussed the correct approach to addressing the competing public interests in disclosure of information where section 35 of FOIA (information relating to formulation of government policy, etc.) is engaged. Applying the decision in APPGER at [74] – [76] and [146] – [152], when assessing the competing public interests under FOIA the correct approach includes identifying the actual harm or prejudice which weighs against disclosure. This requires an appropriately detailed identification, proof, explanation and examination of the likely harm or prejudice. 29. Section 35 of FOIA, with which the Lewis case was concerned, does not contain the threshold provision of the qualified person’s opinion, but these observations by Charles J are concerned with the approach to deciding whether disclosure is likely to have a chilling effect and we consider that they are also relevant to the approach to an assessment by the qualified person of a likely chilling effect under section 36(2) and so to the question whether that opinion is a reasonable one. 30. Charles J said at [69] that the First-tier Tribunal’s decision should include matters such as identification of the relevant facts, and consideration of “the adequacy of the evidence base for the arguments founding expressions of opinion”

. He took into account (see [68]) that the assessment must have regard to the expertise of the relevant witnesses or authors of reports, much as the qualified person’s opinion is to be afforded a measure of respect given their seniority and the fact that they will be well placed to make the judgment under section 36(2) – as to which see Malnick at [29]. In our judgment Charles J’s approach in Lewis applies equally to an assessment of the reasonableness of the qualified person’s opinion as long as it is recognised that a) the qualified person is particularly well placed to make the assessment in question, and b) under section 36 the tribunal’s task is to decide whether that person’s opinion is substantively reasonable rather than to decide for itself whether the asserted prejudice is likely to occur. Mr Lockley agreed that the considerations identified by Charles J were relevant. We acknowledge that the application of this guidance will depend on the particular factual context and the particular factual context of the Lewis case, but that does not detract from the value of the approach identified there.” “In judging the likely consequences of disclosure on officials’ future conduct, we are entitled to expect of them the courage and independence that has been the hallmark of our civil servants since the Northcote-Trevelyan reforms. These are highly-educated and politically sophisticated public servants who well understand the importance of their impartial role as counsellors to ministers of conflicting convictions. The most senior officials are frequently identified before select committees, putting forward their department’s position, whether or not it is their own.” “75. We are not persuaded that persons of the calibre required to add value to decision making of the type involved in this case by having robust discussions would be inhibited by the prospect of disclosure when the public interest balance came down in favour of it... 76. ...They and other organisations engage with, or must be assumed to have engaged with, public authorities in the full knowledge that Parliament has passed the FOIA and the Secretary of State has made the EIR. Participants in such boards cannot expect to be able to bend the rules.” “27. ...The lack of a right guaranteeing non-disclosure of information ...means that that information is at risk of disclosure in the overall public interest ... As soon as this qualification is factored into the candour argument (or the relevant parts of the safe space or chilling effect arguments), it is immediately apparent that it highlights a weakness in it. This is because the argument cannot be founded on an expectation that the relevant communications will not be so disclosed. It follows that ... a person taking part in the discussions will appreciate that the greater the public interest in the disclosure of confidential, candid and frank exchanges, the more likely it is that they will be disclosed... 28. ...any properly informed person will know that information held by a public authority is at risk of disclosure in the public interest. 29. ... In my view, evidence or reasoning in support of the safe space or chilling effect argument in respect of a FOIA request that does not address in a properly reasoned, balanced and objective way: i) this weakness, ... is flawed.”

[87]It is not an absolute exemption and therefore the public interest balancing test applies.

The role of the tribunal

[88]The tribunal’s remit is governed by section 58 FOIA. This requires the tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved exercising discretion, whether he should have exercised it differently. The tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.

Evidence

[89]We had before us:a. An open bundle in each appeal

b. A joint closed bundle for both appeals

[90]The open bundles included witness statements from Simon Madden and an open version of a witness statement from Michael Padfield. An unredacted version of the statement from Michael Padfield was in the closed bundle.

[91]In accordance with our duty under Browning we considered whether it was necessary to withhold the information in the closed bundle from the appellant. We were satisfied that it was necessary to withhold the information from the appellant in order to avoid defeating the purposes of the proceedings. A gist was provided to the appellant and we satisfied that no more than is necessary was withheld from the appellant.

Submissions

[92]We read and took account of open written submissions from the appellant and closed and open submissions from the AGO. We agree with the AGO that the closed submissions cannot sensibly be gisted, beyond saying that they focus on identifying aspects of the withheld information to which the open arguments relate.

[93]The written submissions are not summarised in this decision but addressed where appropriate within our discussions and conclusions below.

Issues

[94]The issues for the tribunal to determine are:a. In the reasonable opinion of a qualified person, would disclosure of the information, or would it be likely to, inhibit the free and frank provision of advice, or otherwise to prejudice, the effective conduct of public affairs?

b. Does the public interest in maintaining any section 36 exemptions that are engaged outweigh the public interest in disclosure? Discussion and conclusions The evidence from Simon Madden and Michael Padfield

Discussion and conclusions

[95]We find that as the Director of Propriety and Ethics since August 2022 Simon Madden is particularly well placed to give evidence on the role of Independent Adviser and the process for providing advice on minister’s interests. He sets out his role at [2]:

“As Director of Propriety and Ethics, I am responsible for supporting the Prime Minister and the Cabinet Secretary in upholding the highest standards of propriety, integrity and good governance within His Majesty's Government. I am the official with responsibility for the policy relating to ministers' interests and the role of the Independent Adviser on Ministerial Standards, previously known as the Independent Adviser on Ministers' Interests ("the Independent Adviser") (explained below). I am also accountable for the small team of civil servants who support the Independent Adviser to perform their role, as set out in the role's Terms of Reference (also explained below) including the operation of the ministers' interests process. This team comprises Cabinet Office employees and is led by a senior civil servant, who reports to me.”

[96]We have accorded significant weight to the evidence of Simon Madden. His witness statement was detailed and balanced, providing a clear and coherent explanation of the asserted inhibition/prejudice. We note in particular that at [35] he explicitly states that he does not suggest that ministers would take their duties to report interests less seriously. This balanced approach gives us confidence that where he does suggest adverse effects in his disclosure he has carefully considered, in the light of his experience and expertise, whether those effects would be likely to arise as a consequence of disclosure.

[97]We placed similar weight on the evidence from Michael Padfield. In his role as Director and Deputy Head of Office he manages the AGO and provides legal advice and support to the Law Officers in their ministerial roles. He is particularly well placed to give evidence on the AGO’S role in the Independent Adviser process and on internal correspondence in the scope of the second appeal and the operation of the AGO press office. His evidence was similarly balanced and well-reasoned. In particular, he acknowledges in relation to both appeals at paragraphs [12] and [19] that officials are aware of FOIA and the possibility of disclosure and goes on to explain why, in the light of that, he considers that inhibition/prejudice would be caused by disclosure.

[98]Taken together, the witness statements contained detailed identification, explanation and examination of the likely harm or prejudice and acknowledged and properly addressed the ‘weakness’ in the chilling effect argument identified by Charles J in Lewis.

[99]For all those reasons, we accept and we have placed significant weight on the evidence of Simon Madden and Michael Padfield. Where our discussion and conclusions include findings of fact these findings are made on the balance of probabilities on the basis of evidence in those witness statements and/or in the bundle.

Observations on the ‘chilling effect’

[100]In assessing the substantive reasonableness of the qualified person’s opinion in both appeals, we bear in mind that a degree of circumspection about reliance on a ‘chilling effect’ is justified where there is simply an assertion that that is what will occur. We bear in mind that civil servants can be expected to act with courage and independence.

[101]This does not mean that the threshold can never be discharged (particularly given the low degree of likelihood required), nor that it cannot properly be discharged on the basis of evidence setting out the basis of the view that such a chilling effect will occur (see para 138 DfT v ICO and Alexander

[2021] UKUT 327 (AAC)

[102]Further we note that the explicit purpose of s 36(2)(b)(i) and (ii) is to protect the free and frank provision of advice and the free and frank exchange of views for the purpose of deliberations. Its purpose is to avoid a ‘chilling effect’ on that free and frank exchange of views or provision of advice.

The first appeal

[103]It is helpful to note how Mr Knight puts the ‘essential basis’ on which all three exemptions are relied upon by the AGO in the open written submissions at paragraph 63:

“The information concerns the provision by the-then Attorney to the Independent Adviser of information concerning her potentially relevant interests (including via her AGO officials), the position of AGO officials in relation to those interests, and the position of the Independent Adviser and his officials in relation to those interests. That process is inherently confidential, as all of: (i) the Ministerial Code; (ii) the Terms of Reference; and (iii) the Published Lists themselves; explain in explicit terms to the Ministers participating in it (as set out above).”

[104]Mr Knight then explains the reason why the AGO says that confidentiality is important:

“64. Confidentiality is essential to the effective functioning of the Ministerial Interests regime, for both Ministers and the officials who support them, in their Department or on behalf of the Independent Adviser: see W/S Padfield, §§10-11 [OB1/134] and W/S Madden, §§2126, 31-33 [OB1/127-130]. In particular, confidentiality: (1) Provides reassurance and encouragement to Ministers to ensure that the fullest possible disclosure is made so that appropriate advice can be given; (2) Respects the judgments made by the Independent Adviser as to which interests are relevant, or potentially, to the Minister’s role such that the interests of transparency require their inclusion in the Published List; (3) Recognises that those interests may change over time; 17 (4) Protects the interests of family members, in relation to which the Minister may also be required to make declarations; and (5) Strikes an appropriate balance between ensuring transparency in support of the standards set out in the Ministerial Code through the Published List, at the decision of the Independent Adviser, whilst protecting the details of discussions and advice in connection with that process.”

Is there an opinion under section 36?

[105]The AGO relies on the opinion of the qualified person in relation to section 36(2)(b)(i) (disclosure would be likely to inhibit the free and frank provision of advice) and section 36(2)(c) (disclosure would otherwise be likely to prejudice the effective conduct of public affairs).

[106]The qualified person, the Solicitor General, was provided with a copy of the information in scope, the wording of the request, and a submission.

[107]In relation to the engagement of section 36 the submission said:

“… We consider that the two email chains engage the exemptions in section 36(2)(b)(i) and (c) of the FOIA, which covers information the disclosure of which would, or would likely, inhibit the free and frank provision of advice, or otherwise prejudice the effective conduct of public affairs, respectively. 13. The Ministerial Code and the Terms of Reference for the IA are clear that personal information disclosed by Ministers to advisers is confidential. 14. It is our view that disclosure of such confidential information would have a chilling effect on ministers seeking free and frank advice on their interests. Ministers may be less inclined to discuss their interests in full and seek appropriate advice in fear that such conversations will be released into the public domain. Similarly, the disclosure of individual ministers' conversations would harm the integrity of the process as a whole a process critical to the effective conduct of public affairs and public confidence in democracy. 15. We consider that these factors against disclosure are significant and outweigh the general interest in favour of transparency and accountability via disclosure. 16. It is nevertheless open to you to consider the counter arguments as to why section 36 may not be engaged. The main consideration is that disclosure of the email chains would not inhibit ministers from seeking free and frank advice on the basis that they could be redacted and only contain material information regarding the removal of the Attorney’s interest in Singing for Syrians. You are also open to consider that disclosure of an individual conversation about a routine update of ministerial interests may not have a prejudicial effect on the overall effectiveness of the process.”

[108]In paragraph 17 the submission asks the relevant question as follows:

“As the qualified person, do you consider the email chains in Annex 1 to be subject to the exemptions set out in sections 36(2)(b)(i) and/or (c) of the FOIA? Specifically, do you consider that the disclosure of this information would, or would likely, inhibit the free and frank provision of advice, and/or otherwise prejudice the effective conduct of public affairs?”

[109]The Solicitor General at the time, Robert Courts KC, gave his opinion on 25 February 2024 as follows: “Para 17 – I do consider that the exemptions are engaged as officials assert’.

[110]Although the opinion does not say whether the Solicitor General’s opinion is that disclosure ‘would’ or ‘would be likely to’ cause the relevant inhibition or prejudice we accept that the Solicitor General formed the opinion at least at the lower level of ’would be likely to’.

[111]On that basis we accept that the Solicitor General formed the opinion that the information would be likely to cause the relevant inhibition or prejudice for the reasons set out in the submission.

Is that opinion reasonable?

[112]In considering the reasonableness of the opinion of the qualified person, we take account of the seniority of the Solicitor General and the fact that he is well-placed to make the assessment. We recognise that Parliament has chosen to confer responsibility on the qualified person for making the primary (albeit initial) judgment as to inhibition and that the opinion of the qualified person should be afforded a measure of respect.

[113]The submission to the qualified person set out a reasoned basis for the opinion. It justifies the assertion of a chilling effect by reference to the clear statements in the Ministerial Code and the Terms of Reference for the Independent Adviser that personal information disclosed by Ministers to advisers is confidential. We note that the submission is measured: it does not assert that there would be a chilling effect in that Ministers would or would be likely to be unwilling to disclose their interests. The asserted chilling effect is that Ministers may be less inclined to discuss their interests in full and to seek appropriate advice.

[114]The submission does not just rely on the chilling effect. It also highlights harm to the integrity of the process as a whole and explains that the process is ‘critical to the effective conduct of public affairs and public confidence in democracy’.

[115]Finally, the submission recognises the counter arguments in relation to both harms in paragraph 16.

[116]The arguments in the submission have been fleshed out before the tribunal, but the essence of those arguments was before the Solicitor General. He was provided with the withheld information and was well placed to make the assessment in that light of his understanding of the Independent Adviser process. On that basis, we accept that the submissions provide a properly reasoned basis for concluding that disclosure would be likely to inhibit the free and frank provision of advice, and/or otherwise prejudice the effective conduct of public affairs. In the light of that, and having regard to our conclusions below, we accept that the opinion was reasonable and sections 36(2)(b)(i) and section 36(2)(c) are engaged.

Public interest

[117]In assessing the public interest balance, we accord appropriate weight to the opinion of the qualified person. However, for the purposes of the public interest balance we have also formed our own view on the risk of inhibition/prejudice on the basis of the evidence and submissions before us.

[118]The information in question consists of an exchange of emails between the Independent Adviser's Secretariat and the then-Attorney General's Private Office in relation to her Declaration of Interests form and updating the items in her section of the published List of Ministers Interests.

[119]The effective operation of the Ministerial Code and the minister’s interests process is essential for upholding the integrity of the government. That effective operation depends on a delicate balance between confidentiality and transparency.

[120]It is a minister’s personal responsibility, under the Code, to ensure that no conflict arises between their public duties and their private interests. When a minister is appointed, they are required to provide their permanent secretary or accounting officer and the Independent Adviser with a list of interests which might be thought to give rise to a conflict with their public duties. To ensure a comprehensive and consistent approach, all ministers receive the same Declaration of Interests form which guides them to disclose, in confidence, a wide variety of information including details of financial interests (including tax affairs), directorships, investment properties, public or other appointments, links with charities, and any relevant interests of their spouse, partner or close family members.

[121]This information is then reviewed by each minister's permanent secretary or accounting officer, who brings an in-depth understanding of the minister's portfolio and responsibilities, and also the broader work of the department, and provides advice on any action which should be taken as a result of the declaration. As set out in their Terms of Reference, the Independent Adviser's role is to review the information provided by ministers and any advice from the permanent secretary or accounting officer and, where needed, to provide advice in confidence to those ministers (including the Prime Minister) on any actions that should be taken in order to uphold the standards of the Code. Careful consideration is given to ensuring there is an appropriate balance between the public interest in transparency, and the public interest in ministers' interests being comprehensively declared, rigorously assessed and effectively managed via measures put in place to mitigate or remove conflicts of interest, thereby supporting the integrity of the Government.

[122]In recognition of the importance of that process, considerable information about minister’s interests and the process by which they have been managed is placed in the public domain and updated on a regular basis via the List of Ministers’ Interests and the annual report of the Independent Adviser on Ministerial Standards. Where there have been investigations, additional information is published. Independent Advisers have discussed their role and the ministers' interests process with various parliamentary committees, the transcripts of which are publicly available.

[123]In contrast, an expectation of confidentiality is an integral part of the Independent Adviser process in order to ensure a safe space for ministers to feel confident about making very full declarations of personal information.

[124]For that reason, the Code and the terms of reference of the Independent Adviser contain the express assurances of confidentiality set out in background facts above. However, there is a balance between those assurances of confidentiality and the fact that part of the information they provide will be published in the List of Ministers' Interests.

[125]The Independent Adviser shares with ministers the information he proposes to publish in the quarterly List of Ministers' Interests ahead of publication. This may involve some back and forth discussion. The level of detail declared can be substantial but the published information is filtered to avoid unnecessarily exposing irrelevant personal information.

[126]Ministers cannot be expected to take their duties to report interests less seriously as a result of disclosure in this appeal. Further, officials and ministers are already aware that there is always some risk of disclosure under FOIA where the public interest weighs in favour of disclosure. Despite this, we accept that the particular nature of this process depends on the expectation that, in general the confidentiality of the process will be honoured.

[127]It is important that the fullest level of detail is declared (referred to by Mr Madden as ‘over disclosure’) because it allows the minister, the Independent Adviser and the permanent secretary to understand the precise nature of the role; assess the degree of actual or perceived conflict that might arise. A more circumspect approach to full disclosure of detail is likely to lead to a less efficient and more burdensome process, which takes longer and is more difficult to manage. Full and detailed disclosure in a ‘safe space’, albeit with no absolute guarantee of confidentiality, enables officials and the Independent Adviser to give effective advice and ensures that the system operates effectively and efficiently.

[128]In our view the likelihood of inhibition and prejudice does not depend on the sensitivity or the frankness of the content of the emails in question. It arises from the fact that emails were exchanged as part of the process of disclosure of the Attorney General's private interests, which were provided in confidence in order to seek advice from the Independent Adviser; as well as that advice, which was provided in confidence.

[129]At the relevant date, late February 2024, the Published List had already been made public and the Minister remained in office. The likelihood of inhibition or prejudice (and the strength of the public interest) is not diminished by the fact that the relevant Published List had been made public by the relevant date and so, to that extent, the advice/discussions no longer related to a ‘live’ issue. The risk is that the process more generally would be undermined and that inhibition would arise in future, not that the operation of the process on this particular occasion would be impacted.

[130]On that basis, our view mirrors the view of the qualified person in that we find that disclosure of the correspondence would be likely to inhibit the free and frank provision of advice and otherwise prejudice the effective conduct of public affairs.

[131]In our view, there is an extremely strong public interest in not undermining the integrity of this particular process. It is a process that already has an inbuilt and carefully considered balance between confidentiality and disclosure to the public. It is a process which is critical to the effective conduct of public affairs and public confidence in democracy and which is essential for upholding the integrity of the government. In our view there is accordingly an extremely strong public interest in maintaining the exemption.

[132]Having viewed the information in scope of the request that is being withheld we are satisfied that the reasons above apply to the entirety of that information for reasons that are explained in a short closed annex.

[133]Despite the extremely strong public interest in maintaining the exemption, there is no guarantee of confidentiality and disclosure would be appropriate where there was a stronger public interest in disclosure of the particular information requested. This is not a place to hide impropriety. That would outweigh the public interest in maintaining the exemption.

[134]In this case, having reviewed the withheld information, and taking account of the appellant’s arguments, we are not persuaded that the public interest in disclosure of this particular information outweighs the extremely strong public interest in maintaining the exemption.

[135]We accept that there is a strong public interest in transparency and accountability where serious concerns arise about conflicts of interest at ministerial level and in the judiciary.

[136]The relevant litigation took place in 2023 with judgment handed down in July 2023. At that time the most recent Published List was the April 2023 list, in which the entry for the Attorney General contained, under the heading “Charities and non-public organisations” the following: “Founder, Singing for Syrians (part of the Hands Up Foundation)”.

[137]The April 2023 Published List is the relevant list for the purposes of determining whether or not a conflict existed at the date of the litigation. It remains the relevant list today, and it remained the relevant list when the December 2023 Published List was made public. That April 2023 Published List remained public to the same extent and on the same web page as the December 2023 Published List. The charity was not removed from the April 2023 Published List. It is not included in the December 2023 Published List, but that list is not relevant to the issue of whether any conflict existed at the time of the litigation.

[138]The appellant asserts that ‘The timing strongly suggests that the removal was a direct response to the conflict being exposed’. He bases this on his assertion that ‘The charity was removed from the Attorney General’s ministerial list occurred [sic] just weeks after the conflict was raised in court proceeding’

[139]We do not accept that the timing strongly suggests that the removal was a direct response to the conflict being exposed. That is not a logical inference for the following reasons:a. The relevant list, as explained above, remained public and included the reference to the charity. The charity was not removed from the relevant list.

b. Once the alleged conflict had been exposed, any subsequent omission from a later Published List would not conceal or mitigate it. The application for recusal had already been made. The relevant list, the Published List of April 2023, was already before the Court.

c. The December 2023 Published List contains the relevant interests of all ministers’ current at the date of publication. The process, as described by the AGO’s witnesses requires careful discussion with the relevant ministers. It seems inherently unlikely that the Independent Adviser could or would prepare and publish a new list with a few weeks’ notice at the insistence of a particular minister following a particular conflict being raised in court proceedings.

[140]For those reasons we do not accept that any inference of wrongdoing can be drawn from the timing of the publication of the December 2023 Published List. We agree with the submissions of Mr Knight that the implication of any connection lacks ‘any common sense’ because removal would plainly have no effect on the allegations of bias made against the Judge.

[141]There is nothing to suggest that the reason why the Published List in December 2023 does not contain any reference to Singing for Syrians is anything other than the usual reason i.e. that the list only includes ‘relevant interests’ at the date of publication. There is nothing that calls for an explanation, although an explanation was provided in the response to the request, and therefore both to Mr Lakey and the public, namely that the December 2023 Published List did not include a reference to Singing for Syrians because the minister no longer held any formal role in connection with it.

[142]For those reasons, whilst we accept that there is a clear public interest in transparency and accountability where serious concerns arise about conflicts of interest at ministerial level and in the judiciary, we do not accept that disclosure of the requested communications serves that particular interest.

[143]We accept that there is a public interest in transparency in holding Government to account for the approach to Ministerial Interests and compliance with the Ministerial Code and we find that disclosure of the requested information would contribute to that transparency to some extent, in showing how the declarations process operated in relation to the Attorney’s interest in Singing for Syrians. Further, we find that the public interest in transparency is increased where an interest appears in an earlier Published List and is not included in a later Published List. Having viewed the withheld information we find that the increase in the public interest in transparency as a result of the specific content of the information is minimal.

[144]Our conclusion is the public interest balance favours maintaining the exemption.

Conclusion on the first appeal

[145]The AGO was entitled to withhold the requested information under sections 36(2)(b)(i) and section 36(2)(c). We do not need to consider the application of section 41. The second appeal

[146]This withheld information consists of information redacted from five email chains.

Is there an opinion under section 36?

[147]The AGO originally sought an opinion from Robert Courts KC MP, Solicitor General in June 2024. The AGO no longer relies on that opinion because it had not sufficiently clearly set out whether the Solicitor General considered that disclosure would or would be likely to lead to the identified prejudices. The AGO sought a further opinion in December 2024 from the Solicitor General who was, at that date, the Hon Lucy Rigby KC MP.

[148]We are concerned with assessing whether the opinion is substantively reasonable rather than with the process by which the opinion was obtained. In assessing the substantive reasonableness of the second opinion, the existence of an earlier opinion is not material.

[149]In December 2024 the Solicitor General, the qualified person, was provided with a copy of the information in scope, the wording of the request, and a submission.

[150]In relation to the engagement of section 36 the submission said:

“15. It is our view that disclosure of this information would have a chilling effect on government officials both being able to freely and frankly provide advice to Ministers and exchange views between each other for the purposes of considering how to respond to media queries. Officials have a reasonable expectation that these discussions and their ability to put forward their views and recommendations will remain confidential. Otherwise, officials may be less inclined to discuss the risks openly amongst each other or to provide frank advice to Ministers when establishing and agreeing a response to media queries, in fear that such conversations will be released into the public domain. That could lead to less helpful, formulaic, or defensive press lines that avoid engaging with the substance for fear of the underlying deliberations being made public. 16. Additionally, we consider that there are good arguments that the underlying processes represented by the information in scope would prejudice the effective conduct of public affairs more broadly. Disclosure of these individual conversations would set a precedent harmful to the wider process of responding to media enquiries across government and could undermine the integrity of the process. A safe space is needed for these cross-government conversations to develop, to ensure a coherent and consistent approach to such responses. 17. It is nevertheless open to you to consider the counterarguments as to why section 36 may not be engaged. For example, it is open to you to consider that disclosure of these individual conversations about a proposed press response – including lines ultimately agreed by No. 10 – may not undermine the overall effectiveness of the process of responding to media queries.”

[151]In paragraph 18 the submission asks the relevant question as follows:

“As the qualified person, do you consider the email chains in Annex 2 to be subject to the exemptions set out in sections 36(2)(b)(i), 36 (2)(b)(ii) and 36(2)(c) of the FOIA? Specifically: do you consider that the disclosure of this information would: inhibit the free and frank provision of advice and/or) inhibit the free and exchange of views for the purposes of deliberation; and/or would otherwise prejudice the effective conduct of public affairs?”

[152]The Solicitor General at the time, Lucy Rigby KC, gave her opinion by completing a pro forma and checking the boxes to indicate as that it was here opinion that disclosure would inhibit the free and frank provision of advice (section 36(20(b)(i) and/or inhibit the free and frank exchange of views for the purposes of deliberation (section 36(2)(b)(ii) and/or other prejudice the effective conduct of public affairs (section 36(20(c).

[153]On that basis we accept that the Solicitor General formed the opinion that the information would be likely to cause the relevant inhibition or prejudice for the reasons set out in the submission.

Is the opinion reasonable?

[154]In considering the reasonableness of the opinion of the qualified person, we take account of the seniority of the Solicitor General as set out above.

[155]The submission to the qualified person set out the explanation of the inhibition in more generic terms than the submission in relation to the first appeal. This is fleshed out in the statement of Michael Padfield which contains detail that the Solicitor General can be expected to have been aware of. The question for us is whether that was an opinion that a reasonable person could have reached. We note that the AGO did not withhold the entirety of the correspondence and took a measured content-based approach as was appropriate for the claimed prejudice/inhibition.

[156]We take account of(i) the type of communications

(ii) the nature of the discussions, in terms of formality, purpose and subject matter and

(iii) the fast moving context and iterative nature of the discussions. It is important, in the light of all these factors, to have a safe space in these particular types of communications to explore ideas and approaches to press releases/engagement with the press without having to focus on what information might be deemed acceptable in the future at the point at which those emails became publicly available.

[157]That does not mean that these types of communications can never be disclosed nor that there is any kind of blanket exemption. In terms of a chilling effect, in our view, all the authors of the documents which form part of the withheld information, would have been aware that there was no absolute guarantee of confidentiality, because of FOIA, and the possibility that there might be a public interest in disclosure that outweighs the public interest in withholding the information. Nonetheless, we find that there would have been a generalised common assumption of confidentiality given(i) the type of communications

(ii) the nature of the discussions, in terms of formality, purpose and subject matter and

(iii) the fast moving context and iterative nature of the discussions.

[158]Taking into account our conclusions below, we accept that a reasonable person could have concluded that disclosing the withheld information would cause the relevant inhibition or prejudice.

Public interest

[159]In assessing the public interest balance, we accord appropriate weight to the opinion of the qualified person. However, for the purposes of the public interest balance we have also formed our own view on the risk of inhibition/prejudice on the basis of the evidence and submissions before us.

[160]The information in question consists of an exchange of emails containing preparatory discussions on press lines to be disseminated to the Press Office and on engagement with the press.

[161]The relevant date for assessing the public interest balance is July 2024. At that date, the appellant had been refused permission to appeal, but the correspondence in question was only three months old and it related to a Minister who only left office on 5 July 2024. We accept that the public interest in maintaining the exemption will wane over time and that there would have been a greater risk if the relevant date was while proceedings were ongoing. However, disclosure at the relevant date remained premature. We find that there remained a significant risk of prejudice/inhibition if the correspondence, which remained relatively recent, was disclosed at the relevant date.

[162]We take account of the matters set out in paragraph 156 above and we note that the withheld correspondence contains candid and frank advice from officials in relation to tactics for engaging with the media.

[163]The extent of the risk of inhibition/prejudice is reduced somewhat by the passage of time since the press article and the conclusion of the litigation and by the fact that the Attorney General was, albeit only just, no longer in office.

[164]Our view is that disclosure of the correspondence would be likely to (rather than would) inhibit the free and frank provision of advice and exchange of views for the purposes of deliberation and otherwise prejudice the effective conduct of public affairs.

[165]We accept that officials should have the freedom to be able to react to specific media enquiries instinctively and frankly in suggesting how an enquiry should be handled or responded to, to draft responses, to prepare advice for Ministers and to discuss wider communications handling within Government around particular policies or decisions and not feel inhibited from giving full expression to their views.

[166]On that basis, and in the light of all the matters set out above, there is a clear public interest in maintaining the exemption.

[167]Having viewed the information in scope of the request that is being withheld we are satisfied that the reasons above apply to all the redacted sections of the correspondence that have been withheld under section 36.

[168]In the light of the content of the withheld information, and taking account of the appellant’s arguments we are not persuaded that the public interest in disclosure of this particular information outweighs the clear public interest in maintaining the exemption.

[169]There is, as we have found above, a strong public interest in transparency and accountability where serious concerns arise about conflicts of interest at ministerial level and in the judiciary.

[170]For the reasons set out in the closed annex, that content of the withheld information would not materially add to that public interest and would contribute nothing meaningful or substantive to any public interest debate. We accept that there is a general public interest in transparency in relation to the way that the AGO handles media issues in relation to an article in the press of this nature and we find that disclosure of the requested information would serve that public interest. Conclusion on

The second appeal

[171]On that basis we conclude that there is a moderate public interest in disclosure. Balanced against the clear public interest in maintaining the exemption, our conclusion is the public interest balance favours maintaining the exemption.

Other matters

[172]The appellant is not entitled to any information that is not in scope of the request and he has confirmed that he does not dispute the withholding of the personal data of those who were junior civil servants. The AGO has also withheld the contact details of senior civil servants. Having viewed the information we are satisfied that the AGO has correctly identified the out of scope information and that the redactions under section 40(2) are properly limited as just set out. Signed Sophie Buckley Date: 19 May 2026 Judge of the First-tier Tribunal