Constitutional Law in the Information Tribunal
Information Law, Public Law and Judicial Review
When we think of constitutional law it tends to be in the context of the vaulting argument in the Supreme Court (or at least the High Court’s vaulting atrium ceiling), occasionally live streamed by the BBC. Rarely, if ever, do we think of the First Tier Tribunal. Yet the Information Tribunal has given a decision of substantial constitutional important by making a finding of fact that the Executive is able to, in practice, force changes in domestic law through agreeing international treaties. This decision is of particular relevance as the UK braces itself for the consequences of breaching international law in the Internal Markets Bill 2019-2021.
The case concerned a request by the investigative journalist, Brendan Montague (supported by Global Justice Now), for information relating to the UK’s trade talks with other states. As a result of leaving the EU the UK will lose access to all of the trade and investment agreements to which the EU is a party. Under Article 207 of the Treaty on the Functioning of the European Union (“TFEU”), the UK was not permitted to conduct its own trade negotiations until the expiry of the Article 50 period (ultimately in January 2020). The UK sought to square this circle by holding “trade working groups” to discuss the prospect of negotiations. As several witnesses told the Tribunal, these were negotiations in all but name.
Montague sought the (1) dates and (2) agendas for meetings of the trade working groups, (3) schedules of future meetings, (4) plans for future groups, (5) minutes, and (6) attendees. The Secretary of State for International Trade complied in part with (6) but refused (1)-(5) relying on, inter alia, the exception at section 27 of the Freedom of Information Act (prejudice to international relations). While the case was ongoing ministers dismissed concerns from civil society groups that future trade agreements would open the door to further privatisation of the NHS and reduced food safety and animal welfare standards (such as by permitting the import of chlorine washed chicken), saying these subjects were “not on the table”. Documents which came to light in the course of the case revealed that, in fact, these subjects were discussed at the US-UK working group.
The Tribunal found for the Appellant in respect of four out of the five disputed classes of information (1-4).
While Robert Alty, Director General at the Department for International Trade, admitted under cross examination that he could not name any instance in which a disclosure of the kind sought had prejudiced international relations, the most important point in the decision is found in the Tribunal’s consideration of the public interest. The Tribunal found that:
“… we are quite convinced that Dr de Mars is right when she says that, regardless of the strict legal position, in practice once a free trade agreement has been finalised with a foreign state Parliament and the government are likely to follow it and the law of the UK is likely to be amended accordingly.”
This is highly significant because trade and investment agreements can be ratified without a vote in parliament (see Part II of the Constitutional Reform and Governance Act 2010). This means that an executive which agrees a trade treaty with another state requiring substantial changes to domestic law then ratifies it without a vote in parliament will be able to exert substantial pressure on the legislature to pass the implementing legislation. This runs contrary to the common understanding of the constitution (and presumption when interpreting legislation), that parliament makes a free choice as to whether to make law. While this state of affairs has existed for a long time, this is the first time that a court or tribunal has acknowledged the reality of the situation.
This finding of fact has substantial constitutional significance. It raises questions as to whether parliament is genuinely “sovereign” and the extent to which scrutiny must be applied to international negotiations. Given the power that, the tribunal has now acknowledged, the executive is able to wield, it will likely also be relevant to all future FOI appeals on section 27.
Sam Fowles acted for Brendan Montague, instructed by Leigh Day.
More details about the Tribunal’s decision can be found here.