The Upper Tribunal has finally handed down its judgment in All Party Parliamentary Group on Extraordinary Rendition v IC & Foreign and Commonwealth Office  UKUT 560 (AAC). It is a judgment of Charles and Burnett JJ and Judge Wikeley. The appeal was from an FTT judgment which is analysed in detail by Rachel Kamm here. That post also contains the background to the case. In essence, the request was made by the APPGER for information relating to the participation of the UK in the practice of extraordinary rendition. The judgment is long, and will be blogged on in more detail in due course. But in brief, there were five broad grounds of appeal:
1) That the FTT erred in its approach to Article 10 ECHR;
2) That the FTT erred in its construction of section 23(1) FOIA (information relating to a security body);
3) That the FTT failed to provide adequate reasons for its conclusions on section 23(1);
4) That the FTT erred in its approach to the control principle (put simply, that information acquired through diplomatic or security channels is not disclosed without consent) and so failed to carry out the balancing process correctly under section 27 FOIA (international relations);
5) That the FTT erred in its approach to the section 35(1)(a) FOIA exemption (formulation and development of policy).
Grounds 1 and 2 have not been decided. They are stayed pending the judgment of the Supreme Court in Kennedy v Charity Commission (see here).
The Upper Tribunal rejected grounds 3 and 5. They held that the reasons provided by the FTT were sufficient when read as a whole, and that their approach to section 35(1)(a) had been in accordance with the authorities.
The bulk of the judgment concerns ground 4, and the appeal on section 27. The Upper Tribunal held that the APPGER had been rendered ignorant of the FCO’s primary case on the relevant harm caused by disclosure, and that the FCO, the ICO and the FTT had failed to identify or explain this in open session: at -. There was no good reason for this failure, and it resulted in avoidance substantive and procedural unfairness: at -. The failure of the FTT to hold a further hearing or allow further submissions to be made to consider alterations made to the draft judgment at the behest of the FCO was an error of law which perpetuated unfairness: at .
Although obiter, the Tribunal also concluded that the FTT’s approach meant that it did not properly understand the underlying reasoning of the arguments advanced and its conclusions did not have a proper evidential and reasoned foundation under section 27: at .
The Upper Tribunal also made general observations on the nature of closed sessions; the need for cases advanced in closed to be identified with clarity; the need to make a record of closed sessions; the need to identify in open the competing public interests wherever possible; and the need to limit material adduced only in closed session, along with the utility of schedules identifying the issues: at -.
There is much to be taken from the Upper Tribunal decision, and of course the APPGER litigation is some way off being over. Further analysis will doubtless be forthcoming, but you can read the judgment here:
Tim Pitt-Payne QC and Joanne Clement (11KBW) acted pro bono to represent APPGER; Robin Hopkins (11KBW) acted for the Information Commissioner; and Karen Steyn (also of 11KBW) and Julian Blake represented the FCO.