By Gabriel Princewill-
The Legal Service Board has disclosed a number of emails to a lawyer after initially refusing to do so, despite a Freedom Of Information Request(FOI). The mails relate to the Leigh Day case , in which the British government spent a lot of money in a failed prosecution case.
The LSB had initially told The Eye of Media.Com and the lawyer, who wants his identity withheld, that the the information requested was already in the public domain and they did not see any public interest in disclosing it. However, The lawyer was adamant that there might be something in the information not already in the public domain that was being hidden. There was no solid proof of this, but enough to arouse suspicion that some relevant information that may cast a different light on how the case was handled was being hidden.
A comprehensive representation was made to the LSB’s internal review system asking for the request to be looked at again. The Legal Service Board today send a response to the lawyer, disclosing more information previously withheld, but insisting on withholding other information which it said was was restricted information under section 167(1)of the Legal service Act 2007 which prohibits the disclosure of restricted information to a person other than a restricted person. The lawyer in question asked the LSB to seek permission from the restricted persons, but they declined.
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INFORMATION
Following receipt of the Request, the LSB said it ”identified information it holds that potentially falls
within the terms of the Request. In the Response, the LSB advised you that, in relation to the
above paragraph, “we hold one document attached to email correspondence from the Solicitors
Regulation Authority [(the “SRA”)] dated 30 October 2017, which refers to the Leigh Day
matter.”
5. In the Response, the LSB explained that the responsive information in the document referred to
above is being withheld on the basis that it is exempt from disclosure under the absolute
exemption in s44(1)(a) FOIA. The Legal Service Board said : W”e explained that, where s44 applies, there is no requirement to consider the public interest.
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”We further outlined that s44(1)(a) FOIA is engaged in this case because s167(1) of the Legal Services Act 2007 (“LSA”) prohibits the disclosure of ‘restricted information’ to a person other than a ‘restricted person’ and “[t]he information we hold is restricted information because it was disclosed by the SRA to the [LSB] during an investigation by the LSB exercising its functions under the LSA.” I have reviewed the status of the information in question, including in light of the Representations.
”My decision remains that s44 applies and the information is exempt from disclosure and will be withheld. To clarify our position, s167(1) LSA is an “enactment” for the purposes of s44(1)(a) FOIA. This
is because disclosure of ‘restricted information’ by a ‘restricted person’ “is prohibited by or under” s167(1) LSA.
The LSA is a ‘restricted person’ as defined in s167(2) LSA (“the Board (including the Board in its capacity as an approved regulator)”). The information in question is ‘restricted information’ because it was provided to the LSB as part of a separate, LSB investigation, unconnected with the subject matter of the Request. The probing lawyer told The Eye Of Media.Com: ” The LSB say the investigation was unconnected with the subject matter of request, but there is no reference of an unconnected investigation on their website, why is that?”
The LSB continued:
The relevant investigatory activities of the LSB fell within the functions of the LSB, and the information is therefore “information (other than excluded information) which is obtained by the Board in the exercise of its functions”. The information is not ‘excluded information’ as defined in s167(3) LSA. The
information therefore meets the definition of ‘restricted information’ in s167(2) LSA and therefore
“must not be disclosed”.
DISCLOSURE
The LSB disclosed one paragraph of quotation stating:
“The intimation was that the government are very unhappy about the outcome of the Leigh Day case. Paul affirmed that when it is published they would look at the decision and decide whether to appeal. He was very sceptical about Susan Humble’s view that the Leigh Day case did not turn on the issue of the criminal standard.”
The lawyer told The Eye Of Media.Com:
”The meeting on 17 September 2017 is very troubling, because it is clear that the Clerk to the SDT (Humble) was discussing the Leigh Day case with Philip before the SDT published its judgement on 21 September 2017. She was saying that the outcome did not depend on the use of the criminal standard of proof:
I cannot for a moment see that it was appropriate for Philip and Humble to be having such a discussion, which presumably occurred without Leigh Day knowing about it.
The LSB is continuing to try to avoid disclosing a document which it received from the SRA on 30 October 2017. It is not clear whether the LSB has consulted Leigh Day about that document. You may want to ask Leigh Day whether they have been consulted. They may also want to comment on the meetings between Buckley and Philip.
The minutes of the SDT user group are pitiful:
“Appeals lodged since the last meeting:… Day, Malik, Crowther, Leigh Day – SRA appeal against majority findings, and potentially, costs;”That does not represent a proper minute of a discussion at a user group meeting.
An SRA spokesperson told us: ”The information in question referred to policy discussions we had with The Ministry Of Justice(MOJ) and the Ministry Of Defence(MOD). They were not relevant to the subject matter, and therefore not for the public domain. We have published over 200 pages on our website in relation to Leigh Day, and it contains all the public need to know”.
The LSB has been contacted for comment late this evening, and we expect to here from them tomorrow
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