The comment by the attorney general surprised me (‘I know best’ on the public interest). It is quite obviously the case that there are matters upon which the AG may be best placed, even on occasions better placed than the judiciary, to decide whether releasing information is in the public interest or not.

There will be occasions when a request which was superficially innocuous would, if the government complied, betray some important state secret. Presumably, an AG would be in an excellent position to intercept such a request.

However, I question the extrapolation that the AG will always be best placed to make the decision and thus that he should accept the role of gatekeeper. True, the AG is a lawyer and in theory independent, but he is also a member of the party in power and attends Cabinet.  

Part of the role is to advise the government on the legal issues it faces and the AG’s advice has often been controversial. With many requests, therefore, he will face a clear and obvious conflict of interest. Does he allow a request which might embarrass the government or should he refuse to allow disclosure to protect it?

The surprising aspect of this case is that the AG would want to adjudicate in this situation. Why would he voluntarily assume a role which provides his opponents with a stick to beat him? However fairly and independently he acts, while he might have a defence to actual bias he would almost inevitably be in a position of ostensible bias.

What of a situation where the government is the defendant or potential defendant and is in receipt of an FoI request by the claimant? If the application is denied, and especially if the court later orders disclosure, how will the AG deal with an allegation that, as a lawyer, he was involved with the deliberate suppression of evidence? Such an offence would (at least in the case of Jeremy Wright QC) necessarily involve an investigation by the bar.

The better part of valour is discretion, said Falstaff… but perhaps Wright is not a student of Shakespeare.

Howard Shelley, K.J. Conroy & Co Ltd, Birmingham

Topics