Attorney General’s Office
020 7271 2492
5-8 The Sanctuary
Tom Woodhead email@example.com
by email only
14 March 2019
Dear Mr Woodhead,
Freedom of Information request: FOI/48/19
I am writing in response to the Freedom of Information requests you submitted to this office by
separate email and dated 23 February 2019, which are copied in bold below: Please can you outline the number of instances, and to whom, you have provided legal
advice to about ISDS trade deal clauses in the past 5 years.
Please can you provide the guidance you have given to the UK Prime Minister, Cabinet
Office, DIT, or UK Government in relation to ISDS trade deal clauses in the past 5 years.
The Freedom of Information Act 2000 (FOI Act) gives individuals and organisations the right of
access to all types of recorded information held, at the time the request is received, by public
authorities such as the Attorney General's Office (AGO).
Section 1 of the FOI Act places two duties on public authorities. Unless exemptions apply, the
first duty (contained in section 1(1)(a)) is to confirm or deny whether the information specified in
a request is held. If confirmed, the second duty (contained in section 1(1)(b)) is, unless one or
more of the exemptions contained in Part II of the FOI Act applies, to disclose the information
that has been confirmed as being held.
Section 35(1)(c) of the FOI Act provides that information is exempt information if it relates to the
provision of advice by any of the Law Officers or any request for the provision of such advice.
Section 35(3) and section 2(1)(b) together provide that the duty to confirm or deny does not
arise in respect of information which is exempt (or would be exempt) under section 35(1) if the
public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public
interest in disclosing whether or not this department holds the information.
We take the view that your requests falls within the terms of this exemption. Whether or not the
Attorney General issued legal advice to the government on matters regarding ISDS trade deal
clauses relates to his function as a Law Officer and chief legal adviser to the Government.
We also take the view that the public interest is not in favour of confirming or denying whether
he did so. It would undermine the long-standing Convention, observed by successive
Governments, that information about the seeking, preparation or content of advice relating to
the Law Officers’ advisory function is not disclosed outside Government. This Convention is
recognised in paragraph 2.13 of the Ministerial Code.
The Law Officers’ Convention protects fully informed decision making by allowing Government
to seek, and Law Officers to prepare, legal advice in private, without fear of any adverse
inferences being drawn from either the content of the advice or the fact that it was sought. It
ensures that Government is neither discouraged from seeking advice in appropriate cases, nor
pressured to seek advice in inappropriate cases. It is also important to note that Law Officer
advice is different from other legal advice within Government, not in its fundamental
underpinnings, but because it may be sought in relation to issues of particular complexity,
sensitivity and constitutional importance. It is of obvious pressing importance that the seeking of
and provision of legal advice in such circumstances should be facilitated and protected in the
public interest. While recognising that there is a public interest in citizens knowing whether
matters have been considered with the benefit of sound legal advice, in the circumstances of
this case, this public interest does not outweigh the strong public interest in maintaining the
If you are dissatisfied with the handling of your request, you have the right to ask for an internal
review. Internal review requests should be submitted within two months of the date of receipt of
the response to your original letter and should be addressed to the above address.
Please remember to quote the reference number above in any future communications.
If you are not content with the outcome of the internal review, you have the right to apply directly
to the Information Commissioner for a decision. The Information Commissioner can be
contacted at: Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF.
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