Home Education Consultation - legal advice

The request was refused by Department for Education.

Dear Department for Education,

This is an FOI request.

I refer to the public consultation titled 'Home Education – Call for Evidence and revised DfE guidance' running from 10 April 2018 to 2 July 2018.

Please supply all the external legal advice commissioned by the Department prior to the consultation.

Yours faithfully,

T.L.Jones

ACCOUNT, Unmonitored, Department for Education

Thank you for contacting the Department for Education. We can confirm that
we have received the Freedom of Information request you submitted.

We will respond to you within 20 working days.

 

ACCOUNT, Unmonitored, Department for Education

 

 

Dear Sir/Madam

 

Thank you for your recent enquiry. A reply will be sent to you as soon as
possible. For information; the departmental standard for correspondence
received is that responses should be sent within 20 working days as you
are requesting information under the Freedom of Information Act 2000. Your
correspondence has been allocated reference number 2018-0022088.

 

Thank you

 

Department for Education

Ministerial and Public Communications Division

Tel: 0370 000 2288

 

BISHOP, Stephen, Department for Education

Dear Mr Jones

 

Thank you for your request for information, which was received on 16 May
2018. You requested:

 

Dear Department for Education,

This is an FOI request.

I refer to the public consultation titled 'Home Education – Call for
Evidence and revised DfE guidance' running from 10 April 2018 to 2 July
2018.

Please supply all the external legal advice commissioned by the Department
prior to the consultation.

Yours faithfully,

T.L.Jones

 

I have dealt with your request under the Freedom of Information Act 2000
(“the Act”).

 

The department holds the information you requested, but it is being
withheld because the following exemption applies to this information:

 

Section 42 – legal professional privilege

 

 

Section 42 of the Act provides that information in respect of which a
claim to legal professional privilege could be maintained in legal
proceedings is exempt information. In applying this exemption, we have had
to balance the public interest in withholding the information against the
public interest in disclosing the information.

 

It is in the public interest for public authorities to be accountable for
the quality of their decision-making, and for them to be able to
demonstrate that decisions have been made on the basis of high quality
legal advice. Transparency in the decision-making process and access to
the information on which decisions have been based, facilitate that
accountability. 

 

By their very nature, and the nature of the essential business they
conduct, government departments need high quality and comprehensive legal
advice for the proper and effective conduct of that business, and in order
to take decisions in a fully informed context. It is vital to government
and its effective working that officials are able to consult lawyers in
confidence in order to obtain effective legal advice in a forum which is
conducive to a candid exchange of views and consideration and
assessment of potential risks without fear of disclosure.  Government
legal advisers need to be able to set out arguments for and against a
particular line, without fear that this advice might be disclosable and
that its disclosure might evidence potential weaknesses in the
government's position and thereby unnecessarily expose it to legal
challenge. Defending such legal challenges would be a waste of public
resources which is not in the public interest. Therefore, disclosure of
legal advice is very likely to prejudice the government's ability to
conduct its business effectively and to defend its legal interests,
either by unfairly exposing its legal position to challenge or by reducing
the reliance it can place on the advice it has received having been
fully considered and presented candidly without fear. For these reasons,
disclosure of legal advice would not be in the public interest. 

 

If you have any queries about this email, please contact me. Please
remember to quote the reference number above in any future communications.

 

If you are unhappy with the way your request has been handled, you should
make a complaint to the department by writing to me within two calendar
months of the date of this email.  Your complaint will be considered by an
independent review panel, who were not involved in the original
consideration of your request. 

 

If you are not content with the outcome of your complaint to the
department, you may then contact the Information Commissioner’s Office.

 

 

 

Stephen Bishop

Independent Education and Boarding Team

Department for Education

[1][email address]

01325 340440 (int x640440)

 

 

 

References

Visible links
1. mailto:[email address]

Dear Department for Education,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of the Department for Education's handling of my FOI request 'Home Education Consultation - legal advice' Reference number 2018-0022088.

The Department has decided to withhold my request for the external legal advice commissioned by the Department prior to the public consultation ‘'Home Education – Call for Evidence and revised DfE guidance’ requested in my email dated 16 May 2018.

The Department has claimed exemption under Section 42 of the FOI Act:

>> 42 Legal professional privilege.
(1)Information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings is exempt information.

(2)The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would involve the disclosure of any information (whether or not already recorded) in respect of which such a claim could be maintained in legal proceedings. <<

In your email the Department confirms that it has applied the public interest test. The point is made that the Government needs to be able to consult lawyers in confidence citing the concern that release of the information may ‘thereby unnecessarily expose it to legal challenge’ due to ‘weaknesses in arguments’.

The reason the Government does not want to disclose the information is therefore due to concern about litigation privilege and not advice privilege.

Regarding a Section 42 exemption the ICO’s website says:

https://ico.org.uk/media/for-organisatio...

>> Litigation privilege
8. Litigation privilege applies to confidential communications made for the purpose of providing or obtaining legal advice about proposed or contemplated litigation. There must be a real prospect or likelihood of litigation, rather than just a fear or possibility. For information to be covered by litigation privilege, it must have been created for the dominant (main) purpose of giving or obtaining legal advice, or for lawyers to use in preparing a case for litigation. It can cover communications between lawyers and third parties so long as they are made for the purposes of the litigation. <<

The ICO also says that Section 42 is a qualified exemption, subject to the public interest test.

Regarding the public interest test the ICO’s website says:

https://ico.org.uk/media/for-organisatio...

There is ‘a public interest in good decision-making by public bodies, in upholding standards of integrity, in ensuring justice and fair treatment for all’ and ‘As well as the general public interest in transparency, which is always an argument for disclosure, there may also be a legitimate public interest in the subject the information relates to. If a particular policy decision has a widespread or significant impact on the public, for example changes to the education system, there is a public interest in furthering debate on the issue. So, this can represent an additional public interest argument for disclosure.’

The ICO notes that in the case of ‘Simon Philip Kalman v Information Commissioner and Department for Transport’ the Court said ‘people were entitled to know the source of their legal obligations’.

Importantly the ICO says:

>> 38. Even if wrongdoing is not an issue, there is a public interest in fully understanding the reasons for public authorities’ decisions, to remove any suspicion of manipulating the facts, or ‘spin’. For example, there may well be a public interest argument for disclosing advice given to decision makers. The fact that the advice and the reasons for the decision may be complex does not lessen the public interest in disclosing it and may strengthen it. Similarly, the information does not have to give a consistent or coherent picture for disclosure to help public understanding; there is always an argument for presenting the full picture and allowing people to reach their own view. There is also a public interest in the public knowing that an important decision has been based on limited information, if that is the case. <<

My request for ‘all the external legal advice commissioned by the Department prior to the consultation’ clearly engages the applicable public interest test required by the Act as it proposes changes to the education system and the public need the full picture so that they can accurately assess the changes and respond to the consultation.

In applying the public interest test it is important to state the context of my request. The Department for Education has launched a public consultation entitled 'Home Education – Call for Evidence and revised DfE guidance’. This lengthy and complicated consultation proposes changes to guidance, policy and law regarding elective home education – a legally equal choice for parents. These proposals are not raised in response to any cited pressing social need or change. The Department’s argument is that ‘few people would argue today that parents should be able to exercise their right to home educate children with absolutely no independent oversight, despite their having the legal responsibility’. This appears to be an opinion propagated by a minority of individuals working in the public sector.

Any changes to home education policy and law engages the Human Rights Act. This lawyer’s opinion argues that elective home education engages Convention rights 6, 8, 9 and 14:

http://www.home-education.biz/wp-content...

Changes to home education policy and law also involve the processing of personal data. This is required to be processed in accordance with the Data Protection Act 2018.

The ICO has pointed out that there is a public interest in disclosing information about changes to the education system. In the case of changes to elective home education this directly affects every family in England. Families who are already home educating, or families who are thinking of doing so, will need to be assured that the Government’s proposals have clear legal advice that assures the public that their Convention rights and Data Protection rights will be fully incorporated into any changes to revised guidance documents or proposed legislative changes. There is, therefore, a public interest in seeing what the Government’s legal advice is, so that counter arguments can be made if necessary.

Both the public and the Government have an equal interest in avoiding legal challenges to policy that may breach either the Human Rights Act or the Data Protection Act. It has been stated that ‘people were entitled to know the source of their legal obligations’ and this means seeing the source of any legal advice from which a policy or legislative change flowed.

As the ICO has pointed out ‘there is a public interest in fully understanding the reasons for public authorities’ decisions, to remove any suspicion of manipulating the facts, or ‘spin’. For example, this may well be a public interest argument for disclosing advice given to decision makers. The Government has commissioned fresh legal advice but this appears to be in order to bolster its case for an extension of powers over home educating families and not in order to assure their Convention rights.

It is very important to reiterate the context of this request. The Government is seeking responses to a lengthy and complex public consultation. The purpose of this is to ensure that home education policy is right for all parties. This means that it must comply with the Human Rights Act and the Data Protection Act. It will not be possible for the public or public authorities to make fully informed responses without seeing what the legal basis for the proposed changes is. The consequences of uniformed responses will be flawed policy outcomes. These may well lead to the legal challenges the Government wishes to head off by withholding its legal advice. It is not only the Department for Education that will be exposed to expensive litigation. If the updated guidance is legally flawed then local authorities can expect expensive litigation arising from disputes with parents too. Local authorities have an equal interest in seeing the external legal advice commissioned by the Department prior to the consultation.

The Government is soliciting opinion for a public consultation. It is not soliciting legal opinion due to ‘contemplated litigation’ or ‘a real prospect or likelihood of litigation’. However, if the Government’s legal advice does expose it, or local authorities, to litigation then the public consultation offers the possibility of correcting that if, and only if, it reveals the external legal advice it has commissioned.

I am therefore asking for my FOI request to be internally reviewed for the following reasons:

1. The public interest test for disclosure is at least equal on both sides and potentially greater than the public interest in maintaining the exemption.

2. The claim for exemption based on Litigation Privilege is not sufficient as litigation will not directly flow from its publication. Litigation would only arise if any subsequent updated guidance was, in itself, challengeable.

In order that the requested information can be referred to by respondents to the consultation I would be most grateful for the earliest possible release of the information.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/h...

Yours faithfully,

T.L.Jones

ACCOUNT, Unmonitored, Department for Education

Thank you for contacting the Department for Education. We can confirm that
we have received the Freedom of Information request you submitted.

We will respond to you within 20 working days.

 

BISHOP, Stephen, Department for Education

Dear Mr Jones

 

Thank you for your email, copied below. The department will now arrange
for an internal review to be conducted on the basis set out in my original
response. The department aims to complete such a review within 20 working
days of the request, ie by 2 July. You will be notified of the outcome by
that date.

 

 

 

Stephen Bishop

Independent Education and Boarding Team

Department for Education

[1][email address]

01325 340440 (int x640440)

 

 Dear Department for Education,

 

Please pass this on to the person who conducts Freedom of Information
reviews.

 

I am writing to request an internal review of the Department for
Education's handling of my FOI request 'Home Education Consultation -
legal advice' Reference number 2018-0022088.

 

The Department has decided to withhold my request for the external legal
advice commissioned by the Department prior to the public consultation
‘'Home Education – Call for Evidence and revised DfE guidance’ requested
in my email dated 16 May 2018.

 

The Department has claimed exemption under Section 42 of the FOI Act:

 

>> 42 Legal professional privilege.

(1)Information in respect of which a claim to legal professional privilege
or, in Scotland, to confidentiality of communications could be maintained
in legal proceedings is exempt information.

 

(2)The duty to confirm or deny does not arise if, or to the extent that,
compliance with section 1(1)(a) would involve the disclosure of any
information (whether or not already recorded) in respect of which such a
claim could be maintained in legal proceedings. <<

 

In your email the Department confirms that it has applied the public
interest test. The  point is made that the Government needs to be able to
consult lawyers in confidence citing the concern that release of the
information may ‘thereby unnecessarily expose it to legal  challenge’ due
to  ‘weaknesses in arguments’.

 

The reason the Government does not want to disclose the information is
therefore due to concern  about litigation privilege and not advice
privilege.

 

Regarding a Section 42 exemption the ICO’s website says:

 

[2]https://ico.org.uk/media/for-organisatio...

 

>> Litigation privilege

8. Litigation privilege applies to confidential communications made for
the purpose of providing or obtaining legal advice about proposed or
contemplated litigation. There must be a real prospect or likelihood of
litigation, rather than just a fear or possibility. For information to be
covered by litigation privilege, it must have been created for the
dominant (main) purpose of giving or obtaining legal advice, or for
lawyers to use in preparing a case for litigation. It can cover
communications between lawyers and third parties so long as they are made
for the purposes of the litigation. <<

 

The ICO also says that  Section 42 is a qualified exemption, subject to
the public interest test.

 

Regarding the public interest test the ICO’s website says:

 

[3]https://ico.org.uk/media/for-organisatio...

 

There is ‘a public interest in good decision-making by public bodies, in
upholding standards of integrity, in ensuring justice and fair treatment
for all’  and   ‘As well as the general public interest in transparency,
which is always an argument for disclosure, there may also be a legitimate
public interest in the subject the information relates to. If a particular
policy decision has a widespread or significant impact on the public, for
example changes to the education system, there is a public interest in
furthering debate on the issue. So, this can represent an additional
public interest argument for disclosure.’

 

The ICO notes that in the case of ‘Simon Philip Kalman v Information
Commissioner and Department for Transport’ the Court said  ‘people were
entitled to know the source of their legal obligations’.

 

Importantly the ICO says:

 

>> 38. Even if wrongdoing is not an issue, there is a public interest in

>> fully understanding the reasons for public authorities’ decisions, to

>> remove any suspicion of manipulating the facts, or ‘spin’. For

>> example, there may well be a public interest argument for disclosing

>> advice given to decision makers. The fact that the advice and the

>> reasons for the decision may be complex does not lessen the public

>> interest in disclosing it and may strengthen it. Similarly, the

>> information does not have to give a consistent or coherent picture

>> for disclosure to help public understanding; there is always an

>> argument for presenting the full picture and allowing people to reach

>> their own view. There is also a public interest in the public knowing

>> that an important decision has been based on limited information, if

>> that is the case. <<

 

My request for ‘all the external legal advice commissioned by the
Department prior to the consultation’ clearly engages the applicable
public interest test required by the Act as it proposes changes to the
education system and the public need the full picture so that they can
accurately assess the changes and respond to the consultation.

 

In applying the public interest test it is important to state the context
of my request. The Department for Education has launched a public
consultation entitled 'Home Education – Call for Evidence and revised DfE
guidance’. This lengthy and complicated consultation proposes changes to
guidance, policy and law regarding elective home education – a legally
equal choice for parents. These proposals are not raised in response to
any cited pressing social need or change. The Department’s argument is
that ‘few people would argue today that parents should be able to exercise
their right to home educate children with absolutely no independent
oversight, despite their having the legal responsibility’. This appears to
be an opinion propagated by a minority of individuals working in the
public sector.

 

Any changes to home education policy and  law engages the Human Rights
Act. This lawyer’s opinion argues that elective home education engages
Convention rights  6, 8, 9 and 14:

 

[4]http://www.home-education.biz/wp-content...

 

Changes to home education policy and law also involve the processing of
personal data. This is required to be processed in accordance with the
Data Protection Act 2018.

 

The ICO has pointed out that there is a public interest in disclosing
information about changes to the education system. In the case of changes
to elective home education this directly affects every family in England.
Families who are already home educating, or families who are thinking of
doing so, will need to be assured that the Government’s proposals have
clear legal advice that assures the public that their Convention rights
and Data Protection rights will be fully incorporated into any changes to 
revised guidance documents or proposed legislative changes.  There is,
therefore, a public interest in seeing what the Government’s legal advice
is, so that counter arguments can be made if necessary.

 

Both the public and the Government have an equal interest in avoiding
legal challenges to policy that may breach either the Human Rights Act or
the Data Protection Act. It has been stated that ‘people were entitled to
know the source of their legal obligations’ and this means seeing the
source of any legal advice from which a policy or legislative change
flowed.

 

As the ICO has pointed out ‘there is a public interest in fully
understanding the reasons for public authorities’ decisions, to remove any
suspicion of manipulating the facts, or ‘spin’. For example, this may well
be a public interest argument for disclosing advice given to decision
makers. The Government has commissioned fresh legal advice but this
appears to be in order to bolster its case for an extension of powers over
home educating families and not in order to assure their Convention
rights.

 

It is very important to reiterate the context of this request. The
Government is seeking responses to a lengthy and complex public
consultation. The purpose of this is to ensure that home education policy
is right for all parties. This means that it must comply with the Human
Rights Act and the Data Protection Act. It will not be possible for the
public or public authorities to make fully informed responses without
seeing what the  legal basis for the proposed changes is. The consequences
of uniformed responses will be flawed policy outcomes. These may well lead
to the legal challenges the Government wishes to head off by withholding
its legal advice. It is not only the Department for Education that will be
exposed to expensive litigation. If the updated guidance is legally flawed
then local authorities can expect expensive litigation arising from
disputes with parents too. Local authorities have an equal interest in
seeing the external legal advice commissioned by the Department prior to
the consultation.

 

The Government is soliciting opinion for a public consultation. It is not
soliciting legal opinion due to ‘contemplated litigation’  or  ‘a real
prospect or likelihood of litigation’. However, if the Government’s legal
advice does expose it, or local authorities, to litigation then the public
consultation offers the possibility of correcting that if, and only if, it
reveals the external legal advice it has commissioned.

 

I am therefore asking for my FOI request to be internally reviewed for the
following reasons:

 

1.    The public interest test for disclosure is at least equal on both
sides and potentially greater than the public interest in maintaining the
exemption.

 

2.    The claim for exemption based on Litigation Privilege is not
sufficient as litigation will not directly flow from its publication.
Litigation would only arise if any subsequent updated guidance was, in
itself, challengeable.

 

In order that the requested information can be referred to by respondents
to the consultation I would be most grateful for the earliest possible
release of the information.

 

A full history of my FOI request and all correspondence is available on
the Internet at this address:
[5]https://www.whatdotheyknow.com/request/h...

 

Yours faithfully,

 

T.L.Jones

 

 

 

References

Visible links
1. mailto:[email address]
2. https://ico.org.uk/media/for-organisatio...
3. https://ico.org.uk/media/for-organisatio...
4. http://www.home-education.biz/wp-content...
5. https://www.whatdotheyknow.com/request/h...

CONSULTATION, HomeEducation, Department for Education

1 Attachment

Dear Mr Jones

 

Pl see attached letter.

 

 

 

Stephen Bishop

Independent Education and Boarding Team

Department for Education

[1][email address]

01325 340440 (int x640440)

 

 

 

References

Visible links
1. mailto:[email address]

T.L.Jones left an annotation ()

I have appealed to the ICO for the information to be released and an investigation is underway.

T.L. Jones