'Common sense' to release secret Union polling, court told

Judge Alastair Wright presided at the Upper Tribunal hearing in central London on Tuesday, in which the Cabinet Office and the Information Commissioner’s Office pleaded for the information to be kept secret.

Tommy Sheppard, the SNP’s Scotland spokesperson, has been locked in a legal battle with the UK Government since 2019 to release the findings of research undertaken to sound out people’s attitudes towards the strength of the Union.

The UK Government was previously ordered to release the information by a lower court, the First-Tier Tribunal, but appealed the ruling to the Upper Tribunal, which sat on Tuesday in the Rolls Building (below).

The Cabinet Office, which commissioned the research, insists the information related to the “development” of policy and was therefore exempt from Freedom of Information (FOI) laws.

But Sheppard has argued that because the UK Government’s stance on maintaining the Union is unchanging, there is no policy to develop because the matter is static.

Ivan Hare KC, representing the Cabinet Office, argued during the hearing that while the “high level” policy objective of maintaining and strengthening the Union was not going to change, there were live policy debates underneath this broader umbrella which meant discussions and research could be carried out in private.

During the hearing, the Information Commissioner’s Office (ICO) also said the First-Tier Tribunal appeared to have ignored parts of a letter submitted in previous arguments which outlined – in redacted form – what those live policy discussions were.

Will Perry, who represented the ICO, responsible for the implementation of the FOI Act, argued that this meant the lower court had “failed” to consider the full case before it,

The letter contained a redacted segment that the Cabinet Office and ICO said outlined policies which the polling would be used to shape.

READ MORE: UK Government takes secret Union polling battle to higher court

But Raphael Hogarth, representing Sheppard, told the judge the First Tier Tribunal did reference the letter in its ruling and said it found policies relating to the Union were being implemented, as opposed to developed.

Judge Wright took issue with the First Tier Tribunal’s ruling, saying it was not “helpful” to any of the parties that the ruling in that case had failed to address the issue of the public interest test in releasing the information.

'Safe spaces'

The public interest test gives the UK Government an exemption from releasing information if it relates to policy development, in the interests of creating a “safe space” in which civil servants and ministers can “say the unsayable or think the unthinkable”, said the judge.

But Hogarth said the public interest test should fall on the side of disclosure, given that the polling was funded with taxpayers’ money on an issue of “intense political controversy”.

He also argued the UK Government was unable to say what policies the polling would inform and insisted that the judge take a narrow reading of the law.

Hogarth pointed out that the UK Government holds swathes of information to help inform policy development – warning that the exemption would become “absurdly wide” if it was to apply to all information held by the Westminster Government that could be used to inform policymaking.

He added that the distinction he was drawing was one of “common sense”.

Hogarth was challenged on his reading of the letter by the Cabinet Office. He referenced part of the letter that said the information would be used “with a view to” informing future policy, which he claimed meant it may not have been used to inform any policy at all.

But the Cabinet Office said that elsewhere in the letter, the author indicated there was a question of “how” the polling would be used but not “whether” it would be used to inform future policy.

READ MORE: Tories appeal ruling to release secret polling on the Union as deadline expires

Hogarth argued there were no publicly-known policies relating to the future of relations between the constituent parts of the Union and there had been no developments in this regard in the last four years.

'Extraordinary delays'

The Cabinet Office was also criticised by Sheppard’s lawyer for the “extraordinary delays” in the process of releasing the information and accused the UK Government of failing to show an appetite for a speedy conclusion of the process.

Sheppard, who had funded his legal challenge against the Government through a crowdfunder, also had his lawyer warn that he would be unlikely to be able to cover the costs of future installments in his ongoing legal battle.

Hogarth told the judge that further delays would render the public’s right to freedom of information requests, and their right to appeal against secrecy, a “dead letter”.

Judge Wright shared concerns about the length of the process. He was urged by the Cabinet Office and ICO to refer the case back to the First Tier Tribunal while Sheppard asked for the lower court’s judgment to be upheld.

No date has been given for a decision.