Communication CM/Cabinet Office with DHSC 19/9/2022 - 5/10/2022

Summary

The request sought communications between the Isle of Man Cabinet Office/Chief Minister and DHSC regarding the Ranson v DHSC appeal between September and October 2022. The authority confirmed holding the information but withheld it citing legal professional privilege, though provided a narrative context regarding the appeal timeline.

Key Facts

• The request covered communications between 19 September 2022 and 5 October 2022 regarding the DHSC's second appeal in the Ranson v DHSC case.
• The DHSC's second appeal was heard in the High Court on 6 October 2022 and was dismissed.
• The Cabinet Office and DHSC issued a conjoined response stating that information is held but exempt under Section 40 (Legal Professional Privilege).
• A court deadline for filing the DHSC legal argument was set for 16:00 on Wednesday 28 September 2022.
• Messrs Callin Wild advocates took over conduct of the proceedings on 10 August 2022.

Data Disclosed

• 2984926
• 2951619
• 19 September 2022
• 5 October 2022
• 6 October 2022
• 4 August 2022
• 10 August 2022
• 28 September 2022
• 17 April 2023
• 4 April 2023
• 17 March 2023
• 16:00
• s. 34
• s. 40
• s. 35
• s. 6
• Government Departments Act 1987
• FoI Act 2015
• Judgment 111022

Exemptions Cited

• Section 40 (Legal Professional Privilege)
• Section 34 (Formulation of Policy)
• Section 35 (Conduct of Public Business)

Original Request

Please disclose all and any communications (emails, messages, meeting notes and/or phone calls) involving the Chief Minister and/or the Cabinet Office with any officers within DHSC between 19 September 2022 and 5 October 2022 regarding the DHSC's second appeal against the orders made by the EET in the Ranson v DHSC case. DHSC's second appeal was subsequently heard in the High Court on 6 October 2022, and dismissed. Note: CM and Cabinet office are not party to the Ranson v DHSC and related court proceedings (the appellant was DHSC acting through its then Minister). Accordingly legal privilege would not normally apply to communications to/from DHSC with third parties except in very limited circumstances. Yours sincerely *****

Data Tables (1)

Full Response Text

Government Office Douglas Isle of Man IM1 3PN Telephone: (+44) 01624 686244 Website: www.gov.im/co Our ref: 2984926

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17 April 2023 Dear ###### In response to your request for internal review of FOI 2984926 received 4 April 2023 in which you raised the following points: I wish to appeal the FOI response reference 2984926 titled 'Communication Chief Minister/Cabinet Office with DHSC 19/9/2022 - 5/10/2022'. This FOI response confirms information is held but claimed to be exempt from disclosure through qualified exemption under s.40 of the FOIA, due to claimed legal professional privilege. Our Response: The internal review is still ongoing, though the Department is in a position to disclose the following in part response to your request for internal review as of today’s date. A. Recap of bases for FoI request and initial response FoI number 2951619 Request to DHSC "I seek publication of all internal and external communications which led to appeals being heard in the case of Dr Rosalind Ranson v DHSC in 2022. In particular, I seek the publication of emails to and from Chief Minister Alfred Cannan relating to the decision to launch an appeal." Reply 17 March 2023 Response Qualified exemption: s. 34 and 40 FoI Act - S. 34 Formulation of Policy - S. 40 Legal Professional Privilege FoI number 2984926 Request to Cabinet Office "Please disclose all and any communications (emails, messages, meeting notes and/or phone calls) involving the Chief Minister and/or the Cabinet Office with any officers within DHSC between 19 September 2022 and 5 October 2022 regarding the DHSC's second appeal against the orders made by the EET in the Ranson v DHSC case. DHSC's second appeal was subsequently heard in the High Court on 6 October 2022, and dismissed. Note: CM and Cabinet office are not party to the Ranson v DHSC and related court proceedings (the appellant was DHSC acting through its then Minister). Accordingly legal privilege would not normally apply to communications to/from DHSC with third parties except in very limited circumstances”. Reply 4 April 2023 Response Qualified exemption: s. 40 FoI Act (LPP) B. Context for conjoined reply Cabinet Office and the DHSC have each been asked to conduct an internal review by the Requestor(s) relevant to their separate refusal decisions. Under s. 6 of the Government Departments Act 1987, the Chief Minister may require a Department and a Department shall provide supply of information, rendering of assistance and provision of access to documents. A formal review of the application of FoI exemptions continues in DHSC and Cabinet Office. However, DHSC and Cabinet Office each being Government Departments have provided this conjoined early Response to the common elements of each of the Requests (and in the case of the DHSC providing further context for the decision making and governance around pursuit of the appeal relating to the Legal Professional Privilege issue1). Nothing in this FoI Response is intended to waive any legal privilege as between DHSC and its advisors or any advice provided to Council of Ministers or referred to in the DHSC paper to Council of Ministers. The responding bodies have each considered that that the qualified exemptions in both section 34 (1)(b) (formulation of policy) and section 35 (conduct of public business) could have applied to those parts of the Requests not subject to Legal Professional Privilege (s. 40). However each responding body has determined that there is a public interest in making early disclosure to the extent provided below. C. Information to be supplied The information supplied below is based on the available and retrieved papers available to officers as at Monday 17 April 2023 and continuation of the formal FoI internal review process as to what can be released taking account of the proper application of qualified exemptions to disclosure under the FoI Act 2015. Conjoined narrative response of Chief Minister, Cabinet Office and DHSC 1 https://www.judgments.im/content/Judgment%20111022.pdf Appeal 2 (relating to the application of Legal Professional Privilege) was lodged in the High Court on 4 August 2022 by the DHSC via the advocates then instructed by DHSC, namely the Attorney General’s Chambers. On 10 August 2022, Messrs Callin Wild advocates took over conduct of all proceedings before the Court and Tribunal, including Appeal 2. The immediate timing context for the communications referred to below was that 16:00 on Wednesday 28 September 2022 was the Court deadline for filing the DHSC legal argument for the appeal hearing, which was due to be heard on the morning of Thursday 6 October 2022. DHSC supplied a Paper (“the DHSC Paper”) at 17:41 on Tuesday 27 September 2022 to the Council of Ministers intended for confidential discussion in Council of Ministers at its usual sitting on the morning of Thursday 29 September 2022. As per usual practice, the DHSC Paper was sent to officers stationed within Cabinet Office. Those Cabinet Office officers provide the secretariat function to the Council of Ministers. The DHSC Paper contained the background to the appeal and contained privileged legal advice seeking direction from the Council of Ministers on how to proceed with the appeal. Owing to the belated submission of the DHSC Paper and the Court deadline for filing the legal argument, the DHSC Paper could not be discussed by Council of Ministers in full at its meeting on Thursday 29 September 2022. In order to provide assistance to the DHSC, the Chief Minister consulted with the Chief Secretary and the Minister for the Home Affairs and Justice (the Deputy Chief Minister). In this regard and in the context of the FoI request made of Cabinet Office it should be noted:- • the Minister for the Cabinet Office was not involved in those discussions. • the Chief Secretary is the Accounting Officer of Cabinet Office and as well as having ultimate responsibility for the Secretariat to Council of Ministers, also attends the Thursday morning sittings of Council of Ministers. • The Chief Minister responded to the Executive Assistant to the DHSC Interim Chief Executive Officer via the Interim Chief Secretary’s Office at 15:17 on Wednesday 28 September 2022. The email and subsequent response (sent at 15:35) once the Executive Assistant had spoken to the Minister for Health and Social Care is included in this reply. Also included in this reply is an email from the Minister for Health and Social Care to the Executive Assistant to the Interim Chief Executive Officer sent at 15:25 on Wednesday 28 September 2022 regarding the appeal.
There was no direction from Council of Ministers to DHSC under section 6 of the Government Departments Act 1987 relevant to this course. The Chief Minister does not have a personal power to mandatorily direct any Department to pursue a particular course as to the exercise of Departmental functions. DHSC officers provided an instruction to Callin Wild at 15:27 on Wednesday 28 September 2022 to meet the Court deadline by filing a skeleton argument and legal authorities. The Appeal proceeded to hearing before the Court on Thursday 6 October 2022. Please note, this is a partial response to your request for an internal review and we aim to complete the review and respond to you fully by 4 May 2023. If you are not satisfied with the result of the review, you then have the right to appeal to the Information Commissioner for a decision on; 1. Whether we have responded to your request for information in accordance with Part 2 of the Freedom of Information Act 2015; or 2. Whether we are justified in refusing to give you the information requested. In response to an application for review, the Information Commissioner may, at any time, attempt to resolve a matter by negotiation, conciliation, mediation or another form of alternative dispute resolution and will have regard to any outcome of this in making any subsequent decision. More detailed information on your right to a review can be found on the Information Commissioner’s website at www.inforights.im. Should you have any queries concerning this letter, please do not hesitate to contact me. Further information about freedom of information requests can be found at www.gov.im/foi. Yours sincerely

Thanks Executive Assistant to the Chief Secretary Chief Secretary’s Office l Cabinet Office l Isle of Man Government l 3rd Floor Government Office l Bucks Road l Douglas l Isle of Man l IM1 3PN l https://www.gov.im FOIA 2015 – Section 25 Absolutely Exempt Personal Information

Government Office Douglas Isle of Man IM1 3PN Telephone: (+44) 01624 686244 Website: www.gov.im/co

Our ref: 2984926 04 April 2023

Dear ###

We write further to your request which was received on 8 March 2023 and which states:

"Please disclose all and any communications (emails, messages, meeting notes and/or phone calls) involving the Chief Minister and/or the Cabinet Office with any officers within DHSC between 19 September 2022 and 5 October 2022 regarding the DHSC's second appeal against the orders made by the EET in the Ranson v DHSC case. DHSC's second appeal was subsequently heard in the High Court on 6 October 2022, and dismissed. Note: CM and Cabinet office are not party to the Ranson v DHSC and related court proceedings (the appellant was DHSC acting through its then Minister). Accordingly legal privilege would not normally apply to communications to/from DHSC with third parties except in very limited circumstances. Yours sincerely ****"

While our aim is to provide information whenever possible, in this instance the information is exempt from disclosure under section 40 of the Act as it is information in respect of which a claim to legal professional privilege could be maintained in legal proceedings. As section 40 is a qualified exemption, it is subject to a public interest test. The public interest must be something that is of serious concern and benefit to the public at large. The matters which were considered in applying the public interest test are as follows:

Section 40 Legal Professional Privilege (LPP) Factors in favour of disclosure Factors against disclosure • Disclosing information would provide transparency in how government determines the most appropriate course of action from the given range of options and would promote public understanding in how decisions are reached following receipt of legal advice. • There is a fundamental right to confidentiality between legal advisers and their clients, to enable free and frank exchange of communication without prejudice.
This is judicially recognised as being in the public interest.
• Public authorities must be able to take decisions, fully informed of the legal context of doing so. • Legal advisers must be able to present the full picture, which will include arguments in support of their final conclusions and arguments that may be made against these. It is the nature of legal advice that it will set out the arguments both for and against a particular view, weighing up their relative merits, and highlighting perceived weaknesses in any position. • Disclosure might unfairly expose a legal position to challenge and diminish the reliance which may be placed on the advice. • It is strongly in the public interest to maintain this confidentiality, and this is recognised in the Three Rivers DC v Bank of England case1 • This case is still live at the time of writing and under consideration by the Tribunal with regards to remedy2 In taking these factors into account the Cabinet Office determined that the factors in favour of maintaining the exemption outweigh the factors in favour of disclosing the information. 1 House of Lords, Three Rivers District Council v. Governor and Company of The Bank of England [2001 UKHL 16; [2001] 2 All ER 513 (22nd March, 2001) [accessed 15 March 2023] 2 https://www.manxradio.com/news/isle-of-man-news/dr-ranson-seeks-exemplary- compensation-due-to-dhscs-conduct-during-tribunal/

Please quote the reference number 2984926 in any future communications.

Your right to request a review

If you are unhappy with this response to your freedom of information request, you may ask us to carry out an internal review of the response, by completing a complaint form and submitting it electronically or by delivery/post.

An electronic version of our complaint form can be found by going to our website at https://services.gov.im/freedom-of-information/Review. If you would like a paper version of our complaint form to be sent to you by post, please contact me and I will be happy to arrange for this. Your review request should explain why you are dissatisfied with this response, and should be made as soon as practicable. We will respond as soon as the review has been concluded.

If you are not satisfied with the result of the review, you then have the right to appeal to the Information Commissioner for a decision on; 1. Whether we have responded to your request for information in accordance with Part 2 of the Freedom of Information Act 2015; or 2. Whether we are justified in refusing to give you the information requested.
In response to an application for review, the Information Commissioner may, at any time, attempt to resolve a matter by negotiation, conciliation, mediation or another form of alternative dispute resolution and will have regard to any outcome of this in making any subsequent decision. More detailed information on your right to a review can be found on the Information Commissioner’s website at www.inforights.im. Should you have any queries concerning this letter, please do not hesitate to contact me. Further information about freedom of information requests can be found at www.gov.im/foi.

I will now close your request as of this date.