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Home Office “lines to take” are protected by litigation privilege
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The First-tier Tribunal has allowed the Home Office appeal against the Information Commissioner’s decision that training slides used to inform Home Office Presenting Officers on the 2014 legislative reforms to human rights law should be released. Some additional limited information will be published but the Home Office’s internal instructions to its lawyers on what arguments to run in tribunals and courts will remain confidential.
My original request was for:
release of any or all training materials relating to the immigration law changes that took effect on 28 July 2014, both the changes to human rights Rules and the changes to deportation appeals
I was interested to see what the Home Office line was on the changes, which were a significant constitutional innovation in which judges were instructed by Parliament what they should consider when reaching decisions. There were also reports of Home Office Presenting Officers telling immigration judges that judges were not permitted to make up their own minds about human rights issues any more.
The Home Office initially refused to disclose anything, then on internal review disclosed some of the training material but not all of it. I appealed to the Information Commissioner, who allowed my appeal and ordered release of the information. The Home Office in turn appealed to the Information Tribunal.
The key argument in the tribunal case evolved to become whether the Home Office should disclose its “lines to take” on the the human rights reforms. I had not come across these before. “Lines to take” are different to published policies:
A “line to take” might, according to Mr Hobbs, set out an interpretation of case law or explain a particular policy line that is to be advanced in litigation. Without such guidance, different HOPOs might argue different interpretations of law and policy, which would be contrary to the need for similar cases to be treated alike. If different arguments were adopted by different representatives, this could lead to a very complex legal landscape. Lines to take might also cover procedural and tactical matters, so as to ensure that all cases were dealt with consistently. Such lines were not, however, developed for every legal issue that might arise. Lines to take were used not only by HOPOs but also by Counsel representing the Home Office in the tribunals and courts. Lines to take were conveyed to HOPOs through documents published on the Home Office internal intranet site. There were currently around twenty such lines.
The tribunal’s reasoning is essentially:
- “Lines to take” instructions to Presenting Officers are protected by legal professional privilege, which does not require instruction of a professional lawyer nor specific litigation (para 36, 42)
- In “citizen versus State” cases the State is entitled to full litigation privilege (para 55) and it would be unfair on the State if its arguments were to be known to citizens (para 63)
- There is a “strong public interest in enabling the Home Office to develop and implement a coherent litigation strategy”
- There was a danger that appellants and appellant lawyers would “fashion arguments or procedural manoeuvres” around the lines to take rather than focus sing as they should on the particular case and that the content of the training slides could be “misinterpreted or misused” (para 65)
- Judges cannot be expected to sort good from bad arguments put by appellants (para 66) but simultaneously can be expected to reject any bad arguments by the Home Office (para 57)
- Because of the danger of judicial review of a failure to follow a line to take on there basis of unlawful behaviour by the Home Office, once it was disclosed, the lines to take should not be disclosed because this might cause the Home Office to be more careful about how lines to take were drafted (para 67-68)
- There might be some litigation about the lawfulness or otherwise of failing to follow a “line to take” and it is in the public interest for such litigation to be avoided, whatever the outcome of that litigation might be (para 69)
- Ordering disclosure of the training slides on “lines to take” would have a “chilling effect” at the Home Office because it would be too time consuming for the Home Office to produce detailed and careful training materials on its own legislative changes and it was unrealistic to expect purely oral cascade of training (para 70)
You can see the material already disclosed here and and the original ICO decision that the information should be released here. I will post any additional material as an update to this blog post if there is any ever released.