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Court to hear appeal to Department for International Trade's refusal to disclose Brexit trade papers

The First tier-tribunal will hear a case brought by Brendan Montague, on behalf of Global Justice Now, appealing the decision of the Information Commissioner to uphold a refusal by the Department of International Trade to disclose information relating to post-Brexit trade negotiations, requested under the Freedom of Information Act.

Posted on 10 December 2019

The challenge will be heard in the First-tier Tribunal, to be held at Field House, Breams Buildings, in London, on 12 and 13 December 2019.

Heavily redacted copies of the trade documents requested were condemned by Labour leader Jeremy Corbyn at the first general election debate on 19 November 2019. Original, unredacted documents containing information of the type requested have since been leaked and appear to detail trade talks between the US and the British, including the alleged opening up of the NHS to private US firms, Brexit, and standards relating to food and harmful chemicals.
Brendan Montague is the founder of Request Initiative, a community interest company set up to make freedom of information requests on behalf of NGO’s, charities and the media. In November 2017, Brendan requested information on behalf of Global Justice Now relating to working groups established by the UK government and various states to support post-Brexit trade negotiations. The Request Initiative is no longer active, but Brendan has continued the case.
In February 2018 the Department for International Trade disclosed some information but withheld the majority of information requested.
On 19 March 2018, Brendan submitted a complaint to the Information Commissioner. Twelve months later, on 29 March 2019, the Information Commissioner issued a decision upholding the refusal of Department for International Trade to provide the remaining information. The Information Commissioner agreed with the exemptions from disclosure under the Freedom of Information Act cited by the Department, including prejudice to international relations and formulation or development of government policy.
Brendan and Global Justice Now argue that, even if these exemptions did apply, the public interest in disclosure of this information far outweighs the interest in maintaining these exemptions.

Despite the result of the case coming after the election the outcome could impact on the way the Department for International Trade, and any other government departments, will be expected to deal with FOI requests in the future. If the Tribunal finds that the exemption cannot be applied in the broad way it has been done in this case and/or the Tribunal finds that the public interest balance in releasing information of this kind outweighs the exemption, the outcome could pave the way for better information being received through FOI requests in the future. In addition, the information being requested in this case relates to post-brexit trade negotiations so the release of the information will give an opportunity for public debate and scrutiny on the negotiations.

Sam Fowles of Cornerstone Barristers is instructed to represent the Appellants at the hearing.
Brendan Montague said: 

“The public interest in this case could not be clearer, or more urgent. This speaks to the future of the NHS, the most important and most valued institution we have in this country. It also speaks to issues that impact on millions of people’s lives: climate change, food safety standards and pesticides. 
It now seems absolutely irrefutable that the public needs to be aware of what is being negotiated on their behalf, and also knows whether politicians, including Boris Johnson, are telling the truth about what is being sold, and what is being protected, in negotiations with the US and other countries."

Nick Dearden, director of Global Justice Now, said:
“These papers make a mockery of Boris Johnson’s manifesto pledge to protect British public services and standards – that would be absolutely impossible under the type of trade deal being discussed here. We will continue to force these discussions into the light, so people know what they are voting for on 12 December.”
Rowan Smith, human rights solicitor at Leigh Day who together with Erin Alcock is representing Brendan Montague and Global Justice Now, said:
“Our clients have been fighting since 2017 for transparency in negotiations of post-Brexit trade agreements. They are arguing before the Information Tribunal that the Department for International Trade has wrongly assessed the public interest in transparency and the value of public scrutiny in these negotiations. It is seriously concerning that the public has to rely on leaks to have any real insight as to the kinds of deals being negotiated on their behalf. Parliament brought in the Freedom of Information Act precisely for this reason. Government departments should not be allowed to evade their obligations under this crucial Act.” 

Rowan Smith
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Rowan Smith

Rowan Smith is a senior associate solicitor in the human rights department.

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