“However, the Supreme Court has given the government additional power to keep this information from the public. Only yesterday, the government refused to give us basic information about the state of their talks with Donald Trump. This is a recipe for economic policy to be written by big business.”
He added: “MPs must act now – to demand the right of themselves and the public to shape trade deals, and protect our rights and interests.”
Two of the five Supreme Court justices disagreed with the decision. Lord Richards and Sir Declan Morgan noted: “Although FOIA has been in force for over 20 years, aggregation does not appear to be an issue which has previously arisen in any material way.”
They added: “Although it is suggested that aggregation will make a difference only in rare cases, we respectfully think that, once authoritatively established, it is likely to be raised, albeit unsuccessfully, as a basis for objection to disclosure by public authorities on a regular basis.
“That it is likely in the end to make a difference only in rare cases might suggest that, as it is not clearly spelt out, aggregation may well not have been in the contemplation of the legislature.”
The British government and the ICO have now spent an estimated £300,000 on legal costs blocking and backing a Freedom of Information request made to the Department of International Trade back in November 2017.
The request aimed to make public the most basic details about the trade discussions, including the dates of the meetings, the names of the attendees and the items on the agenda.
Campaigners
The Supreme Court decision comes precisely eight years after the first secret meeting of the US-UK Trade and Investment Working Group, which opened on 24 July 2017 in Washington DC. Some details have since been released, but the minutes are still being withheld. After one tribunal hearing the government released hundreds of pages of documents but almost all of the text was redacted.
Starmer’s government has chosen to continue a strategy of absolute secrecy for these vital trade talks inherited from his Tory predecessors. The public are only allowed in on the secret when agreements have been made and politicians hope to spin them as positive developments.
Brendan Montague, the editor of The Ecologist (and the author of this report), first filed a Freedom of Information request with campaigners at GJN asking for details of the secret trade talks taking place after the Brexit referendum and before the UK left the European Union.
Since then there have been five British prime ministers, and the Department of International Trade has been dissolved. Across the Atlantic, Trump has served a full four year term as president, has then lost an election, and has gone on to be elected to serve his second term.
Disclosure
The GJN campaigners feared that the then Tory government would too readily trade off important environmental and consumer protections in exchange for a headline grabbing deal, in a bid to justify Brexit to a divided and increasingly sceptical public.
These concerns were shown when some of the documents requested relating to the US talks were leaked, seemingly after being collated as part of the Freedom of Information process. These documents were then held up by Jeremy Corbyn during a TV debate during the 2019 general election campaign. Corbyn said the documents proved the Tories had lied about protecting the NHS during the trade talks.
The leaked documents suggested that the climate crisis had been taken off the table, that the NHS could face a £27 billion a year increase in medicine prices, and that US companies still wanted to get bleached chickens onto British supermarket shelves.
The fact the agreed details of the trade deals might infuriate the public goes some way to explain the extreme secrecy around the talks. The government’s lawyers also admitted that further talks with a wider range of still unnamed countries had also been initiated with no public disclosure.
Justify
During the multiple FOIA hearings it was revealed that civil servants had been ordered to talk in code precisely to prevent any notes taken falling under transparency laws. David Henig, a former Department for International Trade civil servant, told one hearing that Britain is “at the far end of the secrecy” spectrum.
Successive British governments have even refused to provide basic information to their own members of parliament, and have refused calls by campaigners to introduce legislative procedures so there can be democratic scrutiny and accountability of the country’s trade policies.
This means that the British parliament has far less oversight or control of trade talks than the European parliament or US Congress, according to transparency campaigners.
The government’s campaign to prevent details of the talks being made public through FOIA has now taken a turn worthy of Monty Python. The entire case seems to rest on the definition of the single term “exemption”.
The government’s barristers have asked the Supreme Court to accept an entirely new use of the term exemption, as a verb that refers to the abstract, general activity of exempting information that has been requested.
The barristers therefore claim the word “exemption” is not in fact used as a noun that refers to the provisions that allow exemptions to disclosure contained in the various sections of the Freedom of Information Act.
This is despite the fact that politicians, tribunal judges, lawyers, journalists and campaigners have called the provisions ‘exemptions’ since the act was made law on 30 November 2000.
The Department of International Trade originally agreed that releasing the information about the talks would have significant benefits. However, the mandarins also claimed that disclosure would result in specific harms to the public interest.
This meant that the department could justify its decision not to release the information by relying on specific exemptions to disclosure described in the FOIA law.
Siloing
The judges at the First Tier Tribunal said the only kinds of harm it could see would be that some foreign governments would be aggrieved by the release of information, and that civil servants might in future be scared to speak their mind if their comments were to be noted down and later made public.
The tribunal went much further, admitting that foreign governments would only be mildly annoyed, and the British civil servants only slightly concerned.
The tribunal judges were faced with the prospect of having to rule in favour of disclosure, with the prospect of embarrassing the government.
This is when they arrived at the novel solution of aggregating the harms from the entirely separate exemptions in order to meet the threshold needed to rule against disclosure. The tribunal admitted in its ruling that “the public interest in maintaining the exemptions narrowly outweighed the public interest” in releasing the information.
Sir James Eadie KC, the barrister representing the government, told the Supreme Court judges there were “balancing competing public interests”.
He said the tribunal was right to aggregate the possible harms from disclosure. He even complained about the fact that a requester could identify any possible benefit from transparency when making their case while the government was limited to the exemptions only, each of which specified the type of harm that could be used as an excuse not to release the information.
Sir James argued: “You never have all of the public interest in play at any point because of siloing. If the requester can aggregate weights of each public interest in favour, it is only fair the government too gets to aggregate arguments against.”
The legal team for the Information Commissioner, the independent arbiter on FOIA, argued against the aggregation of harms from disclosure at the Supreme Court.
Disclosure
Tomothy Pitt-Payne KC, the barrister representing the Information Commissioner, reminded the Supreme Court judges FOIA was implemented to promote greater transparency.
“The public authority can disclose information even if there is an absolute exemption,” he said. “When no exemption is applicable the information must be disclosed.” This means that Starmer’s government could release the documents at any time.
Pitt-Payne explained that even the Department of International Trade had not aggregated the exemptions when originally refusing the request. Indeed, the tribunal judges had taken it upon themselves to introduce this new methodology when ruling the department was right not to release the information.
He warned the judges that if the Supreme Court ruled that harms from exemptions could in fact be aggregated this would fundamentally undermine FOIA. “Public authorities could try and bring in as many exemptions as possible, so as to bring in as many points as possible, to help them cross the threshold.”
The MPs who had originally drafted and voted for the law in Parliament obviously did not intend to have a litany of small harms heaped together to prevent disclosure, he said. “The fact there is a difficult question here about what is an exemption proves there is ambiguity – and demonstrates that the act did not deal with it or intend it,” he added.
The exemptions had been set out entirely separately, and were not ordered or categorised into a single system. Every exemption addressed very different kinds of information, usually handled by different government departments and public bodies and usually posing very different risks from disclosure. There was no explanation in the act as to how any such aggregation should be carried out by public authorities when dealing with requests.
Scrutiny
Erin Alcock, a senior associate at Leigh Day, which has managed the requesters’ case pro bono, had said after an earlier hearing that “fundamental issues such as environmental protections and food standards are at stake” and that the disclosures the government had been forced to make so far have been “a positive step towards greater transparency in future trade deals.”
Sam Fowles, of Cornerstone Barristers, is one of the barristers representing the requesters pro bono. He said after an earlier hearing: “This is a highly unusual case [that] goes to the very heart of our constitution. International trade and investment agreements can have impacts that are similar to primary legislation yet parliament has almost no opportunity to subject them to proper scrutiny.”
The talks between Britain and its trading partners in the wake of Brexit are ongoing. The working groups are unlikely to still be taking place, however, as these were used to circumvent an agreement with the EU not to engage in formal trade groups before Brexit had actually taken place.
Starmer has just today boasted of a new free trade deal with India. Almost all goods exported from India to the UK will face zero tariffs – including gems, textiles, engineering goods, leather, garments, and processed foods. Campaigners are concerned that Britain has tried to force India to swallow huge demands from its pharmaceutical industry, although there is no transparency or clarity about this aspect of the trade deal.
The latest deal with the US has not been formally signed, with many commentators speculating that the terms and conditions could be changed on a whim. Trump has made public his wishlist of environmental and consumer protections he wants Starmer to scrap as part of future trade agreements. The US wants to import chlorinated chicken and hormone-fed beef currently banned because of health concerns, for example.
TIMELINE
24 July 2017: The first secret meeting of the US-UK Trade and Investment Working Group opened in Washington DC.
15 November 2017: Brendan Montague made a request to the Department of International Trade (since absorbed into the Department for Business and Trade).
8 February 2018: The Department for International Trade disclosed some information.
19 March 2018: Brendan Montague submitted a complaint to the Information Commissioner.
25 March 2019: The Department for International Trade disclosed further information during the course of the Information Commissioner’s investigation. It withholds much of the information requested by relying on exemptions contained in section 27 FOIA, which related to interactional relationships, and on section 35(1)(a) FOIA, which concerns formulation of government policy.
29 March 2019: The Information Commissioner issued a decision upholding the refusal of Department for International Trade to provide the remaining information.
19 November 2019: Heavily redacted copies of the trade documents requested were condemned by Labour leader Jeremy Corbyn at the first general election debate. Original, unredacted documents containing information of the type requested were leaked and appeared to detail trade talks between the US and the British, including the alleged opening up of the NHS to private US firms.
12 December 2019: The case is heard in the First-tier Tribunal.
26 August 2020: The First Tier Tribunal partially upheld Mr Montague’s appeal and ordered limited further information to be disclosed. The judges chastised the Department for International Trade for a “clear inability to provide answers on many points of detail” and said its team failed to justify non-disclosure in a “detailed and rigorous way”. However, the tribunal also decided to aggregate the public interest points in the exemptions under Section 27 and Section 35 of the Freedom of Information Act.
13 April 2022: The Upper Tribunal rules that the First Tier Tribunal had erred in law in concluding that aggregation of different public interests against disclosure is permitted.
7 February 2023: The Department for International Trade (DIT) and the Department for Business, Energy and Industrial Strategy (BEIS) are dissolved by then prime minister Rishi Sunak and their responsibilities are delegated to the newly formed Department for Business and Trade (DBT).
22 November 2023: The Court of Appeal held that aggregation was permitted, following an appeal by the Department for Business and Trade.
28 January 2025: The case is heard at the Supreme Court after the Information Commissioner was given permission to appeal that judgment.
23 July 2025: The Supreme Court hands down its judgement. The court dismissed the appeal from the Information Commissioner. In effect, this means the Supreme Court upholds the decision not to release the documents from the trade talks that have been withheld.
This Author
Brendan Montague is the editor of The Ecologist. He is also the author of the original Freedom of Information Act request for details of the trade talks made to the Department of International Trade (now the Department for Business and Trade).