SRA: Transparency exceptions apply
The Solicitors Regulation Authority (SRA) has refused a request to disclose all the correspondence it had with the Ministry of Defence and Ministry of Justice over the Leigh Day case as it announced its intention to appeal the Solicitors Disciplinary Tribunal’s (SDT) decision to clear the firm and three of its lawyers.
The case will now head to the High Court, and what, at the time, was the possibility of that was one of the reasons the SRA gave for rejecting the request under its voluntary transparency code – the SRA is not subject to the Freedom of Information Act.
The full ruling of the SDT in the Leigh Day case showed that one of the three tribunal members dissented on 10 of the 20 allegations.
The request, from a Matthew Jackson, came in the wake of questions – raised by Leigh Day itself among others – over whether the government put the SRA under pressure to pursue the case as it did.
The reply from Andrew Turton, the SRA’s head of risk and information governance, said the request fell within the exception to the code that allows the SRA to refuse disclosure where it “is likely to prejudice… the exercise by us of our statutory and public functions”.
He said the information “has already been deployed by the parties before the SDT: in its decision the SDT referred to that material, but concluded that the material was not relevant to whether the allegations against the Leigh Day respondents were made out.
“It is likely to be deployed again in the context of the costs hearing [which took place on Monday]; and there may be further reference to it in the course of any appeal proceedings and/or any remitted hearing.
“Detailed public discussion of this material while the disciplinary proceedings are still live would be likely to prejudice the conduct of the tribunal process.
“Disclosure would also be likely to prejudice the SRA’s participation in that process: instead of focusing on the SDT process, the SRA would need also to manage the effect of disclosure and to respond to any public comment following from the disclosure.”
A further reason, Mr Turton continued, was that some of the material consisted, in substance, of complaints about the conduct of the Leigh Day respondents.
“Where complaints lead to the formulation of charges before the SDT, then those charges will be in the public domain. But if the raw material behind those charges – i.e. the complaints – is made public, then this is likely to discourage individuals from making complaints to the SRA”.
Another exception – that disclosure “is likely to, prejudice the effective conduct of public affairs or inhibit the free and frank provision of advice or exchange of views” – also applied to part of the information requested, Mr Turton said.
“Some of the information consists of policy-related discussions about matters such as the powers of the SRA and the processes followed by the SDT. Disclosure of this kind of information is likely to prejudice the free and frank exchange of views between the SRA and external bodies such as the MoJ or MoD.”
He also considered that any public interest in disclosure of the information was “very limited”.
“In particular, that information has been disclosed both to the SDT and to the parties. To the extent that there is a public interest in ensuring that the SRA’s communication with external bodies is proper and legitimate, that public interest has been and will be very largely met through the SDT process, the conclusions of which have been and will continue to be made public.
Both the Ministry of Justice and Ministry of Defence have refused similar requests, citing section 12(1) of the Freedom of Information Act.
This provides that public authorities are not obliged to comply with a request for information if it estimates the cost of complying would exceed the appropriate limit, which is set at £600 for central government.
Meanwhile, the SDT did not reach a decision on costs on Monday. There is no presumption of costs in favour of solicitors who successfully defend themselves before the tribunal.
A key factor is whether the prosecution was properly brought by the SRA in the exercise of its regulatory responsibilities, in the public interest and in maintaining proper professional standards.
The SDT has previously held that for the SRA to be exposed to the risk of an adverse costs order simply because properly brought proceedings were unsuccessful may have a “chilling effect” on the exercise of its regulatory obligations, to the public’s disadvantage.
Indeed, solicitors who are cleared can still be ordered to contribute to the regulator’s costs.
In one case decided last week, two solicitors cleared of any misconduct were not awarded any costs, but neither was the SRA after the tribunal identified a procedural failure earlier in the case that could be seen as unfair to the solicitors.
How can it possibly cost Government Departments more than £600 to disclose correspondence? Unless , perhaps, there was frequent and voluminous correspondence as they sought to silence a critic.