The Rt Hon Boris Johnson
Prime Minister’s Office
10 Downing Street
London
SW1A 2AA

13 November 2019
FOR YOUR URGENT ATTENTION
REQUEST FOR IMMEDIATE DISCLOSURE UNDER THE PRIME MINISTER’S
COMMON LAW DUTY TO DISCLOSE INFORMATION IN THE PUBLIC INTEREST
Dear Sir
Re: The report of the Intelligence and Security Committee of Parliament
entitled “Russia”
1.

We act on behalf of the Bureau of Investigative Journalism (“the Bureau”).

2.

TBIJ is an independent, not-for-profit organisation that aims to “hold power to
account”. It aims “to inform the public about the realities of power in today's
world… and is particularly concerned about the undermining of democratic
processes

and

failures

to

accord

with

fair,

legal

and

transparent

practices.” TBIJ has no corporate or political agenda.
3.

This is a request to disclose the report of the Intelligence and Security
Committee of Parliament entitled “Russia” (“the Report”) to the Bureau. Please
be advised that, for the reasons set out below, this request is made on the
basis that the Prime Minister has a common law duty to disclose information in
the public interest [Kennedy v The Charity Commission [2014] UKSC 20,
[2015] AC 455]. This is not a request under any part of the Freedom of
Information Act 2000 (“the 2000 Act”) and should not be treated as such.

4.

Please be aware that, should the Prime Minister decide not to disclose the
Report within the timeframe set out in the final paragraph of this letter, we are
instructed to challenge that decision by way of urgent application for judicial
review.

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 Background
5.

In or around March 2019 the Intelligence and Security Committee (“the ISC”)
began consultations with the Security Service, the Secret Intelligence Service
and GCHQ (“the agencies”) and the National Security Secretariat about the
content of the Report. By October 2019 the ISC and the agencies reached
agreement as to the publishable content of the Report. As of October 2019, the
agencies had “no objection” to the text of the Report being published as it
currently stands.1

6.

On 17 October 2019 the ISC submitted the Report to the Prime Minister.

7.

On 4 and 5 November 2019 the Prime Minister indicated (through statements
made by representatives of his government) that he would not consent to the
publication of the Report until after the general election scheduled for 12
December 2019. On 5 November 2019 Parliament was dissolved in advance of
the general election. As a result of the dissolution, there is currently no extant
ISC.

The Legal Basis of this Request
8.

Under section 3(2) of the Justice and Security Act 2013 (“the 2013 Act”) the
ISC is empowered “make such… reports to Parliament as it considers
appropriate concerning any aspect of its functions.” It “must lay before
Parliament any report made by it to Parliament” (s.3(6)). The effect of making a
report to Parliament is to place it in the public domain. The Prime Minister is
empowered, under s.3(4), to limit publication of any matter within the report that
he “considers would be prejudicial to the continued discharge of the functions
of the Security Service, the Secret Intelligence Service, the Government
Communications Headquarters or any person carrying out activities falling
within section 2(2).”

9.

At the current time, there is no extant ISC and no sitting Parliament. We
suggest that:

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https://www.independent.co.uk/news/uk/politics/russia-conservative-party-brexit-intelligence-ukreport-national-security-money-a9185116.html

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 (a)

So far as the Prime Minister’s consideration of the limited reasons for nondisclosure in s.3(4) is concerned, this is of no relevance. He is now seized
of that consideration. So far as consultation with the ISC is concerned, our
understanding is that he has already received the views of the ISC on
publication (namely that the entire Report can be published).

(b)

So far as subsequent publication is concerned, it is not possible for the
ISC to lay the Report before Parliament pursuant to s.3(6). Consequently,
the scheme of publication set out in section 3 of the 2013 Act (“the
section 3 scheme”) cannot operate at this time. Indeed, given that it
typically takes a substantial period of time after a new Parliament sits for a
new ISC to be formed, it is unlikely that the section 3 scheme will be
operable until well into 2020.

10. Given the unavailability of publication by the ISC under the section 3 scheme,
the common law duty to disclose information in the public interest (“the
common law duty”) fills the lacuna. This is supported by, and inspired by,
Parliament’s clear expression in section 3 itself as to the necessity of
publication, and the considerations to be taken into account when considering
disclosure, of ISC reports.
11. The common law duty to publish falls on the Prime Minister for the following
reasons:
(a)

He is the current possessor of the Report;

(b)

He is currently seized of the s.3(4) consideration;

(c)

The ISC has passed the Report to the Prime Minister for s.3(4)
consideration and is therefore, in substance, functus officio in terms of the
publication of the report (even if Parliament was still sitting);

(d)

The Prime Minister’s refusal to act is the only reason the Report has not
yet been published;

(e)

The Prime Minister is the only individual empowered by the section 3
scheme to prevent the publication of the Report;

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 (f)

The Prime Minister is therefore the most proximate stand-in for the ISC in
the current context.

12. The Prime Minister has a common law duty to publish information when (a) that
information is requested and (b) he weighs the public interest in publication
against the public interest in refusing to publish. In the instant case the Prime
Minister should be guided in his performance of the common law duty - and in
particular in respect of what constitutes the public interest in refusing to publish
- by the requirements of the section 3 scheme.
Public Interest
13. The public interest in disclosure of the Report clearly outweighs the public
interest in refusing disclosure:
(a)

The Report concerns interference by a foreign power in UK politics, this
alone marks it out as of exceptional public interest. It goes to the heart of
the UK’s state sovereignty.

(b)

The alleged interference is specifically in elections. The electoral process
is essential to the UK constitution because the sovereignty of Parliament
(“the stone upon which the UK’s constitution is not writ” 2) flows from the
consent of the electorate [Jackson v Attorney General [2005] UKHL 56,
§126; R (Miller) v Prime Minister and Cherry v Lord Advocate [2019]
UKSC 41, [2019] 3 W.L.R. 589, §55]. Foreign interference in elections
therefore strikes at the fundamental tenets of the UK constitution.

(c)

There is a public interest in disclosure that would promote public debate
and meaningful participation in any aspect of the democratic process
[DCMS v IC, IT, 29 July 2008, at §28; Galloway v IC and NHS, IT, 20
March 2009, at §70(d)]]. Further, there is a particular interest where the
disclosure will allow the public to meaningfully participate in important
decisions [DWP v IC, 5 March 2007, at §97; OGC v IC, 19 February
2009, at §§152-162].

2 Jeffrey Jowell, "Parliamentary Sovereignty Under the New Constitutional Hypothesis" Public Law,
(Autumn 2006), pp. 562-579

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 (d)

The Report also concerns Russian interference in the Brexit referendum
in 2016. This referendum is the trigger for historic and irreversible
constitutional change (which, on the present facts, will occur by operation
of law on 31 January 2020). There is a clear public interest in knowing
whether that referendum result was obtained, even in part, as a result of
foreign interference.

(e)

In the instant matter there are substantial indications of Russian
interference in UK politics and elections. Not least those revealed by a
series of investigations by The Guardian3. This is not a case in which
there is merely speculation about foreign interference. The Guardian has
obtained substantial evidence and analysis. The clarification which the
Report is expected to provide is therefore of the highest importance.

(f)

Indeed, the government itself acknowledges the threat posed by Russia,
not least as a result of at least one assassination and another attempt that
the government believes Russian agents have carried out on UK soil.

(g)

The allegations of Russian interference concern senior figures in the
government. If these allegations are supported by the Report, then it is
essential that such figures are held to account. The relative seniority of
those involved leads to a heightened public interest in disclosure.

14. Further, there is a particular public interest in publication of the Report in
advance of the general election scheduled for 12 December so that voters can
take the contents of the Report into account when making their decision for
whom they will cast their vote and, importantly, on what basis they will decide.
15. The public interest considerations in favour of disclosure clearly outweigh those
against disclosure. The Report has already been considered by both the
agencies and, as we understand it, the appropriate officials within the Cabinet
Office. All of these reached the conclusion that the Report, as presented to the

3 See, for example: https://www.theguardian.com/politics/2019/nov/04/no-10-blocks-russia-eureferendum-report-until-after-election

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 Prime Minister, could be published without prejudice to the discharge of the
functions of the agencies.
Freedom of Information Act 2000
16. The Freedom of Information Act 2000 does not provide an appropriate
mechanism for consideration of this request. That statute provides for a public
authority (in this case, the Prime Minister) to have 20 working days to consider
a request and a further 20 days to consider the balance of public interest if he
believes a relevant exemption applies under that Act. This period extends
beyond both the date of the general election and the statutory period for
challenging the result of that election. The Prime Minister is, therefore, asked to
consider this request under his common law duty.
Time for Response
17. The Prime Minister typically takes 10 working days to approve an ISC report for
publication where that report has already been considered and approved by
security services and Cabinet Office officials. That period expired on 31
October 2019.
18. Moreover, it is imperative that the Report be published in good time before the
general election on 12 December.
19. Further, as indicated earlier in this letter, should the Prime Minister decide not
to publish the Report, it is our intention to challenge that decision by way of
urgent application for judicial review. Such challenge must be capable of giving
effective relief, namely resulting in publication before the general election.
20. For all those reasons, we ask that the Prime Minister respond by 4pm on
Tuesday 19 November 2019. Please be advised that, should no response be
received, we may issue an urgent application for judicial review in the High
Court with no further notice.
Address for response:

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 21. Rosa Curling, Leigh Day Solicitors, Priory House, 25 St John’s Lane, London,
EC1M 4LB (reference:
Yours faithfully

Leigh Day
Cc: Public Law Team, Government Legal Department

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