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81.  The BBC’s case is that, as a result of the way it is defined as a hybrid public authority in Part VI of Schedule 1, and as emphasised by section 7(1), the Commissioner does not have jurisdiction (under section 50) to make a decision about excluded information, or (under section 51) to require information from the BBC to enable him to make such a decision. That would appear to mean that the Commissioner had no power to determine whether information was excluded, because, if he did so determine, he would ex hypothesi have no jurisdiction to have done so, and if he wrongly held such information was not excluded his decision would be ultra vires. Yet, by investigating and deciding whether requested information is excluded to see if he had jurisdiction, as Ms Carss-Frisk says he can do, the Commissioner would effectively be doing precisely what, on the BBC’s case, he was not entitled to do.

82.  It is true that many tribunals have power to decide whether a claim is within their jurisdiction. However, that does not mean that the 2000 Act can be read, on the one hand, as providing specifically that the Commissioner has no jurisdiction whatever in relation to excluded information, while providing, on the other hand, that he can, indeed must, decide whether allegedly excluded information is in fact excluded under the Act. I accept that, for example, a rent officer can investigate whether a tenancy is protected by the Rent Act 1977 in order to decide whether he has jurisdiction to fix the rent (see e.g. R v Kensington and Chelsea (Royal) London Borough Rent Officer, Ex p Noel [1978] QB 1). However, there are two crucial differences. First, the rent officer’s investigation would only go to jurisdiction and would have no influence on his determination of the application, which is to fix a rent, whereas the Commissioner’s investigation would normally be determinative (and would certainly influence the resolution) of the application to him, as it will usually simply require him to decide whether the information should be disclosed. Secondly, there is no provision in the Rent Act equivalent to section 7(1) in this case (as interpreted by the BBC), which could be said specifically to deprive a rent officer of the power to decide the very issue which is said to go to his jurisdiction.

83.  It is probably another way of making this point, but it seems to me that Ms Carss-Frisk’s contention really sells the pass. To meet the contention that the hybrid authority should not be the ultimate statutory decider as to whether the requested information is excluded, she says that, in order to see if he has jurisdiction under section 50, the Commissioner may, indeed must, resolve whether a hybrid authority was right to say that it need not comply with a request as the relevant information is excluded. However, in order to maintain its wider case, the BBC says that the Commissioner does not have jurisdiction to decide whether the authority should comply with the request if the information is excluded. But if the Commissioner decides the authority was right to say that the information was excluded, then he would effectively have carried out and concluded his section 50 role, whereas if he decides the authority was wrong, then, even on the BBC’s case, he would then have full jurisdiction to proceed under section 50. The only practical difference would be that, on the BBC’s case, any challenge to the Commissioner’s decision would be by way of judicial review in court, whereas, on Mr Sugar’s case, it would be by way of appeal to the Information Tribunal under section 57.

84.  This leads me to the second problem if the BBC’s case is correct. It is that, instead of the Information Tribunal or, subject to Ms Carss-Frisk’s point, the Commissioner, deciding, under sections 57 and 50 respectively, whether a contention that information was excluded was justified, the issue would have to go before the court by way of judicial review. A court, acting under the judicial review procedure, would be a significantly less appropriate forum for such a determination than the Tribunal and the Commissioner, with all their accumulated expertise, their statutory powers to order disclosure, and their inquiries being essentially confidential in nature.

85.  The third problem with the BBC’s case is that, if it is correct, it is hard to see how the Act would work in many cases where there was a serious argument whether the material was excluded. If the authority believed the requested information was excluded, it would not even have to reveal whether it held the information (as section 1(1)(a) would not apply). Similarly, if the authority believed that a request for generic information applied to information only some of which was excluded, it would not have to inform the applicant of the existence of the excluded information. Ms Carss-Frisk says that the Commissioner could require the authority to provide him with information to decide whether he had jurisdiction in relation to such allegedly excluded information. However, that rather undermines the BBC’s case: if the Commissioner could call for the information to decide if it was rightly withheld, it would remove most of the point of it being excluded from the ambit of the Act.

86.  Further, it seems to me that there could be procedural problems where a hybrid authority contends that (a) information is excluded, but (b) if it is not, it nonetheless does not have to produced (or even, possibly, its existence revealed), for one of the statutory reasons - i.e. excessive cost of compliance (under section 12), vexatiousness (section 14), or the information is exempt under Part II. On the BBC’s case, the issue whether the information was excluded would have to go to court (either directly, or, if Ms Carss-Frisk’s point is right, after the Commissioner had declined jurisdiction), and the other reason would have to be decided by the Commissioner (or, on appeal, by the Tribunal). This is not merely inconvenient in terms of time and cost. It could also lead to rather an absurd result. If the same tribunal had to consider all the grounds, it could approach them on a practical and overall basis, often considering the second ground first. But, on the BBC’s case, the question of exclusion would have to be determined first, so the hybrid authority might have to produce evidence to show that the information was excluded, where section 12 was being relied on (where the authority was contending that it was disproportionately expensive to search for the information in the first place), or where section 26 was being relied on (where the authority was contending that revelation of the information could damage the defence of the realm).

87.  Fourthly, it seems unlikely that the legislature intended the Commissioner to have no statutory jurisdiction to decide that information held by a hybrid authority was excluded, given that he plainly has jurisdiction under section 50 to decide whether an authority’s contention that information is exempt under any of the provisions in Part II of the Act. It would be odd if the Commissioner (and indeed, on appeal, the Tribunal) had the statutory power to consider whether information is exempt - e.g. because its communication would prejudice defence of the realm, international relations, formulation of government policy, or the conduct of public affairs (sections 26, 27, 35 and 36) - but not to consider whether information was excluded.

88.  Finally, if the BBC is correct in its contention, it is hard to see what function section 7 has, a point that Buxton LJ seemed inclined to accept in the Court of Appeal - see [2008] EWCA Civ 191; [2008] 1 WLR 2289, para 26 .

89.  The interpretation advanced by Mr Sugar leads to none of these problems of principle, logic and practice. However, it does attribute to section 7(1) a somewhat different, more nuanced, meaning than that which it would most naturally bear if read on its own. Nonetheless, in my view, Mr Sugar’s interpretation accords with the overall purpose of the Act, and it does no violence to any of its language, including the language of section 7(1) itself.

90.  As I see it, Mr Sugar’s contention involves accepting that, once a request for information is made under the Act to a hybrid authority, the fact that it claims that the information is excluded does not mean that the authority thereby ceases to be a public authority under the Act. The BBC, like every other hybrid authority, is listed in Schedule 1 as a public authority, and it does not seem to me to conflict with the wording of that Schedule or section 3(1) if a hybrid authority does not cease to be a public authority merely because it claims that the requested information is excluded. The applicant has treated it as a public authority by making a request under section 1 of the Act, and, at least until he accepts, or it is conclusively determined, that the information he seeks is excluded, it appears not only sensible, but not in conflict with those provisions, that the authority should be treated as a public authority subject to the provisions of the Act.

91.  Once a hybrid authority honestly concludes that the requested information is excluded, then it would appear to follow that it should also be able to contend that it need not comply with the obligations in section 1. That seems to me to be consistent with the policy of the Act: a hybrid authority should not have to search for and give details of, information which it honestly believes is excluded, unless and until it is held not to be excluded. However, just as the authority can proceed on the basis that it is right in such a case, so can the applicant proceed on the basis that he is right. Accordingly, if the applicant considers that the information is not excluded, he can apply to the Commissioner for a decision under section 50. That is because he contends that he has made “a request for information … to a public authority” which has not “been dealt with in accordance with the requirements of Part 1". The Commissioner can then proceed to deal with the application under sections 50 to 53, and if either party is dissatisfied with his decision, they can appeal to the Tribunal under section 57.

92.  Some support for the notion that information which turns out to be excluded may not initially be treated for all purposes as excluded under the Act, and in particular under section 7(1), is to be found in section 16. Section 16(1) obliges an authority “to provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to persons who propose to make, or have made, requests for information to it". In many cases, the request or preliminary enquiry may be framed in a general or imprecise way so that it is not clear whether the information is or will be excluded. In such cases, it appears to me that, even on the BBC’s construction, the authority could not be expected to take a view one way or the other at once: that would be unrealistic, and it could be unfair on the applicant or the authority or on both. In such cases, it appears to me that, on any view, section 16 would apply and the authority would have to provide advice and assistance at least until it was in a position to decide whether, in its view, the information sought was excluded. This tends to support the notion, inherent in Mr Sugar’s case, that exclusion is not necessarily a status imposed on information by the Act from the moment a request is made let alone from the moment the information comes into the authority’s possession.

93.  At first sight, this conclusion may appear to conflict with section 7(1), because, as discussed above, it appears to be so worded as to indicate that, if the Commissioner decides that the information is excluded, he would seem to have had no jurisdiction to consider an application in respect of it under section 50 in the first place. In my view, the answer to that point is that, as already explained, until it has been accepted by the applicant or determined by the statutorily designated person (i.e. the Commissioner or, on appeal, the Tribunal) that the information requested is excluded, it cannot be treated as excluded for the purposes of section 7(1). I accept that this is not stated in terms in the Act, and that it does not accord with the natural meaning of section 7(1), if read on its own. However, it does not seem to me to conflict with section 7(1), if, as it should be, it is read in its context, with a view to achieving a result which accords with the purpose of the Act and harmonises with all the other relevant provisions of the Act.

94.  On that basis, I consider that it is permissible, indeed appropriate, to read “any other information” in section 7(1) as referring to information which has been (a) claimed by the authority to be excluded and (b) accepted by the applicant, or determined by the Commissioner (or, on appeal, by the Tribunal) to be excluded. In other words, where a hybrid authority is requested to give information which the applicant contends is not excluded and the authority contends is excluded, then, until such time as it is agreed by the applicant or determined in accordance with the statutory machinery that the information is excluded, it is not to be treated as excluded for the purposes of section 7(1). This involves placing a gloss on the meaning of the words of section 7(1) if it is read on its own, but it does not give those words a meaning they do not naturally bear. It avoids the problems of the BBC’s construction, and gives section 7(1) a meaning which harmonises with the other provisions of the Act, and with the overall purpose of the Act.

95.  As already explained, in the event of a dispute as to whether information is excluded, unless the authority is to be the statutory judge in its own cause, it is necessary to find some mechanism in the Act for resolving the dispute, and for covering the period until the dispute is resolved. Until such resolution, the hybrid authority is to be treated as a public authority in relation to the information requested, and it is only when and if the information is agreed or determined to be excluded that it ceases to be a public authority in relation to the information requested, and section 7(1) applies.

96.  Accordingly, for these reasons and in addition to those of my noble and learned friends Lord Phillips of Worth Matravers and Lord Hope of Craighead, I, too, would allow Mr Sugar’s appeal.