Category: Environmental Information

Court Fees, Access to Justice and Freedom of Information

On Monday new tables of fees enter into force for the Sheriff Courts and Court of Session in Scotland. The new table of fees is necessary because of the new Simple Procedure that is coming into force next week to replace the Small Claim procedure and to partially replace the Summary Cause procedure in the Sheriff Court. It would appear that the Scottish Government has used this opportunity to increase some other fees as well.

The other increases are part of the Scottish Government’s aim to get “full cost recovery” in the civil courts; that is, that so far as is possible those who litigate in Scotland’s civil courts fully fund the cost of running those civil courts. I have grave misgivings about such a policy for access to justice (and I am not alone in that view). This blog has, in recent times, moved more towards the field of Information Law and to that extent, I am going to look at these latest court fee rises in the context of Freedom of Information appeals.

In Scotland, under the Freedom of Information (Scotland) Act 2002, if a person is dissatisfied with how a public authority has handled a FOI request they can make an application to the Scottish Information Commissioner (SIC). The SIC has the power under the 2002 Act to make a decision as to whether the public authority has complied with the Act, and if not, she has the power to state what steps the public authority must take in order to comply with the act (including to order that the public authority release information to the requester). If a requester or public authority is unhappy with the Commissioner’s decision there lies a right of appeal (on a point of law) to the Court of Session.

The Scottish appeals procedure differs vastly from the appeals procedure under the UK Freedom of Information Act, where a right of appeal (on both fact and law) exists to a specialist First-Tier Tribunal and then on to the Upper Tribunal and the Courts (on a point of law only). There is currently no charge for lodging an appeal with the First-Tier Tribunal, nor for any step of process or a hearing. That is not the case in Scotland.

Unless the party bringing the appeal is in receipt of Civil Legal Aid, there are court fees to be paid. The appeals are also dealt with under Chapter 41 of the Rules of the Court of Session and go straight to the Inner House. For those who are unfamiliar with the Scottish court structure, the Court of Session is split into two “houses”. The Outer House hears cases at first instance and is usually presided over by a single Senator of the College of Justice; while the Inner House is the appellate court and hears appeals from the Outer House as well as other courts, tribunals and regulators (such as the Sheriff Appeal Court and the Scottish Information Commissioner). Appeals from the Inner House are (with permission) to the UK Supreme Court; the Inner House is therefore Scotland’s supreme Civil Appellate court. In the Inner House, at least three of Scotland’s most senior judges will sit to hear the appeal.

On 28 November, the Court Fees (Miscellaneous Amendment) (Scotland) Order 2016 shall enter into force. Schedule 1 to that Order sets out a new table of fees in the Court of Session. Paragraph 1 in Section B of the Table sets a new fee for lodging an “Appeal, application for leave or permission to appeal, summons, or other writ or step by which any cause or proceeding, other than a family action, is originated in either the Inner or Outer House (to include signeting in normal office hours)”. The new fee is set at £300, up from £214. So, in order to lodge your appeal against a decision of the SIC the Appellant (whether an individual or public authority) needs to stump up £300. The Respondent (who is the SIC) will also have to pay £300 (again, up from £214) to lodge their Answers to the Appeal.

There may be other fees to pay along the way, depending on the procedure that ends up taking place; however, when it gets to the hearing of the appeal, the costs start to mount up significantly. Each party (appellant and respondent) will be required to pay £500 (up from £239) per 30 minutes (or part thereof). Therefore, a hearing that lasts a full court day (roughly 5-6 hours) will result in a court fee of between £5,000 and £6,000; and that is before solicitors’ fees and the fees of Counsel are added. This is an astronomical figure. It is not paid by anyone in receipt of legal aid (and legal aid is available for FOI matters in Scotland), but you do not have to be very well off not to qualify for legal aid.

This represents a significant barrier to accessing justice. These are sums of money that most middle earners will struggle to get their hands on, even if they attempt the appeal as a party litigant (which given the complexity and sometimes archaic nature of the Court of Session Rules is no easy task). When it comes to the question of FOI, it only strengthens my belief that appeals against decisions of the SIC should be to a lower court or tribunal in the first instance.

There is a much more fundamental point however; the civil courts should be accessible to everyone. The level that court fees are rising to (and they are going to continue to rise over the next few years as the Government moves towards “full cost recovery”) presents a very real barrier to justice. The Scottish Government accepted that fees represent a barrier to justice in respect of the Employment Tribunal fees set by the UK Government (and has pledged to abolish them when the power to do so comes to the Scottish Parliament in the near future). However, the Government seems happy to continue with a policy of full cost recovery (that was, admittedly, started under the Labour/Liberal Democrat Administration that left office in May 2007). It is a flawed policy that will place a very real barrier to the courts for very many people. That, is a tragedy for justice and for democracy.

Registered Social Landlords and the Scottish EIRs

On 2 June 2014 the Scottish Information Commissioner issued a decision notice finding that Dunbritton Housing Association Limited, a Registered Social Landlord (“RSL”), was a Scottish public authority for the purposes of the Environmental Information (Scotland) Regulations 2004 (the Scottish EIRs). In that decision the Commissioner ordered the Housing Association to conduct an internal review and to respond to the requester accordingly. Dunbritton Housing Association did not appeal that decision to the Court of Session, as was open to it.

It transpires that Dunbritton Housing Association complied with the Commissioner’s decision and conducted an internal review. It released some information and withheld the remainder under Regulations 10(5)(e) and Regulation 11(2) of the Scottish EIRs. The requester made a fresh application to the Commissioner seeking a decision on two matters: (1) whether Dunbritton had identified all of the information falling within the scope of the request; and (2) whether Dunbritton Housing Association was correct to apply the exceptions that it had.

What is interesting is that after not appealing the Commissioner’s decision to the Court of Session and after complying with the Commissioner’s decision by conducting a review and responding to the request, Dunbritton again tried to argue that it was not a Scottish public authority for the purposes of the Scottish EIRs. The Scottish Information Commissioner, once again, decided that it was.

Dubritton referred to the UK Upper Tribunal’s decision in Fish Legal and argued that the control test within both the UK EIRs and the Scottish EIRs was a high one. It contended that although the Scottish Housing Regulator had significant regulatory powers over RSLs like Dunbritton it only utilised those powers where a RSL was failing. It argued that it was therefore not a Scottish public authority for the purposes of the Scottish EIRs.

The Commissioner concluded, correctly, that she is not bound by the UK Upper Tribunal decision and instead looked to the decision of the Court of Justice of the European Union in the Fish Legal case. She determined, for the same reasons as set out in her previous decision that Dunbritton Housing Association is a Scottish public authority for the purposes of the Scottish EIRs.

There are now two decisions of the Scottish Information Commissioner determining that a RSL is a Scottish public authority for the purposes of the Scottish EIRs, albeit involving the same requester and the same RSL. Her decision has expressly been based upon the decision of the Court of Justice of the European Union in one case and in the other was made following that Court issuing its decision. It seems fairly certain that future RSLs that try to argue that they are not Scottish public authorities in applications to the Commissioner will not succeed; although the Commissioner’s decisions are not binding on anyone (including herself), these two decisions begin to show a clear and consistent line of thinking. It is open to Dunbritton to appeal the decision to the Court of Session – whether or not a person is a Scottish public authority is clearly a question of law. It remains to be seen whether Dunbritton does appeal. While an appeal might be successful and create binding case law that RSLs are not Scottish public authorities for the purposes of the Scottish EIRs it could equally go the other way and create binding precedent that states they are. While there is no binding case law it remains possible for Dunbritton or another RSL to convince the Commissioner that she got it wrong in the two previous decisions. At this stage it remains a case of waiting and seeing; Dunbritton have 42 days from the date the decision was intimated to lodge any appeal.

A problem with the Scottish EIRs

The Environmental Information (Scotland) Regulations 2004 (“Scottish EIRs”) give individuals the right to request and obtain, subject to certain well defined exceptions, information in relation to the environment from Scottish public authorities. They implement into the law of Scotland Directive 2003/4/EC of the European Parliament and of the Council on public access to environmental information (“the Directive”). The Directive in turn implements the Convention on Access to Information, public participation in decision-making and access to justice in Environmental Matters done at Aarhus, Denmark on 25 June 1998 (“the Aarhus Convention”) into EU law.

In Scotland, like the rest of the UK, the Scottish EIRs are an adjunct to Freedom of Information. The Scottish EIRs sit alongside the Freedom of Information (Scotland) Act 2002 (“FOISA”) and the Scottish Information Commissioner has the same powers of enforcement in respect of the Scottish EIRs as she does in respect of FOISA. By virtue of Regulation 17 of the Scottish EIRs, Part 4 of FOISA applies to the Scottish EIRs. The Regulations make certain amendments to Part 4 of FOISA for when it is being read in respect of the Scottish EIRs.

Section 48 of FOISA provides that no application can be made to the Scottish Information Commissioner in respect of three scottish public authorities: (1) the Commissioner herself; (2) a Procurator Fiscal; and (3) the Lord Advocate, where the information relates to his role as head of the systems of prosecution and the investigation of deaths in Scotland. Essentially, this means that the Scottish Information Commissioner is prohibited from accepting any application for a decision by anyone that relates to the handling of a request for information under FOISA and the Scottish EIRs made to the Commissioner’s Office and the Crown Office and Procurator Fiscal Service (“the COPFS”). I’m not a fan of this section and think it ought to be repealed in its entirety, but that is a subject for another time. As far as the Scottish EIRs are concerned this section is a problem. Essentially, once the Commissioner’s Office and the COPFS have conducted an internal review there is nowhere else for the requester to go if they remain dissatisfied with the response.

Article 6(2) of the Directive provides that:

In addition to the review procedure referred to in paragraph 1, Member States shall ensure that an applicant has access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final. Member States may furthermore provide that third parties incriminated by the disclosure of information may also have access to legal recourse.

The review procedure under paragraph 1 is essentially the internal review procedure provided for by Regulation 16 of the Scottish EIRs. In respect of every other scottish public authority covered by the Scottish EIRs there exists a right to make an application to the Scottish Information Commissioner and have a decision notice issued by her office together with the ability to appeal (on a point of law only) that decision notice to the Inner House of the Court of Session, and then on to the Supreme Court of the United Kingdom. There is a decision of a third party that is capable of becoming final. Therefore, Article 6(2) of the Directive is complied with. However, these appeal rights do not apply in respect of requests made to the Commissioner’s Office and the COPFS.

It should be theoretically possible to judicially review the internal review response of both the Commissioner and the COPFS. At a first glance that might be thought to satisfy the requirements of Article 6(2) of the Directive; however, the wording of the Directive suggests that Judicial Review may not be sufficient. Judicial Review is not an appellate procedure; it is a review procedure. The Court of Session cannot substitute its own decision for that taken by the public authority. The Court of Session could, in a judicial review, determine that irrelevant factors had been taking into consideration in respect of assessing the public interest where a qualified exception has been applied; it could not determine that the public interest does or does not support the maintaining of an exception. Essentially, all the Court can do is uphold the decision of the Commissioner’s Office or the COPFS, or it can quash the decision – it cannot re-take the decision (something that the Commissioner effectively has the power to do when considering an application under section 47(1) of FOISA). Therefore, judicial review cannot be a “review procedure… in which the acts or omissions of the public authority concerned can be reviewed” because it can only do so to a limited extent. Therefore, for all practical purposes the decision of the public authority is final, not the decision of a court or another independent and impartial body established by law.

Furthermore, judicial review is expensive and comes with considerable risk in relation to expenses. While it is theoretically possible for an applicant to represent themselves in the Court of Session, in all likelihood it will necessitate the instruction of a solicitor and at least junior counsel (if not junior and senior counsel); that is expensive. Even if an applicant manages to represent themselves in the Court of Session; the court fees will be prohibitively expensive to many people. These fees, payable at various stages throughout the process, will total hundreds of pounds. The public authority in question will be represented by Counsel and if a requester loses, they may find themselves responsible for paying the public authority’s expenses (although, the Court does retain an inherent discretion in whether to make an award of expenses and to what extent the losing party shall pay the winner’s expenses). This is relevant because the Aarhus Convention, upon which both the Directive and the Scottish EIRs are based, requires the review processes to be free of charge or inexpensive or not prohibitively expensive (Article 9). The Court of Justice of the European Union found that the UK had failed to properly implement the Directive when looking at the costs under the English judicial system (see European Commission v United Kingdom).

The problem for the Scottish EIRs gets bigger once consideration is given to the Scotland Act 1998. Section 57(2) of the Scotland Act provides that the Scottish Ministers have “no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with EU law.” The Scottish EIRs are regulations and are therefore subordinate legislation. By applying section 48 of FOISA to the Scottish EIRs the Scottish Ministers have made subordinate legislation that is ultra vires – it is outside of their competence. For the Scottish EIRs to be compatible with EU law, section 48 of FOISA cannot apply to them; while it does, the Scottish EIRs do not fully implement Article 6 of the Directive.

This problem is easily resolved. The Scottish Ministers simply need to amend the Scottish EIRs so as to disapply section 48 of FOISA in respect of the Scottish EIRs. This would enable the Commissioner to consider applications made to her under section 47(1) of FOISA concerning requests for information made to either her office, or the COPFS that engage the Scottish EIRs. Of course, the Scottish Ministers could introduce legislation into the Scottish Parliament to repeal section 48 of FOISA altogether (and that would kill two birds with one stone).

If the Scottish Ministers do not choose to make the relevant amendments they could be forced to. All it would take is for someone to go through the process of making a request for environmental information to either the Commissioner or the COPFS, getting a refusal notice which is then upheld at internal review, and making an application to the Scottish Information Commissioner so as to get a notice from the Commissioner stating that no decision falls to be made. This can then be appealed to the Court of Session for them to make what appears to be an inevitable decision: the Scottish Ministers acted ultra vires when applying section 48 of FOISA to the Scottish EIRs – an expensive process, but one that someone will eventually go down some day.

The Black Spider Letters – Part IV

This is the final in a series of four blog posts looking at the Supreme Court’s decision in R (Evans) v HM Attorney General. The first post went through the background to the case, the second post focused on the Court’s decision in respect of section 53 of the FOIA and the third post looked at the Court’s decision in respect of Regulation 18(6) of the EIRs.

This was a significant decision for a number of reasons. It significantly restricts section 53 of the FOIA and in essence makes it virtually impossible for the Executive to make use of it. While this might seem, on the face of it, really good for transparency; it comes with a serious warning. In 6 weeks time the UK will have a new Government and undoubtedly one of the first things that this new Government will want to do is address the decision of the Supreme Court in this case. The current Government, which may be in its final hours, has previously hinted at making changes to the FOIA that would have a devastating effect on the effectiveness of FOI in the UK. While addressing this issue the Government might be tempted to make other changes to FOI at the time.

While I fundamentally disagree with the principal that the Executive should be able to veto a decision made by the judiciary in respect of a cause in which it was a party, we do live in a system where Parliament has supremacy. It is clear that Parliament intended that the Executive should be able to, in certain cases, veto a decision by the Tribunal that information should be disclosed. For that reason, I disagree with the interpretation given to section 53 by Lords Neuberger, Kerr and Reed. I find the position of Lord Mance and Lady Hale more in keeping with the intentions of Parliament. It is my opinion that they struck the right balance between the intention of Parliament and the Rule of Law given the system in the UK and the wording of the statute.

The Regulation 18(6) issue is more problematic for the Government, and here I do think that the 6 Justices of the Supreme Court who held that Regulation 18(6) was incompatible with EU law got it correct. The wording in Article 6 of the Directive clearly does not envisage the situation where the Executive, who will be the public body holding the information in question, is able to veto the decision of the Court. It also seems clear from the wording of the Directive that it being open to a requester to judicially review the decision of the Executive to issue a certificate is not sufficient to comply with the review requirements therein. Part of being a member of the European Union is to accept that EU law has supremacy, in passing the European Communities Act the UK Parliament agreed to have EU law take precedence over Acts passed by it. Ultimately the UK Parliament is still supreme and would only need to repeal the European Communities Act (which would also necessitate the UK leaving the European Union, but that’s a whole other blog) in order to deal with the Supreme Court’s decision in respect of Regulation 18(6).

What is the impact for Scotland? The decision in R (Evans) v HM Attorney General is technically not binding upon the Scottish Courts. Section 41(2) of the Constitutional Reform Act 2005 makes it clear that decisions of the Supreme Court on appeal form Courts in one part of the United Kingdom are “to be regarded as the decision of a court of that part of the United Kingdom”; there is an exemption to this which is not relevant here. Therefore, only decisions issued by the Supreme Court in Scottish cases are considered binding in Scotland (although in cases from other parts of the UK will be highly persuasive on the Scottish Courts). As this was a case on appeal from England in respect of FOIA and the EIRs, it is only binding on the Courts in England and Wales.

Section 52 of the Freedom of Information (Scotland) Act 2002 (FOISA) provides the First Minister a similar power to that contained in section 53 of the FOIA in respect of decision notices served on the Scottish Administration. The wording in section 52 is almost identical to that in section 53. The main difference is around timescales, in that the First Minister has longer than the accountable person under FOIA to issue a certificate. So, section 52 of FOISA is probably in a precarious position following the decision of the Supreme Court.

The Scottish legislation could face further hurdles that the UK legislation did not due to the constitutional position of the Scottish Parliament. The Scottish Parliament is a creature of Statute, it has only those powers which are given to it by the UK Parliament and cannot do anything which exceeds those powers. Section 29(2)(d) of the Scotland Act 1998 provides that no Act of the Scottish Parliament may be incompatible with the rights in the European Convention on Human Rights as given effect to by the Human Rights Act 1998. There could be a viable challenge to section 52 under Articles 6 (the right to a fair trial) and 10 (freedom of expression). If it were to be found that the Scottish Administration being able to veto the decision of the Commissioner and/or the Courts was incompatible with either or both of those Rights then section 52 would have no effect as it would be outside of the Scottish Parliament’s legislative competence. It would be much harder for the Scottish Parliament to get round that, and it would probably require the UK Parliament to legislate on its behalf.

Regulation 17(2)(e) of the Environmental Information (Scotland) Regulations 2004 (the Scottish EIRs) has the same effect as Regulation 18(6) of the EIRs in that it applies section 52 of FOISA to the Scottish EIRs. However, like the EIRs, the Scottish EIRs are designed to implement the 2002 Directive into domestic law. The supremacy of EU law is further underlined by the Scotland Act 1998, which provides in section 57(2) that the Scottish Ministers have no power to make subordinate legislation (which the Scottish Regulations are) which is incompatible with EU law. I don’t think that the Scottish Courts would find differently from the Supreme Court in respect of section 52 being incompatable with EU law when related to requests under the Scottish EIRs. In the event that the Scottish Ministers appealed to the Supreme Court it seems unlikely that it would conclude differently (although it should be noted that at least one Justice would have found that Regulation 18(6) did not violate EU law).

Because of the timing of the Supreme Court’s decision, it means that there is little that can be done to prevent disclosure of the information that the Upper Tribunal decided should be disclosed. The UK Parliament has now prorogued and dealing with the Supreme Court’s decision will require primary legislation. Parliament will be dissolved as soon as we hit 30 March; that means all of he seats will become vacant and there will be no MPs to pass legislation. The deadline for the Government to comply with the Supreme Court’s decision expires before the election. Therefore, it seems almost inevitable that we will get to see the contents of these letters.

It should be noted that FOIA has been amended to make the correspondence from the Prince of Wales subject to an absolute exemption. However, that does not affect the position under the EIRs. The exceptions under the EIRs are different from the exemptions under the FOIA, although they broadly enable the same types of information to be withheld. What this means though is that it is possible that further letters written by the Prince of Wales which relate to environmental matters may be disclosed in the future.

It is also worth noting that FOISA has not been amended to make the equivalent exemption in respect of correspondence with the Monarch, the heir to the throne or the next in line (i.e. The Queen, Prince Charles and Prince William) an absolute one. It had been proposed by the Scottish Government, but was dropped. Therefore, the full range of correspondence between the Prince of Wales and the Scottish Ministers is theoretically obtainable under FOISA and the Scottish EIRs, subject to the public interest test.

The Black Spider Letters – Part III

This is the third in a series of four blog posts looking at the Supreme Court’s decision in R (Evans) v HM Attorney General. The first post went through the background to the case, while the second post focused on the Court’s decision in respect of section 53 of the FOIA. This third post will look at the Court’s decision in respect of Regulation 18(6) of the EIRs.

By a majority of 6:1 the Supreme Court held that the certificate issued by the Attorney General under Regulation 18(6) was invalid. The arguments in respect of Regulation 18(6) related specifically to European law and to the Directive that they seek to implement.

Article 6 of the Directive makes provision for ‘Access to Justice’ in respect of Environmental Information. It provides (1) that where a public body refuses to make environmental information available there must be a process whereby the decision can be ‘reviewed administratively by an independent and impartial body established by law’. The right to complain to the Information Commissioner under section 50 of the FOIA (which extends to the EIRs) would meet this requirement; (2) that over and above the administrative review of the decision that there is provision for further review before a court or another independent or impartial body established by law. This would be covered by the right of appeal against a decision of the Information Commissioner to the First-Tier Tribunal; and (3) the decision under (2) must be capable of becoming final and binding upon the public body that holds the information.

The effect of section 53 as applied to environmental information under Regulation 18(6) of the EIRs is to mean that the decision of the Tribunal (or whichever appellate Court or Tribunal last hears an appeal) ceases to be final or binding on the public body holding the information; the Certificate cancels out the decision of the Court or Tribunal. The Attorney General had argued that the provisions of section 53 and Regulation 18(6) in respect of Environmental Information did not violate the terms of the Directive; he argued that, despite the effect of the Certificate being to set aside the decision of the Tribunal, there was still the ability for a decision of a Court to become final and binding upon the public body concerned. He based that averment on the existence of Judicial Review: a decision by an accountable person to exercise their power under Regulation 18(6) as read with section 53 is open to be judicially reviewed.

In respect of the Attorney General’s argument, Lord Neuberger said at [105]:

A domestic judicial review does not normally involve reconsideration of the competing arguments or “merits”. However, it seems to me clear that article 6.2, with its stipulation that the court should be able to “review” the “acts and omissions of the public authority concerned”, requires a full “merits” review. Even assuming in the Attorney General’s favour that, on a domestic judicial review, the court could, unusually, consider the merits, it gets him nowhere at least in a case such as this, where a tribunal has ruled that the information should be disclosed and the certificate is merely based on the fact that he disagrees with the final decision of the Upper Tribunal. In such a case, a court would be bound to conclude that the certificate was not soundly based as a court of record had already decided that very point as between the applicant and “the public authority concerned”.

Lord Mance said at [148]:

what becomes final in the event of judicial review failing, is not a decision on the merits that the Upper Tribunal’s decision is wrong. It is the conclusion that there is nothing wrong with the minister’s or Attorney General’s decision to override the Upper Tribunal’s decision. That cannot be consistent with the evident intention of article 6(2) – to provide means of recourse to a court or similarly independent and impartial system, which will decide, one way or the other, on the merits.

As a consequence of the views of 6 of the 7 Justices who heard the case, Regulation 18(6) is no more. It has ceased to be. It rests in peace. It is an ex-Regulation.

The Black Spider Letters – Part II

This is the second in a series of four blog posts looking at the Supreme Court’s decision in R (Evans) v HM Attorney General. The first post went through the background to the case and this post will focus on the Court’s decision in respect of section 53 of the FOIA.

By a majority of 5:2 the Supreme Court held that the certificate issued by the Attorney General was invalid. However, there was a split among the 5 as to the reasons for the certificate being invalid. Lords Neuberger, Kerr and Reed were in agreement with one another, while Lord Mance and Lady Hail found that the Certificate was invalid for different reasons. Lords Wilson and Hughes disagreed entirely and would have allowed the Attorney General’s appeal.

The reasoning of Lord Neuberger (with home Lords Kerr and Reed agreed)

The Justices here looked at two constitutional principals which are at the cornerstone of our democracy and are at the very centre of the Rule of Law. The first of those principals is that decisions of a Court are binding upon the parties involved, subject to rights of appeal (and as Lord Neuberger pointed out, a Statute passed by Parliament given the supremacy of Parliament in our democracy). The second of those principals is that the decisions of the Executive are reviewable by the Judiciary, not the reverse.

Lord Neuberger said, at paragraph [52], that the way in which the Attorney General interpreted section 53 of the FOIA

“flouts the first principle and stands the second principle on its head. It involves saying that a final decision of a court can be set aside by a member of the executive (normally the minister in charge of the very department against whom the decision has been given) because he does not agree with it. And the fact that the member of the executive can put forward cogent and/or strongly held reasons for disagreeing with the court is, in this context, nothing to the point: many court decisions are on points of controversy where opinions (even individual judicial opinions) may reasonably differ, but that does not affect the applicability of these principles.”

He went on to state at paragraph [58] that “section 53 falls far short of being “crystal clear” in saying that a member of the executive can override the decision of a court because he disagrees with it.” This drew on a line of authority, fully set out in paragraphs [53] – [57], that concludes unless Parliament has made it crystal clear that it is legislating contrary to the rule of law it is to be presumed that it is not doing so.

Lord Neuberger went on to consider previous authorities where the Court of Appeal had considered the question of whether Parliament had “intended [that] a member of the executive to be able freely to consider, or reconsider, for himself the very issues, on the same facts, which had been determined by another person or a tribunal.” [60]

Lord Neuberger concluded that section 53 of the FOIA does not permit the accountable person mentioned therein to issue a certificate “simply because, on the same facts and admittedly reasonably, he takes a different view from that adopted by a court of record after a full public oral hearing.” He also noted that the basis for this conclusion could not have bene unknown to Parliament at the time the FOIA was passed.

Lord Mance (with whom Lady Hale agreed)

The conclusion reached by Lord Neuberger was different to that which was reached by Lord Mance (who Lady Hale agreed with). They found that the accountable person was able to issue a certificate under section 53 of the FOIA simply because they disagreed with the Tribunal’s decision; however, that where the certificate was issued in respect of findings of fact or rulings of law which were fully explained would require an extremely clear justification. Lord Mance found that the Certificate issued by the Attorney General under section 53 of the FOIA did “not engage with or give any real answer to [the Upper Tribunal’s] closely reasoned analysis and its clear rebuttal of any suggestion that a risk of misperception could justify withholding of disclosure.”

While the Attorney General, or indeed any other accountable person as defined by section 53, could issue a certificate under section 53 because he disagreed with the findings of the Tribunal, on the same facts and arguments as were before the Tribunal, he did not justify his decision enough to enable the certificate to stand and so the certificate was invalid.

The Black Spider Letters – Part I

Yesterday, 26 March 2015, the UK Supreme Court issued its much anticipated decision (well, certainly within Information Law circles) in R (on the application of Evans) and another v HM Attorney General. I had intended to deal write just one blog post on this decision, but as I began to write I felt that it deserved to be split up into more than one post; so, there will be four parts. The first part will deal with the background to the case, including dealing with the relevant statutory provisions. The second part will look at the Supreme Court’s decision in respect of section 53 of the Freedom of Information Act 2000. The third will look at the decision as it relates to Regulation 18(6) of the Environmental Information Regulations 2004 while the final part will be a more general comment.

On 1 January 2005 the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIRs) entered into force. In the case of FOIA it provides individuals with a statutory right to receive information held by public bodies unless the information is specifically exempt under one of the statutory exemptions in Part 2 of the Act. The EIRs provide for a statutory right of access to ‘Environmental Information’ held by public bodies, subject to certain exceptions set out in the EIRs. The EIRs implement into UK law the provisions of Directive 2003/4/EC of the European Parliament and the Council of 28 January 2003 on public access to environmental information (the Directive). These Regulations in turn implement into European Law the provisions of the Aarhus Convention.

In April 2005 Rob Evans, a journalist at the Guardian Newspaper, wrote to a number of Government departments making requests for information. Those requests concerned letters that had passed between the Price of Wales and those departments. In each case the Departments withheld the information. FOIA provides that individuals who are dissatisfied with how their request for information has been handled can complain to the Information Commissioner and this right of complaint is extended to cover requests for information under the EIRs as well. The Information Commissioner issued a series of Decision Notices upholding the decision of each Department to withhold the information.

FOIA provides for a right of appeal, by either party, to the First-Tier Tribunal (Information Rights). Rob Evans appealed to the Tribunal. The appeals were joined together and transferred to the Upper Tribunal for consideration. On the 18 September 2012, almost 7 and a half years after the requests were made, the Upper Tribunal issued a lengthy judgment (which was accompanied by a number of lengthy annexes, some closed and some open) partially allowing Rob Evans’ appeal.

The judgment by the Upper Tribunal is an example of excellent judicial writing. It set out a clear and cogent argument as to why it was allowing Mr Evans’ appeal to the extent that it did. It is clear that the Tribunal took great time and effort in compiling it. At play here are a number of constitutional conventions; one of which is the convention enabling the heir to the throne to be instructed in the business of Government in preparation for becoming the reigning Monarch. Another important convention is that the Monarch should be politically neutral. The Monarch has a constitutional role as an advisor and confident to the Prime Minister of the day and political neutrality is an important aspect of that constitutional role.

It was well known, even before these protracted proceedings, that The Prince of Wales would write many letters to Government giving his opinion and advocating causes that he held dear to him. The Tribunal drew a distinction between this type of correspondence, to which they referred to as ‘advocacy correspondence’ and the correspondence which related to the Prince’s instruction in Government business in preparation for him becoming King.

The Tribunal decided that the advocacy correspondence ought to be disclosed while that which related to his preparation for kingship was correctly withheld and should not be disclosed under FOIA or the EIRs.

It was open to the Government to appeal this decision, but it chose not to. Section 53 of FOIA and Regulation 18(6) of the EIRs gives the power to an accountable person to, within twenty working days of a decision notice being served, to issue a certificate on the basis that he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure to comply with the relevant disclosure provisions under FOIA and the EIRs.

In this case, as the information in question related to a previous Administration, it was the Attorney General who was the ‘accountable person’. This follows from the convention that only the Attorney General is entitled to see the papers of a previous Administration. As a consequence of this, the Upper Tribunal’s decision ceased to have effect; none of the correspondence would be released under FOIA and the EIRs.

Rob Evans lodged proceedings for Judicial Review of the Attorney General’s decision to issue a Certificate pursuant to section 53 and Regulation 18(6). The Administrative Court dismissed his appeal and he appealed again to the Court of Appeal. The Court of Appeal allowed his appeal and quashed the certificates, but gave leave to appeal to the Attorney General. The Attorney General appealed to the Supreme Court.

The Supreme Court, by a majority, dismissed the appeal by the Attorney General. As a consequence, the decision of the Upper Tribunal stands and the advocacy correspondence will now be released. The next two posts will look at the Supreme Court’s decision in respect of Section 53 and Regulation 18(6).

Costs in the FTT: Snee v Information Commissioner & Leeds City Council

Under the Freedom of Information Act 2000 a decision by the Information Commissioner is capable of being appealed to the First Tier Tribunal (Information Rights) by either the public authority involved or the Complainant. There is no cost in brining an appeal and parties are generally responsible for paying any legal costs that they incur (public authorities will often be represented as will the Commissioner; sometimes by Counsel). Under The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 the Tribunal has, on the application of a party, the power to award costs. It can do so where the appellant has acted unreasonably in brining or pursuing the appeal.

Earlier this month the First Tier Tribunal issued a decision, Mark Snee v the Information Commissioner and Leeds City Council, in respect of an application for costs against an Appellant by Leeds City Council. The Council were seeking their £20,000 costs in full, having applied to be joined to the appeal and having been represented by Queens Counsel. The Appellant in the case, Mr Snee, was represented by Counsel. The Tribunal’s decision contains some useful information with regards to heir approach to such applications.

Mr Snee’s requests had been refused by the Council on the grounds that they were vexatious (section 14(1) of the Freedom of Information Act 2000). The Commissioner and the Tribunal agreed that they were vexatious, and it was at that stage the City Council applied under Rule 10(1)(b) of the Tribunal Rules for costs.

One of the Council’s arguments, which was not accepted by the Tribunal, would have had a fundamental effect upon an individual’s right to appeal to the Tribunal. It was argued that, because Mr Snee’s requests were vexatious he had acted unreasonably in bringing the case to the Tribunal. The Tribunal did not agree. It pointed out that the Commissioner had the opportunity to refuse to issue a decision notice where he found the complaint to be frivolous or vexatious, and the Tribunal had the power to Strike out an appeal upon the application of a party where it has no hope of succeeding. The Tribunal stated that it was right to remember these protections against vexatious or hopeless appeals. Automatically making appeals against a decision that requests are vexatious subject to the costs provisions where the appeal fails would have a significant impact upon the appeal rights of an individual. The Tribunal considered that “it must be possible, depending on the circumstances, for the maker of a request regarded by everyone else as vexatious, to defend his or her position on that point without automatically being treated under the costs Rules as behaving unreasonably.” In other words, it must be possible for an individual who makes a request which is considered to be vexatious to defend their position in the Tribunal.

In the Tribunal individuals who are appealing against the Commissioner’s decision in respect of their FOI request will often not have the benefit of legal advice. Thus, what might appear to a fully trained lawyer to be “futile or wrongheaded”, the Tribunal considered that “it would be wrong to assume that the challenge is inevitably an unreasonable one for the citizen to bring.” The comments had a much more general application than that and equally well apply to a range of other Tribunals within the First Tier Tribunal structure where Legal Aid is not available, or is available only in very limited circumstances.

It seems, from this decision, that the chances of an appellant facing a costs order for an Appeal against a decision of the Information Commissioner are unlikely; although it remains a possibility that costs will be awarded in exceptional circumstances; quite what those circumstances will be remains to be seen. It seems more likely that an unreasonable appeal will be struck out during the early case management stages than for it to progress to a full hearing, thus preventing the generation of significant costs for all involved.

ICO to appeal HS2 veto

It has been reported that the Information Commissioner is to make an application for Judicial Review of the decision by the Secretary of State for Transport to issue a certificate under section 53 of the Freedom of Information Act 2000 (‘the FOIA’) in respect of the Commissioner’s decision that the project assessment report pertaining to the HS2 project should be released under the Environmental Information Regulations 2004 (‘the EIRs’).

The Commissioner’s decision to make an application for judicial review is undoubtedly underpinned by the decision of the Court of Appeal in the case of R (Evans) v Attorney General and Information Commissioner in which the Court of Appeal decided that the use of the ‘veto’ under section 53 of the FOIA was unlawful in respect of information which is environmental in nature. I have written on the Evans decision here, and so don’t propose to repeat anything that is contained in that post.

In his decision dated 6 June 2013 the Commissioner found that the information contained within the report was Environmental Information, and consequentially it fell to be considered under the EIRs rather than the FOIA. The Cabinet Office, who were the public authority concerned, relied on Regulation 12(4)(e). The Commissioner found that the exemption was engaged, in that the information concerned amounted to internal communications. However, he decided that the public interest in maintaining the exemption did not outweigh the public interest in releasing the information. As a result the Information Commissioner ordered the Government to release the information contained within the report.

As the information amounts to Environmental Information, and following the decision of the Court of Appeal, the Secretary of State’s certificate under section 53 is unlawful. It should be noted that the Evans decision is subject to an appeal to the Supreme Court by the Attorney General. It is possible that the Supreme Court could over-turn the Court of Appeal’s decision in that case which states that the veto is unlawful in respect of Environmental Information.

Some interesting times ahead in the world of FOI.

The new Scottish Public Authorities: Who are they?

On 1 April 2014 the Freedom of Information (Scotland) Act (Designation of Persons as Scottish Public Authorities) Order 2013 (‘2013 Order’) enters into force and it is the first such Order made by the Scottish Ministers under section 5 of the Freedom of Information (Scotland) Act 2002 (‘FOISA’) since FOISA entered into force.

The 2013 Order will make new bodies subject to the provisions of FOISA, and by extension* to the Environmental Information (Scotland) Regulations 2004 (‘Scottish EIRs’). The 2013 Order does not list specific bodies which will become subject to FOISA and the Scottish EIRs, rather it describes the bodies that are to be made subject to FOISA and the Scottish EIRs. The Schedule to the 2013 Order has two columns, and the bodies which fall within the description in Column 1 will becomes subject to FOISA and the Scottish EIRs for their functions described in Column 2.

Column 1
By virtue of Column 1 a body which has been established or created solely by one or more local authorities who on behalf of any of those authorities developed and/or deliver recreational, sporting, cultural or social functions and activities, and are wholly or partially funded by any of those authorities will become subject to FOISA and the Scottish EIRs.

This refers to Arms Length External Organisations (ALEOs) established by one or more of the 32 local authorities in Scotland to develop and/or provide recreational, sporting, cultural or social functions and activities which receive funding from those local authorities. It is much wider than the section 6 provisions which relates only to companies wholly owned by one or more Scottish public authorities. This modification to FOISA will cover many different structures of organisations from Partnerships, Limited Liability partnerships, Trusts and many other different business structures.

Column 2
The bodies covered by the definition in column 1 will only be subject to FOISA and the Scottish EIRs in relation to their functions mentioned in Column 2. Column 2 refers to a number of sections of legislation which give local authorities the power to carry out certain factions. The functions are listed below with a brief explanation of what they mean.

Section 90 of the Local Government (Scotland) Act 1973
This section gives local authorities the power to carry out certain functions in respect of tourism. This includes the provision, or encouragement of any other person to provide, facilities for leisure, conferences, trade fairs and exhibitions or improve, or encourage any other person to improve, any existing facilities for those purposes; the promotion, by advertisement or otherwise, of facilities provided by that local authority (whether such facilities are owned by the authority or otherwise); and the organising, or assisting others in the organisation of, and promotion, by advertisement or otherwise, conferences, trade fairs and exhibitions.

Section 163 of the Local Government (Scotland) Act 1973
This section (or what is left of it) gives local authorities a duty to provide adequate library facilities for all persons resident in their area.

Section 14 of the Local Government and Planning (Scotland) Act 1982
Broadly speaking, this section places upon local authorities a duty to provide adequate provision of facilities for the inhabitants of their area for recreational, sporting, cultural and social activities.

Section 20 of the Local Government in Scotland Act 2003
This section provides for a general power for local authorities to do anything that it considers is likely to promote or improve the well-being of its area and/or any persons in its area.

What does it actually mean?

I am not so sure that any of the above actually brings us closer to understanding just who will be subject to FOISA and the Scottish EIRs following the entering into force of the 2013 Order. Some of the most notable examples though will include leisure trusts (which are not companies, who are already subject to FOISA and the Scottish EIRs) and bodies responsible for the provision, maintenance and development of library facilities.

There are certainly benefits to drafting the 2013 Order in this way. Had the Scottish Ministers simply listed specific bodies it would have become out of date very quickly. The provision of services by local authorities is very fluid and can change overtime. ALEOs can exist and then be merged or wound-up, their functions can be taken back in-house only to later be put out to another ALEO. It will largely protect against the fluidity of ALEOs and should hopefully ensure that we don’t see (at least in respect of services provided by local authorities) the reduction in information access rights that has been seen since the introduction of FOISA in 2005.

How to know if a body is covered
In the first instance it is going to be largely up to the individual body to determine if it is covered by the extension, and if so to what extent. In theory they should already have been making preparations by putting in place a publication scheme (which in practice will likley be simply to adopt the Commissioner’s Model Publication Scheme) and a framework for dealing with requests. However, there might have to be some testing of the law in respect of some bodies.

The easiest way to find out if a body is covered is probably to approach the body. If they say that they are then you can go ahead and make your request like you would to any other Scottish Public Authority (‘SPA’). However, if they say they are not you might have to be a bit more persistent. Ultimately, it will be for the Scottish Information Commissioner (as the person responsible for enforcing FOI law in Scotland) to determine whether a body is a SPA or not. She can only accept an application after a request for information has been made and a request for internal review has also been made. This will mean that it will be necessary to go through the process of submitting a request and either waiting for word from the body that they won’t respond or for 20 working days to elapse without a response before then submitting your internal review and again waiting for word from the body that they won’t respond or for 20 working days to elapse without a response.

A determination by the Commissioner that a body is (or isn’t) a SPA by virtue of the 2013 Order wouldn’t necessarily be the end of the road. A decision by the Commissioner that an application cannot be accepted by her is open to the possibility of an application for Judicial Review, while a decision notice issued against a body that disagrees with the determination that it is covered could be open to appeal to the Court of Session under section 56 of FOISA (and then to the Supreme Court).

*by virtue of Regulation 2 of the Scottish EIRs any body listed in Schedule 1 to FOISA or designated under Section 5(1) of FOISA is also subject to the Scottish EIRs.