07.07.15
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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.

06.21.15
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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.

05.13.15
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Some thoughts on Proportional Representation

Following the 2015 general election there has been an incredible amount of support for and discussion about Proportional Representation.  I am 26 years old and I have been a proponent of Proportional representation for half of my life.  I first began to support the concept of PR for UK elections after studying different electoral systems during a Modern Studies class.   Even at the age of 13 it was clear to me that the First-past-the-Post electoral system that we use to elect people to the House of Commons does not work for our modern politics.

The system hasn’t always been broken; it worked when the two main parties attracted 95% of the votes cast by the electorate.  As time has marched on our politics has changed.  The political landscape is vastly different to how it looked in the late 1800s and early 1900s and as a consequence the electoral system no longer functions in a way that is appropriate.

The current Government in the UK consists of a single party which holds a (slim) majority of seats in the House of Commons.  In percentage terms, the Conservative Party has 50.9% of the seats having achieved only 36.9% of votes cast nationally.  It is over-represented in the commons by approximately 90 seats on a proportional votes to seats basis.

The Conservative Party is not the only party that is over-represented in the current House of Commons: the Labour Party, DUP and the Scottish National party are over-represented.  The Labour Party has 35.7% of the seats with 30.4% of the votes cast nationally; it is over-represented by about 31 seats on a proportaional votes to seats basis.  The Scottish National Party has 8.6% of the seats in the Commons having achieved 4.7% of the votes cast nationally (given that the SNP had candidates standing only in Scotland the figures are slightly misleading.  Looking only at the votes cast in Scotland for the seats allocated to Scottish constituencies it has 95% of the seats on 50% of the votes cast).  The SNP is over-represented in the House of Commons by about 30 seats on a proportional votes to seas basis.  The DUP has 1.2% of the seats available in the Commons with 0.6% of the votes cast nationally (like the SNP, it did not have candidates standing in all constituencies; it’s only candidates were in Northern Ireland and has 44.4% of the seats allocated to Northern Irish Constituencies with 25.7% of the votes cast in Northern Ireland) and is over-represented by about 3 seats.

If some parties are over-represented it follows that some must be under-represented; the Liberal Democrats, the Green Party and UKIP are all under-represented.  The Liberal Democrats have 1.2% of the seats with 7.9% of the votes cast nationally.  They are under-represented by about 42 seats.  As for the Green Party they have 0.2% of the seats in the Commons with 3.8% of the votes cast nationally and are under-represented by about 22 seats.  UKIP also have 0.2% of the seats in the Commons with 12.6% of the votes cast nationally; they are under-represented by about 81 seats.  There are other parties who are under-represented in the Commons based on the votes that were cast, but for the sake of brevity I will not set them out in detail.  The parties are: Plaid Cymru, Sinn Fein (who by convention don’t take up their seats in the Commons), the Ulster Unionist Party and the Alliance Party.  The only party whose representation under FPTP is what it would have been under a PR system is the SDLP.

You will notice that where I have stated by how many seats a party is over-represented or under-represented I have qualified it with “about”; I have done so because had the election been run using a PR system rather than FPTP it will likely have changed the way some people voted (and quite possibly in significant enough numbers to affect the seat distribution).  There will have inevitably been a great deal of tactical voting in this election; FPTP encourages tactical voting, especially in seats that are considered to be ‘marginal’.  In seats that are marginal, people who know their preferred candidate has little chance of being elected will often vote tactically; that is to say they will vote for the person most likely to defeat the candidate that they least want to win.  So, in a Labour-Tory marginal seat someone who might naturally prefer the Liberal Democrats may well recognise that the Lib Dem candidate is highly unlikely to win.  They may absolutely not want the Labour candidate to win and so vote Conservative because they are the candidate most likely to defeat the Labour candidate.

It is impossible to take account of tactical voting with any degree of certainty when modelling a PR based Parliament on votes cast under the FPTP system.  There are also a multitude of different PR systems; some of which it is not possible to translate FPTP results into because they use a preferential voting method (i.e. you rank as many or as few of the candidates/parties standing in the order that you prefer them).

I may be a proponent of PR, but I do recognise it is not perfect either; there is no such thing as the perfect system.  There are trade-offs to be made and which system you favour depends on what it is you value and what it is you hope you achieve by introducing PR.  For example, if you’re more interested in getting as close to a representative Parliament as possible and are not fussed about the ‘local link’ between the elected representative and the constituency; then a system based on a party list is likely to take your fancy.  However, if you favour keeping the local-link despite that resulting in an ever so slightly less representative Parliament (but still far more representative than FPTP), then something like the Single Transferrable Vote (STV) system is probably going to get your support.

Personally, I favour STV because I would prefer to keep the ‘local link’ over having a totally representative Parliament.  However, I recognise that such a system might not best serve the country.  Looking at it objectively a list system is probably more appropriate and that’s simply because I think, objectively, the local link has already largely been lost.  There are a few exceptions, but if you ask a representative sample in each constituency who they voted for you are most likely to get either the name of the party or the name of the party leader as opposed to the name of the candidate that actually appeared on the ballot paper.  That’s because in reality the majority of people vote for a party irrespective of the candidate.

Having long been a convert to the PR cause I am glad to see that more people appear to be coming round to the idea that PR is better in our modern politics.  I did vote for AV in 2011, but I also know that a lot of pro-reform people voted no.  I understand why they did so, AV was a false option; it’s not a PR system.  While it does deal with many of the issues with FPTP in the our modern political world, it does not result in a proportionate parliament; it doesn’t even deliver an a parliament that is approximately proportional.  I vote for it because despite its flaws it was progress, a move in the right direction.  The referendum in 2011 was lost, and clearly so.  However, that does not (nor should it) preclude reform.  Nor does it mean that there isn’t a huge level of support for a PR system.

I will continue to fight for, campaign for and support electoral reform to bring a more proportional electoral system for elections to the UK Parliament.

The Electoral Reform Society and Unlock Democracy currently have a petition running in support of PR; if you’ve not already signed it and support the concept of a PR voting system in the UK then please consider signing it.  The Petition can be found here.

05.09.15
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#GE2015, Data Protection, Privacy and FOI

It is now two days since the UK went to the polls to elect the 650 people who will be responsible for representing us until Parliament dissolves on Monday 20 April 2020 (assuming the Fixed-Term Parliaments Act 2011 remains in place and intact).  The result was significant for many reasons, some of which I may address in a future blog post.  The focus of this blog post though will be the possible impact on Data Protection, Privacy and Freedom of Information following the result in this election.

Data Protection and Privacy

These two areas, in their current form, rely heavily on EU law.  Both the Data Protection Act 1998 and the Privacy and Electronic Communications Regulations implement EU directives into UK law.

It is well known that one of the promises David Cameron made was a referendum on the UK’s continued membership of the EU if the Conservatives were returned to power with a majority.  They were, albeit a small and fragile one, and as such it is likely that in 2017 we will have a referendum on whether the UK will continue to be part of the EU, or not.  If the UK were to leave the EU (and this is purely hypothetical at this stage), then there would be no requirement for the UK to continue to comply with EU law; including the Directives underpinning the Data Protection Act and the Privacy and Electronic Communications Regulations.

Withdrawal from the EU would not, of course, immediately repeal every piece of law that is implementing an EU Directive – such a position would be unworkable.  Overtime there would, like there is in every other area of law, be reform and that could include both the Data Protection Act and the Privacy and Electronic Communications Regulations.

That is not the end of the story though; our continued relationship with the EU will have some impact in this area, especially with regards to the Data Protection Act.  If we were to remain part of the EEA, we would still have to comply with EU law except in some areas: data protection is not one of those.  So, if we withdrew from the EU and remained part of the EEA, nothing would change.

If we withdrew from both the EU and the EEA there would still be some Data Protection implications.  The eighth Data Protection Principal prevents the transfer of personal data outside the EEA unless the country or territory to which the personal data is to be sent “ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data.”  In other words, we would require some form of Data Protection or Privacy legislation that meets the test of “adequate” under EU data protection law.  This is a requirement that looks set to stay as part of the Data Protection Regulation currently working its way through the EU legislative process.  In all likelihood we would probably adopt the same data protection regulations as the EU, or something substantially similar thereto.  For that reason, Data Protection and Privacy looks fairly safe over the coming 5 years.

Freedom of Information

Scotland has its own Freedom of Information laws that cover Scottish public authorities.  These laws will likely remain largely unchanged in light of the 2015 election result.

Freedom of Information Act 2000

The FOIA covers English and Welsh authorities as well as UK-wide authorities such as UK Government Departments, the British Transport Police, the BBC, Channel 4 etc.  They are not popular with the Government; they force the Government to reveal information it would rather keep secret.  The Prime Minister isn’t a big fan of FOI; it “furs up the arteries of Government”.  We can expect to see some changes to FOI laws over the coming 5 years: the veto will likely be strengthened in light of the recent UK Supreme Court decision in the Prince Charles case; there could well be changes to the cost limits making it harder to get access to information and there could be the introduction of fees (at least for Tribunal cases).  Substantial harm could be done here (and if you value FOI and the power it gives you to access information held by public bodies I would commend the Campaign for Freedom of Information to you – they could need a lot of help, support and money over the coming 5 years).

Environmental Information Regulations 2004

These implement an EU Directive and provide a much tighter access to information regime with respect to Environmental Information – they also cover a much wider number of bodies than the FOIA does.  While they implement an EU Directive, they have their origin in another international Convention (one which is not anything to do with the EU), the Aarhus Convention.  The UK is a signatory and so if it were to remain a signatory it is likely that there would be no change to the substance of the EIRs.  There would be changes though.

Currently, because they are based upon EU law, they are subject to the primacy of EU law.  It is largely for this reason that the veto was held not to apply to Environmental Information.  It also gives recourse to the Court of Justice of the European Union in respect of interpretation (as was seen with Fish Legal).  This strengthens the EIRs significantly.  However, all is not lost.  In terms of the Aarhus Convention there is a right of remedy to the Aarhus Compliance Committee.

03.29.15
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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.

03.28.15
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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.

03.27.15
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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.