March 31st, 2009 by Panopticon Blog
Posted by Julian Wilson
In Barclays-v-Guardian  EWHC 591 (which Anya Proops commented on a couple of days ago), Mr. Justice Blake referred to the well known distinction between tax evasion and tax avoidance and then commented critically on the Guardian’s description of the Barclays’ employee who leaked its internal documents to Vince Cable MP as a “whistleblower”. The Judge said: “usually one blows a whistle to denote a foul, and I have already observed that the distinction between evasion and avoidance needs to be borne in mind in this context.” It appears that the Judge must not have had the Public Interest Disclosure Act in mind in referring to the term “whistleblower”. To qualify under the statute for potential protection, a worker’s disclosure need not be of a proven “foul” but only made with a reasonable belief that his employer is failing to comply with a legal obligation (ERA s.43B). Further, to gain potential protection for a qualifying disclosure where it has been made to an MP, the disclosure need not be of a proven “foul” but needs to be made with an honest and reasonable belief that that the information disclosed and any allegation contained in it are substantially true (S. 43G). Most whistleblowers have only a hunch that something is a foul without the means to prove it and the idea of PIDA is to protect them if they make the disclosure to a person having the ability and resources to investigate it. The protection offered to whistleblowers would be of no utility if only those with the legal brain necessary to distinguish evasion from avoidance could enjoy protection.
March 31st, 2009 by Anya Proops QC
Many of us are aware that, when in use, our mobile phones can be used by telecoms companies and security agencies to trace our whereabouts. However, few of us are likely to have been contemplating a scenario where our cars would contain built-in tracking devices enabling state authorities to have, in effect, a system of near total road surveillance. However, a new EU backed project, known as the Cooperative Vehicle-Infrastructure Systems (CVIS) project, may go a long way towards achieving that result. In particular, it is understood that the project, which is due to be unveiled later on this year, envisages that, by 2013, such devices would commonly be built into newly manufactured cars and that a universal frequency will be made available so as to enable state authorities to monitor the location of all cars fitted with the device. As one might expect, privacy and civil liberties groups are said to be up in arms about this development. It is understood that the European Data Protection Supervisor will make a formal announcement on the privacy implications of CVIS technology soon.
March 27th, 2009 by Anya Proops QC
It is a fundamental principle of our constitutional structures that Parliament and its members should not normally be subject to judicial scrutiny or supervision. The statutory basis of this principle is to be found in Article 9 of the Bill of Rights 1689 which states that: ‘the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament’. The breadth of the principle of Parliamentary privilege was confirmed in the case of Prebble v Television New Zealand Ltd  1 AC 321 where Lord Browne-Wilkinson held that the effect of the principle was that the courts would not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges. Yesterday Lord Oakeshott, Lib Dem Treasury Spokesman, availed himself of the protection of this important privilege when he told peers about the location of certain documents relating to Barclays’ tax arrangements. The documents in question are particularly controversial because a mere eight days ago the High Court granted Barclays injunctive relief requiring the Guardian newspaper to remove the documents from its website on grounds of their confidentiality (Barclays Bank Plc v Guardian News and Media Ltd  EWHC 591 QB). The curious result of Lord Oakeshott’s comments would seem to be that the Guardian still cannot publish the documents on its website, pursuant to the order made by the High Court, but can report Lord Oakeshott’s comments by placing reliance on the doctrine of qualified privilege.
The decision of the High Court to grant Barclays injunctive relief in respect of the information published on the Guardian’s website is itself likely to be of considerable interest to information lawyers. This is because in reaching that decision the judge, Blake J, accepted that the documents had retained the quality of confidentiality even though there was evidence before the Court that, quite apart from the Guardian website, the documents had already been published on at least one other internet site which would not itself be subject to an application for injunctive relief and, further, there had already been a degree of ‘internet chatter’ about the injunction process. That the court was prepared to accept that the documents retained an element of confidentiality in these circumstances highlights the fact that the judiciary will not automatically accept that publication of information on the internet necessarily equates to publication to all the world.
High Court judgment:
High Court judgments on Parliamentary privilege (appeal from Information Tribunal)
Office of Government Commerce v ICO & Ors – http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2008/737.html&query=title+(+Office+)+and+title+(+government+)+and+title+(+commerce+)&method=boolean
Corporate Office of the House of Commons v ICO & Ors – http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2008/1084.html&query=title+(+Corporate+)+and+title+(+officer+)&method=boolean
Excerpt from Hansard:
March 26th, 2009 by Akhlaq Choudhury
In Ofcom v Information Commissioner  EWCA Civ 90, the Court of Appeal held that in applying the public interest test under the Environmental Information Regulations it is necessary to aggregate all public interest factors relating to all applicable exceptions and weigh these against the public interest in disclosure. This is a departure from the well-established approach of looking only at the public interest factors in respect of a particular exception to determine whether the public interest in maintaining that exception outweighs the public interest in disclosure. This change in approach will affect disclosure decisions under both the EIR and FOIA. The ICO has lodged a petition seeking permission to appeal to the House of Lords.