We all fell for it, didn’t we? If the greatest trick the Devil ever pulled was convincing the world he didn’t exist, then Michael Gove’s may have been to convince everyone that he wasn’t interested in FOIA. His shunting responsibility for FOIA/EIR matters off to the Cabinet Office, and the Cabinet Office’s announcement of the Commission on Freedom of Information (generally staffed by people who publicly don’t much like it), last week has led to a lot of comment and reaction – mostly adverse – from social media, blogs and even the mainstream press.
And that has rather caused everyone to take their eye off the ball, including Panopticon (which was alerted by an informant known only as Deep Throat), because in the midst of kerfuffle over the possible threat to the substance of aspects of FOIA through the new Commission the Ministry of Justice has announced a consultation on a more insidious threat to seekers of information and transparency: the introduction of Tribunal fees.
Contained within a document which is also the Government’s Response to an earlier consultation exercise on raising fees in various aspects of civil litigation (also problematic, but not relevant here) is a consultation is the introduction, for the first time, of fees to use certain parts of the First-tier Tribunal and Upper Tribunal. The Upper Tribunal (Administrative Appeals Chamber) is not within the scope of the proposal – although there is no explanation as to why not – but the First-tier Tribunal (General Regulatory Chamber) is.
The proposal is that there will be a £100 fee for an appeal to be issued, and a further £500 fee if an oral hearing takes place. Cases referred to the Upper Tribunal under rule 19 of the GRC Rules will also be subject to the same fee. There will be a system of remissions in place.
This gives rise to a number of issues. Anyone who has had anything to do with the Employment Tribunals over the last few years will know that since the introduction of fees (and, to be fair, compulsory settlement discussion periods) the workload of the ET has gone through the floor. It seems highly likely that something very similar will happen for FOIA/EIR appeals, where so many of the cases are brought by individuals, many of whom will not be able to afford to spend that kind of money on something which has no prospect, unlike the ET, of ever winning them any money and relates almost inevitably to the public interest rather than their own private interest. There must be a real difference of type between such litigation and private interest litigation elsewhere in the GRC. (To be fair, it is of course the case that judicial reviews brought on a public interest basis still incur fees, but they are the exception to the ordinary use of Part 54, whereas the public interest is at the heart of the vast majority of FOIA appeals, and assessed on that basis.) Why, when the legislation is requestor-blind, should the Tribunal system not be too? Alternatively, one might mount a plausible argument that if a public authority wishes to appeal a Decision Notice then it should have to pay a fee (because it is seeking to avoid transparency) but a requestor should not.
It is pretty likely, although the figures aren’t given in the consultation, that FOIA/EIR appeals make up a large proportion of the GRC’s work. But given their public interest element, are they really the cases to which a fee should be targeted? The GRC also hears appeals concerning the regulation of estate agents, driving instructors, claims management services and exam boards (amongst others). Those are all private interests, as are appeals against fines levied on public authorities for bugging phones without warrants. Is not an appeal about the release of public authority information worthy of greater ring-fencing from fees than an appeal about Defra banning you from micro-chipping a dog? (I may be barking up the wrong tree, but I am not making this up.)
In the calculations of the Government, the GRC costs them £1.6m a year. At best, they expect to recover £0.4m in fees, and that will reduce if the caseload drops as a result of fee introduction (which, bizarrely, they apparently do not anticipate). One might think that that was a relative drop in the ocean, although of course every penny counts, but fees won’t pay the GRC’s way (and Gambling disproportionately contributes already given the very high fees and the very low number of cases).
But aside from the issues of principle, there are also real problems of practice, particularly around the hearing fee. The proposal says “The claimant may alternatively elect for an oral hearing, in which case a further fee of £500 would be payable.” But this doesn’t reflect the reality of the GRC Rules. Rule 32 requires the GRC to hold a hearing where one party requests it: what if the ICO or the public authority request one? What if both do? Who pays then? What if the Tribunal itself lists a hearing, against the wishes of the parties, because it thinks it cannot do justice without one under rule 32(1)(b)? Who pays for that decision? The proposal appears to anticipate that the appellant will still have to pay the fee, presumably on the basis that that it is their ‘fault’ that the appeal exists at all, but that seems very unfair. What about directions hearings – does the fee apply to those, and who has to request one for it to be triggered? The proposal seems remarkably un-thought through and the consultation will need to point that out.
Why is it the GRC which is being targeted by fees rather than the appellate stage in the Upper Tribunal? Surely having a second bite on appeal is more worthy of a financial penalty, and a discouragement to unnecessary appeals on the facts? If fees still apply to rule 19 transfers, will it not be in the interest of every litigant to try and get a case transferred to the UT on the basis that if he has to pay, he may as well get the best court he can for his buck?