Won’t Someone Think of the Children?

May 6th, 2016

There has long been considerable public concern over the restraint techniques used in young offender institutions and secure training centres. In Willow v Information Commissioner & Ministry of Justice [2016] UKUT 157 (AAC), the Upper Tribunal had to consider the public interest balance as it applied to section 31(1)(f) FOIA, i.e. information prejudicial to the maintenance of security and good order in prisons or other institutions in which people are detained. The request had been for the physical restraint training manual, and the FTT had upheld the application of the exemption.

Much of the judgment is concerned with a reasons challenge of fairly limited wider interest, although Judge Markus stressed that the balancing exercise involves weighing the risk of actual harm and the real chance of benefits, taking account of consequences which are realistic possibilities, and that where the ‘likely to prejudice’ limb was being run concrete evidence was likely to be in short supply. So far, so orthodox, and the reasons/lack of evidence challenge was really a re-run of arguments which failed in the FTT.

More unusual was the centrality to the arguments of the UN Convention on the Rights of the Child. Everyone accepted that the interests of children were part of the balance, but the Respondents (not unfairly) pointed out, that was what the whole case was about, and those interests did not all point one way. However, the argument for the requestor went beyond that, suggesting that article 3(1) of the Convention required particularly close focus on those interests and that FOIA should be construed so far as possible in accordance with that provision.

Judge Markus was having none of this. The Convention is an unincorporated treaty, and she carefully analysed the case law to explain that the authorities did not require unambiguous legislation to be construed consistently with an unincorporated provision, particularly where no ECHR right was engaged (which can be sidewind route to using the Convention). She firmly held that FOIA was not ambiguous, there was no ECHR issue and FOIA could not be incorporating or reflecting article 3(1) in any way. In short, everyone had been thinking of the children, and they were not required to think about them with any greater force.

Christopher Knight

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