The First-Tier Tribunal Under Threat

November 10th, 2016

The Campaign for Freedom of Information have very helpfully drawn attention to an unexpected Government announcement which arises out of the Independent Commission for FOI report (a summary here). Readers will recall that the Government had proposed introducing fees for FOI appeals, but that ended up getting parked because of the Commission review. The Ministry of Justice has now, in a Response to the Justice Committee’s Second Report, seen fit to brandish a more threatening sabre:

We see no reason to disagree with the view of the Independent Commission on Freedom of Information that legislation should be introduced to remove the right of appeal to the First-tier Tribunal against an Information Commissioner decision.

The Government does not believe that this recommendation is related to court and tribunal fees and we believe that strictly it falls outside the terms of reference of the Justice Committee’s inquiry.

Nevertheless, as set out in the statement on 1 March 2016 of the then Minister of State at the Cabinet Office and Paymaster General, this is one of a number of recommendations made by the Independent Commission that are being carefully considered.” (emphasis added, see Response here)

As has been rightly pointed out, the first paragraph is the view of the Justice Select Committee, to which the Government was responding:

The Commission did, however, express the view that there was an abundance of bodies effectively hearing appeals (the public authority subject to the original request, the Information Commissioner, and then the First-tier Tribunal) and said that “considerable resources and judicial time are being taken up by unmeritorious appeals”. It recommended that legislation should be introduced to remove the right of appeal to the First-tier Tribunal against an Information Commissioner decision (a right of appeal to the Upper Tribunal would remain on a point of law). This recommendation is under consideration by the Government. We see no reason to disagree with the Commission’s view.” (original emphasis): para 28.

The immediate aftermath of the Commission report had been a fairly non-committal expression of considering all the recommendations from the Government. The Government continues to be considering the position. But it is unpromising news that (a) the Justice Select Committee thinks the right of appeal should be removed/restricted (to points of law, a la the Scottish and now the Manx system) and (b) the Government did not seek to disagree. Further developments are awaited…

Christopher Knight

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