Author: Christopher Knight

The Common Law and the Spirit of Kennedy

Posted on | by Christopher Knight

Following the Supreme Court’s lengthy, slightly unexpected, and difficult to grasp judgment in Kennedy v Charity Commission [2014] UKSC 20 (on which I have been quiet because of my involvement, but see Tom Cross’s blogpost here) there has been room for quite a large amount of debate as to how far it goes. Was the majority only suggesting access to the Charity Commission’s information under the common law principle of open justice applied because of the particular statutory regime and/or the nature of the statutory inquiry involved? Or was the principle rather more wide-ranging?

An answer has perhaps begun to emerge, as there was some discussion of this in the judgment of Green J in R (Privacy International) v HMRC [2014] EWHC 1475 (Admin). The judgment is, again, a long one, but the case was a judicial review of a decision of the HMRC that they had no power or duty to disclose information about their export control functions and in particular any investigations into the export by United Kingdom companies of software used for covert surveillance of political activists by repressive foreign regimes. Green J held that section 18 of the Commissioners for Customs and Revenue Act 2005 did provide such a power, and the HMRC had construed it too narrowly, when the power existed but was fact and context-dependent: see too R (Ingenious Media Holdings Plc) v HMRC [2013] EWHC 3258 (Admin), [2014] S.T.C. 673.

The judgment in Kennedy came out shortly after the oral hearing in Privacy International and it obviously sparked something of a debate. Green J accepted that the type of legal process involved was different to that in Kennedy, but he was of the view that Kennedy was authority for a more general proposition, or at least approach: at [62]:

“I do not consider that the judgments in Kennedy lack all relevance. The Supreme Court was at pains to point out that the common law treated openness as very important and, with all the ecessary provisos and caveats, that message can in some measure carry through into section 18(2) CRCA 2005. In Kennedy Lord Mance, who gave the leading judgment for the majority, introduced his judgment with the following message which goes well beyond the narrow confines of the Charity Commission:

“1. Information is the key to sound decision-making, to accountability and development; it underpins democracy and assists in combatting poverty, oppression, corruption, prejudice and inefficiency. Administrators, judges, arbitrators, and persons conducting inquiries and investigations depend upon it; likewise the press, NGOs and individuals concerned to report on issues of public interest. Unwillingness to disclose information may arise through habits of secrecy or reasons of self-protection. But information can be genuinely private, confidential or sensitive, and these interests merit respect in their own right and, in the case of those who depend on information to fulfil their functions, because this may not otherwise be forthcoming. These competing considerations, and the balance between them, lie behind the issues on this appeal”.”

The claimant conceded in the light of the Supreme Court decision that Article 10 ECHR did not give it a right of access to information, but argued that Article 10 did prevent one state body from stopping another state body imparting information which it wished to impart. Green J felt it unnecessary to decide the point because it added nothing to the common law: at [176], [179].

For various reasons on the facts of the case, and the particular context of HMRC’s approach to section 18, the decision was quashed. But it is a useful indication of how the courts have begun to think about the impact of Kennedy and other information access provisions.

Christopher Knight

Open Justice in the Supreme Court

Posted on | by Christopher Knight

The principle of open justice has been reaffirmed today by the Supreme Court in A v BBC [2014] UKSC 25, as have its limits. In A, a foreign national had been given notice of deportation following conviction for a sexual offence against a child. In the subsequent tribunal appeals (dating back to 2001), A was anonymised because of the Article 2 and 3 ECHR concerns he had over his treatment if deported. That anonymisation position was retained by the Court of Session in 2012 when A sought to judicially review the refusal of the Upper Tribunal to grant him permission to appeal. The Court of Session’s directions were made under section 11 of the Contempt of Court Act 1981. The BBC, having learned of the directions, applied to set them aside.

The Supreme Court unanimously held that it could be in the interests of justice to limit the open justice principle, considering the purpose of the open justice principle, the potential value of the information in advancing that purpose, and any risk of harm that its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others (see at [41]). Lord Reed held that the order allowing A to withhold his identity was in accordance with the court’s common law powers; the section 11 order was made in accordance with the power conferred by that provision; and it was not incompatible with the BBC’s Article 10 ECHR rights. Lord Reed also reiterated that the common law principles applied just as vigorously, even where the ECHR was engaged (at [55]-[57]), reiterating a point he had made at length in Osborn v Parole Board [2103] UKSC 61.

Christopher Knight

Open Justice and Court Files

Posted on | by Christopher Knight

Perhaps not hot off the press, but nonetheless worth noting, is the decision of the High Court last month in NAB v Serco & Home Office [2014] EWHC 1225 (QB), which reiterates the Court’s commitment to the open justice principle and press access.

B had been a detainee in an immigration removal centre, in which she alleged she had been sexually assaulted by a male nurse employed by Serco. She brought claims against Serco (in vicarious liability for the assault) and the Home Office (for false imprisonment) for damages. A statement was filed which exhibited Serco’s internal investigation report into B’s complaint of assault. Serco settled the claim, but the claim proceeded against the Home Office. The exhibited report remained part of the trial bundle but was not referred to in the judgment and was not relevant to the issues between B and the Home Office. After the judgment, the Guardian applied for a declaration that B could lawfully provide it with a copy of the report, under CPR r.31.22.

Bean J granted the declaration. It is now fairly well-established that in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 it had been held that in a case where documents had been placed before a judge and referred to in the course of proceedings, and the default position should be that access to those documents should be permitted on the open justice principle. Although it was an unusual feature that Serco was no longer a party to the claim and the report was no longer relevant to the issues in the case, those matters were not decisive. The particulars of claim and other pleadings were public documents subject to inspection as of right under CPR r.5.4C(1). The fact of the allegations having been made was therefore in the public domain. If after the settlement, but before the case against the Home Office had come to trial, the Guardian had applied under r.5.4C(2) for access to the report, the application, would have succeeded, just as it would had it been made at any time before the Court disposed of the file. There was a proper journalistic reason for seeking the report, and it was sometimes important to understand why a claim had settled. Providing the individuals were anonymised, the Guardian could be provided with the report.

The application of the open justice principle, and the ability of journalists to access court documents remains a current trend in the case law – given a kick-start by Guardian v Westminster and an unexpected sidewind in Kennedy v Charity Commission [2014] UKSC 20 – and NAB is a helpful reminder of its utility when using the existing court records access provisions in the CPR.

Christopher Knight

Local Government Transparency Code

Posted on | by Christopher Knight

The Secretary of State for Communities and Local Government has just issued a Local Government Transparency Code in exercise of his powers under section 2 of the Local Government, Planning and Land Act 1980 to issue a Code of Recommended Practice as to the publication of information by local authorities about the discharge of their functions and other matters which he considers to be related.

The Code sets out in some detail in Part 2 the type of information held by local authorities which must be published (some of it annually) and in Part 3 the information which, in the view of the Secretary of State, ought to be published. A helpful Annex A provides the details in tabular form.

Paragraph 14 of the Code provides that: “Where information would otherwise fall within one of the exemptions from disclosure under the Freedom of Information Act 2000, the Environmental Information Regulations 2004, the Infrastructure for Spatial Information in the European Community Regulations 2009 or falls within Schedule 12A to the Local Government Act 1972 then it is in the discretion of the local authority whether or not to rely on that exemption or publish the data.” There is therefore no attempt to override the FOIA exemptions. But where a qualified exemption applies, the appearance of the requested information in one of the categories set out in the Code will have a role (possibly a significant role) in establishing the public interest in support of disclosure.

Christopher Knight

Stop Press: Supreme Court to Hand Down Kennedy Judgment on Weds 26 March 2014

Posted on | by Christopher Knight

The Supreme Court has announced on its website that it will hand down judgment in the long-running saga of Kennedy v Charity Commission on Wednesday 26 March 2014. The judgment is expected to address the construction of section 32 FOIA and the extent to which Article 10 ECHR can be used to found a right of access to information. The judgment hand-down will be at 9.45 and can be watched live through the Supreme Court’s website.

Christopher Knight

Prince Charles, the Guardian and the Unreasonable Veto

Posted on | by Christopher Knight

As promised last week, this post contains a slightly fuller account of the Court of Appeal’s judgment in R (Evans) v HM Attorney General [2014] EWCA Civ 254. The history of the case is manifold and has been covered on this blog innumerable times (see: here, here and here). In essence, the Upper Tribunal held in a very lengthy judgment that some of the correspondence written by Prince Charles to various governmental departments ought to be disclosed in the public interest. The Attorney General then issued his statement of reasons under section 53 FOIA, which has the effect of vetoing the judicial decision. On any view, the veto is a highly unusual provision. The Divisional Court dismissed the judicial review of that veto. Mr Evans, a Guardian journalist, appealed.

The Court of Appeal allowed the appeal, with Lord Dyson MR delivering the leading judgment. It accepted that two persons may each have different but reasonable views of an answer to a question such as the balance of public interests. But where one of those bodies was an independent and impartial tribunal or court which had conducted a full examination of the issues, for the AG to have “reasonable grounds” to take a different view (as section 53(2) requires) he must be able to show that the tribunal had demonstrably erred in law or fact, or that there had been a material change of circumstances. Neither of those applied in this case: at [37]-[39]. The statement of reasons was accordingly unlawful. The Court applied an analogy from cases taking this approach in the planning and immigration context.

The Court’s view certainly exercises a control over the veto. The two examples it gives for a veto role are apparently intended to be narrow ones. A demonstrable error seems to permit a veto only where an appeal would clearly be successful. A material change in circumstances seems a particularly difficult category to apply where the long-standing principle of FOIA is that the public interest is adjudged as at the time of the request. The Court of Appeal did, however, grant permission to appeal to the Supreme Court, so this judgment will not be the last word on the matter.

Some of the information requested, although it is not publicly known how much, was environmental information under the EIR. The Court of Appeal agreed with Mr Evans that the right to an effective remedy under the Directive and the European Charter precluded the use of a veto of a final and binding court decision. Judicial review was not an adequate remedy in this sense because it was directed at the veto, and not the underlying decision to refuse the request for information: at [55]. A veto meant that the court or tribunal decision was not final or binding, because a judicial review may not be bought or it might fail on procedural grounds, and in any event would not bind the original refusing department because it would not be a party to the veto proceedings: at [56]. Moreover, a veto also meant that there was not an effective remedy before a court which was Article 6 ECHR compliant, in the sense that the principle of legal certainty and finality of judgments was undermined, and that there was an inequality of arms because a requestor cannot veto a tribunal decision which rules against him: at [57]-[66].

The Court held that the entirety of the statement of reasons had to be quashed on this basis too because the AG had not carried his own public interest balancing exercise which reflected the greater public interest in disclosing the non-EIR material once the EIR material had been disclosed.

Lord Dyson MR did not feel it necessary to decide whether Wednesbury review was sufficiently flexible to comply with the standard required by the Directive (in particular, whether Sullivan LJ had been right in Birkett v DEFRA [2011] EWCA Civ 1606 at [23] to suggest a de novo hearing was required) given his reasoning more generally, but suggested that had it been necessary to decide the point he would have had to make a reference to the CJEU: at [73].

Evans has contributed a large amount to information law jurisprudence, and with an appeal to the Supreme Court to come, it is the gift that keeps on giving…

Christopher Knight