Legislative process

November 18th, 2015 by James Goudie QC

As is well known, Section 35 of FoIA creates a class-based exemption from disclosure designed to protect the effective formulation of Government policy; and Section 36 creates an exemption related to effective conduct of public affairs.  The scope of the Section 35 exemption is that information may be exempt if it relates to the formulation or development of Government policy.  However, the wide scope of the exemption is narrowed by the provision that once a decision as to Government policy has been taken statistical information used to provide an informed background to the decision is no longer exempt.  Moreover, in determining whether the public interest in maintaining the exemption outweighs the public interest in its disclosure, regard must be had to the particular public interest in the disclosure of factual information that has been used, or is intended to be used, to provide an informed background to decision making. Read more »

 

Freedom of Information in Scotland

June 15th, 2015 by James Goudie QC

The Scottish Government has initiated a Consultation on further extension of coverage of the Freedom of Information (Scotland) Act 2002 (“FoIS”) to more organisations, specifically contractors who run privately managed prisons, providers of secure accommodation for children, grant-aided schools and independent special schools.

FoIS provides a statutory right of access to information held by Scottish public authorities. These range from the Scottish Parliament and Government, to local authorities, NHS boards, higher and further education bodies, doctors and dental practitioners.  However, the provisions of FoIS can be extended to bodies that carry out functions of a public nature or which provide, under a contract with a Scottish public authority, a service which is a function of that authority. This can be done by making an Order under s5 of FoIS, which designates those bodies as a Scottish public authority for the purposes of FoIS. They are then subject to the full requirements of FoIS. They would also automatically become subject to the requirements of the Environmental Information (Scotland) Regulations 2004. In accordance with s7(3) of FoIS, bodies proposed for coverage would be covered only in respect of the information they hold about specified public functions or services. Their duties under FoIS would therefore be limited to those functions or services as set out in the Order.

The Scottish Government brought forward Scotland’s first Order under s5(1) of FoIS in September 2013. Following consideration by the Parliament the Order came into effect on 1 April 2014. The Order extended coverage of FoIS to certain trusts which have been created by local authorities to deliver sporting, cultural and leisure facilities and/or activities on behalf of the local authority(ies).

The Scottish Government are now consulting on options for further extension of coverage. They are proposing to lay an Order in the Scottish Parliament in Autumn 2015. Subject to the Scottish Parliament supporting the Order, they would expect the bodies covered to become subject to FoIS and the EIR from Spring 2016. In addition to the organisations discussed in the Consultation Paper, suggestions are sought as to what other bodies – whether individually or collectively – should be considered in any future consultation.

In the previous consultation in 2010 the Scottish Government adopted a factor-based approach in determining the extent to which a function of an organisation could be described as being ‘of a public nature’.  They continue to believe that a factor-based approach is appropriate, and that a range of factors should be considered in assessing the ‘public nature’ of particular functions undertaken by certain organisations.

The Consultation Paper notes that the Scottish Information Commissioner has called for the extension of FoIS coverage to social housing owned by RSLs.  For a number of reasons, the Scottish Government are not currently persuaded of the merits of extending coverage to housing associations.

The Scottish Government do, however,  consider that a number of factors apply in relation to the functions undertaken, or services provided, by those various organisations highlighted in the Consultation Paper. In particular, there is a focus on organisations who, for the purposes of s5 of FoIS, undertake functions of a public nature or provide a service that is a function of a public authority(ies) relating to security, care and education.

The organisations considered for inclusion at this stage are:

  • contractors who run privately-managed prisons
  • providers of secure accommodation for children
  • grant-aided schools
  • independent special schools

With all these groups it is envisaged that any Order would provide a ‘class description’ in respect of the particular function undertaken or service provided. Given the potential for contractors or service providers to change over a period of time, a ‘class description’ gives more flexibility than listing specific bodies or contractors in the Order.

James Goudie QC

 

Local Offers

February 6th, 2015 by James Goudie QC

Section 30 in Part 3 of the Children and Families Act 2014 defines and prescribes the content of a “Local Offer”.  A local authority in England must publish information about the education and training, social care and health provision, for children and young people who have special educational needs or a disability, that it expects to be available in its area (or in some circumstances outside), whether or not it will be making that provision itself.  Schedule 2 to the Special Educational Needs and Disability Regulations 2014, SI 2014/1530, specify what information must be included in the Local Offer.  Mostyn J has considered these provisions in R (L & P) v Warwickshire County Council (2015) EWHC 203 (Admin).  He observed, at para 48, that Schedule 2 provides for a “very extensive range of information” to be published in the Local Offer, and referred to the “vast number” of people and bodies each local authority must consult before publishing its Local Offer and to the “huge range of information that must be referenced”.

Having referred to the statutory guidance, Mostyn J stated:

“51.       Although the prescriptions are extremely extensive it is important to understand that the requirement is no more than to publish information about what services are expected to be available.  Section 30 of the 2014 Act incorporates a publication obligation, no more, no less.”

At para 54, he said:

“…it must be very clearly understood what the purpose of the consultation is. It is about what appears in the Local Offer, which is a compendium of information. I remind myself of the words of section 30. The local authority has a duty to publish information about certain provision it expects to be available.”

At para 57, Mostyn J reiterated that the statutory consultation is about what the Local Offer should say about services to be provided, not about what services should be provided.  He dismissed the challenge to the fairness of the consultation.  He emphasized (para 59) that the Local Offer by its nature will always be subject to continuous updating; and, at para 77, approved the following submissions on behalf of the County Council:

(i) The development and publication of the Local Offer is, as the legislative framework envisages and the implementation guidance makes clear, intended to be an iterative process, subject to consultation and to be done in accordance with the new spirit of “co-production”. To update the website with further information on the Local Offer and to continue to do so as the Offer is refined and further developed is entirely lawful.

(ii) It is obviously not arguably unlawful for information to be published on the Council’s website by way of a link through to a partner’s website, for example with respect to the information on healthcare provision and SEN provision in schools.

James Goudie QC

 

Disclosure to GMC

November 19th, 2014 by James Goudie QC

The disclosure of material to the General Medical Council (“the GMC”) by other agencies, including the Police, has an important role to play in the exercise of the GMC’s public interest functions as they relate to a Doctor’s fitness to practice.  Section 35A of the Medical Act 1983 grants a specific power to the GMC to require the disclosure of information which appears relevant to the discharge of these functions.

The leading case in relation to the duties of the Police, when a request for disclosure is received from a regulatory body, such as the GMC, remains the decision of the Court of Appeal in Woolgar v Chief Constable of Sussex Police [2000] 1 WLR 25.

The issue in R (Nakash v Metropolitan Police Service (“MPS”) and GMC [2014] EWHC 3810 (Admin), in which Judgment was given by Cox J on 17 November 2014, was whether, as the Claimant Doctor contended, the Administrative Court should prohibit the disclosure by the MPS of material requested by the GMC, on the basis that it was unlawfully obtained by the police, in breach of the Claimant’s ECHR Article 8 rights; that it included material of a highly personal and confidential nature; and that the material had no relevance to the issue of the Claimant’s fitness to practise as a medical practitioner.

Cox J concluded that the decision by the MPS to disclose the material requested by the GMC was in error. They had failed to carry out the “careful balancing exercise of competing interests” required by Article 8.  Relevance of the material is obviously an important factor.  So too, however, is the personal and confidential nature of the material requested.

At paragraph 46, Cox J said:-

 “… Since the primary decision as to disclosure will be made in these cases by the police, it is important that before the decision to disclose is made, there is a rational assessment of the relevant competing interests and that consideration is given, in each case, to the extent of the interference, and whether the disclosure sought is in accordance with the law and is a proportionate response to a legitimate aim …”

The MPS’s decision having been found to have been flawed, Cox J proceeded to carry out the balancing exercise herself, and found that disclosure by the MPS to the GMC was justified, under Article 8(2), notwithstanding the circumstances in which the MPS had obtained the material and the interference with the Doctor’s Article 8(1) rights.

James Goudie QC

 

Video recordings

November 18th, 2014 by James Goudie QC

The classification requirements imposed by the Video Recording Acts are lawful, the Court of Appeal (Criminal Division) has ruled, on 14 November 2014, in R v Dryzmer and Play Media Distribution Ltd.  The prohibition on supplying video recordings which have not been classified by the British Board of Film Classification is not rendered unlawful either by ECHR Article 10, on freedom of expression, or by TFEU Articles 34-36 on non-interference with trade. The reason is the same in both cases.  Qualitative restrictions on grounds of public health and morals are justified.

This was an application of the ECJ decision in Case 244/06, Dynamic Medien Vertriebs GmbH v Avides Media AG.  In that case the ECJ observed as follows.  The protection of the rights of the child is recognised by various international instruments which the Member States have cooperated on or acceded to, such as the International Covenant on Civil and Political Rights, which was adopted by the General Assembly of the United Nations on 19 December 1966 and entered into force on 23 March 1976, and the Convention on the Rights of the Child, which was adopted by the General Assembly of the United Nations on 20 November 1989 and entered into force on 2 September 1990. Those international instruments are among those concerning the protection of human rights of which it takes account in applying the general principles of Community law.  Under Article 17 of the Convention on the Rights of the Child, the States Parties recognise the important function performed by the mass media and are required to ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. Article 17(e) provides that those States are to encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being. The protection of the child is also enshrined in instruments drawn up within the framework of the European Union, such as the Charter of Fundamental Rights, Article 24(1) of which provides that children have the right to such protection and care as is necessary for their well-being. Furthermore, the Member States’ right to take the measures necessary for reasons relating to the protection of young persons is recognised by a number of Community-law instruments. Although the protection of the child is a legitimate interest which, in principle, justifies a restriction on a fundamental freedom guaranteed by the EC Treaty, such as the free movement of goods, such restrictions may be justified only if they are suitable for securing the attainment of the objective pursued and do not go beyond what is necessary in order to attain it.  However, it is not indispensable that restrictive measures laid down by the authorities of a Member State to protect the rights of the child correspond to a conception shared by all Member States as regards the level of protection and the detailed rules relating to it.  As that conception may vary from one Member State to another on the basis of, inter alia, moral or cultural views, Member States must be recognised as having a definite margin of discretion.  Prohibiting the sale and transfer by mail order of image storage media which have not been examined and classified by the competent authority for the purpose of protecting young persons and which do not bear a label from that authority indicating the age from which they may be viewed constitutes a measure suitable for protecting children against information and materials injurious to their well-being.

 James Goudie QC

 

Use of disclosed documents

February 7th, 2014 by James Goudie QC

The important general principle is of course that a party to whom a document has been disclosed in litigation may use that document only for the purpose of the proceedings in which it is disclosed.  There are, nonetheless, three significant exceptions to that principle, set out in CPR r31.22(1).  They are (a) where the document has been read to or by the Court, or referred to, at a hearing which has been held in public; (b) where the Court gives permission; or (c) where the party who disclosed the document and the party to whom the document belongs agree.   However, r31.22(2) provides that the Court may make an Order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the Court, or referred to, at a hearing which has been held in public.  An application for such an Order was considered by the High Court in Smith & Nephew PLC v Convatec Technologies Inc [2014] EWHC 146 (Pat).  Birss J granted a Permanent Order prohibiting the use after trial of certain documents which had been disclosed during patent infringement proceedings.  The documents covered by the Order included those which made reference to commercial strategy or to manufacturing processes.  The nature and details of the claimants’ secret processes had to be explored in the proceedings.  Justice could not be done without it.  A number of those documents played a crucial role in Court, but the outcome could be understood without them.  The documents covered by the Order did not, however, include documents which related to the claimants’ dealings with regulatory authorities, which went to a springboard injunction question.  Although the claimants had built up very substantial experience and know-how in dealing with regulatory authorities, disclosure of those documents would not reveal that know-how or damage the claimants at all.

An Order restricting use of disclosed documents referred to in Court is consistent with it being “highly desirable” (para 11) to avoid trials in private or partly in private, as was recently reiterated by Lord Neuberger in Bank Mellat v H. M. Treasury [2013] UKSC 38 at para 2.