It’s a good time for a conference about information sharing. The data sharing provisions in the Coroners and Justice Bill have been withdrawn, in the face of widespread criticism – including from the Bar Council (for more background, see our previous posts here and here). The question whether anything will be done to implement last year’s Thomas/Wolpert review remains an open one.
Against this background, Northumbria University’s conference on 17th April is topical. Speakers include Richard Thomas (coming to the end of his term as Information Commissioner), Marcus Turle from Field Fisher Waterhouse, and Steve Eccleston from Sheffield City Council. I shall be delivering a paper about breach of confidence and its significance for information sharing (I will post it on the 11KBW website after the conference).
Posted by Julian Wilson
In Barclays-v-Guardian  EWHC 591 (which Anya Proops commented on a couple of days ago), Mr. Justice Blake referred to the well known distinction between tax evasion and tax avoidance and then commented critically on the Guardian’s description of the Barclays’ employee who leaked its internal documents to Vince Cable MP as a “whistleblower”. The Judge said: “usually one blows a whistle to denote a foul, and I have already observed that the distinction between evasion and avoidance needs to be borne in mind in this context.” It appears that the Judge must not have had the Public Interest Disclosure Act in mind in referring to the term “whistleblower”. To qualify under the statute for potential protection, a worker’s disclosure need not be of a proven “foul” but only made with a reasonable belief that his employer is failing to comply with a legal obligation (ERA s.43B). Further, to gain potential protection for a qualifying disclosure where it has been made to an MP, the disclosure need not be of a proven “foul” but needs to be made with an honest and reasonable belief that that the information disclosed and any allegation contained in it are substantially true (S. 43G). Most whistleblowers have only a hunch that something is a foul without the means to prove it and the idea of PIDA is to protect them if they make the disclosure to a person having the ability and resources to investigate it. The protection offered to whistleblowers would be of no utility if only those with the legal brain necessary to distinguish evasion from avoidance could enjoy protection.
It is a fundamental principle of our constitutional structures that Parliament and its members should not normally be subject to judicial scrutiny or supervision. The statutory basis of this principle is to be found in Article 9 of the Bill of Rights 1689 which states that: ‘the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament’. The breadth of the principle of Parliamentary privilege was confirmed in the case of Prebble v Television New Zealand Ltd  1 AC 321 where Lord Browne-Wilkinson held that the effect of the principle was that the courts would not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges. Yesterday Lord Oakeshott, Lib Dem Treasury Spokesman, availed himself of the protection of this important privilege when he told peers about the location of certain documents relating to Barclays’ tax arrangements. The documents in question are particularly controversial because a mere eight days ago the High Court granted Barclays injunctive relief requiring the Guardian newspaper to remove the documents from its website on grounds of their confidentiality (Barclays Bank Plc v Guardian News and Media Ltd  EWHC 591 QB). The curious result of Lord Oakeshott’s comments would seem to be that the Guardian still cannot publish the documents on its website, pursuant to the order made by the High Court, but can report Lord Oakeshott’s comments by placing reliance on the doctrine of qualified privilege.
The decision of the High Court to grant Barclays injunctive relief in respect of the information published on the Guardian’s website is itself likely to be of considerable interest to information lawyers. This is because in reaching that decision the judge, Blake J, accepted that the documents had retained the quality of confidentiality even though there was evidence before the Court that, quite apart from the Guardian website, the documents had already been published on at least one other internet site which would not itself be subject to an application for injunctive relief and, further, there had already been a degree of ‘internet chatter’ about the injunction process. That the court was prepared to accept that the documents retained an element of confidentiality in these circumstances highlights the fact that the judiciary will not automatically accept that publication of information on the internet necessarily equates to publication to all the world.
High Court judgment:
High Court judgments on Parliamentary privilege (appeal from Information Tribunal)
Office of Government Commerce v ICO & Ors – https://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2008/737.html&query=title+(+Office+)+and+title+(+government+)+and+title+(+commerce+)&method=boolean
Corporate Office of the House of Commons v ICO & Ors – https://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2008/1084.html&query=title+(+Corporate+)+and+title+(+officer+)&method=boolean
Excerpt from Hansard: