Tag: judicial review

Judicially Reviewing the Information Rights Tribunal

Posted on | by Christopher Knight

The Supreme Court today handed down its long-awaited (at least by some) judgment in R (Cart) v The Upper Tribunal [2011] UKSC 28. The case concerns the circumstances in which the ordinary courts will entertain an application to judicially review a decision of the First-Tier or Upper Tribunals. Although the case did not directly involve a challenge to the Information Rights division of the Tribunals, the judgment is of general application.

The Upper Tribunal is a “superior court of record” by virtue of section 3(5) of the Tribunals, Courts and Enforcement Act 2007. Under section 13, there is a right of appeal to the Court of Appeal from the Upper Tribunal, subject to permission being granted by either body, unless the decision falls within the category of excluded decisions. The most generally relevant excluded decision is a refusal of permission to appeal from the First-Tier Tribunal to the Upper Tribunal by the Upper Tribunal. Where permission is refused that is, in the eyes of the 2007 Act structure, the end of the line. Unless one can judicially review the decision to refuse permission.

The Divisional Court roundly rejected the argument that the designation of the Upper Tribunal as a superior court of record rendered it immune from judicial review ([2009] EWHC 3052 (Admin); [2010] 2 WLR 1012) and the absolutist position was not resurrected on appeal. The Court of Appeal agreed with the Divisional Court that judicial review should be available only in circumscribed cases ([2010] EWCA Civ 859; [2011] 2 WLR 36). The Supreme Court unanimously dismissed the appeal, but for different reasons.

The leading judgment of the Supreme Court was given by Lady Hale, with whom the rest of their Lordships more or less completely agreed, albeit in their own words. Rejecting the application of an unrestricted judical review jurisdiction over all decisions in the Tribunal structure, and the application of an exceptional circumstances test limited to an excess of jurisdiction and denial of fundamental justice, the Court settled on a more easily described approach. Where an application is made for judicial review of a Tribunal decision the High Court should apply the second appeals criteria, namely that (a) the proposed case would raise some important point of principle or practice, or (b) there is some other compelling reason for the court to hear the case.

It was considered by Lady Hale and the other members of the Court that this test was a proportionate and rational restriction on the availability of judicial review which nonetheless recognised the importance of correcting errors in the Tribunal’s case load. The exceptionality test would have been too narrow, and applying judicial review without limitation would have lead to the courts being swamped with applications in respect of a system designed to make the process easier, quicker and cheaper (especially in the light of its application to immigration and asylum cases).

Interestingly, there were a number of comments from Lady Hale, Lord Phillips, Lord Clarke and Lord Dyson to the effect that the situation would be made clearer by an amendment to the CPR remove the potential four stages of judicial review permission applications in these quasi-second appeal cases. Whether the Rules Committee is paying attention remains to be seen.

The upshot of the decision in Cart is that if the Upper Tribunal refuses permission to appeal to it, that decision can be judicially reviewed, but only on the restrictive second appeals criteria. The tenor of the judgments as a whole do not provide much appetite for leave to be readily granted, and in both cases under appeal the Supreme Court roundly rejected their compliance with the second appeal test.

For those reading north of the border, the Supreme Court applied the same approach to the Tribunal structure in Scotland in Eba v Advocate General for Scotland [2011] UKSC 29.

TWO HIGH COURT ‘PERSONAL DATA’ JUDGMENTS: DIGITAL ECONOMY ACT 2010 AND ABORTION STATISTICS

Posted on | by Robin Hopkins

The High Court has today handed down two judgments of some significance in the context of personal data.

This morning, Kenneth Parker J gave judgment in the application brought by BT and TalkTalk for judicial review of the Digital Economy Act 2010 (on which, see my earlier discussion here). The Act seeks to combat illegal file-sharing by allowing copyright owners to detect apparently unlawful online activity and report it to the suspect’s internet service provider, who must then warn the suspect against repeat infringements. The claimants contended, among other things, that this regime breached EU data protection law. Their claim failed on this and three other grounds, succeeding only with their fifth ground, which contended that internet service providers should not have to foot 25% of the bill for the regime imposed by the Act. Read the DCMS’ press release here.

This afternoon, Cranston J gave judgment in the “abortion statistics” appeal (on which, see my earlier Panopticon post here). The Information Tribunal had upheld the Commissioner’s decision to order disclosure of “low cell count” statistics as to the number of abortions carried out on specified grounds. Argument had focused on the risk of doctors, and in particular patients being identified. The Department of Health’s appeal to the High Court was dismissed. The judgment represents a notable development in jurisprudence on personal data.

More analysis to follow when these judgments are made available.

PUBLIC LAW REASONABLENESS NOT A MATTER FOR THE COMMISSIONER OR TRIBUNAL

Posted on | by Robin Hopkins

The absolute exemption at s. 44 FOIA applies where the disclosure of the requested information is prohibited under any enactment. Many statutes contain such prohibitions, often subject to specified exceptions or tests. If a public authority applies that statutory regime incorrectly or in a “Wednesbury unreasonable” way – that is, if it acts unlawfully in a public law sense  – then the precondition for reliance on s. 44 FOIA falls away.

This question arises: does FOIA presume “procedural inclusivity” (i.e. the Commissioner and/or tribunal have jurisdiction to consider such public law questions) or “procedural exclusivity” (i.e. public law is a matter for the courts only; requesters must thus seek judicial review)?

In Morrissey v IC and Ofcom (EA/2009/0067), the first-tier tribunal followed the approach taken in Hoyte v Civil Aviation Authority (EA/2007/0101) in supporting inclusivity. In other words, it considered that the Commissioner and tribunal do have jurisdiction to conduct “reasonableness reviews”.

In Morrissey, the tribunal asked itself whether Ofcom had acted reasonably in withholding information under s. 44 FOIA in reliance on s. 393(2)(a) of the Communications Act 2003. Its answer was ‘yes’. Ofcom nonetheless appealed, on the grounds that “reasonableness reviews” are beyond the statutory powers of the Commissioner and tribunal.

The Upper Tribunal has agreed with Ofcom, and endorsed procedural exclusivity: see GIA/605/2010. (Its decision was not concerned with the ultimate outcome of the case – which concerned a request for information about Ofcom’s approach to equal opportunities – but simply with this point of principle).

Its reasoning was as follows. Disparate caselaw illustrates a presumption that lower courts and tribunals can resolve public law prerequisites to their “core business” – but caselaw does not show any presumption that regulators can do so. Under FOIA, the tribunal’s jurisdiction is parasitic upon that of the regulator, the Commissioner. The Commissioner’s jurisdiction is to decide whether a request “has been dealt with in accordance with the requirements of Part I [of FOIA]” (s. 50(1) FOIA). (The tribunal’s jurisdiction is governed by s. 58 FOIA: this says it must determine whether the decision notice was “in accordance with the law” – rather than “Part I of FOIA”. It does not appear that the Upper Tribunal considered anything to turn on this difference).

As to the construction of the particular provision in question, the Upper Tribunal found that the purpose of s. 393 of the Communications Act 2003 is to reassure commercial broadcasters that Ofcom can only lawfully disclose their information if it considers it right to do so for one of the purposes in s. 393(2).

The Upper Tribunal was clear as to the broader implications of its decision: “it must be for the public authority initially to determine whether the information requested is exempt “by virtue of” s. 44” (paragraph 54).

It concluded, however, that judicial review is not the only alternative in these circumstances: the first-tier tribunal may not have jurisdiction over such public law points, but the Upper Tribunal does – provided it has the blessing of the administrative court in any given case.

ACCESS TO PROPERTY SEARCH INFORMATION – TEST CASE IN THE ADMINISTRATIVE COURT

Posted on | by Anya Proops KC

This has been a particularly busy week so far as the law relating to accessing property search information is concerned. On 15 March, I blogged about a new Information Rights Tribunal judgment on the application of the Environmental Information Regulations 2004 (EIR) to requests for property search information – see my post. On 17-18 March 2010, the Administrative Court (Hickinbotham J) heard a test case judicial review of the policy of City of York Council on access to and charges for property search information under the Local Authorities (England) (Charges for Property Searches) Regulations 2008. The Claimant, Onesearch Direct Limited, maintains that all local authorities have an obligation under the 2008 Regulations to grant it direct access to their property records, and to charge no more than the cost of doing so. It is understood that Onesearch are pursuing their claim under the 2008 Regulations rather than the EIR in part because of the administrative inconvenience of having to wait up to 20 days to receive a response under the EIR (see r. 5(2) EIR). Judgment is expected on Friday 20 March 2010. Jason Coppel represents the Council.

Make it intelligible

Posted on | by Panopticon Blog

Posted by James Goudie QC

One of the circumstances when there is a duty to provide information is when there is a duty to consult. One of the four elements of fair consultation is the provision of adequate information on which to respond. In R (Breckland DC) v The Boundary Committee and R(East Devon DC) v The Boundary Committee [2009) EWCA Civ 239] concerned with proposals for local government reorganistion, the Boundary Committee (BC) was under a statutory duty to solicit representations upon their draft proposals and to take account of those representations. The Court of Appeal today held that this meant that the BC must carry out a process of consultation, including publishing enough material to enable all those interested to respond intelligently, and that the information must be published in a form which members of the public may understand. The Court of Appeal further held that the BC had failed adequately to consult on affordability, because they had not provided sufficiently intelligible information in relation to that criterion or given adequate time for response to it.