Open justice and freedom of information – Court of Appeal judgment in Browning

July 30th, 2014 by Anya Proops QC

Last month I penned a post on the issue of how the principle of natural justice can be reconciled with the use of closed procedures in FOIA appeals. The post was written against the backdrop of the Court of Appeal hearing of the appeal in the Browning case. Today the Court of Appeal has handed down its judgment. Mr Browning’s appeal was dismissed.

Before looking at the conclusions reached by the Court, it is important to understand the facts of the Browning case. Mr Browning is a highly regarded journalist. He sought access to information held by DBIS in connection with the application of the export licensing regime, particularly insofar as it had been applied to applications made by third party businesses for licences to export to Iran. The request was refused on an application of ss. 41 and 43 FOIA. The ICO upheld Mr Browning’s complaint about the refusal. However, on appeal to the FTT, and having considered further relevant evidence adduced for the purposes of that appeal, the ICO decided that it would switch sides and support DBIS’s case on appeal. As many operating within the FOIA field will know, it is not uncommon for the ICO to adapt his position in this way.

So far as the hearing itself was concerned, the FTT conducted part of the appeal on a closed basis. This meant that not only the public but also Mr Browning and his legal representative were excluded from part of the hearing. The FTT of course has express power to conduct FOIA appeals in this manner pursuant to rr. 35 and 5 of the FTT Rules. However, Mr Browning was not content with this arrangement and, whilst he did not apply to participate in the closed hearing himself, he did apply for permission for his counsel to participate. The application was made on the basis that Mr Browning’s counsel would give undertakings to the FTT not to reveal any closed material or evidence without the FTT’s permission. The application was made on the basis that this was the minimum derogation from the natural justice principle which should be tolerated by the tribunal.

Notably, the FTT does have power under r. 14(4) of the FTT Rules to permit such an arrangement. However, the FTT in Browning decided that the application should be refused. The FTT went on to hear evidence in closed session from a number of individuals in their capacity as representatives of businesses which had applied for licences permitting them to export to Iran.

It would appear that after the hearing went back into open session, the FTT explained in some detail the nature of the evidence given by the witnesses in closed session (“the substantive evidence”). However, the identity of the witnesses and information revealing the identity of the businesses they represented (“the identifying information”) was withheld. This was on the basis that the disclosure of such information would itself be highly damaging to the relevant businesses.

Of course, whilst in one sense Mr Browning’s position as a party could not be said to have been unduly prejudiced by the convening of the closed session, particularly because he was given a detailed account of the substantive evidence, in another sense, the prejudice was substantial: by being denied access to the closed session, neither Mr Browning nor his counsel had been able to challenge the evidence given by the witnesses through the process of cross-examination. Mr Browning’s concerns about this inability to cross-examine witnesses would appear to have been amplified in the present case because, in contrast with other appeals, where the ICO is effectively supporting the position adopted the applicant, in this case the ICO was supporting the position of DBIS. At the very least this caused Mr Browning to question whether the ICO would be as assiduous in testing the evidence in closed session as he would have been had he been supporting Mr Browning’s position.  See further my earlier post on the general concerns which surround the use of closed procedures in FOIA appeals.

The FTT ultimately decided the appeal in DBIS’s favour. It is clear from the judgment that the evidence given in closed session played a determinative role in this context.

Mr Browning went on to appeal the FTT’s decision to refuse his application for counsel-only access to the UT. He lost before the UT. He then appealed the UT’s judgment to the Court of Appeal. The appeal was put on the basis of the following relatively narrow ground:

–        the Tribunals Courts and Enforcement Act 2007 provides for a power to make rules to govern the procedures of the tribunal. However, pursuant to s. 22(4), that rule-making power must be exercised so as to ensure: (a) that ‘justice is done’ and (b) that the ‘tribunal system is accessible and fair’;

–        the FTT rules, as applied in the FOIA context, are ultra vires s. 22(4). This is because endowing the FTT with a power to conduct closed procedures in the absence of the applicant’s representative (as to which see rules 35 and 5) produces the result that, in cases where representatives are excluded, justice is not done and the tribunal system is not accessible and fair.

Thus, the appeal was advanced solely on the issue of the vires of the rules. It was not argued on the ground that the FTT’s decision had been perverse on the facts of the case before it.

The Court of Appeal dismissed the appeal. Marice Kay LJ, who gave the leading judgment, held in short that the rules were on their face intra vires s. 22(4) and, further, that application of the principle of natural justice did not require a different result. In reaching this conclusion, the Court noted in particular relevant jurisprudence concerning the serious practical difficulties attendant on permitting counsel-only access in the context of closed procedures, including not least the House of Lords’ judgment in Somerville v Scottish Ministers [2007] 1 WLR 2734. The key paragraph of Marice Kay LJ’s judgment is paragraph 35:

‘35. The crucial task is to devise an approach, in the context of a specific case, which best reconciles the divergent interests of the various parties. In my judgment, the approach adopted in this case and originating in the [British Union for the Abolition of Vivisection v ICO and Newcastle University EA 2010/0064] case does precisely that, having regard to the unique features of appeals under FOIA where issues of third party confidentiality and damage to third party interests loom large. The features to which reference was made in the BUAV case – the expertise of the Tribunal, the role of the IC as guardian of FOIA etc – make it permissible to exclude both an appellant and his legal representative except in circumstances where the FTT

“cannot carry out its investigatory function of considering and testing the closed material and give appropriate reasons for its decision on a sufficiently informed basis and so fairly and effectively in the given case having regard to the competing rights and interests involved. ”

In associating myself with this formulation I am accepting that there are features surrounding a case such as this which merit the description of the procedure as being at least in part investigatory as opposed to adversarial.’ 

The net effect of the judgment is that counsel-only access can potentially be contemplated by the tribunal but only in those exceptional cases where the tribunal concludes that the lack of counsel’s participation means that the tribunal cannot do justice to the case.

It is at this point important to note that the case in Browning was mounted exclusively on the basis that Mr Browning’s counsel should be permitted access to the closed session. There was no suggestion that this was a case where use of a special advocate would be apt, although it is understood that the use of special advocates was discussed before the Court of Appeal. This is important because in many senses the special advocate system avoids the acute practical difficulties which go hand in hand with the use of counsel-only access. Moreover, the fact that certain cases may warrant use of a special advocate was specifically confirmed by the FTT in BUAV.

One suspects that, in view of the concerns expressed by the Court of Appeal in Browning on the subject of counsel-only access, the debate around achieving natural justice in the context of FOIA appeals will now start to focus more heavily on the use of special advocates. Of course the use of special advocates is costly, as was noted in BUAV. This will often mean that their deployment is disproportionate. However, there will nonetheless be cases where the importance of the issues at stake in the appeal and the lack of access to substantive evidence given in closed session create a powerful if not overwhelming imperative in favour of adopting the special advocate procedure. It will be interesting to see whether this is an argument which surfaces before the FTT in the near future.

11KBW’s Ben Hooper acted for the Information Commissioner before the Court of Appeal.

Anya Proops