The Guardian reports today that the CPS has refused a request for disclosure of its records of the 1998 race-hate trial of Nick Griffin. In the year before he was elected leader of the BNP, Mr Griffin was given a suspended prison sentence after being convicted of an offence under the Public Order Act 1986. The prosecution case centred on a magazine edited by Mr Griffin in which he dismissed the Holocaust as a hoax. The Guardian’s article indicates that the paper requested disclosure of the CPS’s records of the trial in circumstances where no transcript had been made of the hearing. It would appear that the request was refused by the CPS under s. 40 FOIA (the personal data exemption) and, in particular, on the basis that a large proportion of the requested information was ‘sensitive personal data’ as it related to the commission of an offence and Mr Griffin’s political opinions (see section 2 of the Data Protection Act 1998). It would appear that the Guardian will now lodge a complaint with the Information Commissioner. For an example of how the Information Tribunal applied s. 40 FOIA to a request for disclosure of personal data about individuals who had been made subject to ASBOs see further Camden v IC EA/2007/21
THE PERSONAL IS POLITICAL – ACCESSING NICK GRIFFIN TRIAL RECORDS UNDER FOIA
January 23rd, 2010 by Anya ProopsCONFIDENTIAL INFORMATION IN THE TRIBUNAL
January 22nd, 2010 by Timothy Pitt-Payne QCThe Tribunal has issued a Practice Note dated 18th January 2010, dealing with the protection of confidential information under the new rules of procedure.
The Note needs to be read in conjunction with the new rules of procedure (discussed in our earlier post here). The relevant rules are set out in the Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009 (SI 2009/1976) as modified by the Tribunal Procedure (Amendment) Rules 2010 (SI 2010/43).
The Practice Note indicates that the Tribunal will maintain its previous practice, that disputed information (i.e. the information sought by a requester but withheld by a public authority) will not usually be disclosed to the requester in the course of appeal proceedings before the Tribunal. This may mean that a party is excluded from part of the Tribunal hearing. The Practice Note refers to rule 35 of the new Rules as providing a basis for exclusion.
The Practice Note also includes guidance about the format of witness statements (see paragraph 22) and the contents of bundles (see paragraph 25).
HOW BUSY IS THE TRIBUNAL?
January 22nd, 2010 by Timothy Pitt-Payne QCThe First-tier Tribunal (Information Rights) – as we must now learn to call it – has recently published on its website a list of its current cases (updated to 20th January 2010). This gives an interesting insight into the volume and type of work reaching the Tribunal.
Cases are numbered by year of receipt, and in the order that they are received: for instance, EA/2009/100 is the 100th case received in 2009. This means that the case numbering system indicates how many appeals were received in a particular calendar year. On this basis, the Tribunal seems to have received 123 cases in 2009, and 30 (so far) in 2010; which suggests a sudden sharp increase in its workload.
The list shows 102 live cases. Of these, only one is identified as a Data Protection Act case. 11 cases are identified as involving the Environmental Information Regulations. All of the other appeals (90 cases) are brought solely under the Freedom of Information Act.
As the figures suggest, free-standing DPA cases before the Tribunal are rare. There are also few DPA cases that reach the ordinary courts. But many FOIA cases involve DPA issues. So a significant volume of DPA case-law is being generated by the Tribunal; but most of this is in the context of FOIA, and in particular the data protection exemption in FOIA section 40.
EMPLOYMENT VETTING IN THE COURT OF APPEAL
January 21st, 2010 by Timothy Pitt-Payne QCEmployment vetting is of great interest to information lawyers. Any vetting scheme depends on the systematic sharing of information about individuals. Such schemes will always give rise to difficult questions about fairness. An important recent decision of the Court of Appeal explores some of these issues, in the context of article 6 of the European Convention on Human Rights (ECHR).
Governors of X School v Queen on the application of G [2010] EWCA 1 concerned a teaching assistant at X school (“the employee”), who was accused of having sexual contact with a 15 year old boy on work experience at the school. The school governors conducted a disciplinary hearing, and dismissed the employee. The employee brought judicial review proceedings to challenge the governors’ decisions not to allow him legal representation at the disciplinary hearing or at a forthcoming appeal hearing. He argued that these decisions violated his right to a fair hearing, under article 6 of the European Convention on Human Rights (ECHR). The employee’s claim succeeded at first instance. The Court of Appeal upheld that decision, rejecting the governors’ appeal.
The basis of the employee’s claim was that an adverse finding in the disciplinary proceedings would expose him to statutory procedures that would prevent him from working with children. The Court of Appeal summarised the relevant procedures, by reference to three phases in the employment vetting regime: (i) the “list 99” procedure, under section 142 of the Education Act 2002, prohibiting certain individuals from working in education; (ii) the transitional regime, under the Safeguarding Vulnerable Groups Act 2006 (“the 2006 Act”), whereby after 20th January 2009 certain cases under section 142 were referred to the new Independent Safeguarding Authority (ISA); and (iii) the substantive regime under the 2006 Act, whereby list 99 was replaced with effect from 12th October 2009 by the “children’s barred list”, established under section 2(1)(a) of the 2006 Act.
The Court of Appeal considered whether the school disciplinary proceedings were a determinant of the employee’s civil right to practise his profession as a teaching assistant, so as to engage article 6 of the ECHR. Dismissal by the governors would not itself preclude the employee from practising his profession. A decision to include the employee on a statutory barring list would, however, have that effect. The question was whether the disciplinary proceedings had a substantial influence or effect on the barring proceedings, and therefore on the determination of the employee’s civil right to practise his profession. The answer was yes: therefore, the disciplinary proceedings engaged article 6.
The Court went on to consider whether article 6 required that the employee should be entitled to legal representation in the disciplinary proceedings. Article 6 did not entail a right to legal representation in every case: but in this case there was such a right, given the seriousness of what was at stake for the employee, and given the potential for legal representation to make a difference to the outcome.
The above analysis assumed that the case was to be treated as civil rather than criminal for the purposes of article 6. The employee argued that the case ought to be treated as criminal: given its other conclusions, the Court of Appeal did not need to decide this point.
The governors were a public authority under the Human Rights Act 1998, and therefore subject to the duty under section 6(1) of that Act, not to act incompatibly with Convention rights. The implications of the Court of Appeal’s decisions for private sector employers are uncertain. Such employers are not subject to the section 6(1) duty, and are not susceptible to judicial review. But in an unfair dismissal claim against a private sector employer, the employee might well rely on Governors of X School in order to argue that a failure to permit legal representation would render any dismissal unfair.
The case is of very considerable importance. It illustrates the wide consequences of the vetting scheme introduced by the 2006 Act. The scheme will give rise to a host of difficult legal issues: the Courts are only just beginning to explore them.
EMPLOYMENT BLACKLISTING – AN UPDATE
January 19th, 2010 by Timothy Pitt-Payne QCWe have previously blogged about this subject at some length: see in particular this post in November last year.
A draft statutory instrument, under section 3 of the Employment Relations Act 1999, is now available here on the OPSI website. The draft regulations are intended outlaw the compilation, dissemination and use of blacklists of trade unionists in the employment context.
NEW TRIBUNAL, SAME OLD WEBSITE
January 18th, 2010 by Timothy Pitt-Payne QCThe website for the new First-tier Tribunal (Information Rights) is at the address formerly used by the Information Tribunal: see here.
The website includes the Practice Statements that were issued under the old rules (i.e. the Information Tribunal (Enforcement Appeals) 2005), but as yet it does not include any practice directions made under the new rules. We are however aware of a practice direction dated 18th January 2010 on confidentiality and redaction of documents (referred to in Anya’s post of 15th January).
The website also includes a redrafted version of the appeal form.
NEWS FLASH: INFORMATION TRIBUNAL RIP
January 15th, 2010 by Anya Proops
Today, we should all pause and reflect on the passing of the much loved Information Tribunal. With effect from this coming Monday (18 January 2010), the Information Tribunal in its existing incarnation will cease to exist and all work which has hitherto been done by the Tribunal will be transferred to the new General Regulatory Chamber. The transfer is to be effected in accordance with the Transfer of Functions Order 2010 (SI 2010/22) (“the Transfer Order”). It is important to be aware of the following systemic changes which will result from the transfer:
1. from 18 January 2010, all appeals under FOIA will be heard either in the First-tier Tribunal (Information Rights) (“the FTT”) or in the Upper Tribunal (“UT”);
2. the question whether particular appeals are to be heard in the FTT or the UT is, in principle, to be determined by the new tribunal rules governing the operation of the FTT and the UT (see paragraph 2(3) of the Transfer Order);
3. there are in fact two sets of rules which are relevant in this context:
(a) the Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009, SI 2009/1976 (“the FTT Rules”) (as amended very recently by the Tribunal Procedure (Amendment) Rules 2010, SI 2010/43); and
(b) the Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2968/2008 (“the UT Rules”) (as amended by SI 2009/274, SI 2009/1975 and SI 2010/43);
4. as matters currently stand, these Rules say very little as to how FOIA appeals are to be allocated as between the two different tribunals, save that all appeals under s. 60 FOIA (appeals against national security certificate) must be heard in the UT (see paragraph 24 of the Tribunal Procedure (Amendment) Rules 2010, SI 2010/43). It is understood that, apart from appeals brought under s. 60 FOIA, the issue of allocation of appeals as between the two tribunals is likely to be determined on the basis of (forthcoming) practice directions rather than by reference to the Rules per se;
5. the FTT Rules and the UT Rules will apply in respect of all new appeals brought under FOIA (i.e. appeals which are commenced on or after 18 Janaury 2010);
6. in respect of appeals commenced prior to 18 January 2010, the tribunal will have a discretion as to whether to apply: (a) the old rules (i.e. the Information Tribunal (Enforcement Appeals) Rules 2005); (b) the new rules; or (c) a combination of the two sets of rules (see further paragraph 3 of schedule 5 to the Transfer Order which contains the relevant transitional provisions);
7. the FTT Rules and UT Rules will in due course be supplemented by practice directions – see further the new practice direction on confidentiality and redaction of documents (dated 18 January 2010).
VOLUNTARY ORGANISATIONS: DO THEY FEAR THE CONSEQUENCES OF FOI REQUESTS?
January 4th, 2010 by James Goudie QCA study, carried out by researchers at the University of Strathclyde, has examined the use of FOI by voluntary organisations and campaign groups across Scotland. It found that where requests for information were refused, more than half of respondents reported that the public authority failed to notify them of their right to appeal against the refusal, despite there being a legal requirement to do so. The researchers also found that, where appeals against refusal were made to an authority, one in four respondents said the authority failed to notify them of their right of further appeal to the Scottish Information Commissioner. The research was undertaken as part of an ongoing 3-year study into the use of FOI laws by the voluntary sector. The study also found that almost half (49%) of the voluntary sector respondents surveyed would be discouraged from requesting information under FOI because of a fear that it might harm working or funding relationships.
The full research study, entitled ‘Public Communication, Democracy and Citizenship: Assessing Civil Society Uptake of Freedom of Information’ is due to be published in 2011. The research report published on 4 January 2010 “Voluntunteering Information? The use of FOI laws by the Third Sector in Scotland – Survey Findings” brings together the first-phase quantitative findings from this study. The research is funded by the Economic and Social Research Council (ESRC), and is supported by the Scottish Information Commissioner. The research was launched in 2008 following evidence to suggest that the FOI ‘right to information’ might not be being used to its full potential by Scotland’s voluntary and campaign organisations, with only 4% of the appeals received in 2007 by the Commissioner coming from the sector. This figure compared with 6% from the media, 7% from politicians, and 77% from the public.
The Scottish Government is currently considering extending the FOI Act to cover additional bodies. It announced on 8 December 2009 that it plans to consult on the extension of FOI to cover PFI/PPP contractors, trusts that provide cultural and leisure services and bodies such as the Association of Chief Police Officers in Scotland, the Glasgow Housing Association and privately-run prisons. The Scottish Information Commissioner has welcomed the announcement, arguing that the practice of handing the delivery of public services to third party organisations not covered by FOI is eroding the public’s right to information.
SUPREME COURT JUDGMENT ON THE INVESTIGATORY POWERS TRIBUNAL
December 11th, 2009 by Anya ProopsThis week the Supreme Court handed down an important judgment on the jurisdictional scope of the Investigatory Powers Tribunal (IPT): R (on the application of A) v B [2009] UKSC 12. The case involved a former spy, ‘A’, who wished to publish a manuscript relating to the successes, failures and recruiting techniques of MI5. MI5 had refused to authorise the publication of certain elements of the manuscript under the Official Secrets Act 1989. A subsequently brought a claim for judicial review in the administrative court challenging MI5’s decision. The claim was advanced in particular on the basis that MI5’s refusal breached A‘s right to freedom of expression under Article 10 of the European Convention of Human Rights. The claim was resisted on the basis that, under s. 65 of the Regulation of Investigatory Powers Act (RIPA), it was the Investigatory Powers Tribunal (IPT) which had exclusive jurisdiction to hear any challenge made against MI5’s decision, irrespective of whether or not that challenge was made under the Human Rights Act 1998 (HRA). A’s claim for judicial review was allowed at first instance. In summary, Collins J held that the High Court exercised jurisdiction in respect of the claim in parallel with the IPT ([2008] 4 All ER 511). Collins J’s judgment was subsequently overturned by a majority of the Court of Appeal ([2009] 3 WLR 717). The Supreme Court has now unanimously upheld the Court of Appeal’s majority judgment. In essence, the Supreme Court held that:
- the wording of s. 65 RIPA should be construed broadly so as to ensure that, where decisions of this nature were in issue, they should be heard by the IPT, even if they embraced challenges brought under the HRA;
- the fact that s. 65 operated to oust the jurisdiction which the ordinary courts would otherwise have to hear a human rights challenge was not objectionable on constitutional grounds (i.e. it did not constitute an unlawful ouster). In particular, the ouster of jurisdiction embodied in s. 65 was lawful because: (a) it had been provided for in clear terms under the relevant legislation; and (b) it did not operate to prevent judicial scrutiny of the particular decision but instead merely ensured that that scrutiny was conducted by the IPT;
- the mere fact that the IPT procedures were more secretive than those which would apply in the ordinary courts did not mean that there would be any breach of A’s right to a fair trial under Article 6 ECHR. The use of such procedures could be justified in view of the fact that determination of A’s claim would entail consideration of information which raised issues of national security. (It was noted in the judgment that an application to the ECtHR is currently pending on the question of whether certain of the IPT rules breach various articles of the Convention, including articles 6, 8 and 10).
The judgment is likely to be seen as controversial in certain quarters, not least because the secretive nature of the IPT process is regarded by many as being inherently unjust. 11KBW’s Jason Coppel appeared on behalf of B before the Supreme Court. See further my post on the recent application of the IPT process to a surveillance procedure applied by a local authority.
JACK STRAW EXERCISES MINISTERIAL VETO (AGAIN)
December 11th, 2009 by Anya ProopsIn February of this year, Justice Secretary Jack Straw issued the first ministerial veto under s. 53 FOIA. The veto, which met with considerable public controversy at the time, was issued in response to an Information Tribunal decision which required disclosure of minutes of a Cabinet meeting at which the government decided to go to war in Iraq (see further my paper on this issue). Yesterday, Mr Straw announced that he was exercising his powers of veto for a second time. The new veto has been issued in respect of a decision of the Commissioner requiring disclosure of minutes of the Cabinet Ministerial Committee on devolution to Scotland and Wales and the English Regions 1997. In the public announcement of the veto, Mr Straw stated that disclosure of the information in issue would have put the convention of collective cabinet responsibility at ‘serious risk of harm’. He also stated that he considered the circumstances of the case to be exceptional. Notably, similar points had been used to justify the veto in respect of the Iraq minutes. See further the certificate and Mr Straw’s Statement of Reasons and Veto. The effect of the veto is that the appeal against the Commissioner’s decision, which was due to be heard by the Information Tribunal at the end of January 2010, will now be aborted as the effect of the veto is that the decision notice ceases to have effect. The Commissioner has today issued a statement in response to the veto. The statement expresses regret and concern that the veto was issued in circumstances where the Tribunal had yet to adjudicate on the Cabinet Office’s appeal (cf. the Iraq minutes case where the veto was issued subsequent to the tribunal’s decision). The Commissioner will in due course issue a report to Parliament on the matter.