Category Archives: Article 10

May 27, 2025 · 7:42 am

Liz Truss leadership election not amenable to JR

Was the leadership election in which Liz Truss was elected as leader of the Conservative Party (and as a result of which she was recommended to the Queen by the outgoing Boris Johnson, and appointed by the Queen as her Prime Minister) a decision amenable to judicial review?

Whether a person is a public authority for the purposes of the Freedom of Information Act 2000 is, in principle, a relatively straightforward issue: is it listed in Schedule 1 to FOIA?; or has it been designated as such by order under section 5?; or is it wholly owned by the public sector?

Whether a person is a public authority under section 6 of the Human Rights Act 1998, or whether a person is a public authority amenable to judicial review, are more complex questions.

It was the last of these that the Court of Appeal had primarily to consider in Tortoise Media Ltd, R (On the Application Of) v Conservative and Unionist Party [2025] EWCA Civ 673. Tortoise Media had written to the Party seeking certain information in relation to the leadership election process, and argued that the public effects of the leadership election meant that, in those circumstances, the Party was exercising a public function for the purposes of CPR 54.1(2). The follow-on argument was that the judgment of the ECtHR in Magyar Helsinki Bizottság v Hungary meant that the domestic courts should read down Article 10 of the ECHR (as incorporated in domestic law in the HRA) as imposing, in some cases, a positive obligation on a body to provide information to the media, who act as “watchdogs” in the public interest.

Perhaps unsurprisingly, though, the Court of Appeal did not accept that the effects and circumstances of the Party leadership election made the decision of the Party amenable to JR:

the nature of the act of electing a party leader…is at all times a private act. The fact that it has important, indirect consequences for the public does not transform a private act into a public one.

For that reason, the Court did not need to consider the Article 10/Magyar arguments (but on which, one feels – having regard to the submissions on behalf of the Duchy of Lancaster, as intervener, which argued that the Supreme Court’s decisions in Sugar and in Kennedy (which did not follow the reasoning in Magyar) bound all inferior courts – the claimants would have in any case lost).

It’s an interesting read, even if it was – to put it mildly – an ambitious case to bring.

The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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November 16, 2024 · 6:56 am

Non-party access to court documents

The issue of non-party access to information from court cases, such as parties’ skeleton arguments and other case documents, continues to exercise the courts. In a recent judgment (Moss v The Upper Tribunal [2024] EWCA Civ 1414), the Court of Appeal has ruled that the president of the Administrative Appeals Chamber of the Upper Tribunal had been wrong to refuse an application for parties’ written submissions from a Freedom of Information Act case.

Following the Supreme Court’s judgment in Dring, it is clear that there is no presumptive right to such documents. Instead, as Baroness Hale put it, “it is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle” (at para 45 of the SC judgment), and if that test is met, the court must consider any countervailing factors (at 46-47).

Here, the AAC President had rejected the applicant’s stated reason (“I am a campaigner and writer with a particular interest in information and rights law and certification/contempt proceedings, and I need copies of the skeleton arguments to see what arguments were deployed in these cases, to enable me to write about them from an informed point of view”) but did not explain why. This was an error of law, and Coulson LJ, reconsidering the material which had been before the President, decided instead that stated reason (just) met Baroness Hale’s first test. There were no countervailing factors, and so the appeal succeeded.

All three appeal court judges note that the Civil Procedure Rules Committee is in the process of considering how to deal with non-party information requests – something Baroness Hale had called for in a postscript to Dring.

However, as happened here, such requests are often made in relation to tribunal proceedings, which are not covered by the CPR. Tribunal rules are notably silent on such issues, and Underhill LJ wisely calls on the Tribunal Rules Committee also to consider the matter.

Aidan Wills of Matrix Chambers acted for the appellant, and Eric Metcalfe of Monckton Chambers for the Information Commissioner’s Office, as an interested party.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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June 9, 2024 · 7:31 am

Drones and freedom of expression

Article 10 of the European Convention on Human Rights provides that everyone has the (qualified) right to freedom of expression, which includes the freedom to receive and impart information. And section 12(4) of the Human Rights Act 1998 requires a court: i) to have regard to the importance of freedom of expression, when considering whether to grant any relief which, if granted, might affect the exercise of the right to freedom of expression, and ii) where the proceedings relate to material which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to have regard to the extent to which the material has, or is about to, become available to the public, or the extent to which it is, or would be, in the public interest for the material to be published.

In a recent case in the High Court – sitting in Manchester – an application for an interim injunction was granted against one named and a number of unknown respondents preventing them from entering the site of the former St Joseph’s seminary in Up Holland, but also preventing the flying of drones over the site. There is already a large amount of footage taken previously by such drones on the various online video-sharing sites, and some of them are fascinating and informative. The future of the site is evidently a matter of significant local interest.

The concerns of the applicants for the injunction are compelling: there have been numerous incidents of trespass on the site, and it is in a very dangerous condition.

The only published judgment I have been able to find is on the website of the chambers of the barrister representing the applicant. It appears to be a transcript of an ex tempore judgment. The judge notes that section 76 of the Civil Aviation Act 1982 provides that

No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case is reasonable

A piece on the website of the solicitors acting for the applicants indicates that the judge proceeded on the assumption that section 76 applied to drones and that the drone operator had complied with the requirements of the Air Navigation Order 2016. He then said that either i) section 76 did not apply, because the flight involved the taking of footage for its presumed purpose of encouraging trespass (and presumably therefore it was not “by reason of the flight only” for section 76 purposes), or, ii) if section 76 did apply, then the height of the drones could not be reasonable, because of the taking of the footage.

However, nowhere in the judgment is there any indication that the judge has had regard to the court’s duties under section 12 of the Human Rights Act. It strikes me that there are clear freedom of expression issues raised. A large number of people are interested in general in abandoned buildings, and there is an enormous amount of online attention to this subject, and, more locally, there is clearly notable interest in the fate of a grade 2 listed building: the drone footage must, surely, play a part in meeting this public interest.

So it strikes me that it was incumbent on the court to conduct the balancing exercise inherent in Article 10, which provides that the exercise of freedom of expression may be

subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial disorder or crime [and] for the protection of health…

The respondents in this case did not attend the hearing but the judge was satisfied that notice had been given to them (although the judgment does not explain how notice was given to the persons unknown). Perhaps, though, if they had attended, and been represented, their counsel might have drawn the court’s attention to its section 12 duty.

In a letter to The Times in 1987 (quoted here), Lord Scarman deprecated a decision of the House of Lords, and commented that

their Lordships have, with great respect, overlooked the more fundamental law providing the right of the public to access to information … and the public right of free speech…Old ingrained habits die hard. We are not yet able to abandon the traditional emphasis of our law on private rights …

Might he have found himself writing a similar letter today?

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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February 22, 2022 · 6:03 pm

The Seepage of Information Act

Transport yourself back to January 2020 (what a different world that was). You are a journalist, or maybe just an informed citizen, and you want to know what preparations the government had made in the event Boris Johnson had lost his seat in the general election a month previously.

You make a request for this information to the Cabinet Office under the Freedom of Information Act 2000 (FOIA). You know that you should get a response within twenty working days (section 10 of FOIA says so). And you know that there is a regulator (the Information Commissioner, or “ICO”) who oversees compliance with FOIA.

What you probably don’t expect is that, 25 months on, you not only haven’t received the information you requested but you have only just had a ruling from the ICO that you are not entitled to it.

That’s how long it has taken this request to make its way through what is an unacceptably slow process. The requester made the request to the Cabinet Office on 7 January 2020. By 12 March 2020 they had had no response whatsoever, so complained to ICO. Three months later, on 16 June 2020, ICO formally told the Cabinet Office to pull its finger out. On 3 August it did, and refused to disclose the requested information, citing one of the statutory exemptions. On 22 September 2020 the requester again complained to ICO, who then took sixteen months to decide that the Cabinet Office was entitled to rely on the exemption claimed.

What follows is far from a fully thought-out legal argument, but bear with me for the purposes of polemic: Article 10 of European Convention on Human Rights says that everyone has the qualified right to receive information (as well as to impart information) without interference by public authority. Previous attempts to argue that Article 10 confers something above and beyond FOIA in respect of accessing information from public authorities have foundered, on the grounds that, in context, Article 10 doesn’t add anything to the rights in FOIA (see Kennedy, para 92 and elsewhere). But it does seem to me that if the regulatory scheme itself interposes a delay which might be, as here, 1600% longer than the original statutory timescale given to the original recipient for responding to the request, the basis might arise for mounting an argument that the scheme fails to avoid public authority interference in the Article 10 fundamental right.

Maybe I’m overreaching. Let’s just say this: it cannot be right that it takes over two years to get a response and a regulatory decision on a FOIA request. Let’s hope new Commissioner John Edwards sorts this out.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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July 26, 2018 · 8:28 am

FOI needs a strong regulator

Slightly more than twenty working days ago I made a request to a government department under the Freedom of Information Act 2000. Following the structure of section 1(1) of the same, I asked

Please confirm whether you hold [X information] regarding [Y]

If you hold this information, please disclose it.

There are relatively mundane reasons why I am keen to know the first point, and, following on from that, to have the information if it exists.

On the twentieth working day (give or take a bank holiday or two) I received a reply to the first point, but total silence on the second:

I can confirm that [government department] does hold [X information] regarding the [Y].

Although this is rather a bizarre approach to an FOI request (FOIA is after all, primarily about access to information, not just knowledge that it exists) I have no reason to think that the failure to note the second point of my very short request was anything other than an innocent mistake.

Accordingly, I pointed the mistake out to the government department, asking them to send the information by return. (I had to do this by email, because no phone number is given on the correspondence or on the relevant (sparse) website (query whether the service is accessible, therefore, to people who may have difficulties in communicating in writing.)) However, not only did I not get the information by return, I got a template reply, and a new reference number, indicating that my follow-up email is being treated as a wholly new request. I would not be surprised for it to take another twenty working days to get a substantive reply (if I’m wrong, I will update this post accordingly).

So what to do? Well, I could complain to the government department, or ask for an internal review, but that would likely take at least another twenty working days to get a response. I could complain to the Information Commissioner’s Office, but, anecdotally, I understand they are taking some months to allocate and deal with complaint, and the only likely outcome would be a declaration that the government department had failed to comply with its section 10 and section 17 FOIA obligations, and giving them another period of days to comply. I can’t make an application for judicial review because a) the idea is completely ridiculous (have you seen my bank balance?) and b) in March the High Court rather peremptorily dismissed an argument that JR should be available for FOIA cases of urgency (on the grounds that the right of appeal under the statutory scheme was sufficient.

And FOIA delays are not isolated incidents; the BBC’s Martin Rosenbaum has written recently, following up his and others’ research, about the apparent contempt with which some public authorities treat FOIA and the Information Commissioner. Yet the latter appears unwilling, despite having the powers to do so, to act. As the Campaign for Freedom of Information recently noted, her recent draft regulatory action policy effectively ignored the fact that she is responsible for FOIA regulation, as well as for data protection and eprivacy.

Data protection and privacy are certainly hot topics (try counting the number of arriviste consultants who’ve sprung up over the last year to get an idea of how hot) but freedom of information laws are a legislative expression of another fundamental human right. I don’t think it’s the case that as a society we just don’t care about FOI (look back to the MPs’ expenses scandal to see how important and high-profile it can be) so why is it that there appears to be no effective mechanism to enforce our rights in a timely way against a recalcitrant public authority?

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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February 4, 2015 · 9:25 am

Is an FOI request from an investigative journalist ever vexatious?

Last week, in the Court of Appeal, the indefatigable, if rather hyperbolic, Mr Dransfield was trying to convince three judges that his request, made long ago, to Devon County Council, for information on Lightning Protection System test results relating to a pedestrian bridge at Exeter Chiefs Rugby Ground, was not vexatious. If he succeeds in overturning what was a thorough, and, I think, pretty unimpeachable ruling in the Upper Tribunal, then we may, at last, have some finality on how to interpret section 14(1) of the Freedom of Information Act 2000 (FOIA):

a public authority [is not obliged] to comply with a request for information if the request is vexatious

But what is certain is that the Court of Appeal will not hand down a ruling which would allow a public authority to feel able merely to state that a request is vexatious, and do nothing more to justify reliance on it. But that is what the Metropolitan Police appear to have done in an extraordinary response to FOIA requests from the Press Gazette. The latter has been engaging in a campaign to expose what it believes to be regular use of surveillance powers to monitor or investigate actions of journalists. This is both a serious subject and a worthy campaign. Investigative journalism, by definition, is likely to involve the making of enquiries, sometimes multiple ones, sometimes speculative, “to discover the truth and to identify lapses from it”. It is inevitable that an investigative journalist will from time to time need to make use of FOIA, and the Information Commissioner’s Office (ICO) advises that

[public] authorities must take care to differentiate between broad requests which rely upon pot luck to reveal something of interest and those where the requester is following a genuine line of enquiry

The ICO doesn’t (and couldn’t) say that a FOIA request from an investigative journalist could never be classed as vexatious, but I think the cases when that would happen would be exceptional. The Upper Tribunal ruling by Wikeley J that Mr Dransfield is seeking to overturn talked of “vexatious” as connoting

a manifestly unjustified, inappropriate or improper use of a formal procedure

and

It may be helpful to consider the question of whether a request is truly vexatious by considering four broad issues or themes – (1) the burden (on the public authority and its staff); (2) the motive (of the requester); (3) the value or serious purpose (of the request) and (4) any harassment or distress (of and to staff)

although it was stressed that these were neither exhaustive, nor a “formulaic checklist”.

It is difficult to imagine that the motive of the Press Gazette journalists can be anything but well-intended, and similarly difficult to claim there is no value or serious purpose to the request, or the other requests which need to be considered for context. Nor has there been, as far as I am aware, any suggestion that the requests have caused Met staff any harassment or distress. So we are (while noting and acknowledging that we are not following a checklist) only likely to be talking about “the burden on the public authority and its staff”. It is true that some requests, although well-intentioned and of serious value, and made in polite terms, have been accepted either by the ICO or the First-tier Tribunal (FTT), as being so burdensome to comply with that (even before considering whether FOIA costs limits are engaged) they merit rejection on vexatiousness grounds. In 2012 the FTT upheld an appeal from the Independent Police Complaints Commission, saying that

A request may be so grossly oppressive in terms of the resources and time demanded by compliance as to be vexatious, regardless of the intentions or bona fides of the requester. If so, it is not prevented from being vexatious just because the authority could have relied instead on s.12 [costs limits]

and last year the FTT similarly allowed a late submission by the Department of Education that a request from the journalist Laura McInerney for information about Free School applications was vexatious because of the burden it would impose:

There is no question here of anything in the tone of the request tending towards vexatiousness; nor does anyone doubt Ms McInerney’s genuine motives…There is value in openness and transparency in respect of departmental decision making. That value would be increased by the academic scrutiny which the disclosed material would receive…In our judgment, however, these important considerations are dwarfed by the burden which implementation of the request places on DFE.

But it does not appear that the request in question from the Press Gazette was likely to go any way towards being grossly oppressive, or to being a burden which would “dwarf” the other considerations.

Moreover, and it does not appear to have been a point argued in the DfE case, there is an argument, explored through a series of cases in the Court of Justice of the European Union, and, domestically, in the Supreme Court, in Kennedy v ICO and Charity Commission, that Article 10 of the European Convention on Human Rights, providing as it does in part a right “to receive and impart information and ideas without interference by public authority” (subject to limitations that are prescribed by law, necessary and proportionate, and pursue a legitimate aim) might sometimes need to read down into FOIA, particularly where a journalist is the requester. Although the Supreme Court, by a majority, and on the facts (specifically in the context of a FOIA absolute exemption), rejected the submission in Kennedy, the argument in the abstract still has some weight – someone engaging in investigative journalism is clearly generally acting as a “social watchdog”, and the likelihood that they are making a FOIA request with bad motives, or without serious purpose, or in a way likely to harass or cause distress is correspondingly low. It seems to me that, absent the sort of “excessive burden” argument explored in the IPCC and DfE cases – and, as I say, the Met don’t seem to have advanced any such argument – to label a request from an investigative journalist as vexatious is to stand at the top of a slippery slope. One hopes that the Met review and reverse this decision.

p.s. In a world in which we are all journalists, this all has the potential to get very complicated.

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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