In the High Court of Justice
Judicial Review
Administrative Court
Claim Form N461 (03.02)
Notes for guidance are available which explain
how to complete the judicial review claim form.
Please read them carefully before you complete
the form.
For Court use only
Administrative
Court Reference
No.
Date filed
Section 1
Details of the Claimant(s) and Defendant(s)
Claimant(s) name and address(es):
Name:
Rob Evans
Address:
Description:
Journalist, employed by Guardian Newspapers Limited.
Claimant’s Solicitor’s address to which documents should be sent:
Name:
Jan Johannes, Legal Department, Guardian Newspapers
Address:
119 Farringdon Road,
London EC1R EER
Telephone No.:
020-7713-4769
Fax No.:
020-7713-4481
E-mail Address:
[email protected]
DX:
Claimant’s Counsel’s details:
Name:
Rabinder Singh QC
Address:
Matrix Chambers
Griffin Building, Gray’s Inn,
London WC1R 5LN
Telephone No.
020-7404-3447
Fax No.
020-7404-3448
E-mail address:
[email protected]
Name:
Address:
Telephone No.:
Fax No.:
E-mail Address:
DX:
Heather Williams
Doughty Street Chambers, 10/11 Doughty Street, London
WC1N 2PL
020-7404 1313
020-7404 2283/4
[email protected]
223 Chancery Lane
1
Defendant’s or (where known) Defendant’s Solicitors’ address to which
documents should be sent:
Name:
Treasury Solicitor
Address:
Queen Anne’s Chambers, 28 Broadway
London SW1H 9JS
Ref: LT3/2700A/KEB/D4
Description:
Telephone No.:
020-7210-2902
Fax No.:
020-7210-3001
E-mail Address:
[email protected]
DX:
123242 St James’s Park
Section 2
Details of other interested parties
Include name and address and, if appropriate, details of DX, telephone or fax
numbers and e-mail
Name:
Address:
Description:
Telephone No.:
Fax No.:
E-mail Address:
DX:
Section 3
Decision:
The Parliamentary Commissioner for Administration
Millbank Tower,
Millbank
London SW1P 4QP
020-7217-3000
020-7217-4000
Details of decision to be judicially reviewed
Issue of a notice pursuant to section 11(3) of the
Parliamentary Commissioner Act 1967 in relation to
information sought by the Claimant in his letters to
Government Departments of February 2001.
Date of Decision: 23 June 2003 (The Claimant first became aware of the
decision on or about 8 July 2003).
Name and address of the court, tribunal, person or body who made the
decision to be reviewed:
Name:
(1) The Secretary of State for Constitutional Affairs and (2)
the Minister for the Cabinet Office
Address:
(see above)
2
Section 4
Permission to proceed with claim for judicial review
I am seeking permission to proceed with my claim for Judicial Review.
Are you making any other applications?
If yes, complete section 7
No
Is the Claimant in receipt of a Community Legal
Service (CLSF) certificate?
No
Are you claiming exceptional urgency, or do you need
this application determined within a certain time scale?
No
If Yes, complete Form N463 and file this with your application.
3
Have you complied with the pre-action protocol?
Yes
If No, give reasons for non-compliance in the space below.
Does the claim include any issue arising from
the Human Rights Act 1998?
Yes
If Yes, state the articles which you contend have been breached in the space
below.
Articles 10 of the European Convention on Human Rights
Section 5
Detailed statement of grounds
Section 8
Statement of facts relied on
Introduction
1.
This application for judicial review relates to the issue of a certificate
under the power contained in section 11(3) of the Parliamentary
Commissioner Act 1967 (“PCA”). The certificate was issued by the
Secretary of State for Constitutional Affairs and the Minister for the
Cabinet Office on 23 June 2003. The certificate indicated that the
disclosure of information sought by the Claimant in reliance upon the
Code of Practice on Access to Government Information would be
4
contrary to the public interest. The Claimant, who is an experienced
journalist employed by The Guardian newspaper, had sought specific
information relating to the working in practice of procedures contained
in the Ministerial Code, which are aimed at avoiding Ministers having
conflicts of interests between their public position and their personal
financial interests. After Government departments had refused to
disclose the information sought, the Claimant’s complaint was
investigated by the Parliamentary Commissioner for Administration.
The effect of the issue of the certificate was to bring her investigation
to a premature conclusion. The Claimant contends that the decision to
issue the certificate was legally flawed and should be quashed.
The Relevant Statutory Provisions
2.
Section 1 of the PCA creates the office of the Parliamentary
Commissioner for Administration (“the Ombudsman”) to conduct
investigations pursuant to the provisions of the Act. Section 4(1)
indicates that the PCA applies to the government departments and
bodies listed in Schedule 2 to the Act. This includes all central
Government Departments. Section 5 of the PCA provides that the
Ombudsman may investigate action taken in the administrative
functions of such departments and bodies, where a written complaint is
made to a member of the House of Commons by a member of the
public who claims to have suffered injustice from maladministration
and the MP refers the complaint to the Ombudsman with a request to
conduct an investigation. Section 7 deals with the procedure to be
5
followed in respect of the Ombudsman’s investigation and, in
particular, requires that departments or other concerned bodies are
given an opportunity to comment on the allegations contained in the
complaint. Section 8(1) PCA provides that the Ombudsman may
require the department to produce documents or furnish information
relevant to the investigation. Section 10 PCA provides that in any case
where the Ombudsman conducts an investigation under the Act or
decides not to conduct such an investigation, he is required to send to
the MP who referred the complaint, a report of the results of the
investigation / reasons for not conducting an investigation. Section
10(3) enables the Ombudsman to lay a special report before
Parliament in relation to a particular investigation in specified
circumstances. Section 10(4) requires the Ombudsman to lay periodic
reports before Parliament.
3.
Section 11 is headed “Provision for secrecy of information”. So far as
material it provides:
(2) Information obtained by the Commissioner or his officers in the
course of or for the purposes of an investigation under this Act shall
not be disclosed except –
(a)
for the purposes of the investigation and of any report
to be made thereon under this Act;
(b)
…………………
(c)
………………..
(3) A Minister of the Crown may give notice in writing to the
Commissioner, with respect to any document or information
specified in the notice or any class of documents or information so
specified, that in the opinion of the Minister the disclosure of that
document or information, or of the documents or information of that
class, would be prejudicial to the safety of the State or otherwise
6
contrary to the public interest; and where such a notice is give
nothing in this Act shall be construed as authorising or requiring the
Commissioner or any officer of the Commissioner to communicate
to any person or for any purpose any document or information
specified in the notice, or any document or information of a class so
specified.”
Thus the effect of the issue of a notice under section 11(3) is to prevent
the Ombudsman from disclosing the information to which it refers even for
the purposes of her investigation or for the purposes of the fulfilment of
her reporting duties under the Act.
4. Individual rights of access to information provisions contained in the
Freedom of Information Act 2000 do not come into force until January
2005. In the interim the Government’s stated intention is that requests for
access to information will be dealt with in accordance with the nonstatutory “Code of Practice on Access to Government Information” (“the
Access Code”). This intention is confirmed, for example, at paragraph 2 of
the “Memorandum of Understanding on Co-Operation between
Government Departments and the Parliamentary Commissioner for
Administration on the Code of Practice on Access to Government
Information” (see exhibit RE8 to the Claimant’s witness statement).
5. The Access Code is exhibited at RE3 to the Claimant’s witness statement.
It has been in operation since 4 April 1994. The current version of the
Code was produced in July 2001. It is a revised version of the earlier Code
produced in 1997. Paragraph 1 of Part I of the Access Code states:
7
“This Code of Practice supports the Government’s policy under the
Citizens Charter of extending access to official information and
responding to reasonable requests for information. The approach
to release of information should in all cases be based on the
assumption that information should be released except where
disclosure would not be in the public interest, as specified in Part II
of this Code.”
Paragraph 3 of Part I provides:
“Subject to the exemptions in Part II the Code commits
departments and public bodies under the jurisdiction of the
Parliamentary Commissioner for Administration to………..release in
response to specific requests, information relating to their policies,
actions and decisions and other matters related to their areas of
responsibility.”
Paragraph 6 of Part I provides that the Code applies to all Government
departments and other bodies listed in Schedule 2 to the PCA. Paragraph
11 provides that complaints that information which should have been
provided under the Code has not been provided, should be made first to
the department or body concerned and that, if the applicant remains
dissatisfied, complaint may be made through a Member of Parliament to
the Ombudsman. It is also stated that such complaints will be investigated
at the Ombudsman’s discretion in accordance with the procedures
provided in the PCA.
6. Part II of the Code provides:
“The following categories of information are exempt from the
commitments to provide information in this Code. In those
categories which refer to harm or prejudice, the presumption
remains that information should be disclosed unless the harm likely
to arise from disclosure would outweigh the public interest in
making the information available.
8
“References to harm or prejudice include both actual harm or
prejudice and risk of or reasonable expectation of harm or
prejudice. In such cases it should be considered whether any harm
or prejudice arising from disclosure is outweighed by the public
interest in making information available.”
The following exemptions are of potential relevance to the circumstances
under consideration:
Exemption 2: “Internal discussion and advice”
“Information whose disclosure would harm the frankness and
candour of internal discussion, including:
• Proceedings of Cabinet and Cabinet committees
• Internal opinion, advice, recommendation, consultation and
deliberation;
• Projections and assumptions relating to internal policy
analysis; analysis of alternative police options and
information relating to rejected policy options;
• Confidential communications between departments, public
bodies and regulatory bodies.”
Exemption 12: “Privacy of an Individual”
“Unwarranted disclosure to a third party of personal information
about any person …or any other disclosure which would
constitute or could facilitate an unwarranted invasion of privacy.”
7. Section 6(1) of the Human Rights Act 1998 (“HRA”) provides that: “it is
unlawful for a public authority to act in a way which is incompatible with a
Convention right”. Both the Secretary of State and the Minister for the
Cabinet Office are members of the central government and so are
“obvious” or “core” public authorities: see Aston Cantlow and Wilmcote
Parochial Church Council v Wallbank [2003] UKHL 37 [2003] 3 WLR 283,
e.g. para. 7 (Lord Nicholls of Birkenhead). In any event, they would also
fall within the extended definition in section 6(3)(b) which provides that a
public authority for these purposes includes “any person certain of whose
functions are functions of a public nature”. Section 7(1) HRA provides that
9
a person who claims that a public authority has acted in a way which is
made unlawful by section 6(1) may bring proceedings against that
authority under the HRA in the appropriate court or tribunal if he is the
victim of the unlawful act. Such proceedings my include a claim for
judicial review: section 7(3).
8. Article 10 of the European Convention on Human Rights states:
“(1) Everyone has the right to freedom of expression. This right
shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority and
regardless of frontiers. This Article shall not prevent States from
requiring the licensing of broadcasting, television or cinema
enterprises.
“(2) The exercise of these freedoms, since it carries with it duties
and responsibilities, 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 integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of
information received in confidence, or for maintaining the authority
and impartiality of the judiciary.”
The Relevant Facts
9. The Claimant is a journalist employed by the Guardian Newspapers
Limited as a journalist on The Guardian newspaper. His journalistic
experience is summarised in his witness statement. On 19 February 2001
he wrote to 17 central Government departments asking to be provided
with specified information relating to the application of the Ministerial Code
to the Ministers’ respective departments. The request stated in terms that
10
it was made under the provisions of the Access Code. The 1997 Code
was revised in July 2001. The relevant parts of both versions of the
Ministerial Code are exhibited at RE1 to the Claimant’s witness statement.
Paragraphs 5 and 6 of the Claimant’s witness statement summarise the
material provisions of the Ministerial Code. Because the current version of
the Code was in force at the time that the Ombudsman investigated this
complaint, extensive reference will be made to that version of the Code.
However, the 1997 Code was in force at the time that the initial request for
information was made and note should be taken of those parts of the 1997
Code that set out the nature of consultations between Ministers and
Permanent Secretaries. The Prime Minister’s foreword to the current Code
states in terms that the Ministerial Code was issued as part of the
commitment to the bond of trust between the British people and their
Government. The foreword and the Code place considerable emphasis
upon the importance of honesty and openness on the part of Ministers.
Section 9 of the Ministerial Code deals specifically with Ministers’ Private
Interests and lays down a procedure aimed at avoiding Ministers being put
in a position of actual or apparent conflict between their public duties and
their personal interests. The procedure (summarised in more detail in the
Claimant’s witness statement at paragraph 6) entails Ministers consulting
with and obtaining advice from their Permanent Secretaries in relation to
any interest that might be thought to give rise to a conflict. Following the
consultation, the Code advises Ministers to record in writing what action
has been considered and taken. Paragraph 123 of the Code deals
specifically with Ministers’ financial interests.
11
10. In his letters of 19 February 2001 the Claimant sought the following
information:
1)
How many times the Ministers in the particular department had
consulted their Permanent Secretary in relation to paragraph
123 of the then Ministerial Code since 1 January 1999.
2)
On what dates those consultations took place.
3)
Which Ministers in the Department had so consulted the
Permanent Secretary since 1 January 1999.
4)
The reason why each Minister had so consulted the Permanent
Secretary.
5)
The action that had been taken in each case since 1 January
1999 and an indication of in which cases it was necessary to
consult the Prime Minister.
The Claimant also asked to see a copy of the Minister’s minute to the
Permanent Secretary recording what action was necessary and the nature
of the action taken to avoid a conflict of interest, in each instance where a
consultation had taken place since 1 January 1999.
11. The Claimant explains in his accompanying witness statement why he
requested this information and, in particular, why he considered its
disclosure to be in the public interest (see paragraphs 8 & 9 in particular).
In essence, without disclosure of the information sought, it is impossible to
ascertain whether the stated intentions of the Ministerial Code are being
fulfilled in practice. The public has an important interest in knowing
12
whether Ministers are consulting their Permanent Secretaries, as
contemplated by the Code, and in knowing whether in practice appropriate
action is being taken to avoid potential conflicts, in the way anticipated in
the Code. If the same is not happening this is a matter of genuine public
concern; the Code itself recognises the fundamental importance for the
proper performance of public duties of Ministers placing themselves
beyond any such conflicts and the fundamental importance of a
relationship of honesty and openness with the public.
12. The Claimant wanted to understand the reason why the need to consult
had arisen and to assess the appropriateness of the action taken in the
light of this information. However, it is noteworthy that the Claimant did
not ask to be provided with details of the actual discussions that had taken
place between Ministers and their Permanent Secretaries; nor with the
content of advice issued by Permanent Secretaries or the content of any
communications with the Prime Minister. Further, the Claimant did not ask
for identifying details to be revealed of any particular financial interest held
by a Minister; rather, he asked for an indication of the reason why the
need to consult had arisen.
13. In or about March 2001 15 out of the 17 Departments responded to the
Claimant in writing indicating that they were not prepared to provide the
information sought. The letters were in very similar terms. The letters
stated that the information requested by the Claimant would not be
provided as Exemptions 2 and 12 of Part II of the Access Code applied. It
13
was said that Exemption 2 applied because it was not intended that the
Access Code would be interpreted in a way that would lead to the
disclosure of confidential discussions under constitutional conventions.
Reference was made to the Guidance on the Code issued by the Cabinet
Office. (The relevant parts of this Guidance are exhibited at RE4 to the
Claimant’s witness statement). Specific reference was made to the
contents of paragraph 2.3 of the section in the Guidance dealing with
Exemption 2, which was said to state that it was not the intention to
change or undermine long established conventions protecting the
confidentiality of the internal decision making process, including
“Questions of Procedure for Ministers” (the forerunner procedures to those
contained in the Ministerial Code). The letters continued that, although
the exemption required harm or the risk of harm to be demonstrated, the
very nature of the type of information under consideration was particularly
sensitive and thus any disclosure in this area could harm the frankness
and candour of future discussions.
14. The letters also relied upon Exemption 12 on the basis that disclosure of
the information sought would amount to an unwarranted invasion of
privacy. It was said that the Ministerial Code operated to ensure that the
boundaries between a Minister’s private life and public life were properly
set and maintained. So that if a Minister sought advice and was informed
that no conflict existed it would be an invasion of his privacy for the issue
to be made public. The other example given, was that if a potential
conflict of interest was identified and the Minister took the “necessary
14
action” to deal with the matter, then, it was said, any disclosure of the
same would also be an unwarranted invasion of privacy.
15. The Claimant was unhappy with this response. The reasons are given at
paragraphs 13 and 15 of his witness statement. In summary, he felt that
the response failed to recognise the carefully specified information that he
had sought and failed to distinguish between this and disclosure of
discussions passing between Ministers and Permanent Secretaries, which
he had not requested. In addition, there was no indication of any
individual consideration of his various requests, which were treated
compendiously, despite the fact that they were different in nature, for
example his first request simply sought the number of occasions upon
which consultations had occurred. Thus no explanation was given as to
why the limited information that he had requested – as opposed to
revelations of the substance of the consultation – would undermine the
candour of future discussions. The letters also failed to appreciate that
the Claimant had not sought disclosure of identifying details of Ministers’
personal financial interests, as opposed to an indication of the need for
consultation and why a perception of a possible conflict of interest had
arisen. He felt that Departments could have used their judgment to
provide the information sought without revealing intrusive personal details.
Moreover, it was notable that the letters contained no acknowledgement of
there being any public interest in the disclosure of the information and thus
no attempt to weigh up this interest against any factors pointing against
disclosure, as required by the Code. The passage from the Guidance
15
referred to in the letters itself appears to omit any acknowledgement of the
need to take into account and to weigh in the balance any public interest
in favour of disclosure (and is in any event of “advisory” status only). The
specific points made in relation to invasion of privacy were all predicated
on the basis that the Ministerial Code was indeed working effectively;
whereas this was the very issue that the Claimant wanted to investigate
and for the public to have the opportunity to assess.
16. Pursuant to the procedure in paragraph 11 Part I of the Access Code the
Claimant wrote to each of the Departments in or about November and
December 2001 requesting internal reviews of the decisions refusing
disclosure of the information. These requests raised the Claimant’s
concerns and also highlighted a recent adjudication by the Ombudsman in
respect of case A28/01, a complaint by Andrew Robathan MP that he had
been denied information that he was entitled to under the Access Code by
the Home Office, namely as to the number of occasions in a specified
period that Ministers within the Department had sought the advice of their
Permanent Secretary under the Ministerial Code. The Claimant drew
attention to the fact that the Ombudsman had upheld that complaint,
agreeing that the information sought did not fall within Exemptions 2 and
12 and declining to interpret Exemption 2 in the way set out in the
Guidance issued by the Cabinet Office. Her conclusions were
encapsulated by the following passage in her report:
“As I see it, the purpose of the Ministerial Code is to clarify how
Ministers should account and be held to account by Parliament and
16
the public. I do not agree that the release of this information would
frustrate that purpose”
The Ombudsman’s report on her investigation into Mr. Robathan’s
complaint is exhibited at RE5 to the Claimant’s witness statement and her
conclusions dealt with in more detail in paragraphs 16 of the Claimant’s
witness statement.
17. The Claimant’s correspondence with the Department for International
Development (“DFID”) took a different course. By letter dated 6
December 2001 the DFID originally gave a response similar to those
received from the other Departments. However, after the Claimant
requested a review by email on 8 December 2001, by letter dated 11
December 2001 the DFID indicated that the Claimant should have been
supplied with information in response to the original request, namely to the
effect that neither the Secretary of State nor the Under Secretary of State
had sought advice at any time from the Permanent Secretary under the
circumstances envisaged in paragraph 123 of the Ministerial Code. It was
acknowledged that the Exemptions to the Access Code cited in the earlier
letter were therefore not relevant.
18. By 31 May 2002 the Claimant had received no substantive response to
any of the other requests for internal reviews and therefore wished to ask
the Ombudsman to investigate. He did this via his MP Oona King, as
required by the prescribed procedure under the Access Code. The
Claimant wrote to his MP on 31 May 2002, enclosing a letter to the
17
Ombudsman for his MP to forward (this and all other correspondence
passing between the Claimant and Oona King and between Oona King
and the Ombudsman is exhibited at RE6 to the Claimant’s witness
statement). The Claimant asked the Ombudsman to investigate both the
fact that he had not received any substantive response to his requests for
internal reviews and the substantive refusal to disclose the information
sought.
19. By letter dated 10 June 2002 the Claimant received a reply from Oona
King indicating that she had referred the complaint to the Ombudsman.
By subsequent letter dated 28 August 2002, Oona King informed the
Claimant that she had received confirmation from the Ombudsman that
she would be investigating the complaint and she enclosed a copy of a
letter dated 22 August 2002 from the Ombudsman’s office, in turn
enclosing a copy of the statement of complaint prepared in accordance
with section 7(1) of the Parliamentary Commissioner Act 1967. The
covering letter from the Ombudsman’s office stated that it appeared that
the complaint was one that the Ombudsman could and should investigate.
20. During the period August – September 2002 the Claimant received
substantive responses from the various Departments to his requests for
internal reviews (included in exhibit RE2 to the Claimant’s witness
statement). All substantive responses were in similar terms. The letters
maintained that Exemptions 2 and 12 applied to the Claimant’s request.
The only specific additional point made was that the July 2001 revision of
18
the Ministerial Code had strengthened the rules for Ministers in the area of
conflicts of interests, in that they were now required to provide a list of
their interests on appointment. (This is paragraph 115 of the Code at
RE1). However, this point failed to address the Claimant’s concern that
the public should be able to oversee whether the Code is in fact working in
practice. The Claimant therefore wanted the Ombudsman to continue her
investigation into whether the information requested should be disclosed.
21. By letter dated 7 July 2003 the Ombudsman set out the outcome of her
investigation to Oona King MP. The letter stated that the investigation had
been discontinued because on 25 June 2003 the Ombudsman had
received a notice in writing issued under section 11(3) of the Parliamentary
Commissioner Act 1967 dated 23 June 2003 and signed by both the
Secretary of State for Constitutional Affairs and by the Minister of the
Cabinet Office. The letter then set out section 11(3) and continued that
the notice informed the Ombudsman that disclosure of the information
sought by the Claimant would be contrary to the public interest. The
Ombudsman then observed: “In the circumstances I have discontinued my
investigation of Mr. Evans’ complaint”. Presumably the Ombudsman felt
that it would be futile to continue the investigation, since if she decided
that all or part of the information sought should be disclosed, she was
precluded by the certificate from disclosing it in any event and from
discussing it in her report. From paragraph 9 of the letter it appears that
prior to the notice being issued there had been “considerable
correspondence and discussion” between the Ombudsman’s office, the
19
Cabinet Office and the (then) Lord Chancellor’s Department about the
request. The Claimant has not seen this correspondence and is not
aware of its contents.
22. By email dated 8 July 2003 the Claimant received a copy of the letter
dated 7 July 2003 from the Ombudsman to Oona King explaining that the
investigation had been discontinued. Prior to this the Claimant had no
idea that a certificate under section 11(3) had been issued. In particular
he was given no notification before the issue of the certificate that this was
contemplated and he was given no opportunity to make representations
on whether it was appropriate to issue a certificate or not. The Claimant
has not been provided with a copy of the certificate. On or about 9 July
2003 he telephoned the Lord Chancellor’s Department and asked to be
provided with a copy. They refused to give him a copy and advised him to
try the Ombudsman’s office. He therefore telephoned the Ombudsman’s
office who also refused to give him a copy of the certificate and instead
faxed him a copy of section 11 of the PCA. The Claimant understands
that the Ombudsman’s view is that the effect of section 11(2)(a) is to
prevent disclosure of even the certificate, once the certificate had been
issued.
23. The Claimant was therefore in a position of not knowing why the certificate
had been issued, other than the bald statement that it was considered to
be in the public interest to do so, of not knowing what factors had or had
not been taken into account before the decision was made and having
20
been given no opportunity to comment on this proposed decision before it
was arrived at. There is no procedure, such as an internal appeal, for
challenging the issue of the certificate. The Claimant has no avenue of
redress, other than these proceedings for a judicial review.
24. The present case is both important and unprecedented. It appears from a
Press Release issued by the Ombudsman (included in exhibit RE7 to the
Claimant’s statement) that this is the first occasion when a notice under
section 11(3) of the PCA has been issued in relation to an investigation by
the Ombudsman pursuant to the Access Code. The same Press Release
refers to a Memorandum of Understanding arrived at as a result of
concerns held by the Ombudsman which led her to initiate discussions at
the highest level within the Cabinet Office. The Memorandum was
published in July 2003 and post-dates the issue of the certificate in
respect of the information sought by the Claimant and the latter action
appears to have been one of the triggers for the Ombudsman’s concerns.
The Memorandum of Understanding (part of exhibit RE8 to the Claimant’s
witness statement) at paragraph 7 refers to the power contained in section
11(3) of the PCA and states: “In practice, recourse to these sections of the
Act is expected to be very rare”.
25. After the Claimant discovered the issue of the certificate and had made
unsuccessful attempts to find out more about the same, The Guardian’s
Legal Department sent a letter of claim dated 2 September 2003 to the
proposed Defendants, contending that the decision to issue the certificate
21
was flawed as it was issued in breach of the duty to act fairly as the
Claimant had not first been given an opportunity to make representations;
and / or constituted an infringement of rights guaranteed by Article 10 and
/ or was irrational. A response was provided by fax on 15 September 2003
from the Treasury Solicitor. Both letters are at exhibit RE10 to the
Claimant’s witness statement. The response denied that the Claimant had
any sufficient interest to oblige the Defendants to consult with him before
making the decision and denied that he had any specific submissions to
make that would have assisted in the making of the decision. The letter
also denied that Article 10 applied in the circumstances or, alternatively,
contended that restriction on release of the information in question was
justified under Article 10(2) and it was denied that the decision to issue the
certificate was irrational (the letter did not address the argument on behalf
of the Claimant that irrationality in this context includes breach of
fundamental rights recognized at common law). The letter refers to the
certificate covering three documents specified therein. This is the first
time that the Claimant has been informed of the number of documents
involved. No information is given as to the nature of those documents.
Given the contents of the Ombudsman’s letter of 7 July 2003 (referred to
above) the Claimant infers that these documents must contain all or part
of the information that he requested.
Grounds
26. The Claimant maintains that the decision to issue the certificate was:
22
a.
made in breach of the duty upon the Defendants to act fairly, since
he was given no opportunity to make representations before the
decision was made; and / or
b.
an infringement of his rights guaranteed by Article 10 of the
European Convention on Human Rights and thus a breach of
section 6(1) of the HRA; and / or
c.
in breach of fundamental human rights recognised by the common
law and irrational.
Each of these grounds is dealt with in turn below.
Breach of the Duty to Act Fairly
27. It is accepted by the Defendants that the Claimant was not given an
opportunity to make representations before the certificate was issued. In
the letter of 15 September 2003 the Defendants’ position is stated to be
that the Claimant was no more “interested” than anyone else to whom the
information might have been released, i.e. the public in general, and that
accordingly he can claim no right to be heard before the decision was
made. It is also said that the effect of the certificate was merely to prevent
the Ombudsman from disclosing the documents specified in it and that the
certificate did not deprive the Claimant of a remedy in relation to his
complaint to the Ombudsman in that she could still report on whether the
Government Departments had correctly applied the Access Code.
28. The Claimant submits that he had a specific interest in the issue of the
certificate, such as to place the Defendants under a duty to give him the
23
opportunity to make representations before the certificate was issued. He
contends that his circumstances are distinguishable from those of the
general public for a combination of the following reasons:
i.
he had specifically sought disclosure of the documents in question
and (as set out above) had been pursuing the issue for over two
years;
ii.
he had sought disclosure of the documents in his capacity as a
journalist, intending to investigate and if appropriate to disseminate
them for public scrutiny via The Guardian newspaper. The Press
has a recognised and fundamentally important role to play as a
watchdog over potential abuses of power (see paragraph 35
below);
iii.
he had made a specific complaint to the Ombudsman (via his MP)
as envisaged by paragraph 11 of the Access Code. The Code
specifically contemplates an investigation into the complaint by the
Ombudsman in accordance with the procedures contained in the
PCA. As set out above, the Ombudsman had accepted that his
complaint was one that could and should be investigated;
iv.
the preliminary “Statement of Complaint” from the Ombudsman’s
office (see above) would have indicated to the relevant Government
Departments the relationship of the Claimant to the complaint under
investigation;
v.
it was evident that the issue of the certificate would prevent the
Claimant from obtaining the information that he claimed should be
released to him and which was the subject of his complaint to the
24
Ombudsman. Thus the issue of the certificate did leave him without
an effective remedy. Further, the issue of the certificate precluded
the Ombudsman from referring to the specified documents in her
report and from discussing their contents. In the circumstances she
would not be able to set out any meaningful evaluation of whether
disclosure of the information sought fell within Exemptions 2 and 12
of the Access Code or not, nor carry out the prescribed balancing
exercise. Thus the issue of the certificate did inhibit the
Ombudsman from making a meaningful report in the
circumstances. Further, the obvious and reasonable inference is
that this was the Ombudsman’s own view (after having been shown
the relevant documents), since she decided shortly after receiving
the certificate on 25 June 2003 to terminate her investigation and
she has subsequently made it clear that she regards this
unprecedented use of section 11(3) in this sort of context as raising
important issues, hence the Memorandum she has agreed with the
Government. It is submitted that considerable weight should be
attached to that view.
29. For similar reasons, it is submitted that the Claimant has “sufficient
interest” to bring these proceedings and that he is “a victim” within the
meaning of section 7(1) HRA.
30. Whilst the content of the duty of fairness will always depend upon the
context, fairness will very often require that a person who may be
25
adversely affected by a decision will have an opportunity to make
representations before the decision is taken, for example see R v Home
Secretary ex parte Fayed [1998] 1 WLR 763 at 766B-H. Procedural
fairness generally requires prior notification of the proposed decision to be
given: see De Smith, Woolf and Jowell: Judicial Review of Administrative
Action (5th ed) at paras. 9-004 – 9-007. The duty to afford an opportunity
to make representations is applicable to determinations concerning an
evaluation of where the public interest lies; see for example R v Secretary
of State for the Home Department ex parte Moon (1996) 8 Admin LR 477
at 484H-485C. Even where the context does not require an opportunity
for representations to be made before a decision is taken, an opportunity
may be required for representations to be considered afterwards and in
both instances fairness usually requires that information is given as to the
gist of the case to be answered, so that informed representations can be
made: R v Secretary of State for the Home Department ex parte Doody
[1994] 1 AC 531 at 560D-G. In this instance the Claimant has not been
provided with such information and has not even been given an
opportunity to make representations after the decision was made.
Decision makers may be required to allow those adversely affected by the
decision, whether directly or indirectly, an opportunity to make
representations, provided their connection to the subject matter is not too
remote: R v LAUTRO ex parte Ross [1993] QB 17 at 50E-G. In this
instance the Claimant was, or should have been, specifically within the
Defendants’ contemplation and he was closely affected by the decision.
Further in De Smith, Woolf & Jowell: Judicial Review of Administrative
26
Action (5th ed.) the authors opine at page 413 note 66 in relation to the
right to a hearing, that: “Where the applicant has been granted standing to
sue in an application for judicial review it may be assumed that the impact
of the decision is sufficiently serious to qualify as adversely affecting his
interests”.
31. Had he known about the proposed issue of the certificate, the Claimant
would have wanted to make representations. It is difficult to specify
precisely the particular submissions that he would have wanted to make
as the Claimant has still been given very little information about the
reasons for issuing the certificate and the nature of the documentation that
it covered. However, assuming that there is some of parity of reasoning
behind the decision to issue the certificate and the earlier replies that the
Claimant received from the Departments involved, the Claimant would
have wanted to make all the points summarised above, and set out in
more detail in his witness statement, as to why the information sought was
in the public interest and should be released under the Access Code. It
cannot simply be inferred, in the absence of any evidence to that effect,
that such points were taken into account. It is noteworthy that the letter of
15 September 2003 contains no acknowledgment of there being a public
interest in receiving the information sought and so no evidence of a
specific balancing exercise having been done: for example, having
considered the Claimant’s representations, the Defendants might have
decided that, even if they could not disclose the detailed contents of the
discussions (which he was not seeking in any event), the public interest
27
did require disclosure of some information. Furthermore, the Defendants
appear to have been under an erroneous impression as to the extent to
which the issue of the certificate would affect the Ombudsman’s
investigation into the Claimant’s complaint; the Claimant could also have
made representations on this issue, as set out above.
32. Thus, as no opportunity to make representations was afforded to the
Claimant, it is submitted that the duty to act fairly has been breached and
the certificate under section 11(3) is flawed on this ground alone.
Breach of section 6(1) of the Human Rights Act
33. In the letter of 15 September 2003 it is contended on behalf of the
Defendants that article 10 is not engaged, as the article does not confer
any right to extract information from public authorities and that it is
confined to the right to express information that is already available to the
person seeking to exercise the right. In the alternative, it is contended that
the restriction upon release of the information in question is permitted by
article 10(2) as pursuing a legitimate aim and being imposed to meet a
pressing social need.
34. The Claimant submits that the protections afforded by article 10(1) should
be interpreted to include the right, at least on the part of the Press, to have
access to government information, unless it is necessary to prevent
disclosure for one of the reasons specified in article 10(2). The case law
of the ECHR cited in the 15 September 2003 letter (Leander v Austria
28
(1987) 9 EHRR 443 and Guerra v Italy (1998) 26 EHRR 357) was
concerned with applications made by individuals to obtain information that
they would not otherwise have access to and is thus distinguishable.
Moreover, the case law of the ECHR cited on behalf of the Defendants
does not deal in terms with an application by the media concerning
information on matters of public interest, which it was intended to
disseminate to the public. For example in Leander the applicant sought
confidential Government information to enable him to bring a claim arising
out of an unsuccessful job application. In this context it was said:
“The Court observes that the right of freedom to receive information
basically prohibits a Government from restricting a person from
receiving information that others wish or may be willing to impart to
them. Article 10 does not in the circumstances such as those of the
present case, confer on an individual a right of access to a register
containing information about his personal position, nor does it
embody an obligation on the Government to impart such
information to the individual” (see paragraph 74) (emphasis
added).
35. Furthermore, the ECHR has frequently stressed that the only type of
political system that is compatible with the Convention is a democracy.
More specifically, the Court has stressed the very important role played by
the Press in a democracy as a watchdog that acts on behalf of the people
to hold government to account. It has been emphasised that in order for
this function of a watchdog to be fulfilled, it is incumbent on the Press to
impart information and ideas on matters of public interest and also that the
public has a right to receive such information: see for example: The
Observer and the Guardian v United Kingdom (1991) 14 EHRR 153 at
paragraph 59. It is noteworthy that the Consultative (Parliamentary)
29
Assembly of the Council of Europe has resolved that the right to freedom
of expression involves a:
“corresponding duty for the public authorities to make available
information on matters of public interest within reasonable limits
and a duty for mass communication media to give complete and
general information on public affairs”
(see paragraph 15.151 The Law of Human Rights: Clayton & Tomlinson).
36. Additionally, it should be borne in mind that the Convention is a “living
instrument”, to be interpreted in keeping with developing social values. It
is also important to recall that section 2 of the HRA requires the case law
from Strasbourg to be taken into account but does not make it binding: this
leaves it open to the courts of this country to develop their own “home
grown” jurisprudence on such rights as article 10 which fits in with our
culture and current social attitudes, provided that they do not fall beneath
the “floor” of protection required by Strasbourg; see for example R
(Marper) v Chief Constable of South Yorkshire Police [2002] EWCA Civ.
1275, [2002] 1 WLR 3223 CA at para. 16. It is submitted that the
developments of the Access Code and freedom of information legislation
in this country are illustrative of the increasing appreciation of the
importance of public access to information in a functioning democracy.
This is reinforced by the decision to declare the application in Roche v
United Kingdom (2002) 23 May admissible under (inter alia) article 10 of
the Convention (the decision is included in the accompanying bundle, see
ps. 16 – 18 of the decision). The application related to the failure to
disclose to the applicant medical records relating to tests done on him at
30
the Porton Down Chemical and Biological Defence Establishment, when
he was serving in the army and thus suggests a broader interpretation of
the protection afforded by article 10.
37. The fundamental role played by the Press in investigating and imparting
information on matters of public interest, has also been recognised in
domestic case law. For example in McCartan Turkington Breen v Times
Newspapers Ltd. [2001] 2 AC 277 HL, see in particular at 290H and 296G297F. At the latter reference Lord Steyn cited from his earlier speech in R
v Secretary of State for the Home Department ex parte Simms & O’Brien
[2000] 2 AC 115 at 126-127:
“Freedom of expression is, of course, intrinsically important: it is
valued for its own sake. But it is well recognised that it is also
instrumentally important. It serves a number of broad objectives.
First it promotes the self-fulfillment of individuals in society.
Secondly, in the famous words of Holmes J (echoing John Stuart
Mills) “the best test of truth is the power of the thought to get itself
accepted in the competition of the market”: Abrams v United States
(1919) 250 US 616, 630 per Holmes J (dissenting). Thirdly,
freedom of speech is the lifeblood of democracy. The free flow of
information and ideas informs political debate. It is a safety valve:
people are more ready to accept decisions that go against them if
they can in principle seek to influence them. It acts as a brake on
the abuse of power by public officials. It facilitates the exposure of
errors in the governance and administration of justice of the
country.”
38. Domestic case law has also accepted that article 10 can in appropriate
circumstances confer a right, via the Press, to make information available
to the public, see R (Wagstaff) v Secretary of State for the Home
Department [2001] 1 WLR 292 DC at 317F – 319E (where the decision to
hold the Shipman Inquiry in private was held to be irrational, having regard
31
to the public’s right to receive information pursuant to article 10). In R
(Persey and others) v Secretary of State for the Environment, Food and
Rural Affairs [2002] 3 WLR 704 DC the Wagstaff decision was
distinguished and it was held in relation to a closed inquiry into the foot
and mouth outbreak in 2001 that article 10 did not accord a right to access
to information, requiring the State to facilitate freedom of expression by
providing a public inquiry to make available to the public information that
they would not otherwise have a right to access (see paragraphs 48 – 54
in particular). However in the Persey case it appears that no specific
consideration was given to rights under article 10 distinguishing between
the particular role played by the Press (as opposed to the opportunity for
individuals to access information) and it was decided prior to the Roche
decision on admissibility referred to above. Furthermore, in the present
instance, the effect of the issue of the certificate was to inhibit the
opportunity which the Claimant otherwise had for a comprehensive
Ombudsman’s investigation of his complaint and for release of the
information pursuant to the Access Code. This is distinct from the
circumstances in Persey where article 10 was utilised to seek to establish
a right to obtain information that would not otherwise have been available
to the public.
39. The Claimant thus submits that article 10(1) is engaged in the present
instance and that the Defendants have wholly failed to establish that the
issue of the certificate was justified as coming within the circumstances
set out in article 10(2). To establish such justification:
32
“..any curtailment of freedom of expression must be convincingly
established by a compelling countervailing consideration and the
means employed must be proportionate to the end sought to be
achieved” : McCartan (above) at 297H.
In Wagstaff (above) it was said that the case for restriction must be “strictly
proved”: see 319D. In Kelly v BBC [2001] Fam 59 at 67 Munby J. said
that establishing “convincingly” a justification could not be done by mere
assertion, however eminent the source of the assertion, nor by simply
inviting the Court to make assumptions; what was required was proper
evidence.
40. The letter of 15 September 2003 refers to protection of confidential
information and advice, Ministers’ rights to privacy and the desirability of
encouraging candour as between Ministers and their Permanent
Secretaries in the future. Reference is also made to Exemptions 2 and 12
of the Access Code. However, no specifics at all are given as to why the
documents covered by the certificate present a risk of harm in these
areas. The Parliamentary answer from the Lord Chancellor (the Secretary
of State for Constitutional Affairs) enclosed with the letter provides no
further material details. Nor does the letter contain any indication that a
public interest in receipt of the information sought has been appreciated.
41. The concept of a “public interest” in section 11(3) should be given a
narrow meaning in order to render it compatible with article 10, pursuant to
section 3(1) of the HRA. This can be done by requiring a balance to be
33
struck between the different public interests in, on the one hand, the free
flow of information in a democracy and, on the other, consideration of
individual privacy or confidentiality of internal advice to Ministers. The
provisions of the Access Code, when properly applied, reflect such a
balancing process (see above).
42. In the circumstances it is submitted that the Defendants have failed to
establish:
a.
that the issue of the certificate pursued a legitimate aim. It is
accepted that the considerations of confidentiality and privacy
referred to in the letter could constitute a legitimate aim within
article 10(2), but no basis is put forward to establish that such
considerations applied to the particular documents covered by the
certificate. No information is given as to the nature of the same; the
desire to withhold disclosure may, for example, be simply to avoid
occasioning embarrassment to particular Ministers; and / or
b.
that the issue of the certificate met a pressing social need. At
present there is simply a bald assertion to that effect, with no
supporting evidence or detailed reasoning. None of the points
made by the Claimant when he requested the internal reviews, nor
the points made herein and in the Claimant’s witness statement as
to why the balance is in fact in favour of disclosing the information
and as to why Exemptions 2 and 12 do not apply, have been
addressed. There is no identification or acknowledgement of a
public interest in receiving the information, nor of the role played by
34
the Press in facilitating that process. It will be recalled that it was
not considered appropriate to issue a certificate in respect of the
Ombudsman’s investigation into Andrew Robathan MP’s complaint
and that the Memorandum of Understanding contemplates that the
circumstances in which a certificate will be issued will be very rare.
It will also be recalled that the Ombudsman took the view in Mr.
Robathan’s case that, contrary to the view asserted by the Home
Office, the information sought did not come within Exemptions 2 or
12 of the Access Code. The letter of 15 September 2003 states
that competing considerations were balanced before the decision
was taken, but this is simply assertion and no such considerations
are identified as having been taken into account. In a democracy,
the ability of the people to hold their government to account is vital
to the public interest. The Defendants have wholly failed to show a
pressing social need to inhibit that process.
Irrationality
43. The letter of 15 September 2003 suggests that the irrationality contention
advances no separate argument and irrationality is denied on the basis
given in response to the article 10 point. The letter does not address the
point that the doctrine of irrationality includes breach of fundamental
human rights which are recognised by the common law.
44. However, the irrationality submission is of particular significance if the
Court were to hold that article 10 is not engaged in the circumstances.
35
The European Convention is not an exhaustive statement of human rights
recognised in our domestic legal system: R v Secretary of State for the
Home Department ex parte Anufrijeva [2003] UKHL 36 [2003] WLR 252 at
paragraph 27 (Lord Steyn). This is reinforced by section 11 HRA, which
provides that the Act adds to but does not detract from other rights.
45. The Claimant submits that, irrespective of the position under article 10, the
common law has recognised that the freedom of the Press (as an aspect
of the right to freedom of speech) is a fundamental right: see ex parte
Simms & O’Brien (above) at 126 –127. It is further submitted that this
right includes the right to obtain information in circumstances where
members of the Press seek material that the public has a legitimate
interest in receiving, with a view to disseminating it to the public, save
where the balance of the public interest lies in favour of non-disclosure.
46. In turn, it follows from this, that the principle of legality (see ex parte
Simms & O’Brien at 131) requires that general words such as those used
in section 11(3) should not be interpreted as permitting a violation of that
right. Further, as the issue of the certificate in this case involves an
apparent interference with a fundamental human right, the Court should
require positive justification from the Defendants as to the basis of the
interference before being in a position to conclude that the decision to
issue the certificate was a rational one: see R v Ministry of Defence ex
parte Smith [1996] QB 517 at 554 (Bingham MR). As that classic passage
makes clear, the greater the interference with a fundamental right, the
36
more the court will require by way of justification before it can be said that
a decision is rational.
47. For the reasons set out in relation to the issue of whether justification
under article 10(2) is established, the Claimant submits that the
Defendants have failed to establish the requisite positive justification for
interfering with his fundamental rights and thus the conclusion should be
drawn that the decision to issue the certificate was irrational.
4. Particulars relating to the Human Rights Act 1998 (PD 16.1)
4.1
See paragraphs 33 - 42 above.
5. Grounds for Interim Relief
Not applicable.
Section 6
Details of remedy (including any interim remedy) being
sought
1. An order quashing the decision to issue the certificate under section 11(3) of
the Parliamentary Commissioner Act in respect of information sought from
Government Departments by the Claimant; and / or
2. A declaration that the certificate was issued in breach of the duty to act fairly
and / or in breach of the Human Rights Act 1998 and / or that the decision to
issue the certificate was irrational.
37
Section 7
Other applications
I wish to make an application for:Not applicable.
RABINDER SINGH QC
HEATHER WILLIAMS
Statement of Truth
I believe (the Claimant believes) that the facts stated in this Claim Form are true.
Full Name: _______________________________________________________________
Name of claimant’s solicitor’s firm: _____________________________________________
Signed: ____________________________Claimant (’s solicitor)
Position or office held ______________________ (if signing on behalf of firm or company)
38
Section 9
Supporting Documents
If you do not have a document that you intend to use to support your claim,
identify it, give the date when you expect to be available and give reasons why it
is not currently available in the box below.
Please tick the papers you are filing with this claim form and any you will be filing
later.
˛ Statement of grounds
˛ included
˛ Statement of the facts relied upon
˛ included
 Application to extend the time limit for filing the Claim Form
 Application for directions
 included
 included
 Any written evidence in support of the claim or application to extend time
 Where the claim for judicial review relates to the decision of a court or
tribunal, an approved copy of the reasons for reaching the decision
˛ Copies of any documents on which the claimant proposes to rely
A copy of the CSLF certificate (if legally represented)
˛ Copies of any relevant statutory material
˛ A list of essential documents for advance reading by the court (with page
references to the passages relied upon)
Reasons you have not supplied any document and the date you expect it to be available:-
Signed:______________________________________ Claimant (’s Solicitor)
39