JOHN O v HOME OFFICE
ANNEX A: Open judgment
1.
As indicated in the main judgment in these appeals, Mr O by Leading Counsel,
contended at the outset of the entire appeal hearing that the Home Office could only
introduce into evidence a closed bundle consisting principally of the disputed material
if Leading Counsel for Mr O on giving certain undertakings to the Tribunal and to the
other parties was also given access to the closed bundle, and secondly, that the
Home Office as the relevant public authority could in addition to providing evidence
by its witness or witnesses provide evidence in a closed sessions again only if
Leading Counsel for Mr O once again on the giving of certain undertakings was also
entitled to fully participate in any such closed hearing.
2.
General reliance is placed on the overall principle that judicial hearings must be
considered and conducted on an open and fair basis with all parties concerned
involved. In particular, reliance is placed on the statutory provisions which apply to
the Tribunal, in particular, the Tribunals, Courts and Enforcement Act 2007. It is
claimed that nothing in the 2007 Act expressly enables this Tribunal to receive closed
evidence. The particular provisions which confer power to make rules restricting
access to information are present but do not expressly mandate the making of a rule
or rules that specifically permit closed evidence without the participation of other
parties.
3.
The full title of the Rules is the Tribunal Procedure (First-Tier Tribunal) (GRC) Rules
2009.
4.
The Rules by rule 14(2) empower a Tribunal to prohibit the disclosure of particular
documents or information to a party but not where the Tribunal is satisfied that
disclosure could be likely to cause that party or some other person serious harm: see
in particular rule 14(3). Rule 14(6) to 14(7) enable a party to apply for and obtain a
direction that the Tribunal may disclose “certain documents or information” to the
Tribunal on the basis that the Tribunal must not disclose those documents or
information to other parties. It is conceded that the Tribunal has in the past
interpreted those Rules overall to permit the adducing of closed evidence. However,
it is claimed that nothing in the Rules can be said to permit closed hearings.
5.
It is however also conceded that rule 35(4) which enables a Tribunal to give a
direction excluding from any hearing any person whose presence the Tribunal
considers is likely to prevent another person from giving evidence or making
submissions freely, has been interpreted by the Tribunal in particular decisions to
JOHN O v HOME OFFICE
ANNEX A: Open judgment
permit closed hearings: see e.g.
British Union for the Abolition of Vivisection v IC
(EA/2010/0064) (November 2011), especially at appendix 2,
DEFRA v IC
(EA/2009/0076) (May 2010), especially at paragraphs 14 and 27.
6.
Mr O goes on to contend that on the assumption that the Tribunal does enjoy the
power to permit the adducing of closed evidence, as well as the power to conduct a
closed hearing, the Tribunal still enjoys the discretion as to whether or not it is
satisfied that the circumstances in question justify departure from the requirement of
an open hearing. By analogy with the practice in other albeit unrelated areas, Mr O
contends that the consideration of closed evidence in closed session should be done
only where the case is “compelling” or “strictly necessary”: see e.g.
In re A (Forced
Marriage: Special Advocates) [2010] EWHC 2438 (Fam); [2012] (Fam) 102,
especially at paragraph 62.
7.
This approach, says Mr O, leads in turn to a consideration of what in the context of
the present case can be viewed as appropriate mitigation necessary to address what
he calls a consequential deficit to the principle of open justice.
8.
As indicated above, the answer it is suggested, lies in allowing the Mr O’s Leading
Counsel, as distinct from Mr O himself, to participate in the closed session: see and
compare in the Competition Tribunal:
Claymore Dairies Ltd v Office of Fair Trading
[2003] CAT 12; and in the High Court
National Grid Electricity v AEB Ltd [2011]
EWHC 1717.
9.
Reference is also made to the fact that in relation to other appeals, this Tribunal,
whilst accepting that it does have the power to allow a requester’s legal
representative access to closed evidence and to participate in the closed session,
has nonetheless consistently refused to allow this practice. It is claimed however that
the reasons given in the past for refusal do not bear analysis. Six propositions are
advanced by Mr O in that regard.
10.
First, it is claimed that attendance by or on the part of a requester is “unnecessary”
because of the presence of the Commissioner. Mr O claims that although the
Commissioner has generally been content to assume the role, he has nonetheless
been known to decline it. It is first contended that in truth, the Commissioner does
not actually represent the requester. He is not briefed by the requester; he may often
have been hampered by the lack of any special knowledge and thus the effectiveness
of his representations may in turn be hampered accordingly.
11.
It follows, it is claimed, that the less the extent to which the Commissioner shares the
points taken, or that might be taken by the requester, the more difficult it becomes for
his participation in the closed session to begin to make good any shortcomings which
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JOHN O v HOME OFFICE
ANNEX A: Open judgment
might relate to the closed evidence and any closed session. Indeed, the
Commissioner may positively adopt or endorse the stance of the public authority in
question.
12.
Second, although it has been claimed that the Tribunal has something of an
inquisitorial role, this does not detract from the proper and due entitlement to
representation on the part of the requester.
13.
Third, to state that the release of the requested information is the main question at
issue provides no basis for not disclosing or revealing the information to the
requester’s Counsel on the giving of proper undertakings. In particular, Mr O notes
that unless Counsel breaches the undertakings he gives in the way suggested,
disclosure to him no more risks the subject matter of the proceedings being infringed
or being otherwise prejudiced than disclosure to Counsel for the public authority, or
indeed to Counsel to the Commissioner himself.
14.
Fourth, and with regard to the view that the Tribunal is something of a specialist body
with a special ability to assess the evidence, it would follow that the Home Office
should not be permitted to make statements in closed session. In other words, all the
examination, and all the relevant analysis of the closed material should be conducted
by the Tribunal alone.
15.
Fifth, and with regard to the risk of inadvertent disclosure, the said risk is also shared
with and between the other parties’ representatives. There is therefore no good
reason for any disparity in treatment.
16.
Sixth and finally, and with regard to the contention that there would be problems with
unrepresented requesters, such would not be the case in the present instance.
17.
Before turning to these contentions, it is appropriate to set out the Commissioner’s
contentions and those of the Home Office. The former are helpfully set out in short
written form and were supported in oral argument. The Home Office presented its
arguments orally on account of the fact that Mr O’s written submissions were put in
only a short time before the first dates on which the appeal was heard.
18.
First, the Commissioner points to the Tribunal’s earlier decision in the
Vivisection
decision. There, the Tribunal twice refused the BUAV’s application for an order that
its Counsel be allowed to see all the information within the scope of the request and
to participate fully in a closed session on the same terms as those propounded and
proposed by Mr O in this case.
19.
The Tribunal in that case accepted that it had power to request the appointment of a
special advocate in an exceptional case: see e.g.
CAAT v IC and MOD
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ANNEX A: Open judgment
(EA/2006/0041). However, it saw no reason to depart from what it saw as its
established practice of conducting hearings by employing a special advocate. At
paragraph 21, the Tribunal stated that the role of the Tribunal was “essentially
inquisitorial”; it was, it was said an independent body and thus well able in the
majority of cases to conduct an investigation of the closed material on its own
account.
20.
The same Tribunal pointed to the fact that if it was, or was to become, a regular
practice to disclose information to Counsel for a requester, such Counsel would over
time build up a state or body of knowledge concerning topics of interest as well as
decisions and information which the public otherwise had no right to see. This might
lead in time, and over time, to an appellant or appellants deriving what the Tribunal in
that case characterised as “illegitimate benefits”.
21.
The Commissioner also took issue with the contention that an analogy could be
drawn with the use of special advocates. The Appellant in this case has pointed to
the UK’s Supreme Court’s decision in
Al Rawi and others v Security Services [2011]
UKSC 34. There, the use of closed proceedings was held contrary to the common
law right to a fair trial but nonetheless was upheld as being said to be “for special
reasons in the interests of justice”. The Commissioner therefore pointed out that
there did exist certain classes of case where a departure from the normal rule might
be justified for special reasons: see e.g. paragraph 63 of the
Al Rawi decision. Lord
Dyson in the passage referred to pointed to wardship cases and to cases where the
whole object of the proceeding was to protect a commercial interest and where full
disclosure might not be possible in circumstances where disclosure might otherwise
render the entire proceedings futile.
22.
The Commissioner also stresses the inevitable risk that disclosure to an excluded
party’s legal representative would cause: see e.g.
Roberts v Parole Board [2005]
UKHL 45, especially as per Lord Rodger at para 108. Unlike the case of special
advocates, in excluding the party in proceedings before the present Tribunal, that
party’s representative would have no entitlement to receive information concerning
the closed material sufficient to enable him to give effective instructions to his
representative who might otherwise be representing him, albeit on the undertaking
suggested in closed session.
23.
The Home Office pointed to the distinction and difference that existed in relation to
the Data Protection Act 1998, in particular by virtue of sections 7 and 15(2) where a
statutory right of limited disclosure is specifically provided for subject to restrictions on
disclosure to applicants in related litigation pending judicial determination of any
underlying right of access. Reference was also made to certain specific provisions in
the Civil Procedure Rules, e.g. CPR Rule 31.19.
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ANNEX A: Open judgment
24.
The Tribunal has no hesitation in rejecting the contentions advanced on the part of Mr
O. It has carefully considered Appendix 2 to the earlier Tribunal case referred to
involving the
British Union for the Abolition of Vivisection (EA/2010/0064). In this
Tribunal’s view, this supplies convincing counterarguments to the six principal
submissions advanced by Mr O.
25.
First, as paragraph 14 of that Appendix, in particular at subparagraphs (f) and (g)
point out, the Commissioner and the Tribunal stand in a special position. Not only is
there no impediment to their receipt and consideration of sensitive information (see
e.g. section 58 of the Data Protection Act), but both have to ensure that FOIA is
properly applied so as to ensure in turn that proper account is taken of the relevant
particular public interests and rights which are in play. Subparagraph (h) makes the
additional point that the role of the Commissioner’s Counsel is of paramount and
particular importance.
26.
The present Tribunal would also make the following observation in the present case.
There can be said to be no parity of interest as between the Commissioner and the
Home Office, at least as at the inception of this appeal. The position has, as the main
judgment in this case notes, changed in the intervening period between the first
appeal hearing dates and the conclusion of the appeal, but the point being made
remains the same. The Home Office initially sought withholding of all requested
information, while the Commissioner, at least in the period leading up to hearing of
the appeal, determined that there should be partial disclosure. As is often the case
with regard to developments that are likely to occur between the issue of a disputed
Decision Notice and appeal in the Tribunal, a very wide range of evidence was placed
before the Tribunal. Given what was in effect the tension that existed at the inception
of this appeal, there would seem no basis for suggesting that all the relevant rights
and interests would not have been otherwise protected. In any event, the Tribunal
takes the view that there will of necessity be a strong imperative weighing on the
Commissioner to ensure that the Act is properly applied.
27.
Second, as subparagraph (g) at paragraph 14 in the
BUAV Appendix makes clear,
the role of the Tribunal is somewhat different to the role of a civil court in a typical
adversarial civil litigation setting. With this Tribunal, there has to be a consideration
not only of the rights of the requester, insofar as they differ from more general public
interests, but also of the rights of the public authority and indeed, insofar as they may
be different, the general public interest at large.
28.
Sometimes private interests are involved such as when confidential information or
personal details are in play. The operative procedures only reflect the need to
safeguard the interplay between all these varying interests and rights.
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ANNEX A: Open judgment
29.
The Tribunal would accept with the Tribunal of the
BUAV case that its role is wide
enough to permit it to make the type of order which Mr O, by his Leading Counsel,
seeks in the present case. However, it is equally entirely satisfied that in the present
case that course is simply not justified.
30.
The Tribunal is also of the view that to focus upon what has been called the
inquisitorial role of the Tribunal is to distort the real issue. In the present type of case,
the simple question is whether the information sought should be released to persons
besides the Commissioner and the public authority. The question in every case is
whether the Tribunal has taken sufficient and proper steps to determine that issue in
the light of the specific circumstances that come before it.
31.
The basic principles articulated in the preceding paragraph go towards addressing
the third contention made by Mr O. There can perhaps be cases where limited or
controlled disclosure to a requestor, whether by his Counsel or otherwise, might be
appropriate, but only in the Tribunal’s clear view where the normal safeguards might
otherwise be regarded as an inadequate means of determining whether disclosure
should be ordered at all. It cannot be remotely contended in the Tribunal’s view that
the Commissioner is in any way motivated either to push for or to prevent the release
of particular information. He has a distinct statutory obligation, the Tribunal being
also charged with a distinct statutory responsibility. Both must see that the Act is
properly applied and must therefore take account of the relevant public and private
interests which are in play. As the
BUAV decision at paragraph 14 of Appendix 2 to
that judgment puts it, the Commissioner agrees to disclosure or non-disclosure
according to his view of the application of FOIA to the particular circumstances. As
the present case illustrates, the Commissioner, being committed to an impartial role
under and by virtue of the terms of the Act and not to any preselected result, is likely
to alter or shift his arguments as the evidence unfolds, this case being a good
example, as it has unfolded during the appeal, of that practice. His view will change
therefore as to whether or not depending on the circumstances before him and the
Tribunal, a particular exemption should or should not be relied on.
32.
With regard to Mr O’s fourth contention, the Tribunal would equate the description
afforded to it of being a specialist Tribunal with the reality of its proper function under
the Act. This Tribunal would reject any suggestion of the kind made by Mr O that it
would benefit from some kind of particular expertise in a case such as the present
case where, admittedly on the face of matters before it, there is a degree of close
consideration of immigration law and practice. This is not to say however that the
Tribunal is incapable of making a decision by virtue of its particular position, role and
function under FOIA. The Tribunal, consisting as it does, of two lay members and a
legal chair is charged with assessing how to apply the provisions of the Act to the
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ANNEX A: Open judgment
disputed information. This Tribunal takes the view that the exercise conducted by the
Tribunal involving its lay membership involves largely a consideration of the facts.
Even though immigration law is present in this case, that approach still applies in the
present appeal. That in turn reflects the value of the lay membership. More
significantly, the exercise goes further since the Tribunal, as should the
Commissioner, must then determine the appropriate public interest balancing act.
The whole exercise is one which is quite capable of being exercised by the type of
Tribunal envisaged and created under FOIA. That is why it is only in the most
exceptional cases, and even then in this Tribunal’s view, only rarely, that there would
have to be any need to allow the requester, whether by his Counsel or otherwise, to
render any assistance in relation to the Tribunal’s overall function. If necessary, and
if the case arises, the Tribunal would in such a case it is respectfully suggested, elect
to seek if anything independent outside expert assistance, rather than take any form
of route of the type suggested by Mr O in this case.
33.
With regard to the risk of inadvertent disclosure, enough has been indicated already
about the attendant risks which arise. This Tribunal is firmly of the view that only in
the most exceptional case should the type of course proposed by Mr O be permitted.
Despite the best assurances and any undertakings which might otherwise be
proffered, in this Tribunal’s view, there must always remain a risk of inadvertent
disclosure should those representing a requester be allowed freely to participate in a
closed session in which closed material is being scrutinised.
34.
Finally, the Tribunal remains troubled by the apparent absence of consistent principle
arising out of Mr O’s submissions. It is to say the least odd that allowance should be
made for participation albeit on the terms by the requester’s Counsel, coupled with
the apparent acceptance that non-legally represented appellants should in general
not be allowed to participate. As the
BUAV judgment puts it, if the information can be
made available to Counsel, why should it not be made available to the requester
himself?
35.
The Tribunal would conclude what is already perhaps too lengthy a ruling on this
issue by observing that it is somewhat surprising that such a robust application was
made in the present case. As Mr O sought to argue it, there is no clear precedent for
such course in the Tribunal’s case law. As long ago as 12 May 2006 in the well
known
Sugar litigation, there was a ruling in
Sugar v IC and BBC (EA/2005/0023) by
the single Tribunal Judge dealing with a submission made by Mr Sugar that he be
provided with disclosure of all the requested information partly in reliance on the
provisions of Article 6 of the European Convention of Human Rights. In a lengthy and
detailed ruling, the Tribunal then emphasised the need for confidentiality and ruled
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ANNEX A: Open judgment
against Mr Sugar very much on the same lines and grounds as those set out in the
BUAV judgment in the relevant appendix and in the present Ruling.
36.
This Ruling can end on a general note. In civil cases, disclosure, albeit under
restrictions which might affect a particular party, can be properly regarded as part of
the necessary cost of vindicating that person’s private or public law right. The
position with regard to FOIA is fundamentally different. The provisions of FOIA need
to be taken into account both in relation to the requested information and as well as
with regard to any and all connected information which may have been relevant or
which may bear upon the key issues arising as to whether or not, and if so to what
extent, the requested information should be disclosed. To the present Tribunal, there
appears to be no justification for giving a particular individual privileged access to
certain material which may not be the subject of the request, but which may be
protected by FOIA simply because he is the Appellant seeking certain information
under FOIA. Put another way, this amounts to saying that in the course of an appeal,
he is not entitled to see the information requested because he has asked for its
disclosure, but he is nonetheless entitled to see the connected information because
he has not specifically asked for it. The present Tribunal sees no justification, at least
in law, for such an argument.
[Signed on the original]
David Marks QC
Tribunal Judge
10 April 2013
Corrections made to Annex A on 18 April 2013 under Rule 40 of The Tribunal Procedure
(First-tier Tribunal) (General Regulatory Chamber) Rules 2009
8