Alistair Sloan, Advocate

A quick defence of legal aid

July 1st, 2013

The debates around legal aid in Scotland earlier this year and in England over the last year have been characterised by a number of clear misconceptions by the public at large. There is a view that legal aid exists only to make ‘lawyers rich’ and that the vast majority of those receiving legal aid are in some way ‘undeserving’. These views are of considerable concern as the simply enable Governments in Edinburgh and London to press ahead with legal aid ‘reforms’ that will substantially damage the country.

Legal aid seems to get lumped in with job-seekers allowance, housing benefit, council tax benefit and such like (I have even, on more than one occasion, seen comparisons drawn between legal aid and the NHS); these comparisons are illogical and ignore fundamental aspects of legal aid which set it apart from any other government spending.

Equality before the law is fundamental to ensuring access to justice. The ability of all (and not just the rich) to access the legal system is of fundamental constitutional importance. The ability of individuals to defend themselves against the power of the state (whether in civil or criminal proceedings) and to challenge the state through Judicial Review are essential to our constitution. Without this ability we are not a liberal democracy. The issue of access to the law isn’t only confined to making it possible to bring or defend a claim, but it has to create a realistic ability to access the law. That means providing good quality representation (and importantly permitting those bringing or defending a claim to select their own law agent). Without client choice you are left in a situation where the State is selecting the representatives of those who it is brining a claim against or whom it is defending a claim against. If you were suing your mobile phone provider and had to use the solicitor that they selected for you, you would instantly see a conflict of interest. However, that same conflict does not seem to be as apparent when the State is involved (although it is there and just as important). There has to be equality between the parties in the legal system and for those who cannot afford to pay their own legal fees it is left to the State to ensure fair access to legal representation.

In criminal cases, it is about defending yourself against serious accusations made by the State. The consequences of conviction are, quite rightly, serious. Conviction can lead to a loss of employment and a loss of liberty. Not everyone who gets legal aid in criminal cases is guilty, a great many people are innocent and it is important that they are able to robustly challenge the State who has to prove their allegation. It’s about ensuring fairness in the system; an individual against the might of the State (with the police and a professional prosecution service for back-up) is not a fair fight. Legal representation is essential to ensure fairness (whether they are guilty or not). It might be unpopular to see guilty people get vast sums of public money to defend themselves, but isn’t that a price worth paying to ensure that we have a fair and balanced system ensuring that, as far as is possible, only the guilty are convicted?

Judicial Review is very much disliked by the Government, as should be expected. Judicial Review is the citizen challenging a decision made by the Government; it’s about ensuring that the Government only takes decisions which are legal. It is an area under attack by the Government and it is vitally important. Without effective access to judicial review, the State can go unchecked and be able to take decisions which are illegal.

The need for access to legal aid does not just extend to cases which involve the State. Individuals seeking to enforce their contractual rights against a company or gain compensation when a company is at fault and they have lost out as a result or to enforce their consumer rights need to have the ability to seek recourse in the courts when pre-litigation action fails to achieve a result. Without the ability to go to Court and seek a legally enforceable court order to enforce their rights, the rights that they have are effectively meaningless. The threat of litigation can prevent litigation. The knowing that an individual can seek recourse to the Court in order to give effect to their rights can be enough to make people comply with their obligations. Without that effective recourse, people will be free to ignore their obligations with impunity.

Legal aid and access to justice go to the very heart of our constitution and democracy. It’s not a benefit; it’s a constitutional right Legal aid is much more important and serious that housing benefit or job seekers allowance (as important as those are); it’s fundamental to our society.
Requirements for refusal under FOISA section 18: OSIC Decision 100/2013

June 10th, 2013
Today the Scottish Information Commissioner published decision 100/2013, a decision in which I was the applicant. The public authority involved was the Scottish Ministers. The decision explores some of the technical requirements around issuing a notice under section 18 of the Freedom of Information (Scotland) Act 2002.

The request

On 26 January 2012 a request for information under the Freedom of Information (Scotland) Act 2002 was submitted to the Scottish Ministers concerning an issue around the independence referendum that was, at the time, a live issue. The issue concerned whether the Scottish Parliament had the legislative competence to hold a referendum on scottish infependence. The question of legislative competence has been settled by The Scotland Act 1998 (Modification of Schedule 5) Order 2013. The request sought only the identities of those who had provided the Scottish Ministers with legal advice and not the content of that advice.

The purpose of the request was to establish whether the Ministers had received advice on this point and who was providing the Scottish Ministers with advice while considering any public information as to their specialities, thus providing some assistance in understanding the authority of the advice given.

The Minister’s response

The Ministers did not respond to the initial request for information and responded late when a request for review was submitted. Eventually, the Ministers responded refusing to confirm or deny whether they held information within the scope of the request under section 18. They did not specify which exemptions would apply if the information were held.

Section 18

Section 18 exempts public authorities from complying with the normal duty of confirming or denying whether information is held by it which falls within the scope of the request. It can only be deployed where certain exemptions could apply if the information were held, and where the public interest is in refusing to confirm or deny whether information is held (not only whether it would be in the public interest to maintain the exemption(s) cited if the information were held).

Information Notice

On 16 January 2013 it became necessary for the Scottish Information Commissioner to issue the Scottish Ministers with an information notice in order for her office’s enquiries to progress.

The Commissioner’s Decision

One of the aspects which was raised within the application for a decision from the Commissioner was whether the Minister’s response to the internal review was technically valid. It is upon this question that the Commissioner’s decision centres.

As already stated, the Scottish Ministers cited section 18, but did not state which exemption(s) they considered would apply if the information were held by them. The Minister’s argued that this was not necessary. The application for a decision argued that it was required, and the Commissioner agreed that it was required. Thus, the Commissioner found that the Ministers had not issued a valid response to the requirement for review.

Analysis

This is a purely technical decision, but it sets out clearly what public authorities must include in a section 18 notice and provides the legislative authority for that position.

Section 18(1) of FOISA specifically states that an authority can, by virtue of Section 18, give an applicant a refusal notice under section 18 where the conditions of section 18 are met; that is that if the information was held certain exemptions would apply and that it is in the public interest not to confirm or deny whether the information sought is held. Section 18(2) goes on to state that section 16(1)(a) or section 16(2) don’t apply when public authorities are issuing refusal notices under section 18.

Section 16 deals with the content of refusal notices and unless the Act specifies otherwise, all refusal notices must contain the information set out in section 16. Section 16(1)(a) requires a public authority to disclose that it holds the information sought (so logically, it is disapplied for section 18 notices as the purpose of section 18 is to neither confirm nor deny whether information sought is held). Section 16(2) is the requirement that the public authority set out in its refusal notice the public interest arguments for and against releasing information where it is applying an exemption under Part II of the Act (i.e. Sections 25-41 of FOISA).

The key part to the Commissioner’s decision is the use of the term ‘refusal notice’ within section 18 to describe the notice that it permits a public authority to issue. A section 18 notice is a refusal notice for the purposes of FOISA. Section 73 of FOISA is the interpretation section and states that “refusal notice” has the meaning given by section 16(1) (including that section as read with section 18(2)).

So, what does all of this mean? Well, simply it means that a notice issued under section 18 must comply with all the elements of section 16, except those specifically excluded by section 18(2) of FOISA. In other words, a notice under section 18 must state the following:
1. State that the public authority is applying section 18 [section 16(1)(b)]
2. State which exemptions permitted by section 18 would be permitted if the information were held [Section 16(1)(c)]
3. State why the exemption applies (unless it is otherwise apparent why the exemption applies) [section 16(1)(d)] – qualified by section 16(3)
In essence any public authority issuing a notice under section 18 of FOISA must state which exemptions permitted by section 18 it considers would apply if the information were held by it.

It would not appear though, from reading the Act (although this point is not specifically covered by the Commissioner’s decision notice), that public authorities are required to justify in their section 18 refusal notice why it is contrary to the public interest to confirm or deny whether information requested is held. However, this may well be a question that the Commissioner would put to the public authority when during any investigation, and it can be argued it would be good practice to state in any section 18 notice the reasoning behind applying section 18 (so long as doing so does not in itself confirm or deny whether information is held). Setting out the reasoning in a section 18 notice could prevent an internal review or an investigation by the Commissioner.
Scottish Government moves to recover lost FOI rights

June 8th, 2013

On Friday it was announced that the Deputy First Minister of Scotland, Nicola Sturgeon MSP, laid before Parliament an order under section 5 of the Freedom of Information (Scotland) Act 2002.

Section 5 of the Freedom of Information (Scotland) Act gives the Scottish Ministers the power to designate such persons or bodies that appear to the Scottish Ministers to exercise functions of a public nature or are providing, under a contract made with a Scottish public authority, any service whose provision is a function of that authority as public authorities for the purposes of the Freedom of Information (Scotland) Act 2002.

The power under section 5 has never before been used by any member of the Scottish Administration since the Act came into force on 1 January 2005. Schedule 1 to the Freedom of Information (Scotland) Act 2002, which sets out those persons and bodies covered by the Act, has been amended by other statutory provisions as new public bodies have been created and as existing public bodies are abolished.

The new order, if approved, will make arm’s length bodies established by local authorities to provide cultural, sports and leisure services public authorities under the Freedom of Information (Scotland) Act 2002. Since the Act was passed in 2002 there has bene a significant shift in the way that public services have been provided. Local authorities have established companies to carry out a whole variety of functions. These companies are not covered by the Freedom of Information (Scotland) Act 2002 and their establishment has represented a loss of information access rights.

This move is to be welcomed and it is an important step forward in ensuring that those who are responsible for spending public money and delivering public services are accountable directly to the people of Scotland for how they spend that money and provide those services. However, it does little more than recover information access rights that have been lost and rectify a government failure in not designating these bodies earlier. There remain bodies who carry out important public functions which, it is argued, should be covered by the Freedom of Information (Scotland) Act 2002. If the Scottish Government is serious about FOI and extending its coverage, then it ought to go further and consult on other bodies (such as COSLA, the Law Society of Scotland and the Faculty of Advocates).
Changes to FOI in Scotland from 31 May 2013

May 23rd, 2013

Friday 31 May 2013 is the day appointed by the Scottish Ministers upon which the Freedom of Information (Amendment) (Scotland) Act 2013 comes into force. This Act amends the Freedom of Information (Scotland) Act 2002 in some technical respects, and this post is a brief overview of the changes that will come into force next week.

Neither confirm nor deny

Section 18 of the Freedom of Information (Scotland) Act 2002 exempts public authorities from their normal requirement to identify whether information requested in a FOI request is held or not. It applies only where certain exemptions could be claimed if the information were held. Currently, public authorities cannot ‘neither confirm nor deny’ whether information is held if that information is personal information (exemption under section 38). From Friday 31 May 2013, public authorities will be able to deploy section 18 where the information held is personal information.

Information available in the publication scheme

The Freedom of Information (Scotland) Act 2002 will be amended from 31 May 2013 to make it clear that information contained in a public authorities publication scheme is ‘otherwise accessible’ where applicable fees required by the public authority are set out in the publication scheme. This will ensure that public authorities can utilise the section 25 exemption for information that is otherwise accessible to information contained within its publication scheme.

Historical Periods

Some of the exemptions in Part II of the Freedom of Information (Scotland) Act 2002 are no longer available to public authorities after a certain period of time has elapsed. Changes to the Freedom of Information (Scotland) Act 2002 coming into force next week will give the Scottish Ministers more latitude in varying the periods that exemptions apply to certain classes of information. They will be able to be much more specific in the exercising of this power than was previously allowed by Parliament.

Prosecution Time Limits

The time limit for prosecuting a public authority for alleged offence sunder section 65 of the Freedom of Information (Scotland) Act 2002 has been modified so as to make it possible to bring prosecutions where it appears that offences have been committed. For all offences which have been committed on or after 31 May 2013, the 6 month time period for brining a prosecution will begin on the date that evidence which the prosecutor believes is sufficient to justify bringing proceedings comes to the knowledge of the prosecutor (and no more than 3 years after the date the offence was committed, or ceased to be committed in the case of a continuing contravention of section 65). A certificate signed by the prosecutor as to the date sufficient evidence came to the prosecutor’s knowledge to justify brining proceedings will be conclusive of that fact.

Designation of authorities

The Scottish Ministers will be accountable to Parliament over their use (or lack of) of their power to designate bodies as public authorities for the purposes of the Freedom of Information (Scotland) Act 2002 under section 5. The Ministers must lay a report before Parliament by 31 October 2015, and every 2 years after that, explaining why the power at section 5 has been exercised or gone unexercised.

The people whom the Ministers must consult before exercising their powers under section 5 of the Act has been extended to include ‘other persons as they consider appropriate’ in addition to those bodies covered by any proposed order (or those appearing to represent them). This should, hopefully, open up section 5 order consultations to the public as well as the Scottish Information Commissioner.
Anonymity upon arrest

May 16th, 2013

The naming of suspects by police at the point of arrest and charge has become a hot topic. The Home Secretary has written to Chief Executive Officer of the College of Policing, Alex Marshall, expressing her concern about the different policies operated by different forces in England and Wales. She wants it made clear to forces that unless there are very good public interest reasons for naming suspects who have been arrested, it shouldn’t happen. The press have repeated concerns that this amounts to some kind of ‘secret justice’.

I really have little concern about suspects under arrest who have not been charged remaining anonymous. Far too often we see examples of the press effectively having a trial which convicts the person while that person is still in police station being questioned in connection with an alleged offence. By the time this person is then released from the police station their reputation has been destroyed, even if they are entirely innocent of any involvement in any crime.

Persons who have been arrested and not named do not fall into some big black hole; indeed millions of people are arrested in England and Wales every single year and very few are named at the point of arrest (in fact very few are named publically at any point, even after conviction). There are important rights, protected by law, which mean that it is impossible for someone to be secretly arrested. Those arrested have the right to have someone informed of their arrest and are entitled to legal representation; although both of these can be delayed, they are still rights which have to be exercised eventually if the arrested person wishes to exercise those rights.

It has been argued that naming a suspect at the time of arrest allows further victims to come forward, but so would naming them at the time of charge. There is nothing stopping the police from arresting the person again in connection with different allegations that come to light after they have been charged.

In effect what a policy of anonymity for suspects under arrest would prevent is the press from publishing endless stories ‘monstering’ a person over something they may or may not have done. We should perhaps be more than a little suspicious of the motivation of the press on this story; evidently ‘monsetring’ stories are the type of stores that make newspapers (particularly tabloid newspapers) sell. Such a motivation cannot be ruled out of the press opposition to a move towards anonymity of arrested persons.

The clearest example of this was that of Christopher Jeffries, the man who was wrongly arrested on suspicion of murdering Joanna Yeates. What followed, while he was still in police custody being questioned, was a press frenzy which painted him as a deviant, gave the impression that he was a nasty individual and by implication that he was clearly Joanna Yeates’ killer. However, he was later released from police bail (having never been charged) and won substantial damages from eight newspapers for libel. The Attorney General also prosecuted two newspapers for contempt of court, both of whom were found to be in contempt. Another mab, Vincent Taback, eventually convicted of her murder and is currently serving life imprisonment.

Charging a person with a crime is a formal process; it is when criminal proceedings begin against a person. From the point that a person is charged it is clear that the Contempt of Court Act rules kick in. These rules provide sufficient protection in respect of the person’s right to a fair trial and news stories which are sufficiently prejudicial could even cause the collapse of a trial (although that is rare and it would have to be something of great significance). The only cases where publishing the names of people who have been charged with an offence which causes me to pause and really think are those accused of sexual offences. With sexual offences, more than any other offence, there appears to be a guilty until proven innocent mindset amongst general pubic; there is no smoke without fire, so to speak. However, there are strong arguments in favour of anonymity and disclosure in those cases and it is a finely balanced argument. Although I have argued in favour of anonymity before, I now believe that the arguments in favour of disclosure are slightly weightier. However, in sexual offences cases I do feel that the authorities responsible for bringing cases in respect of alleged contempts of court have to be more pro-active. Perhaps also providing for a possible (short) custodial sentence for editors who are guilty for allowing a seriously prejudicial story to be published (i.e. that type of story that causes or is seriously likely to cause the collapse of a whole trial) might make editors slightly more responsible around high profile cases.

It would be entirely right for the police to move to a system of neither confirming nor denying to the press whether they have a specific person in custody under arrest. This gives the police the space to conduct that initial investigative phase and it will minimise the reputational damage done to those who are innocent and unfortunately arrested. Without confirmation from the police of the name of the person in custody it is unlikely that the press will publish any name that they do have. However, if such a move did not stop the press frenzy that we currently see around arrested persons, I would certainly not be adverse to Parliament passing legislation which specifically prohibits the confirming of names of arrested persons outside of a set of clearly defined circumstances where it really is in the public interest (and that’s not what the public are interested in) to release the name at such an early stage.

We do have a system of public justice and it is important for both the public and those accused of crimes that trials happen in the public eye. This is not so that the public can gawp and stare and slander individuals accused of crimes, but so that the public can see that justice is being done and to protect those accused of crimes from oppressive state practices.
The UK and the ECtHR: 2012 statistics

May 6th, 2013

The Council of Europe (the body responsible for overseeing the European Convention on Human Rights) has published a document reviewing the cases handled by the European Court of Human Rights relating to the United Kingdom in 2012. The document makes for interesting reading and rides a coach and horses through the lies and spin reported by the press in the United Kingdom – don’t expect to see the details of this report discussed in the House of Commons, in the Daily Mail or on the BBC.

During 2012, the European Court of Human Rights (ECtHR) dealt with a total of 2,082 applications concerning the United Kingdom of which 2,047 were either declared inadmissible or struck out. This means that the Court refused to deal with, for one reason or another, more than 98% of the applications concerning the United Kingdom that it dealt with last year. Of the 24 judgments (concerning 35 applications) that it did make, at least one violation of the convention was found in just 10 of those cases. That means, of the judgments issued, 59% found entirely in favour of the Government while 41% found partially or wholly against the Government. Putting those figures into the wider context, the UK partially or wholly lost in less than 0.5% of applications against it handled by the ECtHR last year.

It is argued by some that the ECtHR interferes too much in our domestic affairs; that contention cannot stand when put alongside the figures released by the Council of Europe. The fact is that the Court chucks out the vast majority of the cases made against the United Kingdom without even issuing a judgment, and where it does the majority find wholly in favour of the Government.

Of course, the Human Rights Act 1998 (HRA) has to be taken into consideration as well when placing the effect of the Court in context. Section 2(1)(a) requires UK courts and tribunals to “take account” of judgments, decisions, declarations or advisory opinions of the ECtHR when determining questions which have arisen in connection with a convention right (which for the purposes of the HRA are only those rights listed in Schedule 1 to the HRA). That impact is slightly harder to quantify than the direct effect of the ECtHR on the United Kingdom through the judgments it issues concerning the United Kingdom. However, the direct effect is extremely small and disproves some of the hysteria around the convention, especially that hysteria which says the ECtHR is frequently finding against the UK; it finds in favour of the UK Government more than it does against it.

The truth is the media only ever report the more contentious decisions, especially those which the Government have lost. If you’re only hearing one side of the story you are going to end up with a rather unbalanced and biased view of things. The question is, how do you counter the unbalanced and biased reporting? Is it even possible to do so?
Sentencing in historic cases

May 2nd, 2013

There has been a lot in the news about historic sex offence, particularly in light of the Jimmy Saville investigation. However, those related investigations are by no means the only circumstances in which historic sexual offences are coming to light, and for which offenders are being convicted. Therefore, it might be worthwhile considering how the Court is to approach sentencing in these (and similar cases). Historic cases (of all types, not just sexual offences) have had a history of causing concern and outrage to the public as the sentences can sometimes appear to be substantially less than what would be expected if someone was convicted of the same crime today.

In 2011, the Court of Appeal issued guidance specifically relating to the sentencing of historic sexual abuse cases in England and Wales. The guidance was given in the case of R v H and others [2011] EWCA Crim 2753. Upon reading that case, it becomes clear that sentencing offenders in cases where they have admitted sexual offences which had occurred a significant time ago is a complex exercise.

The first thing that should be noted is that the maximum sentence which can be given in any case is that which was applicable at the time the offence was committed, not at the time of sentencing. Where the law has been amended over time to increase the penalty for a particular crime, it is not possible for the Court to sentence in the context of that maximum. Similarly where the maximum has been reduced over time, the court is still required to sentence in line with the maximum that was in place at the time of the offence.

It should also be noted that the charges brought against an offender whose crimes were committed in the past must reflect the law at the time of the offence, not at the time he or she is charged with anything. There are some courses of conduct which, historically, would be an indecent assault, which would now be classed as rape (under the Sexual Offences Act 2003).

While the Court has to take account of the sentencing regime that applied at the time of the offence, the Court must also take account of the sentencing regime in place at the time of sentencing. Therefore, the Court will have to take account of any guidance issued by the Sentencing Council (or its predecessor organisation, where that guidance is still in force). However, where those guidelines would produce a sentence greater than the maximum permitted at the time the offence was committed, the sentencing court would have to make adjustments to that sentence so as to ensure it was not greater than the maximum allowed.

The Court of Appeal found it to be wholly unrealistic to attempt, at the time of sentencing, to try and pass the sentence that would have been passed had the offender been convicted at the time. Beyond that, the process of sentencing is rather similar: account must be taken of the facts of the offence, the culpability of the offender at the time of the offence and whether than has been early admission of the offences.

One last thing that the Court of Appeal noted was that the passage of time between the offence and the date of conviction could be an aggravating factor, but that mitigation could also be found in that time. For example, if it can be demonstrated that between the offence being committed (or last being committed) and the date of sentence there is evidence of an unblemished life, particularly where ‘accompanied by evidence of positive good character’, then there may be mitigation to be found (which presumably could reduce the sentence actually passed). The passage of time may also be an aggravating factor, the Court stated, where (for example) there is evidence that the offender poses a continued risk to the public, or that he or she continued to offend during that time.

Sentencing is always complex, but when dealing with historic cases it is even more complex. The Court has to have due regard to the law as it was at the time of the offence. This is to ensure that the sentence is not harsher than could (not would) have been given at the time of the offence. When the offence and date of sentence are separated by significant periods of time during which there has been substantial changes in the law, it can appear as though the Courts are being ‘soft’ or too lenient on offenders. This is especially so where the maximum possible sentence has increased over that period.

The guidance in R v H and Others should be kept in mind when reading about sentences involving those convicted of offences which occurred many years, sometimes even decades, ago. For a full understanding of just how the Court should appraoch these cases, I would stronly suggest reading the judgment in its entirity.
Abu Qatada and the Rule of Law

April 23rd, 2013

The latest episode in the saga that is the case of Othman (Abu Qatada) v the Secretary of State for the Home Department occurred today when the Court of Appeal refused the Home Secretary leave to appeal against the Court of Appeal’s earlier judgment to the Supreme Court.

The facts of this case are well rehearsed so I feel that I don’t need to go over them again. As one would have expected, the Court of Appeal’s refusal to grant leave to appeal caused an uproar on the internet (and this was probably no doubt replicated in homes, pubs and offices around the country). Let me be clear, I am no fan of Abu Qatada. He is alleged to have committed some very serious crimes and it is right and proper than he faces trial in Jordan for those crimes. However, it is equally right and proper that the United Kingdom upholds the law of the land, international law and its other international responsibilities.

Predictably, a lot of the comments were directed towards the judiciary and their apparent failings. However, I would suggest that this is the wrong place to direct criticism towards. The law is clear and it is for the judges to apply the law and to uphold the law. Judges are not there to make or to change the law; that power lies with the Government and Parliament. If courts are consistently finding against the Government on the same point of law, it would suggest that any problem that exists does so either with the law or the legal position of the Government. In both scenarios only the Government, not the judiciary, can change the situation.

The Court is there to apply the law as enacted by Parliament and to uphold the rule of law. They don’t take sides in any legal debate; they are not on the public’s side, the Government’s side or the side of any other party. They are an independent tribunal charged with applying the law to a particular set of facts and to determine who, in law, is right and who is not. The Appeal Courts are there solely to interpret the law which is then to be applied to the facts of each case by the lower courts. They’re not there to look at whether a Court or tribunal below was right to conclude that a particular fact is indeed a fact or whether it is not; they are there simply to ensure that the lower courts and tribunals are applying the law correctly and to resolve any ambiguities in the law.

The Supreme Court only considers what are termed ‘points of law of general public importance’; those are legal questions and conundrums that affect a wide number of people in society. They will look at serious legal questions and determine the law so that it is clear for all in our society and so that the lower courts are applying it consistently to all.

The Government is, like each one of us, subject to the law. It does have a slightly more empowered position than the ordinary citizen has, in that should it lose a case in court it can (with the consent of Parliament) pass legislation to reverse the decision. In this increasingly global world though, the Government (and Parliament) is somewhat restrained in what changes to the law it can make. The United Kingdom has signed up to various international treaties, including many human rights ones (although we only ever really hear about the European Convention on Human Rights it’s not the only one we are signatory to) and then there are other principles of international law that the United Kingdom has to comply with as well (see my post on the ECHR, Abu Qatada and international law).

It is quite right that the Government is subject to the law in the same way that ordinary citizens are subject to the law. If it were not, the Government would be extremely powerful with no real check or balance on its power and it would be impossible to effectively hold the Government to account. There are countries where the Government is outside of the law (either constitutionally or because of the political situation is effectively outside of the law because the judiciary turn a blind eye). When you look to those countries you soon realise that such a situation is not one which you want in this country.

Abu Qatada (and people like him) wants to destroy democracy and bring tyranny to the ‘West’; the Rule of law is fundamental to democracy. If we suspend the Rule of law and start to allow the Government to ignore the law and judges to turn a blind eye to the Government ignoring the law the terrorists have effectively won. Is that what you really want?
FOI and requests for documents

April 13th, 2013

In yesterday’s regular ‘decisions round-up’, the Scottish Information Commissioner once again issued warnings about valid FOI requests to public authorities. It has been a theme in recent months that authorities have been refusing requests for documents on the basis of the request not being a valid information request.

It is absolutely correct that the Freedom of Information (Scotland) Act 2002 does not provide a right to copies of documents, but to information. That is clear from Glasgow City Council v Scottish Information Commissioner. However, the Commissioner (both the previous and the incumbent commissioners) have said that a request for copies of documents remains a valid request for information. This is on the basis that section 8 of the FOISA requires that a person adequately describes the information that they are seeking in order to enable the public authority to locate it. There can be no better explanation of the information sought than reference to specific document(s). Such requests hugely reduce the amount of work that a public authority has to do in order to locate the information. Refusal is likely to cost the authority more as appeals to the Commissioner will take up time which could have been better spent simply progressing the request. In the end they’re still probably going to have to process a request, even if it is re-worded slightly, and they will have wasted money on the initial refusal.

As has already been said in this post (and in others on this blog), FOISA does not give people a right to a copy of a document, only to the information contained within it. It would not be very cost effective for the public authority to reproduce an entire document, so it’s likely that in practice an applicant will receive a copy of the document (with any redactions made by the authority) in fulfilment of their request.

Public authorities should only really be refusing requests for non-compliance with section 8(1)(c) where it is not at all clear what information the applicant is actually seeking, not because they’re not familiar with the intricacies of Freedom of Information law. Their ‘advice and assistance’ duty might well mean that when issuing a substantive response to the request that they advise of the right to information and not to documents.

While public authorities should not be refusing requests on the grounds that applicants are not entitled to documents, but rather to the information contained within them, it might be sensible simply to ask for “all the information contained in…” or “the full content of…”; doing so will likely save applicants the frustration of dealing with a pedantic authority acting against the clear advice of the Scottish Information Commissioner.
Public authority contact details and FOI

April 10th, 2013

This is an FOI decision from the Information Commissioner that I have planned to blog about for some time, but have now only just got round to blogging about it. On 11 March 2013 the ICO issued decision notice FS50468600 which involved the Department for Work and Pensions (DWP). The content of the decision notice is not all that important until we turn to paragraphs 32-36, which are headed up as “other matters”.

In particular paragraph 35 is of note in which it states that his office experienced difficulty in actually speaking to those who were involved in the request at the DWP’s side of things. It described the DWP’s practice of not providing telephone numbers or contact details within its responses and how this makes it very difficult for the appropriate contact to be located within the organisation. The public authority advised the Commissioner that it did not include these details so as not to breach the privacy of the non-senior staff involved; it described the staff in question as not being in public-facing roles.

In Paragraph 36 of the decision notice the Commissioner states quite clearly that he does not agree with this approach. The decision notice states that “if such staff are responding to requests made under the FOIA then he considers this to be a public-facing role which is unlikely to attract an expectation of privacy” (Paragraph 36).

The DWP are by no means the only public authority which has adopted similar processes in respect of FOI requests. I can remember one time trying to get hold of a central Government department (I can’t remember exactly which one, but I have a feeling it was either the Home Office or a connected public authority) to discuss a response that had been issued by them (something that merely wasn’t very clear and, as it later transpired wasn’t in need of an internal review). However, there was no contact details provided for the individual. I was informed that the FOI team were not public-facing and they wouldn’t speak to members of the public over the telephone.

It was very frustrating and actually resulted in a higher cost to the public authority in my case. There was just one thing that I wasn’t clear about and I’m sure that had I been able to have a quick telephone conversation with the person who issued the decision then there would have been no need for them to conduct an internal review. However, the Authority’s attitude and processes meant my only option to get the clarification was to request an internal review. This will have then required a senior member of staff within the authority to review the entire handling of the request and issue a response to me; far more expensive than 5 minutes on the phone explaining something to the applicant.

Not publishing contact details for those responsible for FOI within the organisation also makes seeking advice and assistance from the public authority almost impossible. My reading of the Act suggests to me that advice and assistance is not only something to be provided in a refusal notice, but something that should be available to prospective applicants. I know that I’ve certainly phoned up a public authority and had a chat with them about a request before making it; as a consequence I have been able to frame my request in a way that has made it a much more efficient process for the public authority (and thereby reducing the cost to the taxpayer). The FOI Officer, knowing the structure of their organisation and how information is generally held, was able to advise as to what information they were likely to hold and how it was likely to be held.

I tend to agree with the commissioner that anyone sending a response out to a FOI request is clearly public-facing; it might be that a particular role was not public facing pre-FOI, but in these post-FOI days anyone could, in theory, be a public-facing member of an authority’s staff. It should be easy for applicants to contact public authorities, not least because the public authority is obliged to provide advice and assistance, but it can just save public authorities money. It can help ensure more focused FOIs that are easier to deal with and can prevent expensive internal review requests (or perhaps even more expensive ICO investigations).

Hopefully the ICO’s criticisms of this approach in this decision notice will feed their way round any other public authorities who still adopt a practice of not giving out contact details for someone able to provide advice and assistance.