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Access to Governmental Information and the Judicial Process: United Kingdom Law and the Influence of Europe
Published online by Cambridge University Press: 27 October 2017
Extract
In the course of attempts by the Thatcher administration to restrain the publication of Spycatcher, the memoirs of a former member of the security and intelligence services, the United Kingdom’s most senior civil servant, the Cabinet Secretary, was subjected to several days of intense cross-examination before Justice Powell in New South Wales and in the High Court in London. Sir Robert Armstrong’s testimony ranged across the recent history of government reactions to the proposed publication of sensitive information by former members of the security services and has since become a significant piece in the jigsaw of the British constitution.
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References
1 (1987) 8 NSWLR 341; Attorney-General v. Guardian Newspapers Ltd. (No 2) [1990] 1 AC 109. Turnbull, M., The Spycatcher Trial (London, Heinemann, 1988), 61–85 Google Scholar contains a detailed account of the cross-examination in Australia.
2 McCann & Others v. United Kingdom (1996) 21 EHRR 97, paras 13–90. The Court held that although the soldiers who fired the lethal shots in the Gibraltar shooting had committed no violation of the right to life contained in Article 2 of the Convention, the UK government had breached its obligations by failing to plan the operation in a manner which would minimise recourse to lethal force.
3 Birkinshaw, P., Freedom of Information: The Law, the Practice and the Ideal 2nd ed.(London, Butterworths, 1996)Google Scholar; Austin, R., “Freedom of Information: The Constitutional Impact” in Jowell, J. and Oliver, D., The Changing Constitution 3rd ed. (Oxford, Clarendon, 1994), 393–439 Google Scholar.
4 [1990] 1 AC 812.
5 Article 10 provides:
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. No restrictions shall be placed on the exercise of these rights other than such 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.
6 Above n. 4 at 824B. The other member of the House to adopt this method was Lord Jauncey of Tullichettle.
7 [1998] 1 All ER 833.
8 However, this ground failed too because the Crown had not sought an injunction to restrain publication and could not now establish any form of loss which could be compensated by contractual damages.
9 The public law argument was not advanced at first instance and was raised in the Court of Appeal at the instigation of the Court. Unusually, separate counsel were briefed to argue the private and public law points in the Court of Appeal.
10 This relationship is discussed in more detail by Beatson, J., “Has the Common Law a Future?” 56 (1997) CLJ 291, 303–314CrossRefGoogle Scholar.
11 Discovery has been renamed “disclosure’ by the Civil Procedure Rules 1999. The term discovery is used here as it appears in all the cases under discussion.
12 The prerogative writs were the remedial precursors of the modern remedies available by way of judicial review. Wade, H.W.R. and Forsyth, C.F., Administrative Law 7th ed. (Oxford, Clarendon, 1994), ch. 17 Google Scholar.
13 The 1977 reforms introduced the application for judicial review which made it possible for applicants to seek the formerly private law remedies of declaration and injunction along with the prerogative orders. The rules are now contained in Order 53 of the Rules of the Supreme Court (revised version: 22 March 1999). The new Rules make no change of substance in this area, but when read with other aspects of the Civil Procedure Rules may give the court greater scope for requiring disclosure. See Elvin D. and Maurici J., “Judicial Review and the CPR” [1999] Judicial Review, 72.
14 [1953] 2 QB 18.
15 [1969] 2 AC 147.
16 The Commission’s refused Anisminic’s application because in 1957 the company had arranged to sell its assets in Egypt to an Egyptian organisation.
17 See also what is perhaps the leading twentieth-century case on the audi alteram partem principle: Ridge v. Baldwin [1964] AC 40.
18 O’Rourke v. Camden London Borough Council [1997] 3 All ER 23, 27c-e, per Lord Hoffmann.
19 Order 53 of the Rules of the Supreme Court, rule 8(1): “… any interlocutory application in proceedings on an application for judicial review may be made to any judge or master of the Queen’s Bench Division …”
20 [1982] AC 617, 654E. One could argue that this statement was confined to its facts as the NFSSB case concerned the tax records of other individuals which the courts have always regarded as confidential. However, it has been applied subsequently as a general principle. It is in distinct contrast to the view of Lord Diplock in O’Reilly v. Mackman [1983] 2 AC 237, 282C in which he suggested that discovery should be available “upon application whenever, and to the extent that, the justice of the case requires”.
21 [1992] COD 92.
22 A further illustration is provided by Slough Estates plc v. Welwyn Hatfield District Council [1996] 2 EGLR 219. In the course of the hearing in private law which followed successful judicial review proceedings many more documents emerged leading counsel for both sides to submit to May J that: “findings of fact by Kennedy J are open for review before me, since his findings were made on comparatively limited affidavit evidence exhibiting a comparatively limited number of documents, whereas I have heard oral evidence and considered many more documents”. At 234K per May J.
23 R. v. Lancashire County Council, ex parte Huddleston [1986] 2 All ER 941, 945, per Sir John Donaldson MR. This is no substitute for a right of disclosure since, as the court emphasised in that case, the duty of disclosure it announced was one owed to the court and not to the applicant.
24 Ibid at 945, per Sir John Donaldson MR.
25 Administrative Justice–Some Necessary Reforms (Oxford, Clarendon, 1998), para 6.32.
26 Administrative Law: Judicial Review and Statutory Appeals (No 226 1994), para 7.12. The Report is analysed by the present author under the title, “The Law Commission and Judicial Review: Principle Versus Pragmatism” 54 (1995) CLJ, 268.
27 10 December 1987 (unreported).
28 QBD, CO/1340/90 28/7/98.
29 Unreported. This statement was quoted in R. v. Independent Television Commission, ex parte Virgin TV Ltd QBD CO/3849/95, The Times, 17 February 1996.
30 [1995] 1 WLR 386.
31 Overseas Development and Co-operation Act 1980, s. 1(1).
32 Note 30, above, at 397F.
33 Akehurst, M., “Statements of Reasons for Judicial and Administrative Decisions” 33 (1970) MLR, 154 CrossRefGoogle Scholar; Flick G.A., “Administrative Adjudications and the Duty to Give Reasons–A Search for Criteria” [1978] PL, 16; Richardson G., “The Duty to Give Reasons: Potential and Practice” [1986] PL, 437; SirHarry, Woolf, Protection of the Public—A New Challenge (London, Stevens, 1990), 92–97 Google Scholar; Craig, P., “The Common Law, Reasons and Administrative Justice” 53 (1994) CLJ, 282 CrossRefGoogle Scholar and SirPatrick, Neill, “The Duty to Give Reasons: the Openness of Decision-Making” in Forsyth, C.F. and Hare, I.C. (eds), The Golden Metwand and the Crooked Cord—Public Law Essays in Honour of Sir William Wade QC (Oxford, Clarendon, 1998)Google Scholar.
34 It is, of course, possible for a statute to impose a duty upon an administrative authority to give reasons for its decisions. The leading example is the Tribunal and Inquiries Act 1992, s. 10 (replacing earlier provisions) which imposes such a duty on the long list of bodies contained in its schedules. A recent example of a judicial review sought on the ground that the reasons given by a public body in pursuance of a statutory duty were inadequate is Save Britain’s Heritage v. No 1 Poultry Lane [1991] 1 WLR 153.
35 The two grounds were summarised recently as arising “where the subject-matter is an interest so highly regarded by the law (for example, personal liberty), that fairness requires that reasons, at least for particular decisions, be given as of right … Another such class is where the decision appears aberrant. Here fairness may require reasons so that the recipient may know whether the aberration is in the legal sense real (and so challengable) or apparent”. R. v. Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 WLR 242, 263B, per Sedley J.
36 R v. Secretary of State for the Home Department, ex parte Doody [1993] 3 All ER 92, 110. Similar statements appear in R. v. Civil Service Appeal Board, ex parte Cunningham [1991] 4 All ER 310, 320, per Lord Donaldson MR; R. v. Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 All ER 651, 666 and 667, per Sedley, J and R. v. The Mayor, Commonalty and Citizens of the City of London and another, ex parte Matson 8 (1996) Admin LR 49, 62Google Scholar, per Neill, LJ. There are isolated examples of heretical statements of a general duty to give reasons, even if only in specific contexts: R. v. London Borough of Lambeth, ex parte Walters (1994) 26 HLR, 170 Google Scholar.
37 R v. Gaming Board of Great Britain, ex parte Benaim & Khaida [1970] 2 Q.B. 417; McInnes v. Onslow-Fane [1978] 1 W.L.R. 1520.
38 R. v. Secretary of State for the Home Department, ex parte Doody, above, n. 36, at 109 and 110. See also R v. Ministry of Defence, ex parte Murray [1998] COD 134.
39 Ibid at 111. The judgment of Rose, LJ in R. v. Secretary of State for the Home Department, ex parte Duggan [1994] 3 All ER 277, 287 is to similar effect: “the authorities show an ever-increasing variety of situations where, depending on the nature of the decision and the process by which it is reached, fairness requires that reasons be given”. See now Stefan v. General Medical Council, The Times, 11 March 1999 (Privy Council)Google Scholar.
40 [1997] 1 All ER 228.
41 Ibid at 253.
42 A Private Member’s Freedom of Information Bill introduced in the House of Lords on 10 December 1998 contains the clause: “A public authority shall make available—… (d) to any person, the reason for any decision taken by it in relation to any person.”
43 The two grounds may, of course, overlap and R. v. Civil Service Appeal Board, ex parte Cunningham [1991] 4 All ER 310 may be regarded as an illustration of both.
44 [1948] 1 KB 223, 230.
45 [1968] AC 997.
46 Ibid at 1053G. Similar statements were made in the case by Lord Reid at 1032G, and Lord Hodson at 1049F.
47 R. v. Penwith District Council, ex parte May (22 November 1985, unreported) is an example of a court allowing a judicial review application on the basis of this argument. See now R. v. Director of Public Prosecutions, ex parte Manning, The Times, 19 May 2000.
48 [1989] 1 WLR 525.
49 (1989) 5 Butterworths Company Cases 266, 280.
50 Note 48, above, at 535B. The decision of the Court of First Instance in Sytraval and Brink’s France v. Commission Case (Sytraval I) T–95/93 [1995] ECR II–2651 was criticised on similar grounds by the European Court of Justice (Sytraval II).
51 Note 48, above, at 540A. The Court of Appeal had previously rejected a broad interpretation of the Padfield principle in Secretary of State for Employment v. A.S.L.E.F. (No 2) [1972] 2 Q.B. 455.
52 Above n. 36 at 98 and 111.
53 R. v. The Mayor, Commonalty and Citizens of the City of London and another, ex parte Matson 8 (1996) Admin LR 49, 71, per Swinton Thomas LJ.
54 R. v. London Borough of Islington, ex parte Hinds (1995) 27 HLR 65, 75. See also the Opinion of Tesauro A-G in Case C-59/94 Netherlands v. Council [1996] ECR I-2169, para 19: “the right of access to official documents now constitutes part of [the democratic] principle. It is the essential precondition for effective supervision by public opinion of the operations of public authorities.”
55 R. v. Joint Higher Committee on Surgical Training, ex parte Milner (1995) 7 Admin LR, 454 cf In re D (Minors) [1996] AC 593.
56 R. v. Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 WLR 242.
57 R. v. Birmingham City Council, ex parte Aghar, 20 February 1996 (unreported).
58 See also R. v. Kensington and Chelsea Royal London Borough, ex parte Grillo (1996) 28 HLR, 94 in which the Court of Appeal held it inappropriate to impose a duty to give reasons on a housing authority which was balancing claims for priority in the face of an acute shortage of accommodation.
59 R. v. Higher Education Funding Council, ex parte Institute of Dental Surgery, above n. 56 at 257, per Sedley J. This is in sharp contrast to the clarity and consistency with which the Court of First Instance and the European Court of Justice have explained the twin rationale for the requirement of reasons in Article 253 (Article 190) and as a fundamental principle of Community law: “On the one hand, to permit the interested parties to know the justification for the measure in order to enable them to protect their rights; and, on the other, to enable the Community judicature to exercise its power to review the legality of the decision”. Case T–105/95 World Wild Fund UK (Sweden intervening) v. European Commission (France & or intervening) [1997] ECR II–313, para 66. See further the decisions of the Court of First Instance in Case T–188/97 Rothmans International BV v. Commission, 19 July 1999 (not yet reported) and Case T–14/98 Heidi Hautala v. Council, 19 July 1999 (not yet reported) and Ragnemalm H., “The Community Courts and Openness within the European Union” in this collection.
60 [1916] 2 AC 77, 107.
61 Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374, 412F.
62 (1996) 23 EHRR 413.
63 R. v. Secretary of State for the Home Department, ex parte Chahal [1995] 1 All ER 658, 663, per Staughton LJ.
64 Whether judicial review provides an effective remedy under Article 13 will depend upon the circumstances of the case and in some situations the European Court of Human Rights has held it to be adequate: Vilvarajah v. United Kingdom (1991) 14 E.H.R.R. 248. See now Smith and Grady v. United Kingdom, (2000) 29 EHRR 493.
65 (1999) 27 EHRR 249.
66 [1986] ECR 1651, para 20. See more recently Case C-120/97 Upjohn Ltd v. The Licensing Authority established by the Medicines Act 1968 (judgment of the Court of First Instance of 21 January 1999, not yet reported). This decision suggests that national courts are not bound to undertake merits review under the Johnston principle.
67 [1995] 4 All ER 400.
68 Under the Prevention of Terrorism (Temporary Provisions) Act 1989, s. 5.
69 Above n. 67 at 423f.
70 Ibid at 423j. On the definition of national security see now Secretary of State for the Home Department v. Rehman, The Times, 31 May 2000.
71 [1980] AC 1090, 1112G. See also R. v. Secretary of State for Defence, ex parte Sancto [1992–3] Admin LR 673, 687–8, per Rose J.
72 In the United States of America: Freedom of Information Act 1966 (amended 1974), Sunshine Act 1976 and Privacy Act 1974; in Canada: Access to Information Act 1982; in Australia: Freedom of Information Act 1982 (as amended); and in New Zealand: Official Information Act 1982.
73 Marshall, G. “Patriating Rights—With Reservations: The Human Rights Bill 1998” in Cambridge Centre for Public Law, Constitutional Reform in the United Kingdom: Practice and Principles (Oxford, Hart Publishing, 1998)Google Scholar.
74 De Haes and Gijsels v. Belgium (1997) 25 E.H.R.R. 1, para 53. See also Niderost-Huber v. Switzerland (1997) 25 E.H.R.R. 709; McGinley and Egan v. United Kingdom (1999) EHRR 1 and Rowe and Davis v. United Kingdom, The Times 1 March 2000.
75 (1995) 20 E.H.R.R. 205.
76 Ibid at para 87.
77 Although this right is limited to the situation where the state obstructs access to information which is available. Leander v. Sweden 9 E.H.R.R. 433 (1987).
78 The Bill was presented to Parliament by the Home Secretary in May 1999. It was preceded by a White Paper, Your Right to Know—The Government’s proposals for a Freedom of Information Act (Cm 3818). See Palmer S., “Freedom of Information–Principles and Problems: A Comparative Analysis of the Australian and Proposed UK Systems” in Cambridge Centre for Public Law, Constitutional Reform in the United Kingdom: Practice and Principles, above n. 73 and Birkinshaw, P. and Parkin, A., “Freedom of Information” in Blackburn, R. and Plant, R. (eds) Constitutional Reform (Longman, Harlow, 1999)Google Scholar. Present legislative initiatives cover access to personal information (Access to Personal Files Act 1987, Access to Medical Reports Act 1988 and the Access to Health Records Act 1990) and access to some governmental information (the Local Government (Access to Information) Act 1985 and the Environmental Information Regulations 1992).
79 The interests listed in clauses 16 to 35 of the Bill include defence or international relations, relations within the United Kingdom, the economy, investigations and proceedings conducted by public authorities, law enforcement, court records, decision-making and policy information, health and safety, personal information, information provided in confidence and legal professional privilege and commercial interests.
80 English courts have on occasion referred to the tendency towards secrecy in British government. In R v. Secretary of State for Health, ex parte US Tobacco International Inc [1992] 1 All ER 212, 225b, Taylor LJ stated: “One cannot help feeling that the denial of the applicant’s request [for sight of the Committee on Carcinogenity’s report into the applicants’ product] was due to an in-built reluctance to give reasons or to disclose advice lest it give opponents fuel for argument.”
81 Conway v. Rimmer [1968] AC 910, 952E, per Lord Reid. Lord Upjohn expressed similar views at 993. See also the materials on the claim of national security at ns 60–70 and associated text, above.
82 Harman v. Home Office [1983] 1 AC 280, 299. Even the government disagreed after the case was declared admissible under Articles 10 and 14 of the European Convention and reached a friendly settlement with the applicant involving the payment of her costs and an undertaking to change the law. Harman v. United Kingdom 46 (1986) DR ECommHR 57. Lord Diplock’s statement was echoed by Lord Dilhorne in British Steel Corporation v. Granada Television Ltd [1981] AC 1096, 1176F.
83 For example, in Burmah Oil Co v. Bank of England [1980] AC 1090, 1134F-G, Lord Keith of Kinkel refered to the inner workings of government being exposed to the public gaze and stated: “there may be some who would regard this as likely to lead, not to captious or ill-informed opinion, but to criticism calculated to improve the nature of that working as affecting the individual citizen”.
84 Outstanding examples are provided by the judgments of Scott J in Attorney-General v. Guardian Newspapers (No 2) [1990] 1 AC 109 and Browne-Wilkinson LJ in Wheeler v. Leicester City Council [1985] 2 All ER 151. English judges have made many extra-judicial pronouncements revealing a greater sympathy towards rights-based arguments. Lord Browne-Wilkinson, “The Infiltration of a Bill of Rights” [1992] PL 397; Sir John Laws “Law and Democracy” [1995] PL 72; Sir Stephen Sedley, “Human Rights: A Twenty-First Century Agenda” [1995] PL 386 and Freedom, Law and Justice (Hamlyn Lectures, London, Sweet & Maxwell, 1999).
85 In particular, the change of judicial approach between Duncan v. Cammell, Laird & Co [1942] AC 624 and Conway v. Rimmer [1968] AC 910.
86 Attorney-General v. Jonathan Cape Ltd [1976] 1 QB 752. In Derbyshire County Council v. Times Newspapers Ltd [1993] 1 All ER 1011, Lord Keith of Kinkel stated at 1019c: “There are rights available to private citizens which institutions of central government are not in a position to exercise unless they can show that it is the public interest to do so. The court will assume that it is in the public interest that information about an individual should remain confidential unless the defendant can established that a counter-vailing public interest requires disclosure.”
87 Ibid at 1017j, per Lord Keith.
88 [1974] AC 273.
89 Sunday Times v. United Kingdom 2 EHRR 245 (1979).
90 Ibid at para 65. This method is similar to that adopted by the Community judicature in relation to the citizen’s right of access to Commission documents: “In accordance with the Code of Conduct, however, the right of access to documents is subject to certain exceptions. Those exceptions must be interpreted strictly, in order not to frustrate the application of the general principle of giving the public ‘the widest possible access to documents held by the Commission’ (WWF UK above n. 59, paragraph 56).” Case T–124/96 Interporc Im- und Export Gmbh v. Commission [1998] ECR II–231, para 49.
91 For example, Re Insider Dealing Inquiry [1988] 1 All ER.
92 [1991] 1 AC 1.
93 Secretary of State for Defence v. Guardian Newspapers [1985] AC 339, 350.
94 Above n. 92 at 43F–G.
95 Goodwin v. United Kingdom (1996) 22 EHRR 123.
96 Ibid at para 46. See now John v. Express Newspapers, The Times, 26 April 2000.
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