“One should not be privy to the contents of the Royal Privy.” Counsel at the initial case management hearing.
Just over four years ago I made an EIR request to the Royal Household asking for the minutes of their social responsibility committee, and last week I received the Upper Tribunal’s verdict on the matter – neither the Sovereign nor the Royal Household are Public Authorities under any of the heads of the legislation. I had a good idea that my appeal would fail after the CJEU judgement in Fish Legal moved the goalposts by rewriting the definition of public administrative functions, but I am happy that the matter was properly and fairly considered and that some useful case law was made along the way.
Others have talked about some of the precedent this has set regarding the interpretation of Article 2(2)(b) of the directive. I would only add, that as paragraph 133 of the judgement makes clear, regulation 2(2)(c) of the EIR makes no reference to the environment, and so is potentially broader than the definition in the directive, allowing bodies who perform public administrative functions that don’t relate to the environment to be caught.
I’m not going to say any more about the judgement as any disagreements would be for an appeal rather than my blog, but I’d like to give you a taste of what is it like to be a litigant in person involved in a First-Tier Tribunal case, that became an Upper-Tier Tribunal case, that required a Judicial Review and participation in a second Upper-Tier Tribunal case before the initial hearing.
The tribunal process is supposed to be accessible to litigants in person, but there is not a lot of guidance or advice available to those who are looking to bring a case. I was fortunate that by virtue of the Cabinet Office’s challenge to the Tribunal’s jurisdiction in my case and, the need for there to be a consistent interpretation of the CJEU judgement, I got to attend and speak at the UT hearing in the Fish Legal case as a sort of practice run.
Here is some of what I learnt as I went along:
Lesson 1 – contact the tribunal in advance of the hearing to find out where you need to be.
Before the case management hearing I had never stepped foot in a court building before. It was perhaps, quite fitting given the subject matter of my case that my first time was at the Royal Courts of Justice. This is exactly what I imagine Hogwarts to be like. Unfortunately, this presented me with my first unexpected problem – where to go. The Upper Tribunal is based up the road in the Rolls building, and as such, the case did not appear on any of the court lists inside the RCJ. The letter that the tribunal sends you doesn’t tell you what courtroom you need to go to either, and there were quite a lot to chose from. I went to the information desk, where staff tried to send me to the Rolls Building, as they had no idea that the hearing was being held at the RCJ, let alone where it was. Thankfully they took pity on me and phoned through to the UT who told them where I needed to go. I got given this rather long set of directions:
I’m sure the stairs move during the hearings.
Lesson 2 – Expect extra paper
I arrived at the case management hearing without much time to spare, where I was handed skeleton arguments and various other bits of paper from the other parties. This also happened at all of the later hearings. At the Fish Legal hearing, the amount of additional papers provided by the Water Companies was so great, that it came spiral bound with tabbed dividers and an index. This presents some difficulty when you are representing yourself, as you do not have an opportunity to read the papers, let alone to get any help to figure out what they mean.
Lesson 3 – Everyone makes mistakes.
During the case management hearing the barrister sitting next to me knocked over his glass of water and had to build a dam out of ring binders to stop my papers from getting wet. On day one of Fish Legal when the Tribunal was sitting as the administrative court to hear the Judicial Review, some of the barristers turned up robed and had to change before it started. I have spoken to others who have been to tribunal who were worried that they would not even know what to call the judge. During the Fish Legal hearing, I heard counsel address Charles J as my lord, your honour and sir. If you are bringing a case yourself, don’t be intimidated by the process and worry about making small errors – even the professionals get it wrong on occasion.
Lesson 4 – Make sure you have all the papers that you are meant to
I turned up at the Fish Legal hearing thinking I had been given all the paperwork only to find out that that there were additional folders which I simply did not have. By day 2 I had managed to track down who was meant to have served me with what, and I then received the additional 46 authorities by email, unlabeled and without an index. This made following proceedings quite hard. I’d also decided to use the electronic version of the bundle on my laptop which would have been fine if a) everyone else had not referred to a different version with different page numbering to that which I had been given, and b) if the RCJ had had plug sockets. There were also so many parties involved that when additional papers were circulated during the hearing itself, I was sometimes missed out and I nearly had to interrupt the hearing because of this. It is important to know what you are meant to have received in advance of the hearing. If you think you are missing something or being disadvantaged in some way by it, it is important to speak up.
Lesson 4.1 EIR litigation is bad for the environment.
So much wasted paper.
Lesson 5 – Expect the unexpected
Day one of my hearing was meant to consist of evidence from Professor Blackburn and the Keeper of the Privy Purse, who I got to question under oath, but this took much less time than expected and so I had to make my case that day. I was not helped by the fact that the Cabinet Office dropped a large chunk of their argument at the start of the hearing. This meant that most of my questions to Sir Alan Reid were no longer relevant, and so I had to quickly ditch these on the spot. I then was given a few hours to rewrite the rest of my argument and cross out large parts of it in a nearby cafe. This was one of the more challenging things that I had to do and not an ideal way to prepare for making your case.
Lesson 6 – I wish I’d learnt french.
I speak several languages, but I don’t know a word of french because my husband stole my place in french class at school when we were 13 (he has not yet been allowed to forget it). This presented me with some difficulty when counsel for the
Cabinet Office DEFRA decided to read directly from the french version of the directive and the Advocate General’s opinion. I was expecting to hear latin, amused to hear the ancient greek for laying a sewage pipe across another man’s land as an added bonus, but was not expecting arguments on the meaning of individual french words, which were meant to be different to that given to them by the official translators. I also discovered that directives have travaux preparatoires, even if I had to google what that means. I don’t know the correct protocol for submitting evidence in another language, but I always used the english versions in my submissions.
Lesson 7 – Bring a friend
It’s good to have someone to talk to before the hearing, vent at over lunch and to take notes for you about what is happening whilst you’re speaking. During the Fish Legal hearing I was on my own whilst the other parties all had a sizable entourage. It can feel quite intimidating to be the only person in the room who is on your side. When my hearing came I had @FOIkid to keep me company, whose notes (and doodles) were a great help. I wouldn’t have managed to stay as calm as I did without him being there to help me.
Lesson 8 – Your greatest advantage may be your time.
Where other parties are represented by counsel who will have been involved in dozens of cases in the time between you lodging your appeal and any hearing, you will likely only have had one case to think about. I used this time to do research. Where it was said that the Sovereign had no statutory powers, I had time to list of dozens of them, where it was said that a body needed legal personality to be subject to EIR, I had time to make a list of bodies without legal personality that are subject to EIR and so on. I also got to know my arguments inside out which gave me much needed confidence going into the hearing and better enabled me to respond to questioning.
Lesson 9 – If you need more time ask
During the three years that my case took to be heard, the vast majority of the filing deadlines were extended to give the other parties more time. I was granted an extension once after I had been served documents late. If you need more time and think that you have a good reason to get it, don’t be afraid to ask for an extension.
I was very grateful to the assistance that I received from the lawyers representing the other parties during the course of all the hearings who answered some of the process related questions that I had, gave me general encouragement and even shared documents where I had not been given them. This made the process much easier. I have learnt a lot in bringing this case and would feel more confident in future in bringing other cases should the need arise. I am particularly pleased that as a result of the jurisdictional challenge that arose from my case, the ICO now publishes “decision letters” (where it has ruled that a body is not subject to EIR or FOI) and that these are now equal to decision notices.
The Tribunal system is an important safeguard against mistakes made by a chronically underfunded ICO. It is vitally important that requesters have access to a free and easy appeal route that can consider points of fact as well of points of law. The number of cases that are dealt with by consent order after the ICO has admitted that it has got the facts wrong, clearly show that it does not always get them right. The changes proposed by the FOI Commission would make the appeal process even less accessible to those who are unrepresented, when we should be making it as simple as possible for requesters to uphold their information rights.