Fish Legal v Information Commissioner and others (Information rights practice and procedure)  UKUT 52 (AAC) Charles J – read judgment
Water and sewage utility companies are “public authorities” for the purposes of the environmental information regulations, and are bound by them accordingly, the Administrative Appeals Chamber of the Upper Tribunal has ruled.
Fish Legal is the legal arm of the Angling Trust. In 2009 it asked United Utilities Water plc and Yorkshire Water Services Ltd for information relating to discharges, clean-up operations, and emergency overflow. Emily Shirley is a private individual. Again, she asked Southern Water Services Ltd for information relating to sewerage capacity for a planning proposal in her village. All three companies denied that they were under a duty to provide the information under Environmental Information Regulations. Both Fish Legal and Mrs Shirley complained to the Commissioner. In 2010 the Commissioner replied, explaining that as the companies were not public authorities for the purposes of EIR, he had no power to adjudicate the complaints. Continue reading
This week’s Round-up is brought to you by Alex Wessely.
In the news:
Military chiefs have criticised the influence of Human Rights law in a report published this week, arguing that the “need to arrest and detain enemy combatants in a conflict zone should not be expected to comply with peace-time standards”. This follows a series of cases over the years which found the Ministry of Defence liable for human rights violations abroad, culminating in allegations of unlawful killing in the Al-Sweady Inquiry that were judged “wholly without foundation” in December.
Department of Health v. Information Commissioner et al  UKUT 159, 30 March 2015, Charles J read judgment Simon Lewis requested that the Department of Health supply him with copies of the ministerial diary of Andrew Lansley from May 2010 until April 2011, via a Freedom of Information request. Mr Lewis’s interest in all this is not revealed in the judgment, but I dare say included seeing whether the Minister was being lobbied by private companies eager to muscle in on the NHS in this critical period. But such is the nature of FOIA litigation that it does not really look at the motive of the requester – and this case does not tell us what the diary showed. Indeed by the time of this appeal, Lewis was untraceable, and the burden of the argument in favour of disclosure was taken up by the Information Commissioner. The real interest in this decision is in Charles J’s robust agreement with the First Tier Tribunal that the information should be disclosed. In so doing, he fully endorsed the criticisms made by the FTT of the eminent civil servants who gave evidence before the FTT – in trenchant terms, as we shall see. He also gave an interesting account of how the public interest qualification should be applied in response to FOIA requests. Continue reading
When late last year the US Senate Select Committee on Intelligence published parts of its 6,700 page report on the CIA’s detention and interrogation programme, it shed light – remarkable light – on how the ‘war on terror’ had been conducted by the US for some time.
It very rightly prompted questions for this country. The most immediate and top level question was, if that is what the US did, what did Britain do? But one need barely scratch the surface of the matter before encountering some difficult questions about method – how do we find out what Britain did? – and about scrutiny – are there lessons to be learned about oversight and accountability?
We review here some of the expert opinions and highlight five issues that, if the experts are right, are likely to lie at the heart of debate for some time to come. Continue reading
Procedural fairness is a bit like an elephant. It is difficult to define in abstract, but you know a fair procedure when you see one. So Lawton LJ put it in Maxwell v Department of Trade  QB 523, 539
The trouble is it seems that different courts have different ideas of “elephantness”. Since we know that fairness is a necessarily context-sensitive notion, this, in itself, does not seem to give rise to too much difficulty. But practical problems start to arise when, for example, the Court of Justice of the European Union (CJEU) starts to endorse a view of fairness that is binding on the UK courts, but at odds with the approach taken by the UK Supreme Court. Add the facts that a) the UK is required to take into account the case-law of the European Court of Human Rights (ECtHR), which seems to have a different conception of fairness to that of the CJEU and b) the UK courts themselves do not necessarily speak with one voice, there’s a heady mix.
This brief post attempts to survey the area, and to discern the bumps in the road. Smoothing them out is another challenge in itself, and will probably require more than filling in the odd pot-hole. Continue reading
Pham v Secretary of State for the Home Department  UKSC 19 – read judgment
Angus McCullough Q.C. and Shaheen Rahman from 1COR acted as Special Advocates earlier in these proceedings. They had nothing to do with the writing of this post.
On first glance, this was not a judgment about human rights. It concerned the definition of statelessness under article 1(1) of the 1954 Convention Relating to the Status of Stateless Persons, and raised issues of competence and jurisdiction in relation to EU citizenship. Its specific interest for human rights lawyers lies primarily in the observations about the principle of proportionality; and in where the case, which most certainly does raise human rights issues, is likely to go next.
Google Inc v Vidal-Hall and others  EWCA Civ 311 (27 March 2015) – read judgment
This case concerned the misuse of private information by an internet provider based in the United States. Google had secretly tracked private information about users’ internet browsing without their knowledge or consent, and then handed the information on to third parties (a practice known as supplying Browser-Generated Information, or ‘BGI’).
The issue before the Court of Appeal was twofold:
- Was the cause of action for misuse of private information a tort, specifically for the purposes of the rules providing for service of proceedings out of the jurisdiction?
- What was the meaning of ‘damage’ in section 13 of the Data Protection Act 1998 (the DPA) and in particular, did it give rise to a claim for compensation without pecuniary loss?