Hawktalk’s own informants and spies have managed to glean significant intelligence about the discussions at the first General Regulatory Chamber (GRC) Conference held recently at Warwick University. No, this wasn’t a meeting of a Grand Masonic Lodge but rather an event that will be of significance to all DP and FOI practitioners, the latter being most affected. The reason: there is the prospect of a further appeal beyond the decisions made by a new Information Tribunal where that appeal does not involve the expense of going to Court.
In mid January, the Information Tribunal is being transferred to become part of “the First-tier Tribunal”. This First–tier Tribunal is a generic tribunal established under the Tribunals, Courts and Enforcement Act 2007, and according to the Tribunal’s website “its main function is to hear appeals against decisions of the Government where the Tribunal has been given jurisdiction”. This is slightly misleading - it will also hear appeals in other areas as well.
The First–tier Tribunal is currently divided into six chambers. It looks as if the Information Tribunal is to become known by the catchy title of "First Tier Tribunal (Information Rights) of the General Regulatory Chamber". All lay Members of the Tribunal will become known as "Other Members" which if I am honest sounds like something rude. The Chair becomes “Principal Judge” and the Deputy Chairs “Judges”.
The interesting point for practitioners relates to the GRC Rules of Procedure as it includes a new right for appellants to appeal against the First-tier Tribunal's ruling to an Upper Tribunal also divided into “Chambers” (just like in Harry Potter films). Appeals with respect to Decision Notices impacting on the release of documents relating to the War on Iraq, or the Gateway Reviews of the much loved ID Card Project, readily spring to mind as illustrations of the type of issues that are likely to qualify for an appeal to the Upper Tribunal.
The main functions of the Upper Tribunal are:
• To take over hearing appeals to the courts from the decisions of local tribunals;
• To exercise powers of judicial review in certain circumstances ; and
• To deal with enforcement of decisions, directions and orders made by tribunals.
So instead of the expense of going for judicial review or appeal to the Courts on a point of law, an aggrieved complainant can ask for the case to be placed before the Upper Tribunal. Obviously the Upper Tribunal will not hear cases without merit or are vexatious, but where the case is of significant public interest etc, the cost of a judicial review will be reduced as I understand that both sides will be expected to carry their own costs.
The Upper Tribunal can also consider certain cases that because of their nature do not go to the First-tier Tribunal (e.g. an appeal against the ICO’s Decision Notice that involves requests of a controversial nature). If this happens, a further appeal on narrow “points of law” grounds is possible (e.g. to the Court of Appeals and thence to the House of Lords) but this means that FOI applicants whose case is set before the Upper Tribunal will face extra costs if the Upper Tribunal’s decision goes against them and they want to continue legal action.
However, the new arrangement in many cases should mean that simple blokes like me (or pressure groups) should be able to refer cases of particular interest or merit to the equivalent of the High Court without the risk of paying the other side’s costs. Now that’s a prospect to think about.
Hi - shouldn't that be "...thence to the new Supreme Court"? The Law Lords are no more...
Posted by: J Baines | 23/09/2009 at 12:08 PM