Jonathan Browning v The Information Commissioner (1st Respondent) The Department for Business, Innovation and Skills (2nd Respondent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay |
| Judgment Date | 30 July 2014 |
| Neutral Citation | [2014] EWCA Civ 1050 |
| Docket Number | Case No: C3/2013/2239 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 July 2014 |
[2014] EWCA Civ 1050
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (AAC)
(CHARLES J, THE PRESIDENT OF THE
ADMINISTRATIVE APPEALS CHAMBER OF THE
UPPER TRIBUNAL, MITTING J AND UPPER TRIBUNAL JUDGE
ANDREW BARTLETT QC)
[2013] UKUT 236 AC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay
Lord Justice Patten
and
Lord Justice McCombe
Case No: C3/2013/2239
and
Philip Coppel QC and Anthony Hudson (instructed by Howard Kennedy) for the Appellant
Ben Hooper (instructed by The Information Commissioner) for the 1 st Respondent
Gerry Facenna and Julianne Stevenson (instructed by Treasury Solicitors) for the 2 nd Respondent
Hearing dates: 18–19 June 2014
Approved Judgment
This appeal raises an important procedural issue in relation to the Freedom of Information Act 2000. When the First-tier Tribunal (FTT) is hearing an appeal against a decision of the Information Commissioner (IC), in what circumstances (if any) can it lawfully adopt a closed material procedure (CMP) in which a party and his legal representatives are excluded from the hearing or part of it? Neither the Tribunals, Courts and Enforcement Act 2007 (TCEA) nor the First-tier Tribunal (General Regulatory Chamber) Rules 2009 (the FTT Rules) provides expressly for a CMP or for the appointment of a special advocate (SA) to protect the interest of an excluded party. The procedural history of this case illustrates the problem. Before detailing that history, it is appropriate to set it in the context of the underlying dispute.
Jonathan Browning is a respected journalist who works for Bloomberg News. On 11 September 2008 he emailed a Freedom of Information Act ( FOIA) request to the Department of Business Information and Skills (DBIS) seeking information as to, inter alia, "which companies applied to the Export Control Organisation for export licences to Iran in the first and second quarters of this year".
As is well known, the licensing system in relation to exports to Iran results from certain resolutions of the United Nations Security Council and corresponding European Union measures. Licences are required for certain (but not all) categories of exports. In this country the licensing system is administered by the Export Control Organisation (ECO) under the aegis of DBIS. The governing domestic legislation is to be found in the Export Control Act 2002 and the Export Control Order 2008.
On 17 November 2009, DBIS replied to Mr Browning's application, stating that the requested information was exempt from disclosure pursuant to sections 41(1) and 43(2) of FOIA and that the public interest lay in maintaining the exemption. That decision was maintained following an internal review.
On 5 March 2010, Mr Browning filed a complaint with the IC. On 17 January 2011 the IC served a Decision Notice in which he concluded that the reliance on sections 41(1) and 43(2) was misplaced. He required DBIS to release the requested information.
DBIS appealed to the Information Tribunal (whose functions have now been absorbed within the FTT) and Mr Browning, upon his application, was joined as a party to the appeal. Prior to the hearing before the FTT, the IC changed his position. Having seen some material disclosed to him (but not to Mr Browning) by DBIS, he now supported DBIS's case on sections 41(1) and 43(2).
The hearing of DBIS's appeal took place before the FTT on 4–5 August 2011. Mr Browning was represented by Mr Philip Coppel QC. DBIS was represented by Mr Gerry Facenna and the IC by Mr Ben Hooper. The IC made common cause with DBIS. In open session, DBIS relied on the evidence of Tom Smith of the ECO and Martin Johnson, Director-General of the British-Iranian Chamber of Commerce. They gave evidence in general terms of detriment and prejudice to applicant companies which would result from the release of their identities into the public domain. Such companies included those which required and were granted licences, those which required but were refused licences and those which applied out of an abundance of caution but were considered not to require licences. Following the open session, the FTT held a closed hearing from which Mr Browning and Mr Coppel were excluded. It is no secret that, during it, the FTT heard two witnesses from applicant companies who gave evidence about detriment and prejudice.
The decision of the FTT
The FTT refused an application on behalf of Mr Browning that Mr Coppel (but not Mr Browning himself) be permitted to attend and participate in the closed hearing pursuant to an undertaking as to confidentiality. The FTT accepted that Mr Coppel would comply with such an undertaking but refused the application by reference to its established practice exemplified by British Union for the Abolition of Vivisection v ICO and Newcastle University EA 2010/0064 (to which I shall refer as the BUAV case) and other decisions.
It proceeded to allow DBIS's appeal. Its reasoning embraced acceptance of the evidence of the witnesses who had been heard in the closed session. No issues of national security arose or arise in relation to that evidence and, notwithstanding the adoption of the CMP, the essence of it was disclosed during the open hearing and is referred to in the judgment of the FTT. The judgment includes the following passages.
On the issue of the closed session, the FTT said:
"33. There was nothing exceptional about the closed session evidence in this case. It was quite straightforward and came from two businessmen who exported to Iran. …the evidence, when heard in closed session, reinforced that conviction. As we indicated before the session began, we were ready to review the position if our preliminary impression, for any reason, changed. It did not.
34. We concluded that this was far from an exceptional case and refused the application".
Under the heading "the closed session evidence", the FTT then stated:
"35. The asserted need for confidentiality relates only to the names of the witnesses and their businesses and the nature of those businesses, from which the names might be deduced. The effect of their evidence was straightforward and can be shortly summarised in the publicly available decision.
36. Both had direct experience of lawfully exporting to Iran over a substantial period…Both had experienced critical problems in the withdrawal of banking facilities by major UK banks because of their trade with Iran. The bank's letter withdrawing facilities was exhibited to the statement of one of the witnesses. Both suffered repeated rebuffs from other banks, which they approached to provide facilities. One ultimately overcame the problem by "disguising" the source of payment through routing via a foreign bank. The "disguise", apparently, was required by the bank that eventually provided facilities so that there was no evidence that it knew that funds came from Iran – surely a deplorable state of affairs. Similar problems were confronted when attempts were made to transfer funds, lawfully held in Iraq, to a UK account. European banks refused to act. Eventually a bank within the EU agreed to make transfers but at a very high rate of commission.
37. Both witness stated that these problems had done immense damage to their businesses, indeed that they had faced closure. Both spoke of competitors facing these difficulties.
38. Their evidence confirmed that the risk of withdrawal or refusal of banking services extended to European and, plainly, to US institutions.
39. It was made clear to them that this aversion to Iranian transactions was the result of the perceived risk of withdrawal of the US correspondent banking licences without which a bank cannot trade in US dollars. Major European banks have, of course, a considerable presence in the USA for more general business purposes.
40. Evidence was also given of the potential loss of business from US companies, if this trade were publicised. On the other hand, major suppliers refused to do any business with a company trading with Iran, even for the purposes of exporting to a quite distinct end user.
41. More generally, both companies feared scrutiny by the US authorities and their inclusion on a black list which cut off all trade contacts with the USA and perhaps more widely. We were referred to the websites of the Office of Foreign Assets Control…, an organ of the US Treasury, which enforces economic sanctions worldwide and blacklists companies and individuals with which US entities are prohibited from trading.
42. All these measures are liable to be taken against companies engaging in trade which is perfectly lawful according to EU law and the domestic law of the country in which they are registered and controlled.
43. One of the witnesses emphasised his expectation of confidentiality in making a licence application, having regard to the consequences of disclosure which he described."
I have set out those paragraphs at length so as to demonstrate the extent to which the product of the closed session was disclosed openly. It was disclosed to Mr Browning and Mr Coppel at the time so as to enable Mr Coppel to make submissions about it.
Later in the decision, the FTT addressed the relevant exemptions. It concluded that the information was clearly confidential (paragraphs 55–57) and that detriment was clearly established. As to detriment, it stated:
"60…we were strongly impressed by the strength of the evidence on detriment...
To continue reading
Request your trial
-
R Immigration Law Practitioners, Association v Tribunal Procedure Committee and Another
... ... Secretary of State for the Home Department Defendant ... Shivani ... Office) and the relevant General Case Information Database ("GCID") Case Record Sheets (also ... ...
-
R Tony Michael Jimenez v The First Tier Tribunal (Tax Chamber) (First Respondent) HM Commissioners for Revenue and Customs (Second Respondent)
...to the approach of the Upper Tribunal and the Court of Appeal in Browning v Information Commissioner and another [2013] UKUT 0236 and [2014] EWCA Civ 1050 and [2014] 1 WLR 3848. 69 To my mind, applying fundamental principles and the Rules of the First-tier Tribunal (including the overridi......
-
R Immigration Law Practitioners, Association v Tribunal Procedure Committee and Another
...of the Tribunal at First-tier or Upper Tribunal level have made use of rule 13 when available. In Browning v Information Commissioner [2014] EWCA Civ 1050 [2014] 1 WLR 3848 the Court of Appeal was concerned with a rule enabling the General Regulatory Chamber to sit in private in the cours......
-
All Party Parliamentary Group on Extraordinary Rendition GIA 2230 2012
...respectfully agree with the opening sentence of paragraph 33 of the judgment of Maurice Kaye LJ in Browning v Information Commissioner [2014] EWCA Civ 1050; [2014] 1 WLR 3848 ‘The crucial task is to devise an approach in the in context of the specific case which reconciles the divergent int......
-
The role of special advocates
...R vDerby Magistrates’ Court ex p B [1995] 4 All ER 526 at 541, per Lord Taylor CJ.50. See, e.g., Browning vInformation Commissioner [2014] EWCA Civ 1050, [2014] 1 WLR 3848 at [31].51. Special Immigration Appeals Commission (Procedure) Rules 2003, r. 36(6).Jackson 353 question arises as to h......