Cross v Information Commissioner and the Cabinet Office
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Charles |
| Neutral Citation | [2016] UKUT 153 (AAC),[2016] UKUT 153 (AAC),[2016] AACR 39 |
| Subject Matter | Information rights,Information rights - Environmental information - general |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Date | 22 March 2016 |
[2016] AACR 39
(Cross v IC)
1
[2016] AACR 39
(Cross v Information Commissioner and the Cabinet Office
[2016] UKUT 153 (AAC))
Mr Justice Charles CP GIA/2187/2013
Judge Gray
Mr H Fitzhugh
22 March 2016
Environmental information – whether the Sovereign or the Royal Household a “public
authority” for the purposes of the Environmental Information Regulations 2004
Following the refusal of her r equest for the minutes of the Royal Household’s Social Responsibility Committee
meetings, Mrs Cross complained to the Information Commissioner. He rejected her complaint on the basis that
neither the Sovereign nor the Royal Household constituted a public authority for th e purposes of the Environmental
Information Regulations 2004 (EIR). Mrs Cross’s appeal to the First-tier Tribunal was transferred to the Upper
Tribunal, and among the issues before it were not only the difference in language between the EU Directive on
Public Access to Environmental Information (Council Directive 2003/4/EC) and the Environmental Information
Regulations 2004, but also the meaning of the phrases “the performance of services of public interest” and “special
powers” within the Court of Justice of the European Union’s decision in Fish Legal and Shirley v Information
Commissioner C-279/12, EU:C:2013:853, [2014] 2 WLR 568, [2014] AACR 11.
Held, dismissing the appeal, that:
1. the Crown was personified by the Sovereign, as a legal person and a constitutional monarch, but the
Sovereign was not and did not act as the Crown in the sense of governm ent; there was a clear distinction between
the public administration and executive and the Sovereign’s constitutional functions and powers (paragraphs 52 to
58);
2. the Royal Household served the Sovereign, not the Crown in the sense of government. The roles, duties and
powers of the Royal Household’s members were directed to the implementation of the Sovereign’s functions and
powers and co-extensive with them and it had no separate legal personality and was not an unincorporated
association or partnership. In broad and private law ter ms the members of t he Royal Household are agents for the
Sovereign (paragraphs 59 to 64 );
3. the Sovereign, n ot being a part of the government, was not a public authority; as a matter of substance she
held and exercised all of her functions and powers in a formal, ceremonial or personal capacity, a nd, under
constitutional law, the Sovereign had n o executive or administrative role to play when exercising her function and
powers (paragraph 71);
4. regulation 2(2)(a) and (b) of the EIR did not apply to the Sovereign. She was not a government department
and did not appear in Schedule 1 to the Freedom of Information Act 2000 and the Sovereign’s addition to that list,
or that of the Royal Household, would not fit easily with section 37 of the Act (paragraphs 75 to 76);
5. the natural meaning, intention and effect of Ar ticle 2(2)(b) of the Directive meant that in order to satisfy the
functional test the relevant entity must be “performing public administrative functions under national law, including
specific duties, activities or services relating to the environment ” and that approach clearly reflects Recital (11) of
the Directive and the Court of Justice of the European Union’s decision: Fish Legal and Shirley v Information
Commissioner C-279/12 (paragraphs 86 to 94);
6. Fish Legal and Shirley v Information Commissioner C-279/12 contained important and binding guidance on
the m eaning and application of t he tests set by the Directive and the EIR so as to give effect to the Directive’s
underlying objectives. It followed that C-279/12 should not be appl ied rigidly or without r eference to both the
Directive and the E IR, including determining whether in all the circumstances of the case th e relevant entity was a
functional public authority (paragraphs 99 to 100).
[2016] AACR 39
(Cross v IC)
2
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
REASONS
Overview and conclusion
1. The difference in language between the EU Directive on Public Access to Environmental
Information (Council Directive 2003/4/EC) (“the Directive”) and the Environmental Information
Regulations 2004 (SI 2004/3391) (“the EIR”) causes complications. For example, it is not
immediately apparent where the Sovereign, or the Royal Household, or the holder of an office or
an employee (who together are commonly described as the Royal Household) is included within
the definition of a public authority in the EIR if they fall within that definition in the Directive.
2. The use of the descriptors “the performance of services of public interest” and “special
powers” by the CJEU in Fish Legal v Information Commissioner [2014] 2 WLR 568 (Fish Legal
EU) introduces descriptions that have a range of meaning into the approach to be applied.
3. Additionally, convention and practice relating to the Monarchy cause complications and
probably explain why much time and effort was initially directed in the written arguments to
whether the Royal Household, rather than the Sovereign, is a public authority or the relevant
public authority in this case. Before us it became common ground that this was a red herring
although the Information Commissioner reserved for another day the argument whether only
bodies with a legal personality can qualify as a public authority under regulation 2(2)(c) of the
EIR.
4. Before us, and in our view correctly, it became common ground that whether or not the
Royal Household has a legal personality or is a body for the purposes of the EIR:
i) the relevant roles and functions of the Royal Household are co-extensive with
those of the Sovereign, and so
ii) the determinative question is whether the Sovereign, and so the relevant roles and
functions of the Sovereign, make her a public authority for the purposes of the
Directive,
iii) if the answer is that the Sovereign is a public authority under the Directive, it was
accepted that we should conclude that the Sovereign, as a natural and so legal
person, was a public authority under the EIR or that the Directive was directly
enforceable, and
iv) if the answer is that the Sovereign is a public authority, an officer of the Royal
Household would act on her behalf in dealing with any request made under the
EIR or the Directive and any decision (eg.by the Information Commissioner)
made in respect of that request.
5. In our view the answer to this determinative question is that the Sovereign is not a public
authority for those purposes because the Sovereign does not have executive or administrative
functions and so in the terms of paragraphs 51 and 52 of the judgment of the CJEU in Fish Legal
EU:
To continue reading
Request your trial
1 cases
-
The A G for the Prince of Wales v Information Commissioner and Mr Michael Bruton
...FOIA to add to the list of public authorities, how that gap should be filled. 50. In Cross v IC and the Cabinet Office GIA/2187/2013; [2016] UKUT 0153 (AAC) (the Cross case) it was not argued to be a public authority under the functional test the entity had to be entrusted with special powe......