Week 16: Means of Redress, Freedom of Information

Question 1

Explain redress

Answer 1

Administrative procedures by which individuals can seek remedy for where the use of public power goes wrong

Governmental power is exercised at the individual level

• Lives and livelihoods affected by decisions on benefits, licences, planning permissions etc.

Each case may affect only one or a few people, but collectively vital to nature of government and its legitimacy

• Embodies respect for individuals and rule of law

Question 2

How can things be done right the first time to ensure there is no need for redress

Answer 2

Incorporate feedback from previous appeals etc into future decisions

Question 3

Obstacles for getting things right the first time, in regards to redress

Answer 3

• Discretion in how public authorities make decisions
• Complexity of the law
• Amount of work
• Different opinions on what is a “good” outcome

Question 4

How can grievances such as unhappiness at administrative decisions (Refusal of a licence, to provide benefits etc.) be dealt with

Answer 4

• By providing right of appeal
• Full reconsideration of the merits of the case; not just procedure and legality
• Appeal body substitutes its own view of what should happen

Question 5

Explain rights of appeal

Answer 5

Right of appeal must be expressly created, with details of procedure

• Every legislative scheme slightly different
• If no right of appeal, only option will be judicial review (which only considers legality)

Right of appeal normally given only to the party directly affected

• The applicant for a licence or benefit
• More controversial when decision also affects wider public (E.g. planning permission, operating licence)
• Only option for objectors is judicial review

Question 6

What are the 3 types of appelate bodies (hear appeals under the statutory appeal processes)

Answer 6

• internal
• courts
• specialist body

Question 7

Describe the internal appellate body

Answer 7

• within same authority or to higher body, e.g. Ministers
• quick, simple, very expert
• no independence - minister may be independent in hearing appeal but they is always doubt that there are additional factors that could be relevent i.e. personal relationships

Question 8

Describe the courts as an appelate body

Answer 8

• lack of expertise on subject-matter
• Formal, independent
• Problems over cost and delay
• Increased burden of hearing decisions on courts -longer delay in appeal being heard

Question 9

Describe the specialist appellate body

Answer 9

• expert
• separate from initial decision-maker
• procedure suited to nature of cases
• cant make too many because it will drain governments resources

Question 10

Explain the evolution of the tribunal system

Answer 10

Developed piecemeal → Now reformed and reorganised
1957 (Franks Committee):

• Tribunals are a mechanism for adjudication, and should be open, fair and impartial
• Advantage of cheapness, accessibility, freedom from technicality, and expert knowledge

2001 (Leggatt Review):

• Merged a range of separate tribunals and introduced major reforms

2007 (UK) 2014 (Scotland):

• Tribunals, Courts and Enforcement Act 2007
• Tribunals (Scotland) Act 2014

Question 11

Describe tribunals, what they do and who is on a tribunal panel.

Answer 11

Tribunals are dedicated as bodies for adjudication

• consider the merits of cases
• decide the substantive issue
• E.g. should a person get a licence or a benefit or not?

Who is on a tribunal panel?

• Commonly a legally qualified chair plus two others with relevant expertise
• Either technical knowledge or experience of the issue

Question 12

Explain tribunal reform since 2007

Answer 12

• Unified administration of (most) tribunals
• HM Court Service and the Tribunal Service merged by Tribunals, Courts and Enforcement Act 2007 to make HM Courts and Tribunals Service
• Scottish Court Service and Scottish Tribunals Service merged by Tribunals (Scotland) Act 2014 to make Scottish Courts and Tribunals Service to make the Scottish Courts and Tribunals Service
• HM Courts and Tribunals Service covers courts in England and Wales, in addition to UK-level tribunals
• Scottish Courts and Tribunals Services covers matters within devolved competency

Employment tribunals run on same lines but bit different

• Not a matter of public law; Disputes between private bodies

Question 13

Status of tribunals (in UK/England & Wales and Scotland)

Answer 13

Guarantee of judicial independence

• Constitutional Reform Act 2005, s.3
• All Ministers “must uphold the continued independence of the judiciary”

UK/England & Wales

• Senior President of Tribunals - Sir Keith John Lindblom
• First President was appointed to Supreme Court - Lord Carnwath
• There is also a President of Welsh Tribunals/Llywydd Tribiwnlysoedd Cymru (Wales Act 2017, s.60)

Scotland

• President of Scottish Tribunals is currently Lord Woolman
• Used to be Lord Carloway

Question 14

Explain the tribunal structure - UK and Scotland

Answer 14

First Teir Tribunals:

• Organised into chambers to keep expertise
• First Tier often legally qualified chair and others with relevant expertise in area

Upper Tribunal (hears appeals from First Tier Tribunals

• Some cases go directly to Upper Tribunal
• Have to seek leave to appeal from First-Tier Tribunal
• Upper Tribunal members includes senior judiciary

Question 15

Examples of chambers within first teir tribunals (UK)

Answer 15

Social Entitlement Chamber

• Social security and child support, criminal injuries compensation, asylum support
  Immigration and Asylum Chamber
  Health, Education and Social Care Chamber
• Care standards, mental health, special educational needs, disability

Tax Chamber
Property Chamber
War Pensions & Armed Forces Compensation
General Regulatory Chamber

• Charity, consumer credit, environment, estate agents, gambling, transport, information

Question 16

Examples of chambers within the upper tribunal

Answer 16

4 chambers:

• Administrative Appeals
• Tax and Chancery
• Immigration and Asylum
• Lands

Question 17

Explain the status of upper tribunal

Answer 17

Possibility of appealing to higher courts (s.13 TCEA 2007 and s.48 T(S)A 2014)
Upper tribunal subject to judicial review, on limited grounds

• “some important point of principle or practice” or “other compelling grounds”
• Same circumstances in which the Court of Appeal will hear an appeal against a decision which itself was an appeal

Question 18

Explain tribunal procedure

Answer 18

Procedure adapted to nature of dispute
Some tribunals very like courts, others more informal

• Some follow traditional adversarial model, some more inquisitorial
• Must give reasons for decisions: so there is basis for appeals and decisions are more likely to be accepted with reasoning available

No need for legal representation

• Higher success rate if represented (but need not be by lawyer)
• How equal is the process between individual appearing for first time and experienced authority?

Question 19

Strengths of tribunals

Answer 19

• Firmly established as part of the judicial system
• Restructuring has strengthened their position and consolidated key structural and institutional features
• Overall, should be quicker, cheaper, more expert and more convenient than courts

Question 20

Weaknesses of tribunals

Answer 20

• Can only deal with cases when express right of appeal is given
• Better than courts, but how far do they really provide ordinary citizen with equal access to justice?
• Third party appeals: not possible so would have to go through judicial review which is far more expensive, not effective as means of redress

Question 21

How are regular complaints initially dealt with

Answer 21

Tribunals still require a formal process
Right of appeal must be expressly given by statute

Many grievances dealt with by other means

Complaints

• Go to authority concerned and complain

May get explanation or resolution
If not, bring in someone else

• MP or MSP
• Ombudsman

Question 22

What was the 1990’s Citizen’s Charter

Answer 22

Citizens as consumers of services provided by public authorities

• Use complaints as a way to improve service
• Cheap, quick and simple

Question 23

Explain formal complaints processes of public authorities

Answer 23

Usually start at local office then means of referring case to someone higher up or special complaints officer

• Find where to complain, Ombudsman website/ gov websites
• First reference to complaints resolution team or independent examiner etc – someone still within the authority but separate from operational team
• Gathering evidence from those directly responsible
• Then, if complainer not satisfied, referring to external person

Outcome and Remedies:
May settle grievance- Explanation, apology or simple error corrected

Potential Issues:
But lacks independence; complainant may doubt process

Question 24

Describe the complaints procedure of the Scottish Government

Answer 24

What you can complain about

• delays in responding to your enquiries and requests
• failure to provide a service or the standard of service
• treatment by, or attitude of, a member of staff
• failure to follow proper procedure

Timescales to complain

• Normally, must complain within 6 months; can be extended to 12 months if you do not find out about the reason to complain until later or longer in “exceptional circumstances”

3 stage complaints process:

1. Contact staff in area responsible for the service which has caused your concern – will seek to resolve informally within 5 days
2. If step 1 not sufficient, an Investigating Officer will compile a report and, if things have gone wrong, recommend improvements,
   3.Scottish Public Services Ombudsman

Question 25

What is freedom of information?

Answer 25

Made up of two distinct and separate rights:

• The right to request access to information (s.1(1) Freedom of Information Act 2000 and Freedom of Information (Scotland) Act 2002
• The right to have information proactively disclosed (s.19 Freedom of Information Act 2000 and s.23 Freedom of Information (Scotland) Act 2002)

Embodies the relationship between the Government and citizens

• Government only holds (or generates) information because it has been given power by citizens
• The information is held in the public interest, so the public is entitled to see it

Question 26

What are the different information regimes?

Answer 26

Freedom of Information Act 2000 and Freedom of Information (Scotland) Act 2002: for most info requests

Environmental Information Regulations 2004 and Environmental Information (Scotland) Regulations 2004: for requests specific to the enviroment
Data Protection Act 2018

Reflective of different societal concerns

• The state of the environment is considered to be of specific importance to society so seperate regime ensures we have appropriate access to this information
• Security of personal data: its important that this information is more secure, so has a strict regime so that it is harder to access the info

Question 27

Give a summary of the differences of the information regimes

Answer 27

Information regimes are not identical

• Differences between Scotland and the rest of the UK
• Differences between information regimes and environmental information regimes

Short summary of these differences

• Scope of the regimes differ
• Different wording used in the legislation
• Means of redress

Focus on the Freedom of Information Act 2000 and Freedom of Information (Scotland) Act 2002

Question 28

What are the objectives of freedom of information?

Answer 28

“Openness is central to a modern, mature and democratic society and serves to strengthen Government and empower people.” – Freedom of Information (Scotland) Bill Policy Memorandum

Variety of aims:

• Increasing the openness and transparency of Government
• Increases the accountability of Government
• Improves the quality of Government decision-making
• Improves public understanding of Government
• Increases public trust in Government
• Increases public participation in Government

Question 29

Who must disclose information? (3)

Answer 29

Gives each government (Wm or Hr) the power to designate which bodies are specifically obliged to respond to requests within the schedules of each respective act

Public authorities (s.3(1) and schedule 1 of FOIA 2000 and FOI(S)A 2002)

• Government and local authorities

Publicly owned companies

• Caledonian MacBrayne
• Prestwick Airport

Designated bodies

• Registeres social landlords (in Scotland)

Private bodies are excluded

Question 30

Who can seek to access information?

Answer 30

Anyone can make a request - you do not have to:

• Be an adult or live in the UK
• Say why you want the information or mention FOI
• Do need to make request in writing and adequately describe the information sought after (s.8 of FOIA 2000 and FOI(S)A 2002)

Question 31

Downsides to the ease of accessing information

Answer 31

• Cannot prioritise requests based on importance
• Motives of requesters
• Is the applicant-blind approach applied in practice?

Question 32

What information can be disclosed?

Answer 32

Information “recorded in any form” (s.3(2) FOIA 2000 and FOI(S)A 2002)

• Correspondence; Reports; Contracts; Photographs; Maps; CCTV; Video etc.
• Regardless of what form it is in, if a physical copy of it is held by a public authority (or a private body on behalf of the authority) it can be disclosed

But Government can illegitimately hide information

• Public authority correspondence on private devices
• Not writing information down
• Breach of the law, and of good governance values

Question 33

Advantages of breadth of who can request information

Answer 33

• Because a wide range of individuals are able to submit requests under FOIA and FOISA it means there are more individuals who are able to scrutinise government decisions
• Holds government to better account
• Because there is no requirement to say why you want the information, the applicant-blind approach ensures each request is treated equally

Question 34

Explain the fee charging regulations in disclosing information

Answer 34

Section 9 of FOIA 2000 and FOI(S)A 2002, as well as the relevant fee charging regulations for the UK and Scotland

• If cost < £100, no charge can be made
• If cost ≥ £100, can charge 10% of the costs
• If cost > £600 (or £450 for local authorities), authority does not have to process the request (s.12 FOIA 2000 and s.12 FOI(S)A 2002)
  Balancing accessibility and cost to the state

Question 35

Can public authorities withhold information?

Answer 35

Right to access information is not unlimited

• Some information is too sensitive to be disclosed; disclosure would damage the public interest
• Various exemptions to the duty to disclose information exist

Some exceptions are absolute, and the information cannot be disclosed

• Information disclosed under other regimes (e.g. personal data) (s.40 FOIA 2000 and s.38 FOI(S)A 2002)
• Vexatious and repeated requests (s.14 FOIA 2000 and FOI(S)A 2002)
• Often related to procedural aspects of the right (e.g. preventing abuse of staff)

Other exceptions are harm based, and seek to protect the broad public interest from being harmed from sensitive information being disclosed

• Information on national security (s.24 FOIA 2000 and s.31 FOI(S)A 2002)
• Information relating to commercial and trade secrets (s.43 FOIA 2000 and s.33 FOI(S)A 2002)

Harm based exceptions are discretionary – can disclose if it is perceived to be “in the public interest” (s.2(2) FOIA 2000 and FOI(S)A 2002)

• Flexibility in protecting the public interest and achieving good governance
• Can call into question how authorities utilise (or fail to utilise) this discretion

Question 36

How quickly must authorities respond to FoI requests?

Answer 36

Authorities must respond promptly and within 20 working days (s.10(1) FOI 2000 and FOI(S)A 2002)
* Can extend deadline by additional 20 days (s.10(3) FOI 2000); no such power under FOI(S)A 2002
* Emphasises the good governance values of process, accountability and standards

Question 37

Describe how individuals are able to challenge non-disclosure

Answer 37

1. Internal Reviews (s.45 FOIA 2000 and s.20 FOI(S)A 2002): different individual reviews and determines whether original decision to withhold info correct
2. The Information Commissioner (s.50 FOIA 2000) and the Scottish Information Commissioner (s.47 FOI(S)A 2002): if they decide that non-disclosure was wrong they have the legal power to force disclosure
3. UK: Appeals regarding UK-wide authorities (or non-Scottish authorities) go to the Information Tribunal (s.57 FOIA 2000)
4. Scotland: Appeals regarding Scottish authorities go to the Court of Session (s.56 FOI(S)A 2002)

Question 38

What are the 3 tests The Leggatt Report suggests to determine whether tribunals or courts should be used in an area

Answer 38

The Leggatt Report suggested three tests to determine whether tribunals rather than the courts should decide cases in any particular area:
(i) direct participation by tribunal users:
(ii) the need for special expertise, and
(iii) expertise in administrative law.

Question 39

Why do many people choose not to appeal when tribunals are accessible?

Answer 39

1. Potential appellants might be ignorant of tribunal appeal rights: low public awareness of what a tribunal is.
2. Cost of pursuing an appeal: some people may not appeal because of the costs of legal advice and/or representation and other costs of preparing an appeal, such as commissioning expert evidence.
3. Complexity of the appeal process and the absence of appropriate help may mean that many potential appellants find appealing a confusing and off-putting prospect

Question 40

Describe difference between adverserial and inquisitorial hearings

Answer 40

Adverserial:

• the judge is enabled to get at the truth by holding the ring between the parties, while each side presents its own case and assails that of its opponent.
• To maintain judicial independence, the judge does not descend into the arena between the parties; instead, the two parties are adversaries.
• An adversarial process works best if both parties are represented, but if the appellant is unrepresented, then the parties are competing on an unequal basis. Immigration tribunals are mostly conducted on an adversarial footing.

Inquisitorial:

• judge takes full control of the proceedings, governs the participation of the parties, and intentionally descends into the arena to elicit the necessary facts to make a decision.
• The judge controls the proceedings, but at the risk of appearing to favour one party.
• Few tribunals adopt a truly inquisitorial approach.

Question 41

Describe the ‘public interest test’

Answer 41

• The first question is whether the information falls into one of the relevant categories. Information concerning such matters as national security, defence, international relations, the economy, and formulation of government policy falls into such categories.
• If the information falls into a relevant category, the second question is whether the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

Question 42

What is ministerial veto

Answer 42

a government Minister can, on reasonable grounds, override the disclosure of information even though its disclosure has been ordered by the Information Commissioner or the Tribunal