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Judicial ReviewClaim Form N461 (03.02)Notes for guidance are available which explainhow to complete the judicial review claim form.Please read them carefully before you completethe form.

For Court use only

AdministrativeCourt ReferenceNo.

Date filed

Section 1 Details of the Claimant(s) and Defendant(s)

Claimant(s) name and address(es):Name: Rob EvansAddress: Description: Journalist, employed by Guardian Newspapers Limited.

Claimant’s Solicitor’s address to which documents should be sent:Name: Jan Johannes, Legal Department, Guardian NewspapersAddress: 119 Farringdon Road,

London EC1R EERTelephone No.: 020-7713-4769Fax No.: 020-7713-4481E-mail Address: jan.johannes@guardian.co.ukDX:

Claimant’s Counsel’s details:Name: Rabinder Singh QCAddress: Matrix Chambers

Griffin Building, Gray’s Inn,London WC1R 5LN

Telephone No. 020-7404-3447Fax No. 020-7404-3448E-mail address: rabindersingh@matrixlaw.co.uk

Name: Heather WilliamsAddress: Doughty Street Chambers, 10/11 Doughty Street, London

WC1N 2PLTelephone No.: 020-7404 1313Fax No.: 020-7404 2283/4E-mail Address: h.williams@doughtystreet.co.ukDX: 223 Chancery Lane

In the High Court of JusticeAdministrative Court

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Defendant’s or (where known) Defendant’s Solicitors’ address to whichdocuments should be sent:Name: Treasury SolicitorAddress: Queen Anne’s Chambers, 28 Broadway

London SW1H 9JSRef: LT3/2700A/KEB/D4

Description: Telephone No.: 020-7210-2902Fax No.: 020-7210-3001E-mail Address: kbrudenell@treasury-solicitor.gsi.gov.ukDX: 123242 St James’s Park

Section 2 Details of other interested parties

Include name and address and, if appropriate, details of DX, telephone or faxnumbers and e-mail

Name: The Parliamentary Commissioner for AdministrationAddress: Millbank Tower, Millbank

London SW1P 4QPDescription: Telephone No.: 020-7217-3000Fax No.: 020-7217-4000E-mail Address: DX:

Section 3 Details of decision to be judicially reviewed

Decision: Issue of a notice pursuant to section 11(3) of theParliamentary Commissioner Act 1967 in relation toinformation sought by the Claimant in his letters toGovernment Departments of February 2001.

Date of Decision: 23 June 2003 (The Claimant first became aware of thedecision on or about 8 July 2003).

Name and address of the court, tribunal, person or body who made thedecision to be reviewed:Name: (1) The Secretary of State for Constitutional Affairs and (2)

the Minister for the Cabinet OfficeAddress: (see above)

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Section 4 Permission to proceed with claim for judicial review

I am seeking permission to proceed with my claim for Judicial Review.

Are you making any other applications? NoIf yes, complete section 7

Is the Claimant in receipt of a Community Legal NoService (CLSF) certificate?

Are you claiming exceptional urgency, or do you needthis application determined within a certain time scale? No

If Yes, complete Form N463 and file this with your application.

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Have you complied with the pre-action protocol? Yes

If No, give reasons for non-compliance in the space below.

Does the claim include any issue arising fromthe Human Rights Act 1998? Yes

If Yes, state the articles which you contend have been breached in the spacebelow.

Section 5

Section 8

Detailed statement of grounds

Statement of facts relied on

Introduction

1. This application for judicial review relates to the issue of a certificate

under the power contained in section 11(3) of the Parliamentary

Commissioner Act 1967 (“PCA”). The certificate was issued by the

Secretary of State for Constitutional Affairs and the Minister for the

Cabinet Office on 23 June 2003. The certificate indicated that the

disclosure of information sought by the Claimant in reliance upon the

Code of Practice on Access to Government Information would be

Articles 10 of the European Convention on Human Rights

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contrary to the public interest. The Claimant, who is an experienced

journalist employed by The Guardian newspaper, had sought specific

information relating to the working in practice of procedures contained

in the Ministerial Code, which are aimed at avoiding Ministers having

conflicts of interests between their public position and their personal

financial interests. After Government departments had refused to

disclose the information sought, the Claimant’s complaint was

investigated by the Parliamentary Commissioner for Administration.

The effect of the issue of the certificate was to bring her investigation

to a premature conclusion. The Claimant contends that the decision to

issue the certificate was legally flawed and should be quashed.

The Relevant Statutory Provisions

2. Section 1 of the PCA creates the office of the Parliamentary

Commissioner for Administration (“the Ombudsman”) to conduct

investigations pursuant to the provisions of the Act. Section 4(1)

indicates that the PCA applies to the government departments and

bodies listed in Schedule 2 to the Act. This includes all central

Government Departments. Section 5 of the PCA provides that the

Ombudsman may investigate action taken in the administrative

functions of such departments and bodies, where a written complaint is

made to a member of the House of Commons by a member of the

public who claims to have suffered injustice from maladministration

and the MP refers the complaint to the Ombudsman with a request to

conduct an investigation. Section 7 deals with the procedure to be

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followed in respect of the Ombudsman’s investigation and, in

particular, requires that departments or other concerned bodies are

given an opportunity to comment on the allegations contained in the

complaint. Section 8(1) PCA provides that the Ombudsman may

require the department to produce documents or furnish information

relevant to the investigation. Section 10 PCA provides that in any case

where the Ombudsman conducts an investigation under the Act or

decides not to conduct such an investigation, he is required to send to

the MP who referred the complaint, a report of the results of the

investigation / reasons for not conducting an investigation. Section

10(3) enables the Ombudsman to lay a special report before

Parliament in relation to a particular investigation in specified

circumstances. Section 10(4) requires the Ombudsman to lay periodic

reports before Parliament.

3. Section 11 is headed “Provision for secrecy of information”. So far as

material it provides:

(2) Information obtained by the Commissioner or his officers in thecourse of or for the purposes of an investigation under this Act shallnot be disclosed except –

(a) for the purposes of the investigation and of any reportto be made thereon under this Act;

(b) …………………(c) ………………..

(3) A Minister of the Crown may give notice in writing to theCommissioner, with respect to any document or informationspecified in the notice or any class of documents or information sospecified, that in the opinion of the Minister the disclosure of thatdocument or information, or of the documents or information of thatclass, would be prejudicial to the safety of the State or otherwise

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contrary to the public interest; and where such a notice is givenothing in this Act shall be construed as authorising or requiring theCommissioner or any officer of the Commissioner to communicateto any person or for any purpose any document or informationspecified in the notice, or any document or information of a class sospecified.”

Thus the effect of the issue of a notice under section 11(3) is to prevent

the Ombudsman from disclosing the information to which it refers even for

the purposes of her investigation or for the purposes of the fulfilment of

her reporting duties under the Act.

4. Individual rights of access to information provisions contained in the

Freedom of Information Act 2000 do not come into force until January

2005. In the interim the Government’s stated intention is that requests for

access to information will be dealt with in accordance with the non-

statutory “Code of Practice on Access to Government Information” (“the

Access Code”). This intention is confirmed, for example, at paragraph 2 of

the “Memorandum of Understanding on Co-Operation between

Government Departments and the Parliamentary Commissioner for

Administration on the Code of Practice on Access to Government

Information” (see exhibit RE8 to the Claimant’s witness statement).

5. The Access Code is exhibited at RE3 to the Claimant’s witness statement.

It has been in operation since 4 April 1994. The current version of the

Code was produced in July 2001. It is a revised version of the earlier Code

produced in 1997. Paragraph 1 of Part I of the Access Code states:

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“This Code of Practice supports the Government’s policy under theCitizens Charter of extending access to official information andresponding to reasonable requests for information. The approachto release of information should in all cases be based on theassumption that information should be released except wheredisclosure would not be in the public interest, as specified in Part IIof this Code.”

Paragraph 3 of Part I provides:

“Subject to the exemptions in Part II the Code commitsdepartments and public bodies under the jurisdiction of theParliamentary Commissioner for Administration to………..release inresponse to specific requests, information relating to their policies,actions and decisions and other matters related to their areas ofresponsibility.”

Paragraph 6 of Part I provides that the Code applies to all Government

departments and other bodies listed in Schedule 2 to the PCA. Paragraph

11 provides that complaints that information which should have been

provided under the Code has not been provided, should be made first to

the department or body concerned and that, if the applicant remains

dissatisfied, complaint may be made through a Member of Parliament to

the Ombudsman. It is also stated that such complaints will be investigated

at the Ombudsman’s discretion in accordance with the procedures

provided in the PCA.

6. Part II of the Code provides:

“The following categories of information are exempt from thecommitments to provide information in this Code. In thosecategories which refer to harm or prejudice, the presumptionremains that information should be disclosed unless the harm likelyto arise from disclosure would outweigh the public interest inmaking the information available.

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“References to harm or prejudice include both actual harm orprejudice and risk of or reasonable expectation of harm orprejudice. In such cases it should be considered whether any harmor prejudice arising from disclosure is outweighed by the publicinterest in making information available.”

The following exemptions are of potential relevance to the circumstances

under consideration:

Exemption 2: “Internal discussion and advice”“Information whose disclosure would harm the frankness andcandour of internal discussion, including:

• Proceedings of Cabinet and Cabinet committees• Internal opinion, advice, recommendation, consultation and

deliberation;• Projections and assumptions relating to internal policy

analysis; analysis of alternative police options andinformation relating to rejected policy options;

• Confidential communications between departments, publicbodies and regulatory bodies.”

Exemption 12: “Privacy of an Individual”“Unwarranted disclosure to a third party of personal informationabout any person …or any other disclosure which wouldconstitute or could facilitate an unwarranted invasion of privacy.”

7. Section 6(1) of the Human Rights Act 1998 (“HRA”) provides that: “it is

unlawful for a public authority to act in a way which is incompatible with a

Convention right”. Both the Secretary of State and the Minister for the

Cabinet Office are members of the central government and so are

“obvious” or “core” public authorities: see Aston Cantlow and Wilmcote

Parochial Church Council v Wallbank [2003] UKHL 37 [2003] 3 WLR 283,

e.g. para. 7 (Lord Nicholls of Birkenhead). In any event, they would also

fall within the extended definition in section 6(3)(b) which provides that a

public authority for these purposes includes “any person certain of whose

functions are functions of a public nature”. Section 7(1) HRA provides that

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a person who claims that a public authority has acted in a way which is

made unlawful by section 6(1) may bring proceedings against that

authority under the HRA in the appropriate court or tribunal if he is the

victim of the unlawful act. Such proceedings my include a claim for

judicial review: section 7(3).

8. Article 10 of the European Convention on Human Rights states:

“(1) Everyone has the right to freedom of expression. This rightshall include freedom to hold opinions and to receive and impartinformation and ideas without interference by public authority andregardless of frontiers. This Article shall not prevent States fromrequiring the licensing of broadcasting, television or cinemaenterprises.

“(2) The exercise of these freedoms, since it carries with it dutiesand responsibilities, may be subject to such formalities, conditions,restrictions or penalties as are prescribed by law and are necessaryin a democratic society, in the interests of national security,territorial integrity or public safety, for the prevention of disorder orcrime, for the protection of health or morals, for the protection of thereputation or rights of others, for preventing the disclosure ofinformation received in confidence, or for maintaining the authorityand impartiality of the judiciary.”

The Relevant Facts

9. The Claimant is a journalist employed by the Guardian Newspapers

Limited as a journalist on The Guardian newspaper. His journalistic

experience is summarised in his witness statement. On 19 February 2001

he wrote to 17 central Government departments asking to be provided

with specified information relating to the application of the Ministerial Code

to the Ministers’ respective departments. The request stated in terms that

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it was made under the provisions of the Access Code. The 1997 Code

was revised in July 2001. The relevant parts of both versions of the

Ministerial Code are exhibited at RE1 to the Claimant’s witness statement.

Paragraphs 5 and 6 of the Claimant’s witness statement summarise the

material provisions of the Ministerial Code. Because the current version of

the Code was in force at the time that the Ombudsman investigated this

complaint, extensive reference will be made to that version of the Code.

However, the 1997 Code was in force at the time that the initial request for

information was made and note should be taken of those parts of the 1997

Code that set out the nature of consultations between Ministers and

Permanent Secretaries. The Prime Minister’s foreword to the current Code

states in terms that the Ministerial Code was issued as part of the

commitment to the bond of trust between the British people and their

Government. The foreword and the Code place considerable emphasis

upon the importance of honesty and openness on the part of Ministers.

Section 9 of the Ministerial Code deals specifically with Ministers’ Private

Interests and lays down a procedure aimed at avoiding Ministers being put

in a position of actual or apparent conflict between their public duties and

their personal interests. The procedure (summarised in more detail in the

Claimant’s witness statement at paragraph 6) entails Ministers consulting

with and obtaining advice from their Permanent Secretaries in relation to

any interest that might be thought to give rise to a conflict. Following the

consultation, the Code advises Ministers to record in writing what action

has been considered and taken. Paragraph 123 of the Code deals

specifically with Ministers’ financial interests.

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10. In his letters of 19 February 2001 the Claimant sought the following

information:

1) How many times the Ministers in the particular department had

consulted their Permanent Secretary in relation to paragraph

123 of the then Ministerial Code since 1 January 1999.

2) On what dates those consultations took place.

3) Which Ministers in the Department had so consulted the

Permanent Secretary since 1 January 1999.

4) The reason why each Minister had so consulted the Permanent

Secretary.

5) The action that had been taken in each case since 1 January

1999 and an indication of in which cases it was necessary to

consult the Prime Minister.

The Claimant also asked to see a copy of the Minister’s minute to the

Permanent Secretary recording what action was necessary and the nature

of the action taken to avoid a conflict of interest, in each instance where a

consultation had taken place since 1 January 1999.

11. The Claimant explains in his accompanying witness statement why he

requested this information and, in particular, why he considered its

disclosure to be in the public interest (see paragraphs 8 & 9 in particular).

In essence, without disclosure of the information sought, it is impossible to

ascertain whether the stated intentions of the Ministerial Code are being

fulfilled in practice. The public has an important interest in knowing

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whether Ministers are consulting their Permanent Secretaries, as

contemplated by the Code, and in knowing whether in practice appropriate

action is being taken to avoid potential conflicts, in the way anticipated in

the Code. If the same is not happening this is a matter of genuine public

concern; the Code itself recognises the fundamental importance for the

proper performance of public duties of Ministers placing themselves

beyond any such conflicts and the fundamental importance of a

relationship of honesty and openness with the public.

12. The Claimant wanted to understand the reason why the need to consult

had arisen and to assess the appropriateness of the action taken in the

light of this information. However, it is noteworthy that the Claimant did

not ask to be provided with details of the actual discussions that had taken

place between Ministers and their Permanent Secretaries; nor with the

content of advice issued by Permanent Secretaries or the content of any

communications with the Prime Minister. Further, the Claimant did not ask

for identifying details to be revealed of any particular financial interest held

by a Minister; rather, he asked for an indication of the reason why the

need to consult had arisen.

13. In or about March 2001 15 out of the 17 Departments responded to the

Claimant in writing indicating that they were not prepared to provide the

information sought. The letters were in very similar terms. The letters

stated that the information requested by the Claimant would not be

provided as Exemptions 2 and 12 of Part II of the Access Code applied. It

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was said that Exemption 2 applied because it was not intended that the

Access Code would be interpreted in a way that would lead to the

disclosure of confidential discussions under constitutional conventions.

Reference was made to the Guidance on the Code issued by the Cabinet

Office. (The relevant parts of this Guidance are exhibited at RE4 to the

Claimant’s witness statement). Specific reference was made to the

contents of paragraph 2.3 of the section in the Guidance dealing with

Exemption 2, which was said to state that it was not the intention to

change or undermine long established conventions protecting the

confidentiality of the internal decision making process, including

“Questions of Procedure for Ministers” (the forerunner procedures to those

contained in the Ministerial Code). The letters continued that, although

the exemption required harm or the risk of harm to be demonstrated, the

very nature of the type of information under consideration was particularly

sensitive and thus any disclosure in this area could harm the frankness

and candour of future discussions.

14. The letters also relied upon Exemption 12 on the basis that disclosure of

the information sought would amount to an unwarranted invasion of

privacy. It was said that the Ministerial Code operated to ensure that the

boundaries between a Minister’s private life and public life were properly

set and maintained. So that if a Minister sought advice and was informed

that no conflict existed it would be an invasion of his privacy for the issue

to be made public. The other example given, was that if a potential

conflict of interest was identified and the Minister took the “necessary

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action” to deal with the matter, then, it was said, any disclosure of the

same would also be an unwarranted invasion of privacy.

15. The Claimant was unhappy with this response. The reasons are given at

paragraphs 13 and 15 of his witness statement. In summary, he felt that

the response failed to recognise the carefully specified information that he

had sought and failed to distinguish between this and disclosure of

discussions passing between Ministers and Permanent Secretaries, which

he had not requested. In addition, there was no indication of any

individual consideration of his various requests, which were treated

compendiously, despite the fact that they were different in nature, for

example his first request simply sought the number of occasions upon

which consultations had occurred. Thus no explanation was given as to

why the limited information that he had requested – as opposed to

revelations of the substance of the consultation – would undermine the

candour of future discussions. The letters also failed to appreciate that

the Claimant had not sought disclosure of identifying details of Ministers’

personal financial interests, as opposed to an indication of the need for

consultation and why a perception of a possible conflict of interest had

arisen. He felt that Departments could have used their judgment to

provide the information sought without revealing intrusive personal details.

Moreover, it was notable that the letters contained no acknowledgement of

there being any public interest in the disclosure of the information and thus

no attempt to weigh up this interest against any factors pointing against

disclosure, as required by the Code. The passage from the Guidance

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referred to in the letters itself appears to omit any acknowledgement of the

need to take into account and to weigh in the balance any public interest

in favour of disclosure (and is in any event of “advisory” status only). The

specific points made in relation to invasion of privacy were all predicated

on the basis that the Ministerial Code was indeed working effectively;

whereas this was the very issue that the Claimant wanted to investigate

and for the public to have the opportunity to assess.

16. Pursuant to the procedure in paragraph 11 Part I of the Access Code the

Claimant wrote to each of the Departments in or about November and

December 2001 requesting internal reviews of the decisions refusing

disclosure of the information. These requests raised the Claimant’s

concerns and also highlighted a recent adjudication by the Ombudsman in

respect of case A28/01, a complaint by Andrew Robathan MP that he had

been denied information that he was entitled to under the Access Code by

the Home Office, namely as to the number of occasions in a specified

period that Ministers within the Department had sought the advice of their

Permanent Secretary under the Ministerial Code. The Claimant drew

attention to the fact that the Ombudsman had upheld that complaint,

agreeing that the information sought did not fall within Exemptions 2 and

12 and declining to interpret Exemption 2 in the way set out in the

Guidance issued by the Cabinet Office. Her conclusions were

encapsulated by the following passage in her report:

“As I see it, the purpose of the Ministerial Code is to clarify howMinisters should account and be held to account by Parliament and

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the public. I do not agree that the release of this information wouldfrustrate that purpose”

The Ombudsman’s report on her investigation into Mr. Robathan’s

complaint is exhibited at RE5 to the Claimant’s witness statement and her

conclusions dealt with in more detail in paragraphs 16 of the Claimant’s

witness statement.

17. The Claimant’s correspondence with the Department for International

Development (“DFID”) took a different course. By letter dated 6

December 2001 the DFID originally gave a response similar to those

received from the other Departments. However, after the Claimant

requested a review by email on 8 December 2001, by letter dated 11

December 2001 the DFID indicated that the Claimant should have been

supplied with information in response to the original request, namely to the

effect that neither the Secretary of State nor the Under Secretary of State

had sought advice at any time from the Permanent Secretary under the

circumstances envisaged in paragraph 123 of the Ministerial Code. It was

acknowledged that the Exemptions to the Access Code cited in the earlier

letter were therefore not relevant.

18. By 31 May 2002 the Claimant had received no substantive response to

any of the other requests for internal reviews and therefore wished to ask

the Ombudsman to investigate. He did this via his MP Oona King, as

required by the prescribed procedure under the Access Code. The

Claimant wrote to his MP on 31 May 2002, enclosing a letter to the

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Ombudsman for his MP to forward (this and all other correspondence

passing between the Claimant and Oona King and between Oona King

and the Ombudsman is exhibited at RE6 to the Claimant’s witness

statement). The Claimant asked the Ombudsman to investigate both the

fact that he had not received any substantive response to his requests for

internal reviews and the substantive refusal to disclose the information

sought.

19. By letter dated 10 June 2002 the Claimant received a reply from Oona

King indicating that she had referred the complaint to the Ombudsman.

By subsequent letter dated 28 August 2002, Oona King informed the

Claimant that she had received confirmation from the Ombudsman that

she would be investigating the complaint and she enclosed a copy of a

letter dated 22 August 2002 from the Ombudsman’s office, in turn

enclosing a copy of the statement of complaint prepared in accordance

with section 7(1) of the Parliamentary Commissioner Act 1967. The

covering letter from the Ombudsman’s office stated that it appeared that

the complaint was one that the Ombudsman could and should investigate.

20. During the period August – September 2002 the Claimant received

substantive responses from the various Departments to his requests for

internal reviews (included in exhibit RE2 to the Claimant’s witness

statement). All substantive responses were in similar terms. The letters

maintained that Exemptions 2 and 12 applied to the Claimant’s request.

The only specific additional point made was that the July 2001 revision of

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the Ministerial Code had strengthened the rules for Ministers in the area of

conflicts of interests, in that they were now required to provide a list of

their interests on appointment. (This is paragraph 115 of the Code at

RE1). However, this point failed to address the Claimant’s concern that

the public should be able to oversee whether the Code is in fact working in

practice. The Claimant therefore wanted the Ombudsman to continue her

investigation into whether the information requested should be disclosed.

21. By letter dated 7 July 2003 the Ombudsman set out the outcome of her

investigation to Oona King MP. The letter stated that the investigation had

been discontinued because on 25 June 2003 the Ombudsman had

received a notice in writing issued under section 11(3) of the Parliamentary

Commissioner Act 1967 dated 23 June 2003 and signed by both the

Secretary of State for Constitutional Affairs and by the Minister of the

Cabinet Office. The letter then set out section 11(3) and continued that

the notice informed the Ombudsman that disclosure of the information

sought by the Claimant would be contrary to the public interest. The

Ombudsman then observed: “In the circumstances I have discontinued my

investigation of Mr. Evans’ complaint”. Presumably the Ombudsman felt

that it would be futile to continue the investigation, since if she decided

that all or part of the information sought should be disclosed, she was

precluded by the certificate from disclosing it in any event and from

discussing it in her report. From paragraph 9 of the letter it appears that

prior to the notice being issued there had been “considerable

correspondence and discussion” between the Ombudsman’s office, the

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Cabinet Office and the (then) Lord Chancellor’s Department about the

request. The Claimant has not seen this correspondence and is not

aware of its contents.

22. By email dated 8 July 2003 the Claimant received a copy of the letter

dated 7 July 2003 from the Ombudsman to Oona King explaining that the

investigation had been discontinued. Prior to this the Claimant had no

idea that a certificate under section 11(3) had been issued. In particular

he was given no notification before the issue of the certificate that this was

contemplated and he was given no opportunity to make representations

on whether it was appropriate to issue a certificate or not. The Claimant

has not been provided with a copy of the certificate. On or about 9 July

2003 he telephoned the Lord Chancellor’s Department and asked to be

provided with a copy. They refused to give him a copy and advised him to

try the Ombudsman’s office. He therefore telephoned the Ombudsman’s

office who also refused to give him a copy of the certificate and instead

faxed him a copy of section 11 of the PCA. The Claimant understands

that the Ombudsman’s view is that the effect of section 11(2)(a) is to

prevent disclosure of even the certificate, once the certificate had been

issued.

23. The Claimant was therefore in a position of not knowing why the certificate

had been issued, other than the bald statement that it was considered to

be in the public interest to do so, of not knowing what factors had or had

not been taken into account before the decision was made and having

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been given no opportunity to comment on this proposed decision before it

was arrived at. There is no procedure, such as an internal appeal, for

challenging the issue of the certificate. The Claimant has no avenue of

redress, other than these proceedings for a judicial review.

24. The present case is both important and unprecedented. It appears from a

Press Release issued by the Ombudsman (included in exhibit RE7 to the

Claimant’s statement) that this is the first occasion when a notice under

section 11(3) of the PCA has been issued in relation to an investigation by

the Ombudsman pursuant to the Access Code. The same Press Release

refers to a Memorandum of Understanding arrived at as a result of

concerns held by the Ombudsman which led her to initiate discussions at

the highest level within the Cabinet Office. The Memorandum was

published in July 2003 and post-dates the issue of the certificate in

respect of the information sought by the Claimant and the latter action

appears to have been one of the triggers for the Ombudsman’s concerns.

The Memorandum of Understanding (part of exhibit RE8 to the Claimant’s

witness statement) at paragraph 7 refers to the power contained in section

11(3) of the PCA and states: “In practice, recourse to these sections of the

Act is expected to be very rare”.

25. After the Claimant discovered the issue of the certificate and had made

unsuccessful attempts to find out more about the same, The Guardian’s

Legal Department sent a letter of claim dated 2 September 2003 to the

proposed Defendants, contending that the decision to issue the certificate

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was flawed as it was issued in breach of the duty to act fairly as the

Claimant had not first been given an opportunity to make representations;

and / or constituted an infringement of rights guaranteed by Article 10 and

/ or was irrational. A response was provided by fax on 15 September 2003

from the Treasury Solicitor. Both letters are at exhibit RE10 to the

Claimant’s witness statement. The response denied that the Claimant had

any sufficient interest to oblige the Defendants to consult with him before

making the decision and denied that he had any specific submissions to

make that would have assisted in the making of the decision. The letter

also denied that Article 10 applied in the circumstances or, alternatively,

contended that restriction on release of the information in question was

justified under Article 10(2) and it was denied that the decision to issue the

certificate was irrational (the letter did not address the argument on behalf

of the Claimant that irrationality in this context includes breach of

fundamental rights recognized at common law). The letter refers to the

certificate covering three documents specified therein. This is the first

time that the Claimant has been informed of the number of documents

involved. No information is given as to the nature of those documents.

Given the contents of the Ombudsman’s letter of 7 July 2003 (referred to

above) the Claimant infers that these documents must contain all or part

of the information that he requested.

Grounds

26. The Claimant maintains that the decision to issue the certificate was:

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a. made in breach of the duty upon the Defendants to act fairly, since

he was given no opportunity to make representations before the

decision was made; and / or

b. an infringement of his rights guaranteed by Article 10 of the

European Convention on Human Rights and thus a breach of

section 6(1) of the HRA; and / or

c. in breach of fundamental human rights recognised by the common

law and irrational.

Each of these grounds is dealt with in turn below.

Breach of the Duty to Act Fairly

27. It is accepted by the Defendants that the Claimant was not given an

opportunity to make representations before the certificate was issued. In

the letter of 15 September 2003 the Defendants’ position is stated to be

that the Claimant was no more “interested” than anyone else to whom the

information might have been released, i.e. the public in general, and that

accordingly he can claim no right to be heard before the decision was

made. It is also said that the effect of the certificate was merely to prevent

the Ombudsman from disclosing the documents specified in it and that the

certificate did not deprive the Claimant of a remedy in relation to his

complaint to the Ombudsman in that she could still report on whether the

Government Departments had correctly applied the Access Code.

28. The Claimant submits that he had a specific interest in the issue of the

certificate, such as to place the Defendants under a duty to give him the

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opportunity to make representations before the certificate was issued. He

contends that his circumstances are distinguishable from those of the

general public for a combination of the following reasons:

i. he had specifically sought disclosure of the documents in question

and (as set out above) had been pursuing the issue for over two

years;

ii. he had sought disclosure of the documents in his capacity as a

journalist, intending to investigate and if appropriate to disseminate

them for public scrutiny via The Guardian newspaper. The Press

has a recognised and fundamentally important role to play as a

watchdog over potential abuses of power (see paragraph 35

below);

iii. he had made a specific complaint to the Ombudsman (via his MP)

as envisaged by paragraph 11 of the Access Code. The Code

specifically contemplates an investigation into the complaint by the

Ombudsman in accordance with the procedures contained in the

PCA. As set out above, the Ombudsman had accepted that his

complaint was one that could and should be investigated;

iv. the preliminary “Statement of Complaint” from the Ombudsman’s

office (see above) would have indicated to the relevant Government

Departments the relationship of the Claimant to the complaint under

investigation;

v. it was evident that the issue of the certificate would prevent the

Claimant from obtaining the information that he claimed should be

released to him and which was the subject of his complaint to the

25

Ombudsman. Thus the issue of the certificate did leave him without

an effective remedy. Further, the issue of the certificate precluded

the Ombudsman from referring to the specified documents in her

report and from discussing their contents. In the circumstances she

would not be able to set out any meaningful evaluation of whether

disclosure of the information sought fell within Exemptions 2 and 12

of the Access Code or not, nor carry out the prescribed balancing

exercise. Thus the issue of the certificate did inhibit the

Ombudsman from making a meaningful report in the

circumstances. Further, the obvious and reasonable inference is

that this was the Ombudsman’s own view (after having been shown

the relevant documents), since she decided shortly after receiving

the certificate on 25 June 2003 to terminate her investigation and

she has subsequently made it clear that she regards this

unprecedented use of section 11(3) in this sort of context as raising

important issues, hence the Memorandum she has agreed with the

Government. It is submitted that considerable weight should be

attached to that view.

29. For similar reasons, it is submitted that the Claimant has “sufficient

interest” to bring these proceedings and that he is “a victim” within the

meaning of section 7(1) HRA.

30. Whilst the content of the duty of fairness will always depend upon the

context, fairness will very often require that a person who may be

26

adversely affected by a decision will have an opportunity to make

representations before the decision is taken, for example see R v Home

Secretary ex parte Fayed [1998] 1 WLR 763 at 766B-H. Procedural

fairness generally requires prior notification of the proposed decision to be

given: see De Smith, Woolf and Jowell: Judicial Review of Administrative

Action (5th ed) at paras. 9-004 – 9-007. The duty to afford an opportunity

to make representations is applicable to determinations concerning an

evaluation of where the public interest lies; see for example R v Secretary

of State for the Home Department ex parte Moon (1996) 8 Admin LR 477

at 484H-485C. Even where the context does not require an opportunity

for representations to be made before a decision is taken, an opportunity

may be required for representations to be considered afterwards and in

both instances fairness usually requires that information is given as to the

gist of the case to be answered, so that informed representations can be

made: R v Secretary of State for the Home Department ex parte Doody

[1994] 1 AC 531 at 560D-G. In this instance the Claimant has not been

provided with such information and has not even been given an

opportunity to make representations after the decision was made.

Decision makers may be required to allow those adversely affected by the

decision, whether directly or indirectly, an opportunity to make

representations, provided their connection to the subject matter is not too

remote: R v LAUTRO ex parte Ross [1993] QB 17 at 50E-G. In this

instance the Claimant was, or should have been, specifically within the

Defendants’ contemplation and he was closely affected by the decision.

Further in De Smith, Woolf & Jowell: Judicial Review of Administrative

27

Action (5th ed.) the authors opine at page 413 note 66 in relation to the

right to a hearing, that: “Where the applicant has been granted standing to

sue in an application for judicial review it may be assumed that the impact

of the decision is sufficiently serious to qualify as adversely affecting his

interests”.

31. Had he known about the proposed issue of the certificate, the Claimant

would have wanted to make representations. It is difficult to specify

precisely the particular submissions that he would have wanted to make

as the Claimant has still been given very little information about the

reasons for issuing the certificate and the nature of the documentation that

it covered. However, assuming that there is some of parity of reasoning

behind the decision to issue the certificate and the earlier replies that the

Claimant received from the Departments involved, the Claimant would

have wanted to make all the points summarised above, and set out in

more detail in his witness statement, as to why the information sought was

in the public interest and should be released under the Access Code. It

cannot simply be inferred, in the absence of any evidence to that effect,

that such points were taken into account. It is noteworthy that the letter of

15 September 2003 contains no acknowledgment of there being a public

interest in receiving the information sought and so no evidence of a

specific balancing exercise having been done: for example, having

considered the Claimant’s representations, the Defendants might have

decided that, even if they could not disclose the detailed contents of the

discussions (which he was not seeking in any event), the public interest

28

did require disclosure of some information. Furthermore, the Defendants

appear to have been under an erroneous impression as to the extent to

which the issue of the certificate would affect the Ombudsman’s

investigation into the Claimant’s complaint; the Claimant could also have

made representations on this issue, as set out above.

32. Thus, as no opportunity to make representations was afforded to the

Claimant, it is submitted that the duty to act fairly has been breached and

the certificate under section 11(3) is flawed on this ground alone.

Breach of section 6(1) of the Human Rights Act

33. In the letter of 15 September 2003 it is contended on behalf of the

Defendants that article 10 is not engaged, as the article does not confer

any right to extract information from public authorities and that it is

confined to the right to express information that is already available to the

person seeking to exercise the right. In the alternative, it is contended that

the restriction upon release of the information in question is permitted by

article 10(2) as pursuing a legitimate aim and being imposed to meet a

pressing social need.

34. The Claimant submits that the protections afforded by article 10(1) should

be interpreted to include the right, at least on the part of the Press, to have

access to government information, unless it is necessary to prevent

disclosure for one of the reasons specified in article 10(2). The case law

of the ECHR cited in the 15 September 2003 letter (Leander v Austria

29

(1987) 9 EHRR 443 and Guerra v Italy (1998) 26 EHRR 357) was

concerned with applications made by individuals to obtain information that

they would not otherwise have access to and is thus distinguishable.

Moreover, the case law of the ECHR cited on behalf of the Defendants

does not deal in terms with an application by the media concerning

information on matters of public interest, which it was intended to

disseminate to the public. For example in Leander the applicant sought

confidential Government information to enable him to bring a claim arising

out of an unsuccessful job application. In this context it was said:

“The Court observes that the right of freedom to receive informationbasically prohibits a Government from restricting a person fromreceiving information that others wish or may be willing to impart tothem. Article 10 does not in the circumstances such as those of thepresent case, confer on an individual a right of access to a registercontaining information about his personal position, nor does itembody an obligation on the Government to impart suchinformation to the individual” (see paragraph 74) (emphasisadded).

35. Furthermore, the ECHR has frequently stressed that the only type of

political system that is compatible with the Convention is a democracy.

More specifically, the Court has stressed the very important role played by

the Press in a democracy as a watchdog that acts on behalf of the people

to hold government to account. It has been emphasised that in order for

this function of a watchdog to be fulfilled, it is incumbent on the Press to

impart information and ideas on matters of public interest and also that the

public has a right to receive such information: see for example: The

Observer and the Guardian v United Kingdom (1991) 14 EHRR 153 at

paragraph 59. It is noteworthy that the Consultative (Parliamentary)

30

Assembly of the Council of Europe has resolved that the right to freedom

of expression involves a:

“corresponding duty for the public authorities to make availableinformation on matters of public interest within reasonable limitsand a duty for mass communication media to give complete andgeneral information on public affairs”

(see paragraph 15.151 The Law of Human Rights: Clayton & Tomlinson).

36. Additionally, it should be borne in mind that the Convention is a “living

instrument”, to be interpreted in keeping with developing social values. It

is also important to recall that section 2 of the HRA requires the case law

from Strasbourg to be taken into account but does not make it binding: this

leaves it open to the courts of this country to develop their own “home

grown” jurisprudence on such rights as article 10 which fits in with our

culture and current social attitudes, provided that they do not fall beneath

the “floor” of protection required by Strasbourg; see for example R

(Marper) v Chief Constable of South Yorkshire Police [2002] EWCA Civ.

1275, [2002] 1 WLR 3223 CA at para. 16. It is submitted that the

developments of the Access Code and freedom of information legislation

in this country are illustrative of the increasing appreciation of the

importance of public access to information in a functioning democracy.

This is reinforced by the decision to declare the application in Roche v

United Kingdom (2002) 23 May admissible under (inter alia) article 10 of

the Convention (the decision is included in the accompanying bundle, see

ps. 16 – 18 of the decision). The application related to the failure to

disclose to the applicant medical records relating to tests done on him at

31

the Porton Down Chemical and Biological Defence Establishment, when

he was serving in the army and thus suggests a broader interpretation of

the protection afforded by article 10.

37. The fundamental role played by the Press in investigating and imparting

information on matters of public interest, has also been recognised in

domestic case law. For example in McCartan Turkington Breen v Times

Newspapers Ltd. [2001] 2 AC 277 HL, see in particular at 290H and 296G-

297F. At the latter reference Lord Steyn cited from his earlier speech in R

v Secretary of State for the Home Department ex parte Simms & O’Brien

[2000] 2 AC 115 at 126-127:

“Freedom of expression is, of course, intrinsically important: it isvalued for its own sake. But it is well recognised that it is alsoinstrumentally important. It serves a number of broad objectives.First it promotes the self-fulfillment of individuals in society.Secondly, in the famous words of Holmes J (echoing John StuartMills) “the best test of truth is the power of the thought to get itselfaccepted in the competition of the market”: Abrams v United States(1919) 250 US 616, 630 per Holmes J (dissenting). Thirdly,freedom of speech is the lifeblood of democracy. The free flow ofinformation and ideas informs political debate. It is a safety valve:people are more ready to accept decisions that go against them ifthey can in principle seek to influence them. It acts as a brake onthe abuse of power by public officials. It facilitates the exposure oferrors in the governance and administration of justice of thecountry.”

38. Domestic case law has also accepted that article 10 can in appropriate

circumstances confer a right, via the Press, to make information available

to the public, see R (Wagstaff) v Secretary of State for the Home

Department [2001] 1 WLR 292 DC at 317F – 319E (where the decision to

hold the Shipman Inquiry in private was held to be irrational, having regard

32

to the public’s right to receive information pursuant to article 10). In R

(Persey and others) v Secretary of State for the Environment, Food and

Rural Affairs [2002] 3 WLR 704 DC the Wagstaff decision was

distinguished and it was held in relation to a closed inquiry into the foot

and mouth outbreak in 2001 that article 10 did not accord a right to access

to information, requiring the State to facilitate freedom of expression by

providing a public inquiry to make available to the public information that

they would not otherwise have a right to access (see paragraphs 48 – 54

in particular). However in the Persey case it appears that no specific

consideration was given to rights under article 10 distinguishing between

the particular role played by the Press (as opposed to the opportunity for

individuals to access information) and it was decided prior to the Roche

decision on admissibility referred to above. Furthermore, in the present

instance, the effect of the issue of the certificate was to inhibit the

opportunity which the Claimant otherwise had for a comprehensive

Ombudsman’s investigation of his complaint and for release of the

information pursuant to the Access Code. This is distinct from the

circumstances in Persey where article 10 was utilised to seek to establish

a right to obtain information that would not otherwise have been available

to the public.

39. The Claimant thus submits that article 10(1) is engaged in the present

instance and that the Defendants have wholly failed to establish that the

issue of the certificate was justified as coming within the circumstances

set out in article 10(2). To establish such justification:

33

“..any curtailment of freedom of expression must be convincinglyestablished by a compelling countervailing consideration and themeans employed must be proportionate to the end sought to beachieved” : McCartan (above) at 297H.

In Wagstaff (above) it was said that the case for restriction must be “strictly

proved”: see 319D. In Kelly v BBC [2001] Fam 59 at 67 Munby J. said

that establishing “convincingly” a justification could not be done by mere

assertion, however eminent the source of the assertion, nor by simply

inviting the Court to make assumptions; what was required was proper

evidence.

40. The letter of 15 September 2003 refers to protection of confidential

information and advice, Ministers’ rights to privacy and the desirability of

encouraging candour as between Ministers and their Permanent

Secretaries in the future. Reference is also made to Exemptions 2 and 12

of the Access Code. However, no specifics at all are given as to why the

documents covered by the certificate present a risk of harm in these

areas. The Parliamentary answer from the Lord Chancellor (the Secretary

of State for Constitutional Affairs) enclosed with the letter provides no

further material details. Nor does the letter contain any indication that a

public interest in receipt of the information sought has been appreciated.

41. The concept of a “public interest” in section 11(3) should be given a

narrow meaning in order to render it compatible with article 10, pursuant to

section 3(1) of the HRA. This can be done by requiring a balance to be

34

struck between the different public interests in, on the one hand, the free

flow of information in a democracy and, on the other, consideration of

individual privacy or confidentiality of internal advice to Ministers. The

provisions of the Access Code, when properly applied, reflect such a

balancing process (see above).

42. In the circumstances it is submitted that the Defendants have failed to

establish:

a. that the issue of the certificate pursued a legitimate aim. It is

accepted that the considerations of confidentiality and privacy

referred to in the letter could constitute a legitimate aim within

article 10(2), but no basis is put forward to establish that such

considerations applied to the particular documents covered by the

certificate. No information is given as to the nature of the same; the

desire to withhold disclosure may, for example, be simply to avoid

occasioning embarrassment to particular Ministers; and / or

b. that the issue of the certificate met a pressing social need. At

present there is simply a bald assertion to that effect, with no

supporting evidence or detailed reasoning. None of the points

made by the Claimant when he requested the internal reviews, nor

the points made herein and in the Claimant’s witness statement as

to why the balance is in fact in favour of disclosing the information

and as to why Exemptions 2 and 12 do not apply, have been

addressed. There is no identification or acknowledgement of a

public interest in receiving the information, nor of the role played by

35

the Press in facilitating that process. It will be recalled that it was

not considered appropriate to issue a certificate in respect of the

Ombudsman’s investigation into Andrew Robathan MP’s complaint

and that the Memorandum of Understanding contemplates that the

circumstances in which a certificate will be issued will be very rare.

It will also be recalled that the Ombudsman took the view in Mr.

Robathan’s case that, contrary to the view asserted by the Home

Office, the information sought did not come within Exemptions 2 or

12 of the Access Code. The letter of 15 September 2003 states

that competing considerations were balanced before the decision

was taken, but this is simply assertion and no such considerations

are identified as having been taken into account. In a democracy,

the ability of the people to hold their government to account is vital

to the public interest. The Defendants have wholly failed to show a

pressing social need to inhibit that process.

Irrationality

43. The letter of 15 September 2003 suggests that the irrationality contention

advances no separate argument and irrationality is denied on the basis

given in response to the article 10 point. The letter does not address the

point that the doctrine of irrationality includes breach of fundamental

human rights which are recognised by the common law.

44. However, the irrationality submission is of particular significance if the

Court were to hold that article 10 is not engaged in the circumstances.

36

The European Convention is not an exhaustive statement of human rights

recognised in our domestic legal system: R v Secretary of State for the

Home Department ex parte Anufrijeva [2003] UKHL 36 [2003] WLR 252 at

paragraph 27 (Lord Steyn). This is reinforced by section 11 HRA, which

provides that the Act adds to but does not detract from other rights.

45. The Claimant submits that, irrespective of the position under article 10, the

common law has recognised that the freedom of the Press (as an aspect

of the right to freedom of speech) is a fundamental right: see ex parte

Simms & O’Brien (above) at 126 –127. It is further submitted that this

right includes the right to obtain information in circumstances where

members of the Press seek material that the public has a legitimate

interest in receiving, with a view to disseminating it to the public, save

where the balance of the public interest lies in favour of non-disclosure.

46. In turn, it follows from this, that the principle of legality (see ex parte

Simms & O’Brien at 131) requires that general words such as those used

in section 11(3) should not be interpreted as permitting a violation of that

right. Further, as the issue of the certificate in this case involves an

apparent interference with a fundamental human right, the Court should

require positive justification from the Defendants as to the basis of the

interference before being in a position to conclude that the decision to

issue the certificate was a rational one: see R v Ministry of Defence ex

parte Smith [1996] QB 517 at 554 (Bingham MR). As that classic passage

makes clear, the greater the interference with a fundamental right, the

37

more the court will require by way of justification before it can be said that

a decision is rational.

47. For the reasons set out in relation to the issue of whether justification

under article 10(2) is established, the Claimant submits that the

Defendants have failed to establish the requisite positive justification for

interfering with his fundamental rights and thus the conclusion should be

drawn that the decision to issue the certificate was irrational.

4. Particulars relating to the Human Rights Act 1998 (PD 16.1)

4.1 See paragraphs 33 - 42 above.

5. Grounds for Interim Relief

Not applicable.

Section 6 Details of remedy (including any interim remedy) beingsought

1. An order quashing the decision to issue the certificate under section 11(3) of

the Parliamentary Commissioner Act in respect of information sought from

Government Departments by the Claimant; and / or

2. A declaration that the certificate was issued in breach of the duty to act fairly

and / or in breach of the Human Rights Act 1998 and / or that the decision to

issue the certificate was irrational.

38

Section 7 Other applications

I wish to make an application for:-

Not applicable.

RABINDER SINGH QCHEATHER WILLIAMS

Statement of Truth

I believe (the Claimant believes) that the facts stated in this Claim Form are true.

Full Name: _______________________________________________________________

Name of claimant’s solicitor’s firm: _____________________________________________

Signed: ____________________________Claimant (’s solicitor)

Position or office held ______________________ (if signing on behalf of firm or company)

39

Section 9 Supporting Documents

If you do not have a document that you intend to use to support your claim,identify it, give the date when you expect to be available and give reasons why itis not currently available in the box below.

Please tick the papers you are filing with this claim form and any you will be filinglater.

˛ Statement of grounds ˛ included

˛ Statement of the facts relied upon ˛ included

Application to extend the time limit for filing the Claim Form included

Application for directions included

Any written evidence in support of the claim or application to extend time

Where the claim for judicial review relates to the decision of a court ortribunal, an approved copy of the reasons for reaching the decision

˛ Copies of any documents on which the claimant proposes to rely

� A copy of the CSLF certificate (if legally represented)

˛ Copies of any relevant statutory material

˛ A list of essential documents for advance reading by the court (with pagereferences to the passages relied upon)

Reasons you have not supplied any document and the date you expect it to be available:-

Signed:______________________________________ Claimant (’s Solicitor)