[2023] UKUT 303 (AAC)

Ms Forstater, through Ms Cunningham, raised a number of what I will term policy issues before me at outset of the oral hearing of the appeal – such as, that judicial training “should not be secret”, that decisions about training are not about the exercise of judicial functions, and that judicial independence is undermined by not being subject of FOIA – by way of general argument. I did not find these arguments to be of any real assistance. The legal issue before me on this appeal is not whether the Judicial College ought to be listed in Schedule 1 to FOIA. As I have already said, it was common ground before me that a body called the ‘Judicial College’ has never appeared in Schedule 1 to FOIA.

Ms Forstater’s arguments at their core came down to two propositions First, in the statutory context set out above can the listing of the ‘Judicial Studies Board’ in Schedule 1 to FOIA up to 1 September 2022 (Footnote: ¹) lawfully (as a matter of statutory construction) be read as meaning the ‘Judicial College’? Second, though this may be no more than an aspect of the first argument, did the evidence before the FT show only that the Judicial Studies Board had done no more than change its name to the Judicial College and, therefore, the Judicial College had to be read as being the Judicial Studies Board at the time of Ms Forstater’s request in March 2020? I will take these two overarching points first before addressing, insofar as it remains necessary to do so, the grounds of appeal on which Ms Forstater still relies.

The argument that the ‘Judicial College’ as a matter law – or, as it was put to the FTT, as a matter of literal construction of the words of Schedule 1 to FOIA - is the same body as, and must be read as being, the ‘Judicial Studies Board’ under Schedule 1 of FOIA as at 18 March 2020 has no merit. It is not disputed that a body called the Judicial College has never appeared in Schedule 1 to FOIA. It was therefore, per section 3(1)(a)(i) of FOIA, not listed in Schedule 1 to FOIA on 18 March 2020 and so, as a matter of law, was not a “public authority” under (section 3) of FOIA. The fact that the Judicial Studies Board remained listed in Schedule 1 to FOIA for over eleven years after it had ceased to exist is taken by the appellant, in my judgment, to prove too much. I cannot see that this historical fact alone, and absent any other considerations, can show the necessary legal intendment that the Judicial College should be treated as the Judicial Studies Board. The most likely explanation is that the relevant Minister simply did not get round to the amending Schedule 1 of FOIA under section 4(5)(a) of FOIA once the Judicial Sturdies Board had ceased to exist. Alternatively, the Minister may have thought that as the Judicial Studies Board had ceased to exist, it was no longer “established” under section 4(2) of FOIA and therefore that alone was sufficient to mean it no longer constituted a public authority for the purposes of FOIA. However, the detail of the mechanisms in section 4 of FOIA for adding a body to FOIA as a “public authority” (section 4(1)) or removing a body as a public authority from the scope of FOIA (section 4(5)), points in my judgment strongly against mere inaction on the part of the Minister as a constituting a positive intendment that ‘Judicial Studies Board’ was to be read as meaning ‘Judicial College’ in Schedule 1 to FOIA.

There is also no merit in my judgment in the argument that the evidence before the FTT showed only that the Judicial Studies Board had changed its name to the Judicial College, but otherwise it was a body which was exercising the exact same functions, and therefore adopting what I will call a functional approach to statutory construction (or more accurately the application of the statutory words to the evidence) the FTT had erred in law in not finding the Judicial College was the Judicial Studies Board in March 2020.

There are several problems with this argument.

First, as I have touched on in paragraph eighteen above, it is at least arguable, given the detailed code for adding and removing bodies as public authorities under FOIA found in section 4 of that Act, that evidential considerations do not apply in determining whether a body which is not listed in Schedule 1 to FOIA should be held as being a body which is in fact listed in Schedule 1. In such a case it may be said that the remedy provided for by Parliament is not to go behind the references to bodies listed in Schedule 1 but instead to seek the addition of the new body and removal of the old body under, respectively, sections 4(1) and 4(5) of FOIA.

However, Mr Mehta at least was prepared to concede that there may be a case where if all that was in issue was a change of name of the public authority, it may be open to argument that the renamed body, where it otherwise remains in terms of its function and responsibilities on all fours with its previous named incarnation, falls to be read as being the body listed in Schedule 1 to FOIA. I suppose such a case might fit consistently with the terms of section 4(2) or 4(3) of FOIA if it can be shown, for example, that the body with the new name remains the body established by appointment made by a Minister of the Crown. However, it seems to me that the evidence in such a case would need clearly to show that this was the case.

Mr Mehta stressed, however, that even if such an argument could be made, this was not such a case. I agree. There was no positive evidence before the FTT showing that all that occurred on 1 April 2011 was that the ‘Judicial Studies Board’ changed its name to the ‘Judicial College’, but otherwise the Judicial Studies Board remained in place as the (same) body (save for a name change) established, for example, by Royal Prerogative. The absence of a such evidence is not the same as evidence that all that occurred was a name change.

Second, it seems to me given the terms of section 4(1)-(3) of FOIA that the argument that the Judicial College was the Judicial Studies Board in March 2020 required that it be shown not only that there was a mere change of name but also, and as part of this, that the Judicial College remained the same body established by Royal Prerogative or by an enactment or subordinate legislation, or established in any other way by a Minister of the Crown, or remained the same body as had had been appointed by the Crown or by a Minister.

Third, and most directly and importantly, evidence was considered by the FTT and in my judgment it was entitled to conclude on that evidence that the Judicial College was a new body and not the same body as the Judicial College, and therefore the parts of Ms Forstater’s request other than the part of it which related to the costs of the training had not been made to a public authority under FOIA. That evidence was the witness statement of Amelia Wright, executive Director of the Judicial College. Undue focus has been placed in Ms Forstater’s argument, in my judgment, on what occurred at midnight on 31^st March 2011 and the supposed lack of explanation about what exactly changed at that point in time. This is to take Ms Wright’s evidence out of context. Read in context, as the FTT did at paragraphs 23-29 of its decision, the FTT was entitled rationally to hold that that evidence showed that the Judicial College was not the same body as the Judicial Studies Board. The Constitutional Reform Act 2005 introduced significant changes vesting judiciary-related functions in (what was then) the Lord Chief Justice instead of the Lord Chancellor. One of those functions was training the judiciary. Given the sea-change introduced by the Constitutional Reform Act 2005 with effect from April 2006, it is perhaps not surprising that it took time to ensure the appropriate structures were in place to ensure the Lord Chief Justice (and, from 2007, the Senior President of Tribunals) could deliver his statutory responsibility in respect of training. That process, on Ms Wright’s evidence, took until April 2011. However, there is nothing irrational in a point in time being needed at which the Judicial Studies Board would end and the Judicial College came into being. Indeed, such a point in time must in almost all cases be a necessary part of such a change. The critical point, however, is that, as the FTT was rationally entitled to find, the Judicial College was “new body”: that ‘newness’ being as a result of the changes brought in by the Constitutional Reform Act 2005.

There is in my judgment no merit in the appellant’s argument that the “only rational inference from Ms Wright’s evidence is that the [Judicial Studies Board] underwent substantial changes between 2005 and 2011, none of which affected its status as a schedule 1 public authority; and then changed its name with effect from 1 April 2011”. As a perversity challenge to the FTT’s findings of fact, this argument is quite hopeless. It ignores the detail of Ms Wright’s evidence and, perhaps more critically, entirely leaves out of account the constitutional reasons why a new body was considered necessary. And the argument is not assisted by making gratuitous comments which refer to Ms Wright’s evidence about the history of the Judicial Studies Board between 1979 and March 2011 being “[t]he noise of Ms Wright’s sophisticated and detailed explanation”.

The Judicial College not being listed in Schedule 1 to FOIA can therefore be seen as a conscious legislative choice, post the Constitutional Reform Act 2005 to exclude the information held by an independent judiciary and by bodies such as the Judicial College on behalf of the judiciary from the requirements of FOIA.

The above is sufficient to dispose of the first and fourth of the appellant’s grounds of appeal.

However, insofar as it may be necessary for me to do so, but also given the comment Judge Wikeley made when giving permission to appeal, I address the discrete criticism of Ms Forstater that the FTT failed to make any findings about the nature of the change that took place on 1 April 2011. That argument has no merit for the reasons given by the Information Commissioner in his skeleton argument. As I agree with the Information Commissioner I need do no more than set out that part of his skeleton argument.

“…the FTT did make findings as to the “nature of the change that took place on 1 April 2011”:

(1)

At paragraphs 25-27, the FTT noted: (i) that the Judicial Studies Board was (prior to the Constitutional Reform Act 2005 (“CRA 2005”)) overseen and accountable to the Lord Chancellor; and (ii) the developments which took place as a result of the CRA 2005, which transferred the Lord Chancellor’s judiciary-related functions to the Lord Chief Justice.

(2)

At paragraph 28, the FTT noted: (i) the transition period prior to 1 April 2011, in which the Judicial Studies Board supported the Lord Chief Justice (instead of the Lord Chancellor) in his new responsibilities for judicial training; and (ii) that during this time the Judicial Studies Board transitioned to being operated as an independent judicial body.

(3)

At paragraph 29, the FTT noted the coming into being of the Judicial College, at the same time as the Judicial Studies Board came to an end, on 1 April 2011.

(4)

At paragraph 30, the FTT noted that during the ‘transition period’ prior to 1 April 2011, the functions and operations and the Judicial Studies Board “closely resembled, or were identical to” the functions and operation of the Judicial College in the immediate aftermath of that date.

(5)

At paragraphs 31-32, the FTT expressly addressed – and rejected – the appellant’s submission that the Judicial College is the Judicial Studies Board, renamed. It accepted the evidence of Ms Wright that the two bodies are not the same, despite the similarity of the operations and functions of the Judicial Studies Board immediately prior to 1 April 2011 to the Judicial College immediately after that date. The FTT found that there was nothing before it to directly contradict Ms Wright’s evidence in this regard. It was entitled to do so: indeed, the Appellant does not rely on any conflicting evidence.”

The only other ground of appeal for which Ms Forstater has permission concerns whether the FTT wrongly imposed the (legal and evidential) burden on her of showing that the Judicial Studies Board and Judicial College were the same body. This is an arid argument which has no merit. The argument here rests solely on what the FTT said in paragraph 19 of its decision. Having set out the relevant law the FFT said this:

“19.

We note that the burden of proof in satisfying the Tribunal that the Commissioner’s decision [is] wrong in law or involved an inappropriate exercise of discretion rests with the Appellant.

As a matter of substance there is nothing startling or wrong in this statement. Although one might quibble with the use of the word “proof”, with its connotations of establishing something on the evidence, in the context of FOIA for an appeal to be allowed under section 58 of FOIA the FTT has to “consider” that the Information Commissioner’s decision notice (against which the appeal is brought) is not in accordance with the law or should have involved a different exercise of a discretion which the Information Commissioner held. That ‘consideration’ is the end point of the FTT appeal process. I do not consider that in paragraph 19 the FTT was doing any more than making the obvious point that an appellant has to put forward argument to make good their appeal that one of the section 58 remedies should apply.

More importantly, however, the FTT’s reasons when read as a whole show clearly in my judgment that it did not rely on the Ms Forstater having failed to discharge any burden of proof on her as the basis for the FTT refusing her appeal. The FTT’s conclusion that the appeal failed was based on all the evidence before it including. most notably, the detailed witness statement of Ms Wright. It must be borne in mind that Ms Wright was a witness from the Judicial College. That itself substantially undercuts Ms Forstater’s argument that the FTT simply placed the onus on her to make out that the Judicial College was the same body as the Judicial Studies Board. If that had been the case, the FTT would not have needed to consider Ms Wright’s evidence at all. However, the FFT heard from Ms Wright, who was cross-examined by Ms Cunningham for Ms Forstater, and it based its decision on Ms Wright’s evidence.

I should add that I find nothing in the FTT’s approach which offends against the Information Commissioner’s helpful summary of the relevant legal principles in this area of the law. These principles are:

I also refuse Ms Forstater permission to appeal on the remaining three grounds of appeal for which she sought permission (grounds (5), (7) and (8) in paragraph twenty above).

I cannot see that ground 5 – the FFT erred in law in failing, if necessary, to give the expression “the Judicial Studies Board” a properly purposive construction to give effect to Parliament’s evident intention in the drafting of Schedule 1 – really adds anything to the grounds of appeal I have found against above. This argument, in truth, is not really one about statutory construction but is just another way of the appellant advancing her argument that the Judicial College was no more than a continuation of the Judicial College. In any event, it is not arguable with any realistic prospect of success that the FTT erred in law in paragraphs 33-35 of its decision in applying a literal interpretation to the names of the bodies listed in Schedule 1 to FOIA. Once the Inco Europe line of argument was (rightly) abandoned by Ms Forstater, I struggled to understand what was meant by a purposive construction of Schedule 1 to FOIA.

In Sugar v BBC [2009] UKHL 9; [2009] 1 WLR 430 Lord Hope stated, at paragraph [56]:

“…In common with all the other public bodies and offices listed in Part VI of the Schedule the name [the BBC] tells one all one needs to know. That, indeed, is the purpose of the listing. Its purpose is to enable people who wish to exercise the general right of access to exercise it without having to go to the courts to find out whether the body or office-holder to whom the request is directed is a public authority within the meaning of section 1(1). As the commentators on the Freedom of Information (Scotland) Act 2002 in Current Law Statutes explain in their general note on section 3 and Schedule 1, clarity of coverage in advance was understood by the legislature to be vital. It was appreciated that to replace the list in Schedule 1 with an omnibus provision that the Act applied to bodies that provided a public service could lead to endless litigation. This was contrary to the principle that the primary role in enforcing the Act should rest with the Commissioner and not the courts: section 47(1). The system of listing is elaborate and, as section 7 recognises, will require constant monitoring to ensure that it is kept up to date. Its value, however, is that it reduces to the minimum the scope for dispute about whether a particular body or office-holder is, or is not, a public authority.”

Given that starting point, the scope for a purposive, as opposed to literal, construction of Part VI of Schedule 1 to FOIA seems faint if not non-existent, and would need to be better articulated than the general argument made by Ms Forstater.

Grounds 7 and 8 have no arguable merit either. These grounds are: (7) that the FTT failed to decide what were the purposes of the Judicial College and whether those purposes included training; and (8) the FTT erred in law in inferring from its conclusion that the requested information (other than on costs) was held by the Judicial College to support its judicial functions, that the Judicial College held the information on behalf of the judiciary, and (by implication) not for its own purposes.

Again, I fail to understand what these grounds add or bringing separately to these proceedings. The argument in ground 7 has no realistic prospect of success because it comes flat up against paragraphs 51-52 of the FTT’s decision where the FTT set out, which was obviously linked to and followed on from the paragraphs in the decision set out at paragraph nine of this decision above, that:

“51.

As we have concluded above, the Judicial College exists to support the Lord Chief Justice and the Senior President of Tribunals to meet their statutory responsibilities for the training of the judiciary. It is constituted both by members of the judiciary, and civil servants who provide administrative support to those members of the judiciary.

52.

In acting in their roles within the Judicial College, the judiciary are fulfilling a judicial function – to train, and to oversee the training of, judicial office holders. Anything undertaken by a member of the judiciary under the auspices of the Judicial College is undertaken in that person’s capacity as a member of the judiciary. The judicial constituent of the Judicial College does not work for, nor are they any a part of, the Judicial Office. This is in contrast to the administrative staff of the Judicial College, who are part of the Judicial Office and employed in that capacity by the Ministry of Justice.

As for ground 8, no arguable error of law is made out either. The FTT’s analysis was based on a distinction between the judicial and administrative arms of the Judicial College in terms of its operation. Those conclusions were based on and entirely consistent with the evidence before it: see paragraphs 46, 52 and 54 of the FTT’s decision.

It is for all these reasons that I have disallowed the appeal and refused permission to appeal on the other grounds of appeal still advanced by Ms Forstater.