[2023] UKUT 303 (AAC)

The appeal arises from a request made by Ms Fostater to what was at the time Her Majesty’s Courts and Tribunals Service (“HMCTS”) on 18 March 2020. The request asked for information concerning training Ms Forstater understood had been delivered by an organisation called ‘Gendered Intelligence’ on ‘Trans awareness’ to judges of the employment and asylum and immigration tribunals. The request asked for the costs of the training, the contract/agreement/terms of reference for the commissioning of the training, the materials used at the training and the names of the judges who had attended the training.

The request led to a response at the end of March 2020. As the First-tier Tribunal (FTT) noted, the response was on Ministry of Justice (“MoJ”) notepaper and was signed by an individual on behalf of the “Judicial College”. The substance of that response was that the information was not held by the MoJ as:

““statutory responsibility for the provision and content of training for the judiciary rests with the Lord Chief Justice as Head of the Judiciary in England and Wales, and the Senior President of Tribunals, in line with the Constitutional Reform Act 2005…. [and]…the Judiciary are not a public authority for the purposes of FOIA…”

Ms Forstater sought an internal review of this decision by “HMCTS/the Judicial College” on the basis that, although the judiciary is not a public authority for the purposes of FOIA:

“the Judicial Studies Board is listed under Schedule 1 [of FOIA] The Judicial College was formerly the Judicial Studies Board and there has been no indication that it has been removed from the scope of the Freedom of Information Act.”

The reply to this internal review request was also issued on MoJ headed notepaper and was signed (electronically) by the Judicial College. The material parts of that reply, as far as this appeal is concerned, read as follows:

“All information on judicial training that is held by the Judicial College, is only held on behalf of the judiciary of England and Wales, who are exempt from the provisions of the FOIA 2000 by not being cited as a public authority in Schedule 1 of the FOIA. Which is why it is not held by the MoJ.

The above is sufficient to describe the central issue which arises on this appeal.

The FTT set out the issues it considered fell for its consideration in the following terms:

“(1)

Is the Judicial College a public authority for the purposes of FOIA?

(2)

If yes, does the Judicial College hold any part of the requested information?

(3)

Irrespective of the answer to (1) above, does the Ministry of Justice hold any part of the requested information?

(4)

If the answer to either (2) or (3) above is in the affirmative, should the Tribunal issue a Substituted Decision Notice directing production of that part of the requested information that is found to be held?”

The FTT answered the first of these questions in the negative: the Judicial College is not a public authority for the purposes of FOIA. It also found that the MoJ is a public authority under FOIA, and that the MoJ held information falling within the scope of Ms Forstater’s request in respect of the cost of the “Trans Awareness Training delivered to the ET and AIT by Gendered Intelligence”.

The FTT gave detailed reasons for why it found that the Judicial College is not a public authority for the purposes of FOIA. Given the challenge by Ms Forstater to the FTT’s decision on this issue, I set most of that reasoning out below.

“22…..the Judicial College is not named within Schedule 1 to FOIA. Given the unambiguous terms of section 3 of FOIA, one could be forgiven for thinking that this is all that requires saying on this issue. However, the appellant asserts that although the Judicial College is not listed by name within Schedule 1, it is nevertheless a body listed therein as the successor to the Judicial Studies Board, a body which is specifically named within that schedule.

23.

Amelia Wright provided the Tribunal with detailed written and oral evidence on the history and operational scope of both the Judicial Studies Board and the Judicial College, which we accept as accurate in its entirety. This evidence was clear, plausible and consistent throughout.

24.

The Judicial Studies Board was set up in 1979, following a review by Lord Justice Bridge, to provide training for judges in the criminal jurisdiction. In 1985, its role was extended to cover the provision of training in the civil and family jurisdictions and the supervision of training for magistrates and judicial chairs and members of tribunals.

25.

Prior to the Constitutional Reform Act 2005 coming into force in April 2006, the position was that the Judicial Studies Board was a non-departmental public body overseen by the Lord Chancellor (a Cabinet Minister). The Permanent Secretary of the Lord Chancellor's Department (a senior civil servant) was responsible for advising the Lord Chancellor on how the Judicial Studies Board’s plans fitted into his or her overall strategy. As well as providing training, the Judicial Studies Board advised the Lord Chancellor and other government departments on the policy for, and content of, training for lay magistrates, appropriate standards for, and content of, training for judicial officers in Tribunals and on the training requirements of judges, magistrates and judicial officers in Tribunals. Operational objectives were agreed annually between the Lord Chancellor and the Judicial Studies Board. The Chair (a member of the senior judiciary) and board members of the Judicial Studies Board were appointed by the Lord Chancellor. Each year the Judicial Studies Board made a report to the Lord Chancellor on its activities. The Lord Chancellor and the Minister of State were answerable to Parliament on matters relating to the Judicial Studies Board. Staff within the Judicial Studies Board were all civil servants.

26.

In his oral statement to the House of Lords on 26 January 2004, the Secretary of State and Lord Chancellor set out detail on the Government’s proposals for the transfer of the Lord Chancellor’s judiciary-related functions to the Lord Chief Justice. Judicial independence was enshrined in law with the commencement of the Constitutional Reform Act 2005 and all judicial functions previously held by the Lord Chancellor transferred to the Lord Chief Justice.

27.

In November 2009, the Lord Chief Justice and the Senior President of Tribunals agreed to establish the Unified Judicial Training Advisory Board (“UJTAB”) under the chairmanship of Lord Justice Sullivan. The UJTAB was asked to advise them on unified judicial training and in its July 2010 report it recommended the establishment of a joint Judicial Training College - a single judicial training organisation in England and Wales for judges, legal advisers, magistrates and non-legal members of tribunals. The Lord Chief Justice and Senior President accepted the recommendation.

28.

There was a transition period during which the Judicial Studies Board supported the Lord Chief Justice (instead of the Lord Chancellor) in his new responsibilities for judicial training. During that time, the Judicial Studies Board transitioned to being operated as an independent judicial body and part of the Directorate of Judicial Offices for England and Wales - the forerunner of the current Judicial Office.

29.

On 1 April 2011, the Judicial College came into being and at the same time the Judicial Studies Board came to an end. The Judicial College is not a body established by statute but is a constituent part of the Judicial Office, an administrative arms-length body of the Ministry of Justice. The Judicial College advises the Lord Chief Justice and is accountable to him through the Judicial Executive Board.

30.

There is no dispute that the Judicial Studies Board was listed as a public authority in Schedule 1 to FOIA prior to the Constitutional Reform Act 2005 and that, despite the transfer of functions from the Lord Chancellor to the Lord Chief Justice as a consequence of that Act and the subsequent extension of Judicial Studies Board’s remit, it remained listed in Schedule 1 and, indeed, remains listed to this date. It is also beyond dispute that in the approach to 1 April 2011, the functions and operation of 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.

31.

The appellant’s primary submission is that the Judicial College is the same body as the Judicial Studies Board, with the consequence that it is a public authority by virtue of the Judicial Studies Board being listed in Schedule 1 to FOIA. We reject this submission. In doing so we need say no more than that we accept Amelia Wright’s evidence that the Judicial Studies Board “came to an end” on 31 March 2011 and that “On 1 April 2011, the Judicial College, a new body, came into being…”. There is nothing before us to directly contradict Amelia Wright’s evidence in this regard, and the mere fact that the Judicial Studies Board fulfilled the same functions or operated with the same structure before 1 April 2011 as the Judicial College did from 1 April 2011 does not lead us to reject the clear and consistent evidence provided by Amelia Wright.

32.

The fact that the Judicial Studies Board remained listed in Schedule 1 to FOIA, despite the significant changes brought about by the Constitutional Reform Act 2005 and the coming into being of the Judicial College on 1 April 2011, is not indicative of the Judicial College being the same body as the Judicial Studies Board. The leap in logic required to reach such a conclusion is simply too great and one we are not prepared to make. In such circumstances we find, contrary to the appellant’s submissions, that: (i) the Judicial College is not the Judicial Studies Board, renamed; and, (ii) the literal interpretation of the words “Judicial Studies Board” in Schedule 1 to FOIA is not “the Judicial College”.

33.

We now move on to consider the appellant’s alternative position, which is put in the following terms in paragraph 32 of the appellant’s skeleton argument of 13 October 2021:

“If the Tribunal does not accept that the interpretation urged by the appellant is a straightforward literal construction of the words of the schedule, it is in any event a properly purposive construction. The will of parliament should be given effect, not thwarted: and since the JSB was included on the schedule when the Act came into force in 2005, and parliament has not since then evinced any intention to remove it or to take a different view of the proper status of the JC, giving effect to the will of parliament involves interpreting the words “Judicial Studies Board” to mean the JSB’s successor body, the JC. If necessary, it is submitted that the conditions are met for a “rectifying construction” to substitute the words “Judicial College” for “Judicial Studies Board”: see Inco Europe Ltd. and Others v First Choice Distribution (a firm) and Others [2000] 1 WLR 586.”

34.

Once again, we reject the appellant’s submission. It is beyond legal argument that there is a presumption that the text of a statute is the primary indication of Parliament’s intention and that the enactment is to be given its literal meaning. If, on an informed interpretation, there is no real doubt that a particular meaning of an enactment is to be applied, that is to be taken as its legal meaning. If there is a real doubt, it is to be resolved by applying interpretive criteria. Where the meaning of statutory words is plain and unambiguous it is not for the courts or tribunals to interfere, nor invent ambiguities.

35.

In our view the words “Judicial Studies Board” could not be clearer. They refer to the body known by that name and described above, which was set up in 1979, was in existence at the time of the passing of FOIA and which ceased to exist on 31 March 2011. What the appellant urges the Tribunal to do is to read words into FOIA that are not there. This is not beyond the scope of the Tribunal’s jurisdiction, but this jurisdiction is confined to plain cases of drafting mistakes: see Inco Europe Ltd. and Others at [592E]. The absence of an Order made pursuant to section 4 of FOIA to either remove the Judicial Studies Board from Schedule 1 to the Act or to add the Judicial College thereto, is not akin to a drafting mistake in the words of a statute. If the tribunal were to conclude otherwise, we would in effect be, in our view impermissibly, taking on a function reserved by statute to either the “Secretary of State or the Minister for the Cabinet Office”. We have no evidence as to why the Judicial College has not been added to the list of public authorities in Schedule 1 of FOIA, nor do we have evidence as to why the Judicial Studies Board has not been removed from such list and, in our view, it would be entirely wrong to speculate on such matters.

36.

The appellant makes one further submission in her attempt to persuade the Tribunal that the Judicial College is a public authority for the purposes of FOIA, and that is to place reliance on responses to FOIA requests issued by the Judicial College between 2013 and 2015, in which the Judicial College identifies itself as being subject to FOIA. The issue of whether the Judicial College is a public authority listed in Schedule 1 to FOIA is, however, one of legal interpretation. The fact that individuals within the Judicial College, or even the Judicial College itself, took the position that it was a public authority for the purposes of FOIA is not a matter capable of bearing on the legal analysis required to determine that issue.”