[2025] UKUT 171 (AAC)

In addressing this, I consider the matters set out in the sub-headings below:

As Mr Davidson helpfully set out in his skeleton argument for the ICO, the relevant case law concerning the admissibility of Explanatory Notes to Acts of Parliament was summarised in paragraph 64 of International Game Technology plc and others v Gambling Commission [2023] EWHC 1961 (TCC) (“IGT”).

Paragraph 64C of IGT confirmed the text of an Act of Parliament does not have to be ambiguous before a court is permitted to consider an Explanatory Note in order to understand the contextual scene of the statute.

I am satisfied I can, and should, consider paragraph 120 of the Explanatory Notes for FOIA to consider the contextual scene in which the definition of “court” was being enacted and what it was intended to address.

As Mr Davidson also helpfully set out in his skeleton argument, the Barras principle was recently reaffirmed by the Supreme Court at paragraph 52 of Centrica Overseas Holdings Ltd v Commissioners for His Majesty’s Revenue and Customs [2024] UKSC 25. The Supreme Court confirmed the principle applies where Parliament re-enacts a statutory provision which has been the subject of authoritative judicial interpretation so that the court will readily infer Parliament intended the re-enacted provision to bear the meaning already established in case law.

As Mr Davidson acknowledged, the Barras principle is a presumption of what it is reasonable to assume Parliament intended. It requires authoritative judicial interpretation over a period (B v SSWP [2005] EWCA Civ. 929). That process has happened here. The Barras principle can be applied to infer that Parliament intended section 32 of FOIA to have the meaning already established for the 1981 Act in case law.

I agree with Mr Davidson’s submission in his skeleton argument that Parliament adopted a term of art used in longstanding legislation on essentially the same question – namely the definition of a court. I also agree with Mr Davidson’s oral submission that the combination of the Explanatory Notes and the application of the Barras principle here, allows me to conclude that when Parliament legislated for section 32 of FOIA, it intended that “court” should bear the same meaning that it does in section 19 of the 1981 Act.

As a result, the case law relevant to what is meant by “court” in section 19 of the 1981 Act, is also relevant to the meaning of section 32(4)(a) of FOIA. In reaching this conclusion, I accept Mr Goss’s argument that it is relevant to consider the underlying purpose of section 32 of FOIA, namely that courts and tribunals can rule on disclosure of their own records (see Edem v ICO [2015] UKUT 210 (AAC) by Upper Tribunal Judge Wikeley).

I do not, however, accept Mr Goss’s argument that applying case law relevant to the Contempt of Court Act 1981 to section 32 of FOIA will introduce inconsistency within FOIA itself. This fails to recognise Parliament’s specific intention that section 32(4)(a) should bear the same definition as in section 19 of the 1981 Act. The same test is being applied for the meaning of court in different contexts. I am satisfied that I should apply the same test, mindful of the specific context in which I am being asked to do (namely FOIA).

The case law dealing with whether a body is exercising the judicial power of the state for the purpose of contempt of court, both pre- and post- the 1981 Act, is relevant to whether a body is a court within the meaning of section 32 of FOIA. This includes assessing whether a PMP falls within section 32(4)(a).

The definition in section 32(4)(a) requires consideration of whether the body is exercising the judicial power of the state. This requires a holistic assessment of the function and powers of the body in question (Bailey, at paragraph 54). At paragraphs 27 to 29 of Bailey, the Divisional Court summarised elements of the speeches of Lords Edmund-Davies and Scarman and Viscount Dilhorne in AG v BBC. This included the distinction drawn by Viscount Dilhorne and Lord Scarman between the exercise of judicial power and administrative and executive powers.

While the Divisional Court appeared to provide a qualified endorsement of this distinction by stating: “to the extent that [it] remains relevant” (paragraph 51 of Bailey), I do not consider that this was casting doubt on what was said in AG v BBC generally, including that there is a distinction between exercising judicial powers and administrative or executive ones.

Rather, it appears to reflect the fact that the outcome of the assessment whether the Parole Board was exercising judicial powers and functions, or administrative / executive ones, has changed. As explained in paragraphs 51 and 52 of Bailey, the characterisation of the Parole Board’s functions as administrative had been authoritatively superseded during a period when it had taken on new statutory responsibilities for making decisions on early release on licence before a court’s sentence had ended.

What also emerges from the decision in Bailey is that in performing a holistic assessment of the functions of the body, individual features of the body’s functions or powers are not decisive. See paragraphs 54 to 57 of Bailey, where the Divisional Court explained that not having a power to summon witnesses was not determinative of whether the body was exercising the judicial power of the state.

As explained above, the case law about whether a body is exercising the judicial power of the state for contempt of court purposes is relevant generally to what I need to resolve. I consider the decision in GMC v BBC to be relevant because it is a binding authority of a senior court considering the functions of a specific professional disciplinary body (the GMC panel) carrying out disciplinary proceedings. The reasoning informs some of what the Upper Tribunal has to address in this appeal.

Mr Goss confirmed he would not go so far as to argue that GMC v BBC is no longer good law. He argues that it is good law for the terms in which it was decided, but that changes in (what was) a GMC panel are potentially relevant to whether GMC v BBC would be decided in the same way today. Mr Goss argued this is consistent with the Law Commission’s Consultation Paper’s suggestion that MPTSs might now merit being treated as a court for contempt purposes. It is, however, one paragraph in a report providing high level proposals to reform contempt of court generally. I do not consider the suggestion by the Law Commission takes me substantially further in what I need to decide.

I agree with Mr Goss’s submissions that Lord Donaldson’s observations in Leary v BBC are obiter and cannot be relied on to resolve this appeal. Lord Donaldson MR was explicit that he was not deciding the issue of whether a police disciplinary tribunal was a court under the 1981 Act. I also agree with Mr Goss’s submissions that while the Court of Appeal in GMC v BBC considered Leary as part of the recent authorities cited to it, it did not proceed to deal specifically with whether it agreed with the obiter comments by Lord Donaldson MR.

I have found the case law cited regarding police disciplinary procedures, including Victor, Wheeler, Eckland, and Di Maria, to be helpful, in terms of analysing and identifying the powers and functions of a PMP. A number of those cases have also pointed to the statutory guidance about the purpose of police disciplinary / misconduct proceedings, which I have also considered and applied.

I have found the case law cited about judicial immunity and open justice to be less helpful. Elements of Auld LJ’s judgment in Heath appear to suggest that when considering judicial immunity for a police conduct board, the Court of Appeal had in mind a subtly different test to the test defined in section 19 of the 1981 Act. See, for example, the statement at paragraph 21 that:

“It [the exercise of assessing judicial immunity] is one in determining [a body’s] similarity in function and procedures to those of a court of law”.

This indicates a different test was being applied since it was based on similarities with functions and processes of a court, rather than considering specifically whether the body was exercising the judicial power of the state. See also paragraph 41 of Heath, where Auld LJ stated, in the context of submissions that aspects which are present or absent in the procedures of the police conduct board, might deprive its procedures of a judicial character:

“If one looks here at those typically judicial features that are present in the board’s conduct of its inquiries that I have summarised, alongside those that Miss Booth identified as absent, the overall picture is that as stated by the appeal tribunal, an “essential similarity with the procedure adopted by the courts of justice”.”

These elements of Auld LJ’s judgment are consistent with Mr Davidson’s argument that case law about judicial immunity applying to bodies has tended to focus on whether the body’s proceedings can properly be described as “judicial” (in the sense described by Fry and Lopes LJJ in Royal Aquarium) rather than whether they are exercising the judicial power of the state. I agree with Mr Davidson’s submissions that they may be circling the same gravitational centre in considering what resembles, or even is, a court, but they are not doing so by reference to whether it is exercising the judicial power of the state.

For these reasons, I do not place any particular reliance on the case law provided to me dealing with questions of judicial immunity.

Turning to arguments about open justice principles, Mr Goss’s submissions confirmed he addressed this issue to respond to Rabbi Kanter-Webber’s arguments that open justice applies to PMPs. Mr Goss and Mr Davidson confirmed Rabbi Kanter-Webber has raised in a number of his appeals. As an observation, it does not appear to have been argued in any particular detail to the FTT in the present appeal because the FTT has not addressed it in the decision dated 30 January 2024.

Mr Goss’s position is that open justice does apply to PMPs, because they are exercising the judicial power of the state. This argument is, however, contingent on the central issue to be determined, rather than an indicator either way, of how to determine that issue. Mr Goss acknowledged there is no case authority dealing with whether the open justice principle applies to a PMP on the basis that it exercises the judicial power of the state. Mr Goss confirmed his secondary position is that open justice does not apply to a PMP if it does not exercise the judicial power of the state.

Mr Davidson did not argue that the case law about open justice would assist me in determining the central issue about section 32; his position is that it would not particularly assist the Upper Tribunal for similar reasons to judicial immunity case law.

Rabbi Kanter-Webber has argued that the principle of open justice applies more widely than only to bodies exercising the judicial power of the state (his written observations dated 31 January 2025).

This issue has not been argued fully before me. It appears to draw on arguments the parties have developed in other proceedings rather than those reflected in the cases advanced to the FTT. Having considered the case law cited and provided about open justice, I do not consider it helps me determine the central issue that I have to resolve of whether PMPs exercise the judicial power of the state. I have therefore not placed any particular reliance on the cases dealing with open justice, in resolving the question whether PMPs are courts within the meaning of section 32(4)(a) of FOIA.