Foul or suspected foul

March 31st, 2009 by Panopticon Blog

Posted by Julian Wilson

In Barclays-v-Guardian [2009] EWHC 591 (which Anya Proops commented on a couple of days ago), Mr. Justice Blake referred to the well known distinction between tax evasion and tax avoidance and then commented critically on the Guardian’s description of the Barclays’ employee who leaked its internal documents to Vince Cable MP as a “whistleblower”. The Judge said: “usually one blows a whistle to denote a foul, and I have already observed that the distinction between evasion and avoidance needs to be borne in mind in this context.” It appears that the Judge must not have had the Public Interest Disclosure Act in mind in referring to the term “whistleblower”. To qualify under the statute for potential protection, a worker’s disclosure need not be of a proven “foul” but only made with a reasonable belief that his employer is failing to comply with a legal obligation (ERA s.43B). Further, to gain potential protection for a qualifying disclosure where it has been made to an MP, the disclosure need not be of a proven “foul” but needs to be made with an honest and reasonable belief that that the information disclosed and any allegation contained in it are substantially true (S. 43G). Most whistleblowers have only a hunch that something is a foul without the means to prove it and the idea of PIDA is to protect them if they make the disclosure to a person having the ability and resources to investigate it. The protection offered to whistleblowers would be of no utility if only those with the legal brain necessary to distinguish evasion from avoidance could enjoy protection.  

Big Brother Takes to the Road

March 31st, 2009 by Anya Proops

Many of us are aware that, when in use, our mobile phones can be used by telecoms companies and security agencies to trace our whereabouts. However, few of us are likely to have been contemplating a scenario where our cars would contain built-in tracking devices enabling state authorities to have, in effect, a system of near total road surveillance. However, a new EU backed project, known as the Cooperative Vehicle-Infrastructure Systems (CVIS) project, may go a long way towards achieving that result. In particular, it is understood that the project, which is due to be unveiled later on this year,  envisages that, by 2013, such devices would commonly be built into newly manufactured cars and that a universal frequency will be made available so as to enable state authorities to monitor the location of all cars fitted with the device. As one might expect, privacy and civil liberties groups are said to be up in arms about this development. It is understood that the European Data Protection Supervisor will make a formal announcement on the privacy implications of CVIS technology soon.

Media article:

http://www.guardian.co.uk/uk/2009/mar/31/surveillance-transport-communication-box

CCTV Pixel Panic

March 30th, 2009 by Anya Proops

The use of CCTV cameras by local authorities has long been a controversial subject. Civil liberties groups regard the proliferation of such cameras as an unjustified infringement of the right to privacy. Others regard the use of such cameras as a necessary and, hence, justified evil in the fight against crime and anti-social behaviour. However, recent guidelines issued by the Department for Transport (DfT) has raised altogether different questions about the legality of local authority CCTV systems. In particular, DfT published guidelines last week confirming that, with effect from 1 April 2009, Westminster council’s mobile CCTV cameras would be rendered unlawful because they lack a sufficient number of pixels to meet the new quality requirements imposed under the Traffic Management Act 2004 (TMA). The DfT has confirmed that the cameras must be switched off by midnight on 31 March in order to avoid falling foul of new TMA provisions, which come into force on 1 April. This is an untimely development for those law enforcement agencies which were hoping to use the mobile cameras as part of the security strategy to manage the G20 summit. It is understood that Westminster Council has now written to the Transport Secretary, Geoff Hoon, as a matter of urgency requesting a special dispensation so that the cameras will not have to go dark on the eve of the summit.

Articles:

http://www.guardian.co.uk/uk/2009/mar/30/cctv-london-government-transport-g20

http://news.bbc.co.uk/1/hi/england/london/7971436.stm

Parliamentary Privilege in the Spotlight

March 27th, 2009 by Anya Proops

It is a fundamental principle of our constitutional structures that Parliament and its members should not normally be subject to judicial scrutiny or supervision. The statutory basis of this principle is to be found in Article 9 of the Bill of Rights 1689 which states that: ‘the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament’. The breadth of the principle of Parliamentary privilege was confirmed in the case of Prebble v Television New Zealand Ltd [1995] 1 AC 321 where Lord Browne-Wilkinson held that the effect of the principle was that the courts would not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges. Yesterday Lord Oakeshott, Lib Dem Treasury Spokesman, availed himself of the protection of this important privilege when he told peers about the location of certain documents relating to Barclays’ tax arrangements. The documents in question are particularly controversial because a mere eight days ago the High Court granted Barclays injunctive relief requiring the Guardian newspaper to remove the documents from its website on grounds of their confidentiality (Barclays Bank Plc v Guardian News and Media Ltd [2009] EWHC 591 QB). The curious result of Lord Oakeshott’s comments would seem to be that the Guardian still cannot publish the documents on its website, pursuant to the order made by the High Court, but can report Lord Oakeshott’s comments by placing reliance on the doctrine of qualified privilege.

The decision of the High Court to grant Barclays injunctive relief in respect of the information published on the Guardian’s website is itself likely to be of considerable interest to information lawyers. This is because in reaching that decision the judge, Blake J, accepted that the documents had retained the quality of confidentiality even though there was evidence before the Court that, quite apart from the Guardian website, the documents had already been published on at least one other internet site which would not itself be subject to an application for injunctive relief and, further, there had already been a degree of ‘internet chatter’ about the injunction process. That the court was prepared to accept that the documents retained an element of confidentiality in these circumstances highlights the fact that the judiciary will not automatically accept that publication of information on the internet necessarily equates to publication to all the world.

High Court judgment:

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2009/591.html&query=title+(+Barclays+)+and+title+(+v+)+and+title+(+guardian+)&method=boolean

High Court judgments on Parliamentary privilege (appeal from Information Tribunal)

Office of Government Commerce v ICO & Ors - http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2008/737.html&query=title+(+Office+)+and+title+(+government+)+and+title+(+commerce+)&method=boolean

Corporate Office of the House of Commons v ICO & Ors – http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2008/1084.html&query=title+(+Corporate+)+and+title+(+officer+)&method=boolean

Excerpt from Hansard:

http://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/90326-0003.htm#09032630000629

Guardian article:

http://www.guardian.co.uk/business/2009/mar/27/barclays-tax-documents-parliament

 

 

ICO seeks permission to appeal to House of Lords

March 26th, 2009 by Akhlaq Choudhury

In Ofcom v Information Commissioner [2009] EWCA Civ 90, the Court of Appeal held that in applying the public interest test under the Environmental Information Regulations it is necessary to aggregate all public interest factors relating to all applicable exceptions and weigh these against the public interest in disclosure. This is a departure from the well-established approach of looking only at the public interest factors  in respect of a particular exception to determine whether the public interest in maintaining that exception outweighs the public interest in disclosure. This change in approach will affect disclosure decisions under both the EIR and FOIA.  The ICO has lodged a petition seeking permission to appeal to the House of Lords.

Make it intelligible

March 25th, 2009 by Panopticon Blog

Posted by James Goudie QC

One of the circumstances when there is a duty to provide information is when there is a duty to consult. One of the four elements of fair consultation is the provision of adequate information on which to respond. In R (Breckland DC) v The Boundary Committee and R(East Devon DC) v The Boundary Committee [2009) EWCA Civ 239] concerned with proposals for local government reorganistion, the Boundary Committee (BC) was under a statutory duty to solicit representations upon their draft proposals and to take account of those representations. The Court of Appeal today held that this meant that the BC must carry out a process of consultation, including publishing enough material to enable all those interested to respond intelligently, and that the information must be published in a form which members of the public may understand. The Court of Appeal further held that the BC had failed adequately to consult on affordability, because they had not provided sufficiently intelligible information in relation to that criterion or given adequate time for response to it.

Rowntree Report on Database State

March 23rd, 2009 by Anya Proops

The Joseph Rowntree Reform Trust has today published its report ‘The Database State’. The report purports to amount to the most comprehensive map of central government databases yet created. In total 46 databases across the major government departments were considered in the report, including, for example, the national DNA database, the national pupil database, the NHS detailed care record system and the automatic number-plate recognition system. In summary, the report concluded that:

  • a quarter of the 46 databases reviewed were ‘almost certainly illegal under human rights or data protection law; that they should be scrapped or substantially redesigned’ (including, for example, the Contactpoint index of all children in England and the national DNA database – on the latter database, see further the January 2009 post on the Marper case);
  • ‘more than half have significant problems with privacy or effectiveness and could fall foul of a legal challenge’ (including, for example, the NHS Summary Care Record and the National Pupil Database);
  • fewer than 15% were ‘effective, proportionate and necessary with a proper legal basis for any privacy instrusions’;
  • Britain was generally out of line with other developed countries as a result of its comparably greater tendancy to centralise and share records on sensitive matters like healthcare and social services; that ’the benefits claimed for data sharing are often illusory’.

Along with the House of Lords Report on the Surveillance Society published in February 2009 (see further the February 2009 post on the Lords Report), this report is likely to increase pressure on the Government to reexamine a raft of policies on data collection, management and storage.

http://www.jrrt.org.uk/uploads/Database%20State.pdf

Executive Summary:

http://www.jrrt.org.uk/uploads/Database%20State%20-%20Executive%20Summary.pdf

Links and resources

March 21st, 2009 by Timothy Pitt-Payne QC

On the left hand side of this page you will see a list of links.  The first link is to a collection of information law resources on 11KBW’s main website.  There are conference papers and other materials written by members of chambers;  in particular there is an 80 page practical guide to the Environmental Information Regulations, written by Anya Proops.   In discussions of FOI, we find that the EIR tend to be unduly neglected;  Anya’s guide is a contribution to redressing the balance.

You will also find links to online resources maintained by a wide range of organisations and individuals:  Government departments, regulators (both in the UK and overseas), academic institutions, legal practitioners, campaigners and bloggers.   If you think that there is anything that we should add, please email me on Timothy.Pitt-Payne@11kbw.com .  Needless to say, we don’t take responsibility for the information or opinions posted on any of these external sites.

Many thanks to all those who have provided feedback and encouragement following our launch last week.  Particular thanks to Delia Venables for the speed with which she added us to her comprehensive listing of online legal resources in the UK and Ireland.

OGC publishes Gateway Reviews

March 19th, 2009 by Timothy Pitt-Payne QC

Following a decision of the Information Tribunal issued on 19th February, the OGC has published two Gateway Reviews into the ID cards scheme.

The OGC announcement is here (with a link to the documents themselves). The Information Tribunal decision is here, on the Tribunal’s website. This case was previously the subject of a High Court appeal (from an earlier Tribunal decision).

Welcome to Panopticon

March 16th, 2009 by Panopticon Blog

Welcome to “Panopticon”, a new blog about Information Law maintained by members of 11KBW’s Information Law Practice Group.  We opened our doors to the public on 18th March (you will see some earlier posts, below, created while the blog was still under development).

Information law is about the right to know, and the right to keep private – and it is also about the ever-shifting boundary between those rights.  It encompasses areas such as data protection, freedom of information, the protection of private information under article 8 of the European Convention on Human Rights, breach of confidence, and the regulation of surveillance.  It is a fascinating and fast-moving area of the law, and is directly relevant to contemporary debates about open government, the “database state” and the “surveillance society”.  For a more detailed explanation, click on the link at the top of the page  (“What is Information Law?”).

A word about our title.  The Panopticon was Jeremy Bentham’s proposed new model prison, in which constant surveillance would be a tool for moral regeneration (see here for details and illustrations).  It has become an enduring metaphor in debates about the benefits and the dangers of systematic information-gathering.  The title has a secondary meaning:  this site is our own “Panopticon”, in which we try to keep an overview of developments in this area and to share them with our readers.

We hope you will find the blog interesting and informative.  You may also be interested to explore 11KBW’s main website:  this includes a wide range of conference papers and other materials about information law.

We don’t have a facility to post comments on individual posts, but please feel free to provide feedback by emailing Claire Halas:   Claire.Halas@11kbw.com