Freedom of Expression and Freedom of Information: Part 3 English Law – Hugh Tomlinson QC

9 05 2010

The Strasbourg and international case law shows that that the right to freedom of information can now properly be described as a “human right” – an essential aspect of the right to freedom of expression.  This is understandable, both in terms of the standard formulation of freedom of expression as including a right to “receive” information and in practical terms.  Without access to information, many other human rights such the right to private and family life or to effective access to the Courts cannot be effectively exercised.  The promotion and defence of the rights to freedom of expression, privacy and access to court directly and necessarily involves the establishment and exercise of the fundamental human right to access to information.

However, until recently the English law did not recognise any right to receive information.  The arguments were, perhaps, most fully developed before the Shipman inquiry, when CNN sought permission from the Chair, Dame Janet Smith, to broadcast the proceedings.  She heard extensive submissions from Mr Geoffrey Robertson QC in support of the application, relying on the common law and the then Strasbourg jurisprudence.  She also considered an independent opinion on the point by Mr David Pannick QC and Miss Jane Mulcahy.  Dame Janet refused the applicaiton by CNN in a ruling given on 25 October 2001.  She was of the view that “The Convention does not provide for freedom of access to information” [48].  In relation to Article 10 she concluded that it “does not apply to create a presumptive right for any person to film the proceedings” [67].

In making this ruling Dame Janet relied on the decision of High Court of Justiciary in Petition No.2 of British Broadcasting Corporation [2000] HRLR 423 refusing applications to broadcast the Lockerbie trial.

The ruling in the Shipman Inquiry was followed by Lord Hutton in a ruling given on 5 August 2003 In the Matter of Applications by ITN, BSkyB, Channel 4, Channel 5, ITV and IRN radio. He refused to give permission to film and broadcast the evidence of witnesses.

These rulings, of course, pre-dated the recent Article 10 case law on the right to information (see the first of these posts).   As recently as January 2010 the Supreme Court in Re an Application by Guardian News and Media Ltd ([2010] UKSC 1) held that on “the existing Strasbourg law, a right to obtain [any information which would not otherwise be available] to a person was not within the scope of Article 10″ [34]. However, this point was not the subject of any argument in that case and the recent Strasbourg case law was not cited.

The domestic case law has now recognised the “right to access to information”.  The leading case is A v Independent News & Media Limited ([2010] EWCA 343) – this has been previously discussed by Dan Tench on this blog.  Briefly, the Court of Appeal noted that historically, neither the Strasbourg nor the domestic courts had given much weight to the right to receive information under Article 10 however, it went on to hold that in the light of the recent Strasbourg cases the right to obtain information as part of Article 10.  They went on to recognise the particular importance of the right when it was the media which was seeking to obtain access to information about court proceedings:

“Tarsasag and Leander were decisions involving access to records kept by the executive arm of the government, whereas the present case concerns access to what goes on in court, which renders the case for saying article 10 is engaged stronger, as the Commission acknowledged in Atkinson, even before Matky and Tarsasag. Further, the complaint in this case is that of the media who want the information for public purposes, as in Atkinson and Tarsasag, rather than being a complaint of an individual as in Leander and Gaskin” [44]

In other words, the Court held recognised the Article 10 right to information and held that its engagement was particularly clear when the media is seeking access to information for “public purposes”.  The media is entitled to access to information to enable it to discharge its role as “public watchdog”.

Although its development in domestic law is at an early stage, the Article 10 “right information” has potentially wide ranging implications.  Article 10 should strengthen the position of those requesting information under the Freedom of Information Act 2000.  It is an additional factor to be placed in the balance when the “public interest” is being considered in relation to “qualified exemptions” – at present the Information Commissioner’s guidance on “public interest” makes no mention of Article 10.

It could also be important in a number of other areas.  I will give just two examples:

  • In the area of “public and media access” to public meetings and inquiries – in contrast to the position in relation to the Shipman and Hutton inquiries, when considering whether there should be access for the media or for broadcasters the “balancing exercise” should now start from the presumption in favour of access to information under Article 10 with an “interference” restricting access having to be justified under Article 10(2).
  • In the area of access to information held by bodies which are not listed as public authorities in Schedule 1 to the Freedom of Information Act 2000 – these could include bodies which perform some “public functions” (such as the Press Complaints Commission or the Association of Chief Police Officers) and perhaps even private bodies.  It is interesting to note that the modern “Bill of Rights” found in Chapter 2 of the South African Constitution provides a right to access to information held by any person “that is required for the exercise or protection of any rights“, s.32(1)(b) and the Convention could “evolve” in the same direction.

The important point is that there is a freestanding “right to information” – independent of the Freedom of Information Act which can be invoked by the press and others.  The right to information has now come of age.  It is likely to be developed in a range of different areas over the next few years.

Hugh Tomlinson QC is a member of Matrix Chambers and of the Inforrm Committee. He is also a founding editor of the UKSC Blog.

IN THE MATTER OF APPLICATIONS
BY ITN, BSkyB, CHANNEL 4, CHANNEL 5, ITV AND IRN RADIO

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6 07 2010
Freedom of Information and Article 10, Sugar v BBC « Inforrm's Blog

[…] Freedom of Information and Article 10, Sugar v BBC 5 07 2010 The case of Sugar v BBC ([2010] EWCA Civ 715) concerned the construction of the statutory provisions in the Freedom of Information Act 2000 relating to the BBC as a public authority.  The application failed as a result of the view taken by the court of the meaning of  the phrase “held for purposes other than journalism”.   The decision is discussed on the extremely useful Panopticon Blog.  However, we would like to draw attention to another aspect of the case which is relevant to our recent posts on “freedom of information” as an aspect of the right to freedom of expression protected by Article 10 (see here, here and here).  […]

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