Should EU laws on the environment be disregarded by the British judiciary before the UK has left the EU?
In a follow-up to yesterday’s story Wirral Council’s Cabinet agree 150 year lease for fire station in Saughall Massie I am going to write an editorial on a related matter. I’ll start by pointing out that I was the Appellant in the First-tier Tribunal matter referred to and Applicant in the related Upper Tribunal case.
Below is an opinion piece, I am not a legal professional and one of the costs decision referred to is sub judice. However as Editor I have decided there is a public interest in these matters being written about for various reasons.
People who know me well, will know that I have great respect for the UK judicial system and some will know my father worked for the courts system before he retired.
However the judicial system doesn’t always work as it should and this is a story that requires a bit of explanation first.
In June 2015, I made an information request to Merseyside Fire and Rescue Authority for two reports about the new fire station. One was in relation to its first proposed location in Greasby, the second in Saughall Massie. As both reports relate to land the information request is classed as “environmental information”, therefore should be classed as an EIR request rather than a FOI one.
My request is outlined at paragraph 3 of ICO’s decision notice FER0592270.
The request was first refused giving regulation 12(5)(d) (confidentiality of public authority proceedings when covered by law) and regulation 12(5)(e) (confidentiality of commercial or industrial information, when protected by law to protect a legitimate economic interest) as reasons.
I requested a reconsideration. At the reconsideration Janet Henshaw (a solicitor) categorised it as a FOI request and refused it on s.44(1)(a) grounds.
I then appealed this decision to the regulator ICO.
As you can read in the decision notice, the regulator ICO agreed with me that it was an EIR request and that categorising it as a freedom of information request was incorrect. Therefore refusing is on s.44(1)(a) grounds had been legally flawed.
During ICO’s investigation MFRA also tried unsuccessfully to withhold the information on other FOI grounds s.43 (commercial sensitivity).
As MFRA stated to ICO in a long 5 page joint letter of Deb Appleton and Janet Henshaw (unfortunately the highlighted red sections have been removed when this letter has been converted to black and white by ICO), “It is important that the [Merseyside Fire and Rescue] Authority … pays the lowest possible price for the purchase of land at Saughall Massie on which it hopes to build the proposed new fire station.”.
ICO eventually agreed with MFRA that:
a) it agreed with myself that the request was not a freedom of information request but a request for environmental information (therefore MFRA couldn’t refuse it on FOI grounds),
but
b) agreed that MFRA could refuse the request on EIR grounds.
I appealed ICO’s decision notice to the First-tier Tribunal (Information Rights) where it became case EA/2016/0054.
Some matters in this case have still to be decided, but I will summarise the main decisions so far.
ICO, MFRA and myself all agreed that the information should’ve been disclosed.
However the information requested wasn’t disclosed to myself in advance of the hearing in September 2016.
There was also correspondence between ICO and MFRA about it relevant to what was discussed at the hearing that wasn’t included in the bundle by ICO.
The judiciary (a Tribunal Judge and two Tribunal Members) decided not to read the bundle before the hearing.
MFRA’s representative was Janet Henshaw (who had also made the decision at the reconsideration stage that it was a FOI request). ICO didn’t attend the hearing.
So the judiciary were told by Janet that it was a freedom of information request. She said at the hearing representing MFRA that:-
a) the information I had requested had been published on their website,
b) but also when questioned that MFRA didn’t have the information requested (but that it was her view that it was a FOI request not a EIR one),
c) that she had written letters to me stating it had been published on their website,
d) she asked for directions for me paying MFRA’s costs (but only after a consent order had been agreed in relation to the information).
My position was that:-
a) it was an EIR request not a FOI one,
b) that MFRA hadn’t published the information requested on their website,
c) I agreed to directions on costs (the part about who made the decision was the only part the Tribunal Judge didn’t ask for parties’ views on),
d) that some of MFRA’s letters had been incorrectly served by email in breach of directions issued by the Tribunal with regards to service.
The judiciary’s response was as follows:-
1) they had no idea of the directions issued by the Registrar in the matter regarding service by email as they hadn’t read the bundle as the hearing had to be paused at this stage to give them time to read it,
2) it appears that all the bundles were the same (that is there was no closed bundle) so weren’t able to see the disputed information,
3) the Tribunal Judge asked me why I hadn’t responded to Janet’s letters.
My response was that at the time she wrote two of her letters and at the time they were received, the information (even in an edited form) hadn’t been published on the website. By the time of the third letter, the Tribunal had asked parties for their views on ending the matter by consent order. I had sent a letter to all parties and the Tribunal stating that if the 4 A4 original pages I requested were sent to me I would be happy to end the matter.
Janet Henshaw agreed that two of her letters stating that some of the disputed information had been published on MFRA’s website had been sent before publication.
I also pointed out that the information sent by Janet Henshaw two days before the hearing was 2 A4 pages less than the information I requested and different to anything published on the website.
Janet Henshaw during the hearing gave me an extra missing page (which she said had been omitted from what she’d sent two days earlier), I pointed out that the page was missing some information.
Now at this point, the whole matter is ending up being such a farce that the Tribunal Judge is getting quite cross. In fact he’s been cross since the start of this hearing which he started by instead of asking who everybody was by just saying he didn’t understand the point of the hearing (which might have been clearer had he read the bundle).
So I agreed at the hearing the matter be ended by consent order.
Directions for costs were also agreed.
The problem is by the time it got to the costs directions, it went from farce to fiasco.
The law states that decisions on costs have to be made solely by the Tribunal Judge (as there is a requirement they have x years legal experience).
However the directions were issued stating the whole Tribunal would make the decision.
MFRA asked in their letter for £1,261.50 in costs (but in their breakdown stated that they’d only incurred £1,192.23).
However the ruling on costs made a number of strange legal rulings:
1) the costs were awarded in part in a decision that stated because:-
a) the Tribunal Judge and two Tribunal Members had to travel to the hearing,
b) due to the costs application the Tribunal Judge and two Tribunal Members had had to read the bundle,
c) “conduct of this appeal caused a very considerable waste of public money”
eventually (and I will point out I requested permission to appeal this costs decision on 19th December 2016 and am still waiting) it states I am to pay MFRA’s costs of £500, albeit on a 2:1 majority decision.
After the hearing and receipt of the disputed information, I wrote this story.
Merseyside Fire and Rescue Authority received a £1.5 million grant from the government towards the costs of the new fire station on the basis that they’d have to buy the land from Wirral Council at an estimated cost of £300,000.
Following my story about the costs, the Planning Committee turned down the first planning application, MFRA submitted a revised planning application for a smaller fire station and yesterday Wirral Council’s Cabinet agreed to a lease of the land for 150 years for £42,000.
You could say at this point that it would appear from the above that I’ve just managed to save the taxpayer around £258,000.
For that I am described by the judiciary as “unreasonable”.
In fact that is part of the reason why EU law requires people to have access to justice regarding environmental matters on a “free of charge or inexpensive” basis.
When I applied for my costs in defending MFRA’s costs application (as part of their application had not been granted), the Tribunal Judge ruled that such a costs application was out of time, ordered it struck out and threatened me with a Wasted Costs Order if I requested permission to appeal his decision (in that he would request a Costs Order to covering the Tribunal’s costs).
I requested permission to appeal his strike-out decision (which was refused).
This permission to appeal was then renewed by myself to the Upper Tribunal.
After his refusal on permission to appeal had then been renewed to the Upper Tribunal, the Tribunal Judge then realised (9 months after threatening to exercise such a power) that he didn’t have the legal power to made such a costs order.
It does make me wonder though why a Tribunal Judge would threaten to use a legal power he doesn’t have as this is getting very Kafkaesque by this point.
But if I make a public comment like that, it merely reinforces a point about treating the judiciary with respect doesn’t it?
Am I asking too much to expect the judicial system to not threaten to use legal powers that it doesn’t actually have?
Or am I just taking the press role of oversight too seriously (or alternatively is it better than people learn from such matters so that others aren’t treated the same way)?
EIR costs (in a decision that applies across EU Member States to ensure there’s the same interpretation of EU law) are not supposed to be at a level that deters people from appealing decisions to the First-tier Tribunal (Information Rights). However the £500 costs decision means I didn’t request to be added as a party to the current Tribunal case about one about the information request I made about Hoylake Golf Resort. It’s not worth the financial risk is it?
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