B e f o r e :
MR JUSTICE PHILLIPS
||THE QUEEN ON THE APPLICATION OF BROWN
||UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)
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MS A PROOPS (instructed by Imran Khan Solicitors) appeared on behalf of the Claimant
MR J SWIFT QC & MS J CLEMENT (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
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- MS PROOPS: My Lord, I appear on behalf of Mr Brown in this matter, and my learned friends Mr Swift of Queen's Counsel and Jo Clement appear on behalf of the Attorney General. In terms of the materials that I hope you before you, if I could just check that have a bundle of documents, tabs A and B?
- MR JUSTICE PHILLIPS: Yes.
- MS PROOPS: You have two skeletons?
- MR JUSTICE PHILLIPS: Yes.
- MS PROOPS: A bundle of authorities?
- MR JUSTICE PHILLIPS: Two bundles of authorities.
- MS PROOPS: That is interesting. I wondered whether that might have happened. I am not sure whether in one of the bundles of authorities you have the Court of Appeal's judgment in Brown?
- MR JUSTICE PHILLIPS: Yes.
- MS PROOPS: I am grateful. In addition I hope you have before you a copy of the Apcar case that the Attorney General wishes to rely upon. I believe the copies were sent up earlier today?
- MR JUSTICE PHILLIPS: I received some more materials today. Is it part of this bundle?
- MR SWIFT: My Lord, I think in that bundle you should have the Information Commissioner's decision in the present case and, hopefully, the decision of the Upper Tribunal, which is the All Party Parliamentary Group decision that looks like that, if that helps?
- MR JUSTICE PHILLIPS: Yes.
- MR SWIFT: And, thirdly, the law reports version of the Court of Appeal judgment in Brown, as one of the versions of the authorities bundle did have that in it.
- MR JUSTICE PHILLIPS: Yes.
- MS PROOPS: That's right.
- MR JUSTICE PHILLIPS: Yes, I read the Court of Appeal's decision in Brown. I was going to ask what in the end happened to the application?
- MS PROOPS: What happened in the application is that my client, having learnt of the existence of this so called practice direction with its set of checks and balances, thought, well, before I proceed with my application I ought to know in fact what that document contains, hence the current case.
- MR JUSTICE PHILLIPS: So has that application been stayed?
- MS PROOPS: I am being told it has not been proceeded with to allow obviously my client the opportunity to gain hold of the document which may fundamentally influence the outcome of that application and, indeed, affect whether it is an application which is worth pursuing.
- MR JUSTICE PHILLIPS: Yes. You were going through the documents I should have.
- MS PROOPS: I think that is everything, as far as we are concerned.
- MR JUSTICE PHILLIPS: Yes. Just so you know, I have had a chance to do a fair bit of reading so I have, I think, the gist of the background and I understand, at least in outline, your contentions and those of Mr Swift.
- MS PROOPS: My Lord, I will try to avoid repeating myself.
- MR JUSTICE PHILLIPS: You take your own course.
- MS PROOPS: This is, of course, an oral permission hearing relating to my client's claim for judicial review. It is a claim that relates to the Upper Tribunal's refusing permission to appeal against the First Tier Tribunal's. By that decision, the tribunal, of course, dismissed my client's appeal against a decision notice issued by the Information Commissioner.
- I want it make clear at the outset that there is no dispute between my client and the Attorney General as to the correct legal test to apply. The test is very clearly set out in CPR 54.7(a) and I do not dispute that that test sets a high threshold for claimants in this type of case. Not only must they show that the claim is arguable, they must show it has reasonable prospects of success and that the claim raises an important point of principle or practice, or that there are otherwise compelling reasons why the claim should be heard. What I say is this a claim which comfortably passes that threshold.
- MR JUSTICE PHILLIPS: I would not have thought you would agree with the way the test is put in paragraph 2 of the Attorney General's skeleton, would you, which I must admit I didn't quite understand?
- MS PROOPS: Well, the simple point there is there is no need to put a gloss on the very clear language of CPR 54.7(a). Yes, it is of course disjunctive not conjunctive. It is either there must be an important point of principle or practice, or there is otherwise a compelling reason why the case should proceed.
- MR JUSTICE PHILLIPS: I had in mind I was not sure where the distinction between (a) and (b) came in. I thought the test was that there was an arguable case that both the decision of the Upper Tribunal -- I didn't --
- MS PROOPS: In a sense, one doesn't really need to go beyond the language of 7(a) itself because it is set out very clearly in paragraph 7.
- MR JUSTICE PHILLIPS: Yes, what the test in 2 seems to be suggesting is there has to be an arguable case and then that the decisions are wrong, not that it is arguable that they are wrong.
- MS PROOPS: Yes.
- MR JUSTICE PHILLIPS: It almost sounds like, in order to have permission, you have to have won.
- MS PROOPS: Yes, and that plainly cannot be right.
- MR JUSTICE PHILLIPS: Well, I don't think we will end up arguing very much about that.
- MS PROOPS: I ought to make clear one point at the outset, which is that it is very important in this case that the court takes care not to fall into the trap of assuming that, just because this case has been decided by two tribunals, First Tier and Upper Tribunal, that we must, if you like, start with the presumption that the tribunal has got it right. Plainly, successive judicial bodies can get decisions wrong and it is not uncommon for errors in First Tier courts to infect appellant courts above.
- The reason I make that point at the outset is because it is very clear from the Attorney General's skeleton that they place heavy emphasis on the in fact that this claim has been through two levels of the judicial mill, see further at paragraph 5 of their skeleton. I simply say, well, yes, that is relevant but it is by no means determinative.
- MR JUSTICE PHILLIPS: Yes.
- MS PROOPS: In terms of the procedural history, it may assist if I just summarise the history, which is not entirely straightforward. On 3 January 2008, my client made a request to the Attorney General's office under the Freedom of Information Act (or "FOIA") for disclosure of particular information relating to the practice by which the courts exercise their judicial powers to seal royal wills.
- The request was made in the following circumstances. My client had previously been pursuing an application to unseal the will of Princess Margaret. In the course of the hearing before the High Court, it emerged for the first time that there was some form of practice direction that had been agreed between the powers of the Attorney General and the judiciary. Further elaboration of this practice direction was then provided in interlocutory proceedings before the Court of Appeal. It is those exchanges that prompted the request. I would like to point out that, if we look at paragraph 27 of the First Tier Tribunal's decision, which you will find in tab B, page 69, the tribunal states at 57:
"The tribunal feels that it is important at this point to note that, even as at the date of this appeal, it was common ground that the appellant had since taken no steps to prosecute his application any further."
The tribunal does not explain why or how that point is important. Of course we say it makes good sense that my client did stay his application in order to be able to access the very information which would have fundamentally influenced the outcome of that application.
- MR JUSTICE PHILLIPS: Yes.
- MS PROOPS: I would also at this point invite you to note in particular paragraph 37 of the Court of Appeal's judgment in Brown. I am very grateful that you have taken the time to read that judgment because it is an important starting.
- MR JUSTICE PHILLIPS: Yes.
- MS PROOPS: Paragraph 37 refers to the orders that have been made sealing the which wills of Princess Margaret and the Queen Mother, and it said:
"Had those orders been made by a transparent process according to identified criteria in which the Attorney General had been joined to represent the public interest, there might have been force in the argument that no challenge based simply on the public's right to inspect the wills should be permitted. The principle in Gouriet might have been applicable and the analogy with judicial review apt. The problem is, however, that the process under which the former President made the orders was not transparent, nor the criteria applied by the former President plain."
Elsewhere in the judgment, the Court of Appeal reflects on the fact that in fact it is unknown whether reasons were produced in respect of those sealing orders and certainly none have ever been published. So we are dealing here in this case with secret information concerning the highly secretive judicial process by which royal wills become sealed.
- Just to come back to the chronology, in response to my client's request, the Attorney General accepted he did in fact hold the requested information, that the request was refused on an application of section 37 of FOIA and section 41. Section 37 is the exemption that concerns royal correspondents; section 41 is concerned with confidential information. That exemption is not in issue before you today.
- In terms of what the disputed information is, the Attorney General obviously took the view that the requested information comprised annexes (a) and (b). There is now an issue as to whether he ought to have accepted that the confidential note to which those documents were annexed was also within the scope but, again, that is not an issue before you today and, when I refer in my submissions to requested information or disputed information, I am referring only to annexes (a) and (b).
- To come back to the history, following the refusal, my client complained to the Information Commissioner about the Attorney General's refusal of his request and the Commissioner, exercising his jurisdiction under section 50 of FOIA, dismissed the complaint finding that section 37 was engaged and that the public interest balance weighed in favour of non-disclosure. My client then appeals against that decision to the First Tier Tribunal. The First Tier Tribunal exercises its jurisdiction under sections 57 and 58.
- I just want to make a handful of points about the appellate process before the tribunal. First, you might like to note that the hearing before the tribunal is conducted as a full merits review, it is not simply a public law approach, and that is confirmed by section 58 of the Act.
- Second, as one would expect in a case of this nature, the tribunal hearing comprised both open and closed elements. My client fully accepts that this approach to conducting an appeal under FOIA is not inherently objectionable. It is accepted that the tribunal must necessarily safeguard the confidentiality of any disputed information pending final resolution of the appeal -- it must not let the information cat out of the bag -- but it is important to note that the fact that my client cannot access, and did not access, the disputed information, or indeed any other closed evidence that was heard by the tribunal, means that he was operating with a very substantial handicap in the context of the appeal. Indeed, that is a handicap that afflicts him in the context of the case that you hear today. There is, in effect, a fundamental asymmetry in the appellate process resulting from the use of closed procedures. So, even if justice is not blind, the applicant certainly is. That is a point that I will come back to when I am considering the legality of the tribunal's decisions.
- Third, the tribunal is a specialist tribunal. What is it a specialist in? It is a specialist in information law. That is where its particular expertise lies. It is not an expert, for example, in the way the Administrative Court is when it comes issues of constitutional law. That is the particular province of the Admin Court. In terms of constitution, the First Tier Tribunal comprises a legally qualified judge with two specialist wing members. By way of contrast, where the Upper Tribunal hears an appeal against a First Tier Tribunal's decision, that appeal is heard by a judge sitting alone, as was the case here. So the Upper Tribunal, in that sense, is not the expert tribunal in the way that the First Tier Tribunal was. The First Tier Tribunal dismissed my client's appeal and he then sought permission from the Upper Tribunal and, of course, that application for permission was refused.
- So that is the historical background to the case. In terms of the legal framework, hopefully you will a general sense of the framework from our pleaded case and our case and our skeleton. There are just a handful of points that I do want to highlight. To begin with, so far as the Freedom of Information Act is concerned, section 1 of the Act affords members of the public general right of access to information held by public authorities. That right is itself an important constitutional right for two reasons. First, it enables the work of the state to be rendered transparent to the citizens whom the state is constitutionally obliged to serve. Secondly, it is a first important step by which the public is able to hold the state to account.
- Why is this right so constitutionally important? Well, first of all, allowing the public access to information about the state is an important part of the process of building public trust in our public institutions. Second, it facilitates informed public participation in state decision making -- it improves the quality of state decision making -- and, third, it is obviously important safeguard against abuse.
- Of course, it goes without saying that the judiciary is a key part of the architecture of the state. Long before we had FOIA, a fundamental principle of open justice was knitted into the constitutional fabric of the state. I am sure the court does not need a lesson from as to why this principle is of such fundamental importance. The dangers inherent in the judiciary operating under cover of darkness were of course robustly expressed a century ago in the case of Scott v Scott, and I just ask to briefly take you to the judgment in that case, which you will find at tab 8 and it is particularly page 476. I should say at the outset, this was a case looking at the constitutional difficulties around hearing family proceedings in camera.
- MR JUSTICE PHILLIPS: In the big form, I have it at tab 12.
- MS PROOPS: It doesn't really matter which, so long as you are looking at the judgment, it should be the same across the two.
- MR JUSTICE PHILLIPS: Everything in the small bundle is also in the big bundle, isn't it?
- MS PROOPS: That is probably right, except for the WLR version of Brown. No, actually, that is not right because I think there were some additional authorities in our pleaded case that are in the new bundle and that were not in the original bundle. If you stick with the new bundle rather than the original bundle, that is probably going to make life easier.
- MR JUSTICE PHILLIPS: The new bundle is the smaller bundle? Yes.
- MS PROOPS: It is tab 8 -- and apologies to court if you have already marked up the other bundle. Tab 8, page 476, and I was just saying that the Scott v Scott case concerned the constitutional propriety of family proceedings being dealt with in camera. I would just ask you to read the judgment of Lord Shaw, starting about a third of the way down 476 and up to the end of the first paragraph of 478.
- MR JUSTICE PHILLIPS: Starting where, sorry? 476?
- MS PROOPS: Yes, so about a third of the way down 476 all the up to end of the first paragraph of 478. (Pause)
- MR JUSTICE PHILLIPS: I have read that.
- MS PROOPS: No doubt the language is very strong, and so should it be. The principle goes right to the heart of our justice system. In a sense the present case goes beyond Scott v Scott because what has been denied to the public in this case is not just the substance of an individual set of proceedings but denial of access to the very principles and practice which are intended, it would appear, to govern or at least influence the way in which the judiciary discharges its judicial functions, but the principle of openness that is embodied in FOIA goes far beyond merely the principle of open justice. As a general rule, the workings of the entire state edifice must be open to access by members of the public, and that edifice, of course, includes the office of the Attorney General.
- Pausing there, as we noted in our skeleton, we need to recognise the somewhat conflicted constitutional position of the Attorney General when it comes to the affairs of the royal family. As is reflected in our skeleton, the Attorney General is legal adviser to the Queen: he represents her interests, he is her counsel. Yet, in the context of the process of sealing royal wills, he is duty bound to wear a very different hat. That is because, in the latter process, he ought not to be serving the interests of the Palace, but rather public interest. The inherently conflicted nature of the Attorney General's position makes it all the more important that there should be high levels of transparency and accountability around his activities in respect of the sealing of royal wills.
- Moving on to the issue of exemptions under FOIA, of course the general right of access to information held by the state, as provided for under FOIA is not absolute, and nor should it be. There are obviously circumstances in which permitting public access would be contrary to the public interest, hence all the exemptions that you find set out in part 2 of the Act.
- The exception we are concerned with in this case is section 37. For the purpose of this case, it is a qualified exemption and what that means is that, even where the information falls within the scope of the exemption, that does not automatically mean it can be withheld. The question of whether it should be withheld or disclosed turns on the application of the public interest case --
- MR JUSTICE PHILLIPS: Yes.
- MS PROOPS: -- as provided for in section 2 of FOIA. What that test obliges the public authority to do is to balance the public interest in favour of disclosure as against the public interest in favour of maintaining the exemption, and it is only if the public interest in maintaining the exemption positively outweighs the public interest from disclosure that the information may lawfully be withheld. If the scales are evenly balanced, the information must still be disclosed.
- Just pausing there, I would ask you to have in mind when considering this case that great care should be taken to avoid falling into the trap of thinking that, just because the information in this case falls within the scope of section 37, that per se means that it is exempt. In other words, we should take great care not on elevate this exemption into an absolute exemption.
- All of the information that is in issue in this case is still susceptible of course to the application of the public interest test and it can, therefore, simply be assumed that, for example, if the information engages the Queen's private interests, that is a complete answer to my client's case.
- MR JUSTICE PHILLIPS: I wonder whether in fact it is the opposite. If the information is purely the Queen's private interests and views, then the fact that there is an agreement in relation to those views with the President of the Family Division in some ways raises the question of what is the nature of that arrangement.
- MS PROOPS: Yes. You have hopefully picked up from our skeleton and pleaded case, that there is a real concern here about, effectively, extra-judicial engagement between the judiciary and the Palace and the Attorney General about matters that are intended to inform future applications for sealing of royal wills. That is, we say, fundamentally constitutionally offensive. I will come back to where that leads us, so far as the tribunal's decision we are concerned with in this case are concerned.
- So I just simply wanted to make the point that it is important that the court is of course not unduly deferring to the interests of the Palace when you come to determining our application. More generally, the presence of the exemptions in the legislation should not distract attention away from the fact that the right of access is itself an important constitutional right, albeit that it is a right which may be overridden in some circumstances.
- Another important point about the application of the legislation is that it operates in what is commonly called a motive- or applicant-blind manner. The test which must be applied under the legislation is not whether the applicant's reasons for seeking the information are sound, it is whether the public interest, judged objectively, militates in favour of the disputed information being withheld or disclosed. I make that point because it seems to us that the Attorney General seems to want to make much of my client's personal motives in seeking this information. It is a complete distraction, my client could be requesting this information for a whole range of reasons, none of which would be relevant to this case.
- MR JUSTICE PHILLIPS: But you understand why he wishes --
- MS PROOPS: I understand why but I say --
- MR JUSTICE PHILLIPS: -- to colour the matter that way.
- MS PROOPS: Yes, of course, but I say it would be misconceived for this court take those matters into account.
- Then we come on to sealing wills, and you will see from our skeleton that the rules, so far as sealing of wills are concerned, have been structured so as generally to require that the wills will be made accessible to the public. Yes, the courts a residual discretion to seal a particular will but the exercise of that discretion is very much the exception rather than the rule. The general rule itself has been formulated in recognition of the strong public interest in creating transparency around the wills of the deceased.
- MR JUSTICE PHILLIPS: Can you take me to the rules.
- MS PROOPS: Yes. They are in the authorities bundle, I think it is tab 2. 58 is the one that contains the discretion. So you have the legislation at tab 2 --
- MR JUSTICE PHILLIPS: Yes.
- MS PROOPS: -- and you start with 124, and 124 is the provision that effectively, as a general rule, results in wills being made accessible to the public. 125, wills will be open to inspection; and, then, provisions as to depositories for wills; and, finally, 127, power to make rules of court for regulating and prescribing the practice and procedure at the High Court with respect to non-contentious or common form probate, and that is what takes us to Rule 58 of the non-contentious probate rules:
"An original will or other document shall not be open to inspection if, in the opinion of a judge, it would be undesirable or otherwise inappropriate."
- MR JUSTICE PHILLIPS: So the effect of the statute is that all wills, save for the sovereign's, because it is accepted that the sovereign's will is not subject to probate, all wills come within 124 and 125. That is the starting point.
- MS PROOPS: Yes.
- MR JUSTICE PHILLIPS: That would include royal wills?
- MS PROOPS: Yes. That is why Rule 58 comes into play.
- MR JUSTICE PHILLIPS: Then 58 comes into play, which provides that, if in the opinion of a District Judge or registrar such inspection would be undesirable -- now, what is the procedure whereby that would ordinarily be dealt with?
- MS PROOPS: That is a very good question, hence the reason for my client requesting access to information for the courts to be --
- MR JUSTICE PHILLIPS: What would it be in relation to a non-royal will?
- MS PROOPS: All I think we know is what is said in Tristram and Coote that is referred to in the First Tier Tribunal's decision, if you just give me a moment to find the relevant reference. Yes, it is paragraph 12, page 62 of tab B, the relevant extract from Tristram and Coote.
- MR JUSTICE PHILLIPS: But that is in relation to wills of the royal family.
- MS PROOPS: Do you mean more generally?
- MR JUSTICE PHILLIPS: Yes.
- MS PROOPS: I am not aware of any guidance. I don't know if my learned friend s?
- MR SWIFT: It would seem to be an ordinary application in the family division.
- MR JUSTICE PHILLIPS: An ordinary application?
- MS PROOPS: Yes. Rule 58 is a rule of general application. Anyone can make an application in respect of their own will if he they choose to do so, for example, a celebrity or something like that.
- MR JUSTICE PHILLIPS: Yes. So they would make an application, what, by an originating process?
- MR SWIFT: Yes, in the same way that Mr Brown made an application by originating process, which actually led to ultimately the decision of the Court of Appeal. That was of course as an application to see a will, but an application that a will should not ordinarily, of course, be available for inspection would be an application made by the same process.
- MR JUSTICE PHILLIPS: That in the ordinary way, if issued in the Family Registry, that would in the ordinary way be listed before a District Judge or a registrar?
- MR SWIFT: Or with the registrar, yes.
- MR JUSTICE PHILLIPS: Yes, and it is presumably accepted by everybody that Rule 58, the powers there ascribed it a District Judge or registrar, could be exercised by the President?
- MR SWIFT: Indeed.
- MS PROOPS: But, importantly, neither the legislation nor the rules identify the criteria which are to be applied or the process which is to be used, specifically in respect of royal Williams. This is a point is that is, of course, made by the Court of Appeal in Brown. They gave no sense of how the courts should approach the question of whether sealing a particular royal will be undesirable or otherwise inappropriate. Yet, of course, the sealing of a royal will engages the public interest no less than any other sealing process, which is of course why the Attorney General has a role in representing the public interest, but it is very important to note that the Attorney General is not the only party with standing to challenge the sealing of a royal will. That is the ratio of the Court of Appeal's judgment in Brown.
- In Brown, the Court of Appeal held that any private person, including my client, had standing to challenge a particular sealing order, on the basis that the court had exercised its powers unlawfully. That is important because what it means is that, if an application to seal a royal will is made, it cannot simply be assumed that the only relevant parties would be the Palace and the Attorney General.
- MR SWIFT: My Lord, sorry to rise. That is not strictly speaking true. On an application, say by Mr Brown, according to the Court of Appeal there would be no need for Mr Brown to demonstrate that the prior order had been made unlawfully, and the only question for the court was whether in fact Mr Brown should have access to the will. So one starts from a position where one does not assume against the applicant, so one does not need to show unlawful conduct, it is just question of the court weighing the rights of the application on their own terms.
- MR JUSTICE PHILLIPS: Yes.
- MS PROOPS: My understanding is it would be very difficult for members of the public to actually intervene at the stage where an application to seal a royal will is made because of the secretive nature of that process. It is only once the order has been made that --
- MR JUSTICE PHILLIPS: Secretive nature of what process?
- MS PROOPS: Of the process by way which the court exercises its discretion to grant an order sealing the will.
- MR JUSTICE PHILLIPS: A royal will or any will?
- MS PROOPS: Well, we are obviously concerned with royal wills in this case. I, again, confess to ignorance in terms of process that relates to other wills.
- MR JUSTICE PHILLIPS: Is that not quite important?
- MS PROOPS: I think our position would be, irrespective of the nature of the will that you are looking at, there is nothing in the rules or the legislation to suggest that members of the public do not have standing to participate in a process of sealing a royal will, whether that be -- or indeed reopening a will once its closure had been ordered -- whether that be a royal will or any other type of will. The legislation does not distinguish. It does not create a special category of case for royal will.
- MR JUSTICE PHILLIPS: No, these rules apply to everything including a royal will. I am just trying to work out what that means in terms of how every will is dealt with.
- MS PROOPS: You are pushing at the boundaries of my expertise because I have never dealt with a case, unlike Mr Swift, I have never dealt with case where an application to seal a will has been made and, in a sense, all I have is what has been said about the sealing of royal wills. In terms of general principles, plainly it should be no more inhibitory for an individual to participate in a process relating to the sealing of a royal will than any other will.
- MR JUSTICE PHILLIPS: But are they normally dealt with in private?
- MS PROOPS: The sealing of royal wills are --
- MR JUSTICE PHILLIPS: No, the sealing of an ordinary will. Is that dealt with in private?
- MS PROOPS: What I am being told, and I may be wrong about this, is that one of the difficulties here is it is so rare, an order to seal a will to be made -- I think my client has endeavoured to do researches to get to the bottom of what the usual procedure would be but has been unable to detect -- this is a rare creature.
- MR JUSTICE PHILLIPS: Yes. I suppose what I am asking is, if somebody wished to have their will sealed, how would they go about it?
- MS PROOPS: My learned friend Mr Swift has already described the process. The question is, is there a need for publicity to be created around it sealing a royal will?
- MR JUSTICE PHILLIPS: Well, you make an application, by an originating application, which would presumably be listed before a judge. Presumably there are rules which deal with how that application would be dealt with?
- MS PROOPS: If there are, we are not aware of them.
- MR JUSTICE PHILLIPS: Would it be the ordinary rules applicable in the Family Division?
- MS PROOPS: That may be so but I am not aware of what the rules are. I don't know if Mr Swift is?
- In any event, I don't understand it is being suggested by the Attorney General that, in any case where an application to seal a will is made, it would be conducted on an in camera basis.
- MR SWIFT: It would be a matter for court. The application would obviously be made ex parte. I dare say, given the nature of the application, the applicant would probably seek that the hearing be in private and it would be a matter for the court to decide yes or no. Otherwise, the purpose of the application would be defeated by the publicity of the hearing.
- MR JUSTICE PHILLIPS: Yes.
- MS PROOPS: But, in any event, the point is that it is not only the Attorney General who can participate in the process.
- MR JUSTICE PHILLIPS: Yes.
- MS PROOPS: Plainly, if a private individual wanted to challenge because, for whatever reason, he became aware of the process, he would have to be heard and that would cause difficulties in terms of dealing with the entire matter in camera. It may be that part of it would be dealt with in closed, but every case would have to be judged on its own particular merits.
- MR JUSTICE PHILLIPS: So prima facie, if a member of the royal family's executors -- presumably it would be the executors -- wished to apply to seal the will, given the general provisions they would have to issue an originating application, and it would then go through the Family Division Registry, and it would be listed before somebody, and it would be listed presumably in open court.
- MS PROOPS: I would assume so.
- MR JUSTICE PHILLIPS: There might be an application for it to be heard in private.
- MS PROOPS: Yes, because of course the starting point must be that justice must be done openly.
- MR JUSTICE PHILLIPS: So is it the case that what we are dealing with here is some protocol which, as it were, circumvents or --
- MS PROOPS: I can't answer that because that can only be answered by those species of information which I have not seen.
- MR JUSTICE PHILLIPS: What we do know is that an application was made in relation to the wills in question but there is no indication that there was an originating application in relation to those wills.
- MS PROOPS: Again, Mr Swift was involved in the Brown case before the Court of Appeal so --
- MR JUSTICE PHILLIPS: Can I proceed on the basis that there was no originating application? Or is the answer to that there is no evidence?
- MS PROOPS: I can't answer that.
- MR SWIFT: My Lord, I think in practice -- sorry to rise -- I think the assumption must be the other way round, otherwise how do you get in front of a court if you have no process to get in front of -- there has to be some originating process.
- MR JUSTICE PHILLIPS: Maybe that is what this confidential note deals with. My understanding is that what is accepted is, at the very least, annexes (a) and (b) deal with the procedure for making an application. That is what seems to be accepted.
- MR SWIFT: The point that you raise now, my Lord, is whether an originating application would need to be issued and, in my submission, the answer would be yes because, otherwise, how do you start court proceedings unless by some form of originating process or a claim in another division? You have to have something to get in front of a court.
- MR JUSTICE PHILLIPS: You don't normally have a confidential agreement as to how proceedings will be dealt with for the President of the Family Division. So we don't know at the moment what that says about the procedure.
- MR SWIFT: My Lord, for present purposes, also, I am not in a position to address you on that but, in terms of how one gets in front of a court, I would suggest the assumption ought to be in the other direction, that ordinarily one cannot get in front of a court unless you have either started proceedings by a formal way or, in urgent cases, that you have undertaken to start proceedings by a formal route.
- MS PROOPS: My Lord, I can simply refer to you paragraph 7 of the Court of Appeal judgment in Brown, which says:
"The executors of each estate applied pursuant to Section 124 and Rule 58 of the NCPR for an order that the respective wills should not be open to inspection."
But that doesn't really address the --
- MR SWIFT: I think, actually, it does in terms. How do you apply other than by originating application?
- MS PROOPS: Well, what it does not do, though, is illuminate the process or the manner in which the application was made and how it was dealt with in terms of its procedure by the court.
- MR JUSTICE PHILLIPS: Right. So that certainly looks as though the Court of Appeal had the application anyway?
- MS PROOPS: Mr Swift was involved in the case, but I cannot assist -- I apologise, but I cannot assist further than that.
- MR JUSTICE PHILLIPS: Yes, very well.
- MS PROOPS: It may be that it didn't because, of course, one of the issues before the Court of Appeal was the nature and extent of any disclosure or obligation on the part of the executors, and it may be there were arguments that we should not have to disclose the originating application because that would, in itself, give away information that we say we could -- I just don't know.
- Coming back to this procedure for the court, and dealing with the High Court's judgment in the case of the application brought by my client to unseal the will, in the course of its decision, the First Tier Tribunal referred to the judgment of Sir Mark Potter. You will find it at paragraph 16 of the tribunal's judgment, page 63, tab B. About seven lines from the bottom of that page:
"The learned President pointed out that it was to be presumed that the power to grant an order is concerned with considerations of privacy and of perceived necessity in particular cases to protect from harm, harassment, intrusion or publicity of those who are beneficiaries, potential beneficiaries or otherwise interested under the will, or who, for other reasons, may be adversely affected if the provisions of the will are open to public inspection.
"Equally, it is to be presumed that in relation to such a decision, those considerations of privacy fall to be weighed against the manifest general statutory presumption in favour of openness in respect of all wills subject to probate."
Of course, significantly, the learned President did not have the benefit of seeing the information that is in issue in this case, hence the need for him to make presumptions, and that is confirmed not least by paragraph 27 of the Court of Appeal's judgment.
- There is of course Tristram and Coote. It does provide some analysis of the relevant process. What I would say is that that analysis is highly superficial. It does not remotely, even arguably, reveal the real meat of the practice and procedure, the applicable criteria and principles that relate to the process of sealing royal wills.
- Finally, on secret agreements and secret correspondence, I do to draw your attention to the well established principle that, when it comes to the discharge by the judiciary of its functions, there should be no secret exchanges between the judges and particular parties. That is a principle which of course was recently alluded to by the Court of Appeal in the Binyam Mohamed case, which you have at tab 10. I do not need to rely on authority, however. The constitutional justifications for the principle are obvious. If particular parties are able to influence the court in the course of secret changes to which other parties, or potential parties, are not privy, that would be something which would be bound to mire the process in unfairness and expose the judge to allegations of bias.
- We say that this principle applies with no less, and indeed in fact with greater force, to a process whereby, even before specific proceedings have commenced, so outside the four corners of a specific judicial process where there is an application that is being dealt with by the court, there has been a prelude because there has been a secret agreement between the courts and specific parties guiding, or at least influencing, how future applications will be dealt with.
- MR JUSTICE PHILLIPS: Well, it is by definition somebody in fact who is not a party.
- MS PROOPS: Exactly, because there are no proceedings to which there can be a party. That is why in a sense it is extra judicial.
- MR JUSTICE PHILLIPS: My understanding is that we are not concerned with the sovereign's will in any event.
- MS PROOPS: That is of course right. So it is, in a sense, the sovereign influencing the judiciary relating to royal wills that do not concern her, or of which she is not the subject, to be more precise. We, again, say that is fundamentally constitutionally offensive.
- Now I come on to the substantive analysis of the claim. To begin that analysis, I need to reflect upon the nature of the information in issue in this case. Now, here we, I on behalf of the claimant, have a real difficulty. Typically in FOIA cases, whilst the applicant may not know the substance of the disputed information, there is generally agreement as to what, in broad terms, the disputed information comprises, because otherwise you cannot really even start to have an argument about how exemptions apply to that information. But in the present case, and particularly for those of us who are not privileged and we have in the seen the disputed information, there is a real uncertainty as to what that information actually comprises. So far as we can tell, not having seen either annex (a) or (b), the disputed information is as described in paragraph 2 of our skeleton, which is to say that it reflects the secret agreement between the Palace and the Attorney General as to how the courts should approach the exercise of its judicial discretion as to whether or not to seal a particular royal will; it is an agreement, a secret agreement that has since been secretly approved by the former President of the Family Division, as constituting the applicable guidance for the judiciary on the practice and procedure to be applied in the context of an application to have a royal will sealed; and it is information that has never been made available for public scrutiny, whether in whole or in part. Indeed the public, and in fact the courts, had no idea of its existence until my client sought to apply to unseal the will of Princess Margaret.
- I just want to take you, at this point, to an exchange between the representative of the executor and the then President of the Family Division, who was dealing with my client's application to unseal the will of Princess Margaret, and you will find it in tab B of the bundle and it starts at page 104. This is the first point at which anybody, beyond, if you like, the executors and the Attorney General, have an inkling that there is this information out there. Page 104.
- MR JUSTICE PHILLIPS: Yes.
- MS PROOPS: We say Mr Hinks, on behalf of the executors, say, in the second paragraph:
"My problem is I don't want to refer in open court to bring within the public domain documents which are the summons [and that is where we get it, that in fact it may well be that the summons has never been disclosed], the affidavit and the practice direction, which are matters not currently in the problem domain ... So far as we are concerned, we will be happy for your Lordship to see them but we are not happy for them to go into the public domain."
Then Sir Mark Potter says:
"Quite understandably. I have never heard of a practice direction that is not in the public domain. How can one practice without knowing what the direction is? This is the first we have heard that there is a practice direction. I am not aware of what the practice direction is for. Perhaps direction may be wrong but a practice agreed with the then President of the Family Division? I don't think there is a practice direction out. I have made enquiries with the senior District Judge. He is a great authority on these matters and how they work and he has certainly not informed me of a practice direction, simply that there have been a number of applications on a number of occasions which have been granted. I understand that this practice is commonly referred to as 'the practice direction.'"
"It may be that technically it is not a practice direction but there is a practice which was certainly considered and accepted by your predecessor. Now, that practice is one which we would put before the could if we go to the substantive hearing but we are not happy that (inaudible)."
Then there is overspeaking.
- Then we come to the exchanges between the executors' representative and Thorpe LJ in the context of interlocutory proceedings at the Court of Appeal level. Mr Hinks:
"The entire practice of sealing royal wills was reviewed in the period immediately before and after the death of Princess Margaret. The former President was party to that review of procedure.
- "So was this is a procedural review because there were going to be now probate rules or not?
"No, my Lord. The practice goes beyond the question of the court. It goes to the entire practice in relation to the sovereign, the position of the Attorney General. Essentially it is a question of balance and how the public interest is to be properly represented and to ensure essentially that no application is made unless it one which is a proper one and is well founded. So there is a system of balances and checks but it is a highly confidential process. Certainly for ourselves we would like the opportunity to seek to establish, to make good our strike out on the evidence which was actually before the President before being forced to disclose a whole raft of matters which are highly confidential."
- So effectively saying to the court, "Get rid of the applicant, and only if you don't get rid of the applicant should you force us to disclose this confidential information."
"Who were the parties to the procedural review (inaudible) the former President?"
Mr Hinks says:
"It was essentially, my Lord, between the Palace and my and my instructing solicitors, on the one hand, and the Treasury Solicitor, the Attorney General Secretariat and the Attorney General, on the other. So they were the basic parties to the review, looking at the entire practice, because it is the Attorney General who protects the public and so you have a question of a proper balance to ensure that it is only in proper cases that applications are made and to agree what is the proper procedure.
"The procedural review presumably(?) results in some sort of consensus?
Mr Hinks says:
"It did, my Lord ... It found expression in a quite lengthy document which was put to the former President for review."
And the judge asks:
"She then, as it were, was invited to frank or approve?"
"Essentially, my Lord, although the negotiations were by the two sides, the one representing the public and the other representing the royal family. The court as actually fully involved in those negotiations, so soundings were taken as to what was the correct procedure, the correct way of going ahead.
"So it was not just a question of arriving at a consensus then submitted for presidential approval. The President was involved in the consultation that proposed the agreed document. That is my understanding."
It goes on to talk about the process by which the judiciary participated. A little bit further down, line 27:
"Could you just explain one thing to me, Mr Hinks. We pick up from Mr Robertson's skeleton for today the fact that at the hearing before the President you were referring to the practice direction. What did you mean by the practice direction?"
And Mr Hinks say:
"That is the expression which perhaps rather unfortunately is given to this practice but it is a practice which embraces the whole question of checks and balances for this process of sealing royal wills. Within it there is something which does indicate ..."
And then it finishes. Then, on the following page, we start at 13:
"Yes, but there is no reference to what has now emerged through a process that you have described as a practice direction. It is known only to those who are party to the discussions."
And of course he then points out it is not even known to the current President. Interestingly, a little bit further down, at line 23, Mr Hinks says:
"My Lord, the question of what happens in the future was raised before the President. Currently all the probate rules are being reviewed and we offered them as part of that process. We would be happy to communicate with the President and, if it was thought appropriate, actually to incorporate something within the modern rules. Certainly we are prepared to contemplate that."
- Of course there has been no illumination and no disclosure, so we remain in the dark about what is described as this entire practice, this entire system of checks and balances, relevant to the process sealing royal wills.
- MR JUSTICE PHILLIPS: It seems, certainly by Mr Hinks, it seems to have been regarded, as it were, as sort of unofficial rules which could be incorporated into the modern rules in due course.
- MS PROOPS: Yes. Then, of course, unsurprisingly, they have Mr Robertson QC, who was then representing my client, immediately saying this is completely unconstitutional -- see further, for example, line 25 on page 108.
- So, in summary, we understand the disputed information to amount it a document, or two documents, which record the judicially approved practice or guidance for the judiciary on the principles and procedure applicable in the context in the context of sealing royal wills. If that is fair description -- and we have not seen the information, so we don't know whether it is but we have to the Court of Appeal was not being misled on the issue -- then it is at least akin to a form of practice direction, and that is of course precisely the label it has been given.
- MR JUSTICE PHILLIPS: It if it is the case that the only wills which are if in practice sealed are royal wills, then it is effectively the procedure which is to be adopted in relation to most cases under 58.
- MS PROOPS: Precisely. I should just briefly point out, there is actually an error in the FTT's decision at paragraph 35. The tribunal is resiting the evidence given Sir Alexander Allan on behalf of the Attorney General. The citation that is given in the last sentence of paragraph 35 was that the tribunal is effectively saying that Sir Alexander had said that it was not in fact a practice direction in any form or sense, very unequivocal. Actually, what Sir Alexander Allan said, and you can see this at paragraph 8 of his witness statement, which you will find at page 77 of tab A --
- MR JUSTICE PHILLIPS: Yes, I have read that statement.
- MS PROOPS: What he said in the last sentence of paragraph 8 is that it is not a practice direction in any "formal sense." Well, there is no doubt about that. No one is suggesting it is a formal published practice direction, but that is the root of the problem. It is the informality and secrecy around this particular information that goes to the very heart of this case.
- It may be that everything he have seen in the transcript is a misdescription and it is not a fair analysis, but, if that is the case, then that would create a very compelling and indeed overwhelming justification for a correction within the tribunal's judgment so that the public is not misled about what the disputed information actually is.
- MR JUSTICE PHILLIPS: Mr Hinks was instructed by the executors of both wills?
- MS PROOPS: Yes.
- MR JUSTICE PHILLIPS: Are the executors -- who are the executors?
- MS PROOPS: I don't know the answer to that question. Again, I don't know if Mr Swift, on whom I am obviously relying very heavily in the course of my submissions, can assist on that? I do not recall seeing a reference to the identity of the executors anywhere.
- MR JUSTICE PHILLIPS: It may not matter. Mr Hinks was instructed by Farrer & Co, was he?
- MS PROOPS: Yes, as I understand it.
- MR JUSTICE PHILLIPS: When he says, "We would be happy to communicate with the President and, if it was thought appropriate, actually to incorporate something within the modern rules, certainly we will be prepared to complicate that," what is it understood that he is saying and on behalf of whom at that point?
- MS PROOPS: Well, I am not sure it is appropriate for me to comment on representations made about the executors. All that I would say is, the impression that creates in the eyes of the public is that the representative for the executors, at least, are recognising strong constitutional imperatives in favour of creating transparency around this sort of material.
- MR JUSTICE PHILLIPS: It sounds like somebody who is not in an official position to do so seems think they have some say on what should or not be in the rules.
- MS PROOPS: I don't know if Mr Hinks is going that far. It is not for me to say. What I would say is that -- again, I come back to what the public has been told about this information, what my client has been told by someone who has seen it, or represents the individuals that were party to this agreement, is that by its nature, one can envisage circumstances in which it would be subsumed within the rules because of course it goes to the heart of the discharge by the judiciary of its judicial functions. Therefore, constitutionally speaking, it must be in the public domain.
- MR JUSTICE PHILLIPS: Did the tribunal have these passages referred to?
- MS PROOPS: The First Tier, Upper Tribunal -- I believe that I took the tribunal to these passages in my submissions. I would be very amazed if my client had not put them before the First Tier Tribunal because he was very comprehensive in his approach.
- MR JUSTICE PHILLIPS: Where do deal with these --
- MS PROOPS: They do deal with the exchanges to an extent. So, yes, paragraph 22 at page 66. There is not obviously a comprehensive recitation of what we have just looked at but some of the elements are there; also in paragraph 46.
- MR SWIFT: And paragraph 25.
- MS PROOPS: I am grateful paragraph 25. (Pause)
- MR JUSTICE PHILLIPS: Thank you.
- MS PROOPS: So two possibilities. Either Mr Hinks completely misdescribed the information in question and it does not have the constitutional resonance which, at first blush, it seems to have, in which case, frankly, the First Tier Tribunal should cure the public of its misapprehension and make the position clear, or it is an accurate and fair description, in which case all of the constitutional imperatives that I have referred to in my skeleton are eminently applicable and we would say, actually, decisive in case, although obviously you don't need to go that far in your judgment but it certainly creates not only a strongly arguable case but also a compelling reason as to why this case should be allowed to proceed -- because this is not just a case that touches on the interests of my client.
- MR JUSTICE PHILLIPS: Certainly that quotation from Mr Hinks, if it is taken at face value, seems to suggest that what these documents contain is something which is akin to rules which could be incorporated somewhere into a review of the rules to provide specifically, presumably, for the situations in contemplation in the documents.
- MS PROOPS: Sir Alexander Allan described the material as principles on either practice or procedure relevant to the process of sealing royal wills. That is in the paragraph we have just looked, paragraph 35 of the FTT's decision:
"The principles relevant to an application to seal a will made by a member of the royal member family and the practice to be followed when an application to seal was made."
- So at first blush, and that is the only blush we have on this side of the table, two constitutional imperatives (inaudible). First, there is the imperative to achieve open justice, and we see the fundamental importance of that as alluded to Scott v Scott. Second, I have to go further than saying constitutional discomfort: I have to say it is constitutionally offensive for there to be these kinds of secret exchanges between the Attorney General and the Palace approved by the judiciary. That is now how our justice system should work. It is not how the Attorney General's office should work in this context representing the interests of the public.
- MR JUSTICE PHILLIPS: Insofar as matters passed between the Attorney General and the Palace, then, as you indicated, the Attorney General has a function as acting for the sovereign, so it would be difficult to say that those are matters which should necessarily should be --
- MS PROOPS: Except, of course, in this process, he is not supposed to be acting representing the interests of the sovereign, he is supposed to be acting representing the interests of the public. So put it this way, what is the Attorney General doing engaging in secret discussions for the purposes of crafting principles and procedures relevant to the sealing of royal wills when, plainly, with his "I am representing the public interest" hat on, he should be ensuring that that is a transparent process, but, instead, the entire thing remains completely shrouded in darkness. Nobody even knows this process unfolded, let alone the results that it yielded.
- MR JUSTICE PHILLIPS: That may be a point but I would have thought the better point for you is, whatever may happen on that side of the fence, as it were, is that there was then apparently the approval of these practices and procedures by the judge in charge of the --
- MS PROOPS: We say the entire process is problematic but, obviously, once you get to the stage of the judiciary endorsing principles and procedures that are intended -- I don't know were they are directly to govern or whether they are intended to influence, because I have not seen the information -- but they are clearly something that is a court is going to take into account when exercising its powers under the rules, and yet complete secrecy has been maintained around the process and results. That is constitutionally unsound.
- It is no answer to our case, we would say, that the Attorney General knows what the rules are. He may say, "Well, I represent the public interest, I know what the rules are and I am confident that I am serving the public interest in agreeing to them." The problem is, the Attorney General is himself heavily conflicted and, as we have noted from the Court of Appeal's judgment in Brown, he is not the only potential party to future proceedings.
- MR JUSTICE PHILLIPS: What do you say to the comment that, well, you have indicated some very strong public interest grounds but, equally, there are countervailing grounds which should be indicated at some length about the proper need for confidentiality and privacy in these circumstances and that, however strong the arguments are in the public interest, ultimately it is a balancing act, and that is what the First Tier Tribunal did?
- MS PROOPS: Well, my substantive answer to that is that the fundamental nature of the constitutional imperatives that we say are engaged in this case must necessarily override any private interests. In a case such as this, where, yes, the royal family's private interests may be engaged, well, so are public interests and the interests of private individuals who may want to challenge the proposing of a will, or indeed to reopen a will. It is simply not good enough to say, "Well, the royal family's interests are engaged, the Queen's interests are engaged, they must be treated as overwhelming." Quite the contrary. Where the Palace in conjunction with the Attorney General has seen fit to influence the way in which the judiciary discharges its functions, it cannot assume that it is entitled to do so under the veil of secrecy and privacy. That is my substantive answer.
- My complaint about the First Tier Tribunal and the Upper Tier Tribunal's decision is that, where in either of the judgments is there really a recognition of the existence of constitutional imperatives and their enormous strength? You don't find it anywhere in the First Tier Tribunal's decision, and I want to come to that in a moment.
- In fact, what I will do now, if I may, is just tackle the two lines of challenge against both the First Tier Tribunal decision and the Upper Tribunal decision, beginning with the reasons challenge, which I have dealt with at paragraphs 8 to 24 of my skeleton. Once again, I need to be clear about where we agree with the Attorney General's case. We agree that, in general, in FOIA cases reasons must be framed so as to avoid the disclosure of the disputed information. The information cat must stay in the bag, pending the conclusion of the appeal. What we do say is that, where a tribunal does give reasons, those reasons must on their face be clear and internally consistent, otherwise an appellant cannot be confident that his case has been dealt with properly. He would be left in a state of confusion.
- I would also remind you of the judgment of Lord Neuberger in the Bank of Mellat case, which I have referred to in my skeleton, which is that, because of the inherent unfairness or asymmetry which flows from the use of closed procedures, it is particularly important that tribunals and courts are assiduous when it comes to the provision of reasons and that they express those reasons as fully as possible so as not to cause undue unfairness to an applicant. That is paragraph 69 of the judgment.
- Now, what we say is that in this case the First Tier Tribunal's reasons are on their face fundamentally unclear and inconsistent. We also say that, rather than recognising and addressing this flaw, the Upper Tribunal has perversely concluded that the inconsistency is not there in the first place. So what is the inconsistency we rely upon? Well, we come back to paragraph 35 of the FTT's decision and, indeed, the passage that we have all just read. These are principles relevant to the application to see a royal will and the practice to be followed. That is of course how it has been described to the public.
- MR JUSTICE PHILLIPS: That is paragraph 35?
- MS PROOPS: That is paragraph 35 of the FTT's decision.
- MR JUSTICE PHILLIPS: Yes.
- MS PROOPS: And yet, at paragraph 50 in the first instance, the FTT alludes to, in the sixth line down, the fact that the Commissioner has pointed to the overarchingly private character of the information. Imagine you have not seen the information -- I don't understand that you have seen the information -- that just does not make sense. If you are looking at principles and practice designed to influence or guide the court, or direct the court, however you want to put it, that is not an exclusively or meaningfully private set of information. It may relate to a process in which private interests are engaged, and of course the interests are not all just on one side of the fence, but to someone who has not seen the information, that just does not make sense. Paragraph 55 --
- MR JUSTICE PHILLIPS: Let me just take that on board. So paragraph 35 is the reference to principles and practices, but, subsequently, which paragraph do you go to then?
- MS PROOPS: Paragraph 50, and I am going to take you to the relevant extracts from the decision notice from which that (inaudible) paragraph 50 derives.
- MR JUSTICE PHILLIPS: Yes.
- MS PROOPS: So paragraph 50, overarchingly private character of the information. Then we go to paragraph 55, where there is a reference -- where it is said, second line down:
"The disputed information is derived from communications with Her Majesty and reflects her private views."
What does that mean? Does that mean that the agreed principles and practices are something that the Queen personally agrees with and endorses? I have no idea, and neither does my client.
- MR JUSTICE PHILLIPS: I suppose it is the point that, when one is dealing with royal wills, one is necessarily dealing with the members of one family.
- MS PROOPS: I don't know. If is that the answer, it should have been expressed. If that is the answer, it is no good answer to my client's case because it is not simply the private interests of the royal family which are in issue in the context of sealing royal wills, the public interest is also engaged. One of the fundamental difficulties, I would say, with all the decisions that have been taken in this case is that they do, with respect, smack of the degree of undue deference to the private interests of the Queen. I do not seek to minimise that, I do not say that those interests are unimportant. Plainly they must be part of the analysis in, insofar as this information actually engaged those interests -- I don't know if they do but let's take the tribunal's decision at face value. That is just a starting point. What about all the arguments on the other side of the fence? It is those arguments -- and I would invite you to reread the tribunal's decision in full and the Upper Tribunal's decision.
- MR JUSTICE PHILLIPS: What I slightly struggle with is that, insofar as we are talking being procedures and practices, an application must be made, presumably originating an process issue, and evidence will be filed which can set out on any one particular application any information which is required to be set out, including general matters which could be agreed beforehand, as it were, but anything can be set out in the application.
- MS PROOPS: And then it is for the judge who is dealing with that application to deal with whether that should remain in camera.
- MR JUSTICE PHILLIPS: So the judge would then have that material. So it seems to me, on the face of it, the only procedure or practice which it seems, on the face of it, one could see being agreed would be the question of possibly privacy in advance and possibly the fact as to who the material should be placed before. It is difficult to see what other practice or procedure could arise on an application.
- MS PROOPS: I would say there is a real danger in drawing inferences as to what the information must consist of.
- MR JUSTICE PHILLIPS: But this is a point in your favour, isn't it, because we are told these are quite extensive documents?
- MS PROOPS: "Quite lengthy documents", is how it is described.
- MR JUSTICE PHILLIPS: And that they do involve some matters of which could be described as substance. What could they be dealing with that would properly be described as practice or procedure for an application that would not be matters -- I mean this is a very simple application, you make an application to put in the evidence and the judge makes a decision. So what would be the practice or procedure we would be dealing with here?
- MS PROOPS: I can't answer that question.
- MR JUSTICE PHILLIPS: I thought you would say if there are practices and procedures which relate to the ultimate decision made by the judge which require an extensive document, then on the face of it that is something which does seem to be a matter of public interest as to what that would be.
- MS PROOPS: Yes. Now, what Mr Swift would say in answer to that is two things. First of all he would say it is clear from the Upper Tribunal's decision that the disputed information does not predetermine an application; to which I say, yes but it is clearly being created so as to influence the process, even if it does not predetermine the outcome. The second point he would doubtless make is, but the First Tier Tribunal and indeed the Upper Tribunal recognise that there was public interest in --
- MR JUSTICE PHILLIPS: What if, for example, it was predetermined that it should be heard in private?
- MS PROOPS: To deal with my learned friend's point --
- MR JUSTICE PHILLIPS: That would not determine the outcome.
- MS PROOPS: Sorry?
- MR JUSTICE PHILLIPS: It would not determine the outcome but it would determine --
- MS PROOPS: The process.
- MR JUSTICE PHILLIPS: It would determine the process which a judge should decide as Mr Swift said to me --
- MS PROOPS: We have to go back to Mr Hinks' --
- MR JUSTICE PHILLIPS: -- that would be a matter which the judge should be determining on the merits of each application.
- MS PROOPS: But then what is the point of having agreed the document in the first place, unless it was intended influence, to at least influence? And we have to look at what Mr Hinks said to the Court of Appeal at page 105 of the bundle.
- MR JUSTICE PHILLIPS: If it determined matters such as whether it should be in private, who would have the rights incurred or informed about it, those are all matters which would be fettering a judge's discretion, wouldn't they, on a particular application? Now, it may be that it would be appropriate to do that in some ways but you would think that would be a matter which would have to be, if it was going to fetter a judge's decision, that would have to be dealt with transparently in advance, but maybe I will be told that none of it does that.
- MS PROOPS: We have not been told, for example, that there are not really any constitutional imperatives in favour of disclosure of this information because all it does is establish the circumstances in which an application should not be entertained by the court. Now, arguably --
- MR JUSTICE PHILLIPS: Could you say that again.
- MS PROOPS: It has in the been suggested that all that the disputed information contains are indications of when the court ought not to entertain an application to seal a particular will. Sorry --
- MR JUSTICE PHILLIPS: But that would be extremely objectionable.
- MS PROOPS: It would. What I was trying to take you to was -- if I take you to page 105, the representations that Mr Hinks made, what he said, and I may have just momentarily misread it, is that essentially it is a question of balance and how the public interest is to be properly represented. Seems to be a matter of procedure but in a sense it goes to the substance because, if public interest is not properly represented, then that is obviously a fundamental problem, and that no application is made unless it is one which is a proper one and is well founded.
- MR JUSTICE PHILLIPS: I am looking at the wrong page. What page are you on?
- MS PROOPS: Page 105.
- MR JUSTICE PHILLIPS: Sorry. So you are looking at --
- MS PROOPS: The first big paragraph on that page.
- MR JUSTICE PHILLIPS: "The practice goes beyond ..."
- MS PROOPS:
"It goes to the entire practice in relation to the sovereign, the position of the Attorney General. It is a question of balance and how the public interest is properly presented, point one, and to ensure essentially that no application is made unless it is one which is a proper one and is well founded."
That would suggest that what this information does is actually set the parameters for what would constitute an application which the court will entertain. I don't know if that's right but that is how it has been described.
- So we do say there is a fundamental and unacceptable tension in the reasons that have been given by the First Tier Tribunal. The Upper Tribunal's answer is, I have seen the information and there is no tension. Well, with respect, that is not a good enough answer because what matters is -- and if you like this is where a point of principle comes into play -- what matters is whether the appellant and the wider public can properly understand the reasons for this particular decision and be confident that this case has been properly dealt with.
- MR JUSTICE PHILLIPS: So what that would suggest is, if an application was made by a particular individual by issuing an originating application --
- MS PROOPS: I think what it is suggesting is that applications to unseal a will -- I don't know what Mr Hinks was referring to, but clearly it is intending to govern applications made in connection with the sealing of royal wills.
- MR JUSTICE PHILLIPS: This is not to do with the practice of unsealing, this is the practice of sealing, isn't it?
- MS PROOPS: That was why I made my previous comment. I mean, I don't know, is the answer to that question. It may be that what this whole case comes down to is the information has been woefully misdescribed, the public misled and actually the nature of the information is not as it has been represented to be. Well, then the misapprehension inevitably must be corrected in the public interest.
- MR JUSTICE PHILLIPS: But one cannot see it on that basis because the tribunal saw the information and it has seen these comments and has quoted them and has not suggested that these transcript quotations are incorrect.
- MS PROOPS: Yes, precisely.
- MR JUSTICE PHILLIPS: So we have to at least proceed on the basis that they are correct.
- MS PROOPS: We certainly do, yes.
- My learned friends seek to rely on the case of Apcar, Apcar does not actually hi assist in this case. Apcar is a case in which there was not really any dispute about the general nature of the information in issue, and simply making general points about the difficulties for tribunals because they cannot reveal the disputed information in their decisions. No one is disputing that. That does not address the particular circumstances of this case and, as I say, it is just not an answer for the court to say, or the Attorney General to say, as it does in the skeleton, the reasons are sound if you look at them from the perspective of the disputed information. That is not the correct perspective from which to judge the adequacy of the reasons.
- MR JUSTICE PHILLIPS: If you took that perspective, then you might need to say nothing at all.
- MS PROOPS: There is also an issue of redaction. We say the First Tier Tribunal plainly did not address the issue. The Upper Tribunal did, it seems, consider the issue of redaction and concluded that there could not be redaction. I say what is really uncomfortable about that is that, if there is to be redaction, each element of the information has to be considered by reference to the relevant provisions for a decision. A substantive decision has to be taken in respect of this particular element. Is section 37 engaged and does the public interest balance weigh in favour of disclosure and maintaining the exemption? Now, that is an exercise which should be conducted by an expert first instance tribunal, and not by a judge sitting alone in the context of a permission hearing. So, we say the conclusions on redaction are themselves are unsatisfactory. There is obviously a much wider picture and that is the picture we are concerned with.
- Let me move on swiftly, because I must give Mr Swift a fair crack of the whip, to the issue of the application of the public interest test, since we have run through some of the key arguments already. We say that there is just no question that there is a very strong arguable case that the First Tier Tribunal has failed to see the constitutional elephant in the room, and that that fundamental error has not been remedied by the Upper Tribunal's decision.
- MR JUSTICE PHILLIPS: But that is the question -- what you need to show is that there is an error on the part of the tribunal's, as far as the important point of principle or compelling reasons concerned. You don't need to say that they have missed that, you only have to say that there is not such a point.
- MS PROOPS: Yes, well, there is such a point and, if it assists the court, I will take you through the relevant paragraphs so you can see how the tribunal dealt with it.
- MR JUSTICE PHILLIPS: I do not think you need to do that.
- MS PROOPS: I am grateful.
- MR JUSTICE PHILLIPS: I do not consider there is a great deal of difficulty here that, if I am persuaded that the tribunal made errors of law, that is an important point of principle or there is a compelling reason.
- So do you want to let Mr Swift have a go now? Perhaps you don't want, but perhaps you should.
- MS PROOPS: I am grateful. Just one final point. It is right say that the commission in his decision notice alluded to there being some public interest in disclosure, but it is highly nonchalant: it simply does not really get to grips with the constitutional concerns that arise in this case and that is a problem that is then replicated in the First Tier Tribunal's decision and the Upper Tier Tribunal's decision.
- Mr Swift will say, if this all a question of weight, then it is not for the Upper Tribunal, and certainly not for this court, to intervene but I would say, in answer to that, if you have not really got to grips with the constitutional issues in fairness in this case, you have not dealt with it properly, pure and simple.
- MR JUSTICE PHILLIPS: You almost go so far as to say, don't you, that, if there is an agreement with the President of the Family Division as to practices and procedures which will be adopted in a class of case, if it is with the litigants in question, then that is highly questionable; if it is with a third party, it is even more questionable. That, at least for my purposes, as an arguability test, it is arguable that any division saying that such practices and procedures should be kept secret or confidential is wrong.
- MS PROOPS: Yes, and not only is it an arguable case, but it is also a case that compellingly ought to go to a substantive hearing.
- MR JUSTICE PHILLIPS: Yes. Thank you.
- Mr Swift.
- MR SWIFT: My Lord, I make no apologies for starting with an obvious point. This is application for permission to judicially review a decision of the Upper Tribunal to refuse permission to appeal. It is governed by the provisions of CPR 54.7(a). There are two questions that it is very important that one has in mind as separate issues.
- MR JUSTICE PHILLIPS: Yes?
- MR SWIFT: The first is whether there is an arguable case that the First Tier tribunal, and the Upper Tribunal for that matter, erred in law. The second is whether there is a point of principle or compelling reason for the application to go ahead. It is very important, in my submission, that you separate those. It is important not to muddle them. Now --
- MR JUSTICE PHILLIPS: It helps, sitting in this court for a relatively limited point of time, one comes across the Cart test over and over again. So, whilst you are more than welcome to go through it --
- MR SWIFT: My Lord, that is all I wanted it say. The point I wanted to address you on now is the question of whether settle is any point of principle or compelling reason in this case. Now, the claimants submission, as you have heard, goes to what is said to be the constitutional importance of the decision of the First Tier Tribunal. It is also said that there is a point of principle going to the extent of the obligation to give reasons. That was part of the skeleton argument but not a point that has been developed further this afternoon.
- By way of response, the first and most important point is that there is no important issue of principle involved. There is no constitutional angle so far as concerns the decision of the First Tier Tribunal. The underlying claim, the claim that was before the First Tier Tribunal, was a claim under the Freedom of Information Act. To decide that, the tribunal decided two questions of fact. The first was whether the information requested fell within the scope of the section 37 exemption, decided that is the question of fact? In the affirmative: yes, it did.
- The second question of fact concerned the public interest balance test and the tribunal concluded that the public interest in disclosure of the information was outweighed by the public interest that it should remain confidential.
- Now, neither conclusion on either of those issues required the determination of any point of principle, let alone any point of principle of general application or general importance. If this claim proceeds, if there is an appeal, or this judicial review proceeds, the only issues before the court will be whether, as a matter of law, the First Tier Tribunal was correct on those two issues.
- Now, any matter of general public importance in connection with the availability for inspection of wills made by members of the royal family was a matter addressed by the Court of Appeal in 2008. It is important in my submission not to confuse or elide the issues determined by the Court of Appeal on that occasion with the issues that actually arose before the First Tier Tribunal in the present case.
- MR JUSTICE PHILLIPS: Yes.
- MR SWIFT: My Lord, would you be so kind as to go to the Court of Appeal judgment in Brown. Can I take you through that, so you have a sense of the issues and the decision in that case.
- Firstly, if I could ask you just to go straight to the judgment of Lord Phillips. Firstly, page 2331, paragraph 4 and following, one sees there the basic legal landscape. Firstly section 124 of Senior Courts Act, which is the provision to the effect that wills and documents under the control of the High Court are to be deposited and documents so deposited are to be open to inspection subject to the control of the High Court.
- So the starting position is a will in respect of which probate has been granted is under the control of the High Court. The Act provides for inspection, subject, again, to control by the High Court. Then section 145 is set out at paragraph 5, which deals with how one goes about exercising the right to inspection and you have also been taken to section 127 of the Act that was set out in the First Tier Tribunal's decision. That was the general rule making provision. My Lord, for your note, that provision is at paragraph 11 of the tribunal's decision. The Court of Appeal, at paragraph 6, then sets out Rule 58, which, again, addresses the question of inspection:
"A document shall not be open to inspection if, in the opinion of the judge or registrar, such inspection would be undesirable or otherwise inappropriate."
- In terms of substantive criteria as to when a will will be open to inspection or not, those are the criteria set out in that rule, "undesirable or otherwise inappropriate." So those are the substantive criteria by which all applications are to be assessed. One sees at paragraph 7 that in that case the executors made an application for an order that the will should not be open to inspection, so an application under section 124 and no doubt also under Rule 58. So in terms of the basis on which that application was decided, it would be decided in accordance with Rule 58.
- MR JUSTICE PHILLIPS: Yes, well it actually says it, doesn't it?
- MS PROOPS: If one reads on in the decision, one sees the Attorney General is joined as a defendant to each application. My Lord, just pausing there, it has been suggested this afternoon that the Attorney was in some way conflicted in this context. In practice that will not have been the case. The Attorney is the adviser to the Queen when she acts in light of the Crown, not adviser to the Queen in a personal capacity.
- MR JUSTICE PHILLIPS: Yes.
- MS PROOPS: The Attorney was joined to those proceedings on the basis that -- well, one sees as one goes through the judgment -- on the basis that it was assumed by the executors that these proceedings were proceedings to which the Gouriet principle attached, such that the Attorney General was there effectively as the representative of the public interest. There is no question of the Attorney being conflicted, fundamentally or otherwise, simply a bad point. One sees there the court then made orders. Each order provided the will should not be opened:
".. without the consent of the President of the Family Division for the time being."
So the orders made were, again, subject to, as it were, further order.
- Over the page, no public hearing of the applications, not clear whether any hearing took place at all or whether (inaudible) provided reasons for making the orders. If they did, not being in public. Then paragraph 9, one sees Mr Brown's summons to inspect the will and then, if you go down to the bottom of the page, page 12, one sees the executors' response to Mr Brown's summons to inspect the will was an application to strike out his summons.
- MR JUSTICE PHILLIPS: Yes.
- MR SWIFT: My Lord, in passing on page 2336, paragraph 28, one sees there the description by the court of the arrangements that have been the focal point for that case and, indeed, for the information requested in the present case:
"Before and after the death of Princess Margaret discussions between the Palace (inaudible) and the Attorney General Secretariat and the Attorney General court which reviewed what Mr Hinks described as 'the practice of sealing royal wills.' The senior district judge was involved, who sought the views of the former President [I think the President at that stage was Dame Elizabeth Butler-Sloss]. Ultimately, a quite lengthy document was agreed and was reviewed and approved by the former President. The process that this (inaudible) contained involved a system of checks and balances that was highly confidential. The primary object of the process was to protect the privacy of the sovereign. Thus, when the two applications came before the former President, she had an understanding of the background that she would not otherwise have had."
- My Lord, pausing there, the passages in quotations, are obviously quotations, as it were, from points that Mr Hinks made in the course of his submissions. Just so that you have it well in mind, the Court of Appeal itself did not see the documents that are the disputed information in the present case but, nevertheless, they were fully appraised, obviously, of the way in which the original application to seal the will was made.
- My Lord, in terms of the submissions in that case, at paragraph 30 you see the submissions from Mr Brown, that there was a right to inspect under section 124 and Mr Brown was entitled to make such an application to have it decided on its merits. The executors' submissions in the first part of paragraph 31, to extent that Mr Brown's application should be struck out because he didn't have standing -- this a case which Gouriet applied and only the Attorney's had standing to make an application to see the will, and the Attorney's submission is at paragraph 34, at bottom of the page, there was a right to inspect under section 124 but not an absolute right. The matter was subject to the control of the court on the basis of the undesirable or otherwise inappropriate criterion and that Gouriet did not apply. So on that basis any person could make an application and have it determined on its merits.
- The court's conclusions, firstly at paragraph 38 at the top of page 2339, that they accepted the submission that Gouriet did not apply, and the last sentence of that paragraph, just against letter B:
"By contrast, there is nothing on the face of section 124 of the 1981 Act to suggest the court may only exercise its powers under (inaudible) on application by the Attorney General. The general effect of section 124 may be relied on by any person."
- My Lord, further at paragraph 46, over the page, no express restrictions upon the circumstances in which an application could be made to vary the order, so effectively any such applicant has an open field when it comes to framing the application to see the will. Paragraph 47, last sentence, just against the letter F:
"We consider, however, these questions should be properly explored by the President with knowledge of the material facts."
So, having made the point in the previous sentence about what is described as the "insatiable curiosity" of members of the public for information, all information, about members of the royal family, nevertheless, the application was to be considered on its own merits.
- My Lord, the important point there is that, so far as it was suggested that release or disclosure of the disputed information was a compelling reason for it because it might assist Mr Brown in his presently stayed application, if it is indeed a stayed application, that point is clearly a bad point because it is clear from the Court of Appeal's judgment on its face that any application under section 124 to see a will is an application to determined by the court on its own merits, there is no predisposition one way or the other as to whether the application should be refused or should be granted.
- The second point in terms of what has been described as the wider constitutional point, the Court of Appeal is was clearly informed of certainly the way in which the applications were made to seal the wills and also informed of the prior discussions between the executors, the court and the Attorney General as to how they should go about making that application. The Court of Appeal did not consider that there was, firstly any point of inconsistency in that with any provision in the Act or the rules. Secondly --
- MR JUSTICE PHILLIPS: Where do I find that?
- MR SWIFT: Sorry?
- MR JUSTICE PHILLIPS: Were do I find it saying there is no inconsistency?
- MR SWIFT: Well, because they decided the matter simply on the basis of the Act or the rules and one does not see anything in the judgment of the court that suggests that they thought that what was provided for in the Act or the rules had in any way been the subject of any derogation by reason of the discussions that had taken place.
- MR JUSTICE PHILLIPS: They don't consider that, do they?
- MR SWIFT: My Lord, the point I make is it is not in the judgment because it is not, as it were, a good point. Before the court, the scope of the argument concerned, well, can Mr Brown make his application under section 124? What is the nature of the section 124 application? The court decided that point, the court did not suggest that anything that had arisen from the discussions that had been described from the court in any way limited either the circumstances in which an application to see a will could be made or the basis on which such an application would be decided.
- MR JUSTICE PHILLIPS: What, as I understand it, in paragraph 47, what the court said is this may justify special treatment for royal wills, which is a reference, presumably, to the procedure, is it?
- MR SWIFT: No. I am sorry, my Lord. I didn't mean to sound surprised. May I invite you to read the sentence as a whole.
"We would not dissent from the President's reference to the seemingly insatiable curiosity about the private lives friendships and affections of members of the royal family and their circle and this may justify special treatment ..."
- MR JUSTICE PHILLIPS: So sealing the will is the special treatment?
- MR SWIFT: My Lord, either sealing the will or here, in the context of the approach the court takes to, you know, the question of undesirable, et cetera, when an application to look at a will comes before it.
- MR JUSTICE PHILLIPS: I think you are wrong, Mr Swift, and I think you should read the whole paragraph, if you don't mind me saying.
"There may well be good reason for the procedure apparently agreed between the Palace and the Attorney General with approval of the former President in relation to the treatment to be given to royal wills."
That is what we are talking about in this paragraph, the procedure apparently agreed in relation to the treatment to be given to royal wills. Then it (inaudible) to practice:
"We would not dissent from the Presidents reference and this may justify special treatment for royal wills."
So he is plainly there referring back to the treatment to be given to royal wills referred to in the first sentence.
- MR SWIFT: And the next sentence, my Lord, suggests all this will be considered on the application to unseal the will. So that is why I say it relates to the application to unseal the will.
"We consider, however, these are questions that should properly be explored by the President with knowledge of the material facts."
- MR JUSTICE PHILLIPS: He goes on to say, as well:
"It does not necessarily follow that all the details and negotiations that led to the special procedure, or even the details of that procedure, must be brought within the public domain."
- MR SWIFT: Again, that will be a matter for the President. So the Court of Appeal in terms of what has been described as the constitutional point of all of this, one sees it is addressing that in the context of, well, this will all come out to the extent necessary when the court considers Mr Brown's substantive application.
- MR JUSTICE PHILLIPS: Yes, but that is because they are anticipating, having allowed the appeal, that it is all going to go back to the President and that the President will then consider this whole matter.
- MR SWIFT: But, my Lord, to the extent it is said now that there is a matter of general importance or particular importance that warrants permission for judicial review in this case, even if there is an arguable case, one can see that that submission is fundamentally undercut by the approach the Court of Appeal is seeming to take here because, to extent that there is any constitutional issue, issue about the arrangements that were made or the significance of those arrangements, the Court of Appeal states those are all matters to be considered on the application to unseal the will. Now, had Mr Brown proceeded with his application, rather than letting it lay in abeyance, if that is what in fact has happened to it, well, no doubt that point would need to have been addressed head on by the President of the Family Division, or whichever Family Division judge actually heard the application.
- So at the moment I'm only addressing you on the submission that there is some point of particular importance, a point of principle or practice, that would justify the grant of permission in this case. The point I make is that, so as far as, as it were, what has been described as the constitutional point is been relied on, that is not a good point because all of that is addressed by the Court of Appeal and would be addressed in practice if an application to unseal a will came before, was pursued before, the present Family Division.
- MR JUSTICE PHILLIPS: I am really not following. The Court of Appeal here does not consider the question at all. They merely identify that there may be these issues and that they will be considered. The fact that they anticipated these matters may be considered before the President in that case does not mean they are not constitutional issues, and it doesn't mean that they cease to be constitutional issues.
- MS PROOPS: My Lord, but it does mean that the court itself has identified the proper context in which they are considered by the court. So, to the extent it is said here that, if the First Tier Tribunal erred in law, here is a compelling reason, the compelling reason the claimant needs, for this claim for judicial review to proceed, in my submission, that is (inaudible) compelling reason is not there because all these matters are identified by the Court of Appeal as matters to be addressed in the ordinary course of the application to the Family Division.
- MR JUSTICE PHILLIPS: So you are saying that means they are not compelling?
- MR SWIFT: There is no compelling reason why this application for judicial review should proceed. Judicial review is a remedy of last resort.
- MR JUSTICE PHILLIPS: Because you mean this is an alternative remedy, is that what you are saying?
- MR SWIFT: One point that is made, that arises from 54.7(a) is that in fact, as it were, it is a super last resort, a very distant last resort, in a case where the application for judicial review is directed to a decision of the Upper Tribunal on an application for permission to appeal against the decision of the First Tier Tribunal because, my Lord, clearly the starting point is that judicial review of the Upper Tribunal on such an issue will be an exceptional rather than an ordinary course of events because one has the ordinary route of appeal through the tribunal system, ultimately, in the Court of Appeal.
- Hence the additional hurdle, a second appeal type hurdle in 54.7(a)(7). In the present case, the fact that these issues, as it were, the significance or not to be attached to the arrangements that were made, will be considered precisely in the context of the relevant application, the application to unseal the will. In my submission, that is a very important matter, a matter that -- again, I said at the outset, one must not confuse the issues that will actually be decided in this judicial review with the submission that you have heard this afternoon as to the wider constitutional issue. None of these wider constitutional issues will be decided if this application for judicial review proceeds. The question for the judicial review court will be whether the First Tier Tribunal erred in law in dismissing the information request. That will depend on different issues, which I will come to in a moment.
- So what 54.7(a) anticipates is that the point decided by the court on the application for judicial review is itself the important point of principle or practice, not that this is a case which somewhere attached to it there is an important point of principle or practice; the question here is, will this be decided by the judicial review court on the judicial review? The answer must be no, because of the fact that, in reaching its decision on the Freedom of Information Act claim, the tribunal (inaudible) the two issues. Firstly, does the section 37 exemption apply in this case? Secondly, where does the public interest balance lie? As I will come to in citing those issues, these no doubt very interesting points simply were not matters that are capable of going to the outcome of those particular issues.
- My Lord, the other point I wanted to make before I move on from this judgment is, again, to put matters again in some formal context. The initial proceedings, the application to seal the well is no more than an application that ensures that the starting point in relation to that class of will is that, rather than the fault just being open to inspection -- so an application is made, a fee is paid and one would expect the will to be provided -- the starting point would be that the application is made and the court itself at that point would step in and decide whether or not to allow the application to see the will. So, as it were, the prior proceedings do no more than, as it were, identify what the starting point is. The court at all times retains the power to decide what will happen to the will. That so in relation to every subsequent application that is made to see the will. There is nothing odd or unconstitutional about an ex parte application to a court where the purpose of the application is to preserve the confidentiality of private information. If in fact the ex parte application is bad on its merits, at that stage the court remains free to say so and to reject the ex parte application.
- So, again, there is no, as it were, constitutional issue that arises simply by reason of the ability to make that application. I said when I --
- MR JUSTICE PHILLIPS: But the arrangement here seems to include, on the face of it, a situation to which an application cannot be made.
- MR SWIFT: Well, my Lord, I am not sure that is right. May I come to that -- well, let me come to this now. In terms of the information the tribunal had --
- MR JUSTICE PHILLIPS: Yes?
- MR SWIFT: -- it had the evidence of Sir Alexander Allan, which you have behind tab A, page 74. You will see in that -- you have the open version of his statement, the statement also included some information relating to the disputed information itself and you will see that has been blanked out.
- MR JUSTICE PHILLIPS: Yes.
- MR SWIFT: One issue with the case was, well, what comprises precisely the disputed information. Now, the reason for that was that Mr Brown -- this is not a point of criticism directed at Mr Brown -- he was asking for the thing that Mr Hinks had described in the course of the proceedings. The question was, what was it that Mr Hinks had actually described, because that itself was not entirely clear what it was he was describing.
- So, paragraph 6, Sir Alexander starts by referring to the two paragraphs in the Court of Appeal judgment and then, at paragraph 7, he explains it is the case that before the death of Princess Margaret:
"Before and after the death of Princess Margaret, discussions took place between the Attorney General's office, Farrer & Co, acting on behalf of the Queen and the royal household, the President of the Family Division relating to the established practice of sealing royal wills. The discussions that took place concerned the procedure to be applied if applications were made to seal a will, ie an order by the court. The copy of the will should not be available for public inspection or the grant of probate unless the President of the family division consented to such inspection. Applications (inaudible) seal are made to protect the privacy of Her Majesty the Queen and royal family. The result of the discussions that occurred was recorded in a controversial note and two further documents, A and B. The two annexes recorded respectively the principles relevant to an application to seal a will made by a member of the royal family and the practice to be followed when an application to seal is been made."
Then he says, at paragraph 8, he accepts that A and B are what Mr Brown has asked for.
- MR JUSTICE PHILLIPS: Yes.
- MR SWIFT: He goes on to say, fourth line:
"The document is not in fact a practice direction in the meaning of the CPR."
He then refers to the transcript of a December 07 Court of Appeal hearing, which is when Mr Hinks gave his description of matters. Then, in terms of the application of section 37 to that information, so why is it that that information falls within section 37, one sees part of his evidence is open and part of his evidence is closed. Clearly the closed part of the evidence is the part of it that identified matters going to the substance of the disputed information for obvious reasons.
- The tribunal obviously saw all that information and, in terms of the application of section 37, addressed that in their decision. It is the passage from paragraph 30 that starts with the description of the application made by Mr Brown, the information request. From paragraph 34, the tribunal refers to Mr Allan's evidence, and ditto 35, 36 and 37. I will skip over 38 for the moment. At 39, the tribunal's conclusion that it was correct to say that the information fell within the section 37 exemption; the tribunal then, continuing on that theme, under the heading "Contentions of the Commissioner", stated further conclusions at paragraph 41, which agreed with the Commissioner's submission and, similarly, at paragraphs 42 and 43. So they addressed fully the question of the application of section 37.
- MR JUSTICE PHILLIPS: I do not understand that Ms Proops was particularly focusing on saying that section 37 was not engaged. I think she was more concerned with the public interest test.
- MS PROOPS: I think, if I could just clarify, we have obviously focused particularly on the public interest test. The truth is there may be issues around the application of section 37, there may not be, because we have not seen the disputed information. The difficulty that we have is that, because of this continuing mismatch issue in the reasons, we are just not confident that the tribunal has properly dealt with this case as a whole. It may be we have no case on the application of section 37, hence my focus on the public interest test but I just cannot make a concession to that effect.
- MR JUSTICE PHILLIPS: I understand that but I think, for the purposes of today's argument --
- MS PROOPS: The point is the ground of appeal is pursued to the effect that there was no adequate reasons to explain how the document, which is on occasions described as relating to court procedure, could record the views of the Queen and, therefore, fall within the section 37 exemption. That is the grounds of appeal pursued.
- MR JUSTICE PHILLIPS: Yes. So you would say in any event that permission should not be granted in relation to that ground anyway?
- MR SWIFT: Well, I do say that and, for present purposes, just staying with my Lord's point about the nature of the information, one aspect of that ground is the submission that there is some form of mismatch, (inaudible). It is a document that has been described as relating to procedure but how is it that document includes views of the Queen? Now, my Lord, firstly that is a point that has been considered both by the First Tier Tribunal that sought the information and by the upper tribunal that sought the information, and it has been rejected by both of them.
- Looking at that, clearly I cannot make submissions now that address the substance of the information. I am not in a position to do that. But without doing that, one can see, for example, that the views of the Queen could be material to matters going to, for example, who falls into the class of persons? Who are, as it were, material members of the royal family? It is a family tree that has wide branches. To that extent, one sees there is no necessary mismatch. Again, a further point is a point my Lord makes in the course of argument: there may be general matters going to evidence -- again, for example, who falls within the class of people that this practice applies to -- and one can see, on such matters, the views of the Queen clearly would be entirely relevant as to, for example, who is in the class and who benefits from the practice that exists.
- MR JUSTICE PHILLIPS: Benefits from the practice?
- MR SWIFT: Yes.
- MR JUSTICE PHILLIPS: What does that mean? Some people are being identified as benefiting from a practice. I find that a strange concept.
- MR SWIFT: My Lord, I am in a difficult position. You have not seen the disputed information. Quite right. The First Tier Tribunal and the Upper Tribunal did see the disputed information. They considered specifically whether the information fell within section 37. You have seen the First Tier Tribunal's reasons. The Upper Tribunal also addressed that point and in its reasons -- the material passage is at paragraph 8, which is on page 34 to 35 of part A of the bundle, I think. So one sees there at paragraph 8 the point that is being advanced, was advanced there and was advanced in front of you, that doesn't explain the nature of the disputed information.
- MR JUSTICE PHILLIPS: Yes.
- MR SWIFT: Then paragraph 9, to the same effect.
- MR JUSTICE PHILLIPS: Forgive me, where are we looking now?
- MS PROOPS: Paragraph 8 is the point advanced.
- MR JUSTICE PHILLIPS: Of what, sorry?
- MR SWIFT: As to whether or not --
- MR JUSTICE PHILLIPS: Sorry, can you give me the page number.
- MR SWIFT: Page 34, the bold printed page, bottom of the page.
- MR JUSTICE PHILLIPS: Page 34 of bundle B?
- MR SWIFT: Bundle A.
- MR JUSTICE PHILLIPS: Bundle A, sorry.
- MR SWIFT: It should be the Upper Tier Tribunal --
- MR JUSTICE PHILLIPS: I have got it, yes.
- MR SWIFT: Page 33, it starts, page 34 is the second page, Paragraph 8, bottom of that page -- sorry, my Lord -- is the point being advanced, which is essentially a variant of the point advanced in the skeleton argument and before you this afternoon. Paragraph 9:
"I have raised a point on these lines in direct (inaudible) hearing. At that time I had not seen the confidential note or the annexes. It was a point which occurred to me simply on reading the FTT's decision. However, with the benefit of reading the confidential note in the annexes, I do not find that any additional reference by the FTT to the contents of the documents was necessary or would even have been helpful in order to understand why the FTT came to the decisions it did on the issues before it. For example, in my judgment, no additional explanation by reference to the precise contents of the documents would be helpful in better understanding the FTT's views on the public interest balancing the exercise. In my judgment it is sufficient simply to read the FTT's decision with the contents of the disputed information in mind."
Then at paragraph 10:
"I do not accept it is arguable as any unexplained mismatch so far as the contents of the documents are concerned."
- So, my Lord, you query when I say, well, you could identify -- the views of the Queen might identify the class of people who would benefit from the practice. My Lord, we know what the practice is, in terms of the possibility of this ex parte application in private to President of the Family Division.
- MR JUSTICE PHILLIPS: No, I didn't know that.
- MR SWIFT: Well, it is described by the Court of Appeal.
- MR JUSTICE PHILLIPS: Where?
- MR SWIFT: My Lord, would you like to go back to the Court of Appeal --
- MR JUSTICE PHILLIPS: Yes. I must have missed this.
- MR SWIFT: It is the practice described at paragraph 7 on page 2331, which was the practice supplied in those cases in relation to Princess Margaret's will and the Queen Mother's will, and the practice also --
- MR JUSTICE PHILLIPS: You mean what is implicit in paragraph 8? Is that what you mean?
- MR SWIFT: Also paragraph 8 and, finally, it clearly goes to the matters that the Court of Appeal describes further at paragraph 28.
- MR JUSTICE PHILLIPS: 28?
- MR SWIFT: So that the passage where they describe the discussions that have taken place prior to the application.
- MR JUSTICE PHILLIPS: What you just told me now was that we know that the process involves an ex parte application in private to the President.
- MR SWIFT: Yes, we know that from paragraphs 7 and 8.
- MR JUSTICE PHILLIPS: Well, we don't. What we know is applications were made. We don't know that there was a pre-agreed process that they would be in private to the President, do we? What we know is that, in the event, no public hearing took place and that an order was made by the President.
- MR SWIFT: My Lord, I invite you to read paragraphs 7 and 8 together with what is said at paragraph 28. Now, 28 is describing discussions that took place both before and after the death of Princess Margaret, which resulted in what Mr Hinks described as this quite lenghty document, and so forth. When those applications came before the President, she had an understanding of the background she would otherwise have had. So that document, it formed the applications that were then described at paragraphs 7 and 8 of the judgment. So those three paragraphs link together. Do you see that, my Lord?
- MR JUSTICE PHILLIPS: I do but, with respect, what you are saying is that one sees that what happened here is that there was an agreement as to a practice, et cetera, an application was made, there was no public hearing and the President made an order. What I understand you are saying to me now is that, from that, we can deduce that what the practice that was agreed was was that certain persons should me entitled to make an ex parte application in private to the President.
- MR SWIFT: No, my Lord. I was very careful not to say that.
- MR JUSTICE PHILLIPS: You did, you said "we know that it is an ex parte in private to the President."
- MR SWIFT: I did say that. My Lord, I prefaced what I said about the class of persons, firstly by the statement that I am not, in submissions in this court, going to describe to you what is in the disputed information.
- MR JUSTICE PHILLIPS: I wasn't expecting you to but that is what you just said.
- MR SWIFT: My Lord, I then said in relation to how it could be that a document described on occasions as relating to procedural matters could involve recording views of the Queen. I said, as an example of that, it might be that the document would identify the class of persons to whom it applied.
- MR JUSTICE PHILLIPS: Yes.
- MR SWIFT: It might be on such matters that the views of the Queen could be misplaced, but I am not making submissions to you as it what is actually in these documents. Perhaps I am doing two things, firstly I am trying to explain to you -- and I am sorry I am doing this obliquely but I have to try and do it obliquely --
- MR JUSTICE PHILLIPS: I understand that.
- MR SWIFT: -- why it is that the mismatched point, which is why the grounds of appeal was rightly rejected both by the Upper Tribunal and by the First Tier Tribunal, there is no, as it were, logical inconsistency there that their reasoning does not address.
- MR JUSTICE PHILLIPS: Have we got to this stage: there is described in the Court of Appeal judgment what happened factually?
- MR SWIFT: Yes, my Lord.
- MR JUSTICE PHILLIPS: There is no statement in the judgment that the process or procedure involved an arrangement whereby there would be an application in private to the President -- it does not say that -- but I think what you are saying is, when you say we know that, that must be --
- MR SWIFT: One may infer.
- MR JUSTICE PHILLIPS: -- one may infer it from what actually happened that there is a process agreed and then what happened was that, hears that, there was a hearing before the President and it was not in public. So the inference is that the procedure involves an ex parte private application to the President. In fact, I think I had suggested earlier that that may be the sort of thing that (inaudible) is talking about.
- Now, obviously then the next question which arises is, well, who is entitled to do that? One can see that there may be, in this process, something about who is entitled to the benefit, as you put it, of this procedure, of being entitled to go directly to the President in private, rather than the ordinary man in the street, who would have to make an application which would be dealt with by the listing office. Is that right?
- MR SWIFT: I think one sees that the application itself was, I believe -- let me look at this. One sees from paragraph 7 that the Attorney was joined as a defendant to the application.
- MR JUSTICE PHILLIPS: Yes. So it was not ex parte.
- MR SWIFT: Strictly speaking, no.
- MR JUSTICE PHILLIPS: No.
- MR SWIFT: One also sees that -- let me just try to make sure. Yes, one sees the Attorney General was joined and, again, a fair inference is that that was because that was a matter that arose from the discussions referred to at paragraph 28.
- MR JUSTICE PHILLIPS: Yes. You might say, in fact, it is more inter partes than most applications would be.
- MR SWIFT: Yes. Most people, I think would probably rather have, as it were, a run of the mill defendant rather than the Attorney General.
- MR JUSTICE PHILLIPS: Yes.
- MR SWIFT: My Lord, I am sorry, I am making the error of trying to deal with two points at once here. The first point I am trying to deal with is the submission that is no point of principle that will be determined should this application for judicial review proceed. My Lord, drawing the submissions together so far, firstly, to the extent there is some form of constitutional point that arises, as the claimant describes, all these matters are addressed by the Court of Appeal and the Court of Appeal identifies that those are matters that will be addressed by the President of the Family Division on the application to unseal and to inspect the will. The court of appeal also makes it clear that that application is determined on its own merits. So there is no suggestion of any sort of secret deal that has any binding effect on the court or predetermines the outcome of the application to see the will. It is very clear from the way the Court of Appeal describes the right to make the application on the basis of what is considered, and that is simply not the position.
- MR JUSTICE PHILLIPS: Yes.
- MR SWIFT: So, firstly, the constitutional point is overblown; secondly, it is not a point that will actually be determined in these proceedings because the only issues are, firstly, the application of section 37, and that is why I make the point as to the absence of any mismatch between the description of the document in place as procedural and the further description of it as containing views expressed by Her Majesty the Queen. So, my Lord, those two points make good the submission that this is not a case where there is the additional requirement of the important point of principle raised by the claim is actually met.
- The final point in relation to that is it was suggested in the claimant's skeleton argument that there is a point of principle of importance that arises because the proceedings before the First Tier Tribunal included both open and closed hearings. Now, my Lord, that is not a characteristic, a matter that gives rise to a matter of genuine importance. Clearly that approach to a hearing is a necessary consequence of the FOIA jurisdiction itself. In such proceedings there is no Article 6 issue, no Human Rights Act issue because, on the FOIA claim, nothing is determined that amounts to a civil right or obligation. The rights under the Act are effectively administrative in nature. So that is why reference to for example Bank of Mellat or Binyam Mohamed, those references take the claimant nowhere.
- Also, my Lord, you will be aware that many Freedom of Information cases are now being considered by the Higher Courts, by the Queen's Bench Division, before the route of appeal changed and was directed towards the Upper Tribunal and indeed by Court of Appeal as well. All those cases have been conducted before the First Tier Tribunal in the cases of both opened and closed hearings, a private hearing being one from which the person requesting the information is concluded and also members of the public are excluded. That approach, which is built into the tribunal's rules, has never been the subject of any criticism by any higher court.
- So, my Lord, neither of the matters advanced as being matters of general importance actually is a matter of any substance, in the sense that neither matter will actually be decided if this application for judicial review proceeds.
- May I turn now to the arguability point because we do say, in any event, one does not get to this point of importance stage because there is no arguable case that the First Tier Tribunal or Upper Tribunal erred in law.
- MR JUSTICE PHILLIPS: Before we leave the compelling reason/point of principle, can you tell me, I don't think we did in the end go to what Mr Hinks says at B105.
- MR SWIFT: Yes. Which particular passage did my Lord have in mind?
- MR JUSTICE PHILLIPS: It is the main one, the large passage starting, "You know, my Lord, the practice goes beyond ..."
- MR SWIFT: So line 8 to line 16?
- MR JUSTICE PHILLIPS: Yes.
- MR SWIFT: Yes.
- MR JUSTICE PHILLIPS:
"Essentially it is a question of balance and how the public interest is to be properly represented and to ensure essentially that no application is made unless it is one which is a proper one and well founded."
- MR SWIFT: I think Mr Hinks is making two points there. The first is describing why it is that the Attorney is a party to the proceedings. That is the by about the public interest being properly represented. My Lord, bear in mind the executors' case was that, because the Attorney was there, this is a Gouriet type case, which meant that no person subsequently, other than the Attorney, could make an application to view the will.
- The second point he is making as to not making an application "unless it is one which is proper and well founded," firstly, I think, goes to the presence of the Attorney, because clearly the Attorney would be aware of the arrangements and, secondly, to the point I suggested earlier as to the approach existing in respect of persons within a particular class, but not in respect of persons outside that class.
- MR JUSTICE PHILLIPS: Looking at it again, I think it may not go as far as I thought it did.
- MR SWIFT: My Lord, to the extent that there is any issue, for example, as to the propriety of matters referred to in the disputed information, I would ask you to bear in mind again that the information was specifically considered both by the First Tier Tribunal and by the Upper Tribunal. Neither tribunal suggested that there is any point within the disputed information that gave rise to any issue of propriety, either specific or more generally constitutional and as we will see in the First Tier Tribunal's reasons, when it comes to considering the application of the public interest balance, having decided the information fell within section 37, the tribunal does address the constitutional point as put to it by Mr Brown.
- MR JUSTICE PHILLIPS: What about going on to 107, and the passage from Mr Hinks about "the probate rules are being reviewed." "Happy to communicate with the president and, if it was thought appropriate, actually to incorporate something within the modern rules." What I read from that is, assuming Mr Hinks here has some locus to speak more broadly than on behalf of the executors, that what has been suggested is that what is in the procedure could be, as it were, translated or introduced into the rules.
- MR SWIFT: Well, my Lord, in terms of the general tenor of the exchanges between Mr Hinks and the bench, one sees the general points being made by, I think, all three judges, certainly Lord Justice Hope and Lord Justice Dyson. It is to the effect, well, you Mr Hinks are describing this as a practice direction but, as Lord Justice Thorpe says at the top of 107, "a practice unknown to the world, unknown to specialist practitioners, unknown", et cetera. So Mr Hinks is responding there as he does. My Lord, so far as I am aware -- I have to say I was not at that hearing that you have the transcript of, that was the hearing in December I believe, I was at the January hearing (inaudible) the appeal -- Mr Hinks was only instructed by the executors. He didn't have, as far as I am aware, authority to speak other than on behalf of the Farrer's clients, who were the executors. The starting point a few pages previously is Mr Hinks saying, well, this is in the context of a more general revision of the probate rules or reconsideration of the probate rules. So it may have been that he made an observation in that context that this was something that was to be said but, my Lord, bear in mind that, in terms of the arrangements actually made or the discussions that took place, that clearly those discussions would have involved what one sees from paragraph 28. It is not the executors who have these discussions, it is the Queen through her solicitors, the Attorney General, the court through the senior district judge, and so one can see from that it would not be necessarily for the executors to say, well, this is how the probate rules should be written.
- MR JUSTICE PHILLIPS: No, but presumably Mr Hinks, on behalf of the executors, would be instructed by Farrers, who are also the Queen's solicitors in relation to the agreement.
- MR SWIFT: My Lord, that is true but clearly the fact that on many occasions Farrers act for the Queen in a personal capacity would not mean necessarily that they speak for her in that capacity when representing another client, albeit executors of her mother and her sister.
- MR JUSTICE PHILLIPS: Yes, it may be Mr Hinks was perhaps going further than his brief.
- MR SWIFT: Yes. Yes.
- My Lord, also bear in mind, at this point the court is having this document described it as a practice direction. By the time we get to the First Tier Tribunal, the First Tier Tribunal has seen the document, it has heard Sir Alexander's evidence on it and the tribunal itself concludes, and this is the passage, yes, where they are describing Mr Allan's evidence. So it starts at paragraph 54 and goes through to paragraph 39.
- MR JUSTICE PHILLIPS: Yes.
- MR SWIFT: The tribunal has accepted his evidence that it was not a practice direction. So, to the extent that it is not a practice direction, one can see that any suggestion that it might thereafter be included in a practice direction begins to fall away, or be included in the probate rules begins to fall away.
- MR JUSTICE PHILLIPS: It depends what it says, really.
- MR SWIFT: My Lord, for present purposes, I would make the point that the First Tier Tribunal actually saw information, heard evidence about the information and then introduced what it was and what it was not.
- My Lord, so far as the first ground of appeal is concerned, the not giving adequate reasons to explain how a document related to procedure could the record the views of Her Majesty the Queen, we say it is simply not an arguable point, taking into account those paragraphs in the First Tier Tribunal, the paragraphs in the Upper Tribunal, and, my Lord, for that matter also, the way in which the Information Commissioner has dealt with the same. You have separately the Information Commissioner's decision, which, obviously, was carefully considered and indeed relied on by the First Tier Tribunal. The material parts of that decision are paragraphs 23 to 25. It ends at paragraph 25.
- MR JUSTICE PHILLIPS: Which page do I find that on?
- MR SWIFT: It is pages 6 to 7. There printed numbers at the bottom right hand corners of the page. My Lord, sorry, you have those separately, not in the bundle. The three things that came to you separately this morning, one of them was the Commissioner's decision. It is dated 6 December 2010.
- MR JUSTICE PHILLIPS: I have it, thank you.
- MR SWIFT: It is at the bottom of page 6, paragraph 23, the passage through to paragraph 25, if I could perhaps just direct your attention to paragraph 25:
"In this case the public authorities explained the information was drawn up through communications with Her Majesty and the royal household via her solicitors. The Commissioners carefully withheld information ... satisfied it clearly thought was in the broad ambit of section 37(1)(a) and therefore the exemption is engaged."
- MR JUSTICE PHILLIPS: Yes.
- MR SWIFT: So that too provides further support for the conclusion that the ground that is now advanced, this ground, is not an arguable ground.
- My Lord, the second ground is that the First Tier Tribunal did not address the possibility of partial disclosure. So ordinary release of some but not all of the disputed information. My Lord, this was a matter that was put in those terms before the Upper Tribunal, where Ms Proops appeared. The Upper Tribunal deals with at paragraph 11. That is in part A of the bundle, page 35. The tribunal chairman says:
"Nor do I consider it arguable that the First Tier Tribunal went wrong in law in not considering whether some parts of annexes A and B should be disclosed. It is apparent when one reads those documents that there is no way in which they could sensibly be redacted so that the exemptions relied on would not apply or would apply with less force to the remaining parts. I do not think it is arguable that the FTT should expressly have considered this possibility."
- Now, Ms Proops suggests indirectly that a judge of the Upper Tribunal is not competent to assess and reach such a conclusion because he does not sit with (inaudible). My Lord, with respect, that is a hopeless submission. A judge of the Upper Tribunal is more than able to address this sort of point by looking at the disputed information and applying his knowledge of the law in section 37 to that information.
- So far as the First Tier Tribunal is concerned, Mr Brown's case to the First Tier Tribunal was not put on that basis. Now, that said, no doubt if the tribunal had considered that partial disclosure was a realistic possibility, having seen the information, no doubt the tribunal would have raised it. This was an experienced tribunal. One should not assume that an experienced tribunal overlooks a point which many tribunals do in fact pursue for themselves. That is to say, well, you, public authorities, if you don't want to disclose all of this information, well, how about the paragraph at the bottom of page 1 or a sentence at the top of page 3. We say there is no arguable error of law in relation to this matter. It is simply, as it were, an entirely speculative exercise.
- The third ground is, in my submission, a retread of the first ground because it also goes to whether or not the tribunal properly concluded, was entitled to conclude, that the disputed information fell within section 37.
- MR JUSTICE PHILLIPS: I hate to stop you, but just to ask you this. When you are saying first, second and third grounds, where do you identify the specific grounds? Where are you identifying them from?
- MR SWIFT: Yes, sorry. If one takes claimant's skeleton argument for the permission hearing --
- MR JUSTICE PHILLIPS: It is the skeleton again? I was looking at the claim form.
- MR SWIFT: The mismatch issue is the heading of paragraph 9 on page 8, that I described as the first ground.
- MR JUSTICE PHILLIPS: Yes, I see.
- MR SWIFT: The partial disclosure point is paragraph 18, which I described as the second ground.
- MR JUSTICE PHILLIPS: Yes.
- MR SWIFT: Application of section 37 is the third ground, as I described it. My Lord, you have already seen the reasons given by the tribunal in relation to the application of section 37. Those are the ones at paragraphs 40, 41, 42 and 43, and one sees there -- perhaps, if you would be so kind as to go to this, page 73. I think this time we are in part B of the bundle, I think. Paragraph 40 seeks to summarise the Commissioner's submissions. At the end one sees, this is five lines from the bottom:
"The Commissioner refuted this by claiming not only that such a contention was speculative [that is to say the argument that the information arose out of a will was distinct from constitution and any form of communication on behalf of Her Majesty the Queen, so not within section 37] but also pointing out before section 37 would be engaged, information must relate to communications. That is simply a question of fact."
And at 41:
"The tribunal respectfully agrees. Moreover, it has seen the disputed information, has examined the same in detail in closed session and is entirely convinced and satisfied that section 37 is engaged as a matter of fact on the basis articulated by the Commissioner. Moreover, the contents of the witness statement of Mr Allan alone further justify that fining."
So the tribunal is relying, firstly, on the Commissioner's conclusions, and you have seen those at paragraphs 23 to 25, and then the evidence of Mr Allan and its own examination of the (inaudible) information. It goes on, in paragraph 42:
"The Commissioner took issue with an argument which was canvassed by the appellant on the appeal which can be said in some way to be related to the argument referred to in the previous paragraph. The appellant claimed the will is not a communication within the meaning of section 37."
Again, the tribunal accepts the Commissioner's response to that. Then, thirdly, at paragraph 43:
"The appellant's contention that even the expression 'relates to' should be read very narrowly or strictly, that some such information might simply be too remote from a true communication with Her Majesty to fall from section 37."
Again, the tribunal accepts that, having looked at the Commissioner's decision and no doubt also having relied on its own consideration of the disputed information. So those matters, we say, in relation to this third ground are simply unarguable.
- I should, of course, say that part of that ground concerns the reasons given by the tribunal -- "It is said the reasons given by the tribunal in this respect were inadequate." Firstly, we say that any reasons challenge directing focus over the court is one to be treated with caution because clearly there is no obligation on a court or a tribunal in its judgment to address every specific point advanced. The tribunal is entitled to address matters in the round, so long as it does so sensibly and in a way that makes sense, and one should not pick over judgments simply to try and identify the simple point that has been missed. But, secondly, that is all the more so in the context of a FOIA case. The thrust of the claimant's complaint is that, well, you do not tell us enough about the disputed information for us to know that it falls under section 37 and Ms Proops on various occasions in her submissions says, "I don't know the answer to that. I don't know because I have not seen the information, Mr Brown has not seen the information." Clearly that is simply a reflection of the particular nature of FOIA proceedings. Ordinarily, the reasons that would go to a section 37 decision would be ones that describe and comment on the substance of the disputed information. There is a limited as to how far the tribunal can go.
- My Lord, one of the documents you were sent this morning is the decision of the Upper Tribunal in the All Party Parliamentary Group case. It is a decision of the Upper Tribunal, Charles J, Burnett J and Upper Tribunal Judge Wikeley. The passage we refer to in our skeleton argument is paragraphs 42 to 44, which is page 18 to page 19.
- MR JUSTICE PHILLIPS: Before we start looking at that, Mr Swift, can we just take stock of where we are. How much longer do you think you are going to be?
- MR SWIFT: I do not think I will be too long. I have to deal with two further matters: firstly, the public interest test application and, secondly, it is the other errors category in the claimant's skeleton argument. So I would hope no more than 10 to 15 minutes. I appreciate the hour is very late.
- MR JUSTICE PHILLIPS: You are going to have a little bit of reply though, aren't you? It is a great shame because I was in fact ready by 12.00 noon today, and we could have started then. Well, if I could be sure we would finish by 5, I would carry on but I am not sure that we will.
- MR SWIFT: As I say, I am certain I could finish in 15 minutes, if that helps?
- MR JUSTICE PHILLIPS: Yes, but you are not sure you can be finished in 15 minutes?
- MS PROOPS: It is a little hard for me to say until I have heard the arguments. I would certainly do my best to finish by then, it may be that the best course is to see how we get along. If we can finish, we should.
- MR JUSTICE PHILLIPS: Very well, let's see how we go.
- MR SWIFT: My Lord, the All Party Parliamentary Group case is paragraphs 42 to 44. I don't read them. They are in the skeleton argument. The point being made is that, paragraph 44:
"In many cases permission to appeal on the basis of a reasons challenge should not be given simply on the basis that the excluded party has not seen the documents or closed reasoning. In any event [this is the last sentence], when dealing with an application for permission, the court or tribunal can consider the impact of the closed reasoning."
In the present case, there was no separate closed reasoning but of course the tribunal's reason for that, as stated in its decision, was that it was confident that, if you read the open reasons together with the disputed information, then no additional reasons were required and that was an approach that was accepted by the Upper Tribunal.
- Now, in the present case, the claimant's position seems to be, well, if the tribunal needed to say more, it should have said so in closed reasons. In my submission, that demonstrates the artificiality of this ground. A closed judgment is no more available to the public than the disputed information itself. If the closed judgment would do no more than set out things that would, in any event, be obvious to a person with sight of the disputed information, and that is what the First Tier Tribunal and the Upper Tribunal said in this case, if that is the case, then the claimant's argument that there was an error of law not to give a closed judgment, is an argument with no genuine substance. My Lord, for your note, the material part of the Upper Tribunal judgment is at paragraph 18 and this is at page 37, part A of the bundle.
- MR JUSTICE PHILLIPS: Yes, and I understood that argument.
- MR SWIFT: My Lord, the next error of law is in respect of the application for the public interest test.
- MR JUSTICE PHILLIPS: Which I think was probably the focus of the submissions today.
- MR SWIFT: My Lord, the approach of the Upper Tribunal to this was entirely correct, and one sees that in four paragraphs in the Upper Tribunal's decision. Firstly, paragraph 16, which is on page 36 where the point is made that the question of relative weight is a matter for the First Tier Tribunal. Secondly, paragraph 19, page 37, and again the Upper Tribunal is considering the way in which the tribunal went about addressing the public interest balance. For example:
"In my judgment, the First Tier Tribunal did sufficiently consider and take into account the matters now relied on by Ms Proops, so outlined at paragraph 15 above. It did so primarily at 45 to 50, in particular at 59."
One sees the reference there to the transparency argument. Sorry, you should obviously read the rest of the paragraph, as well:
- "In my judgment, the First Tier Tribunal, though, were in effect adopting the reasoning of the Information Commissioner in relation to the public interest balancing test exercise. That reasoning is set out in paragraphs 26 to 36 of the decision notice."
- The Upper Tribunal records the reasoning of the Information Commissioner. Then at paragraph 20, again back to matters of weight being for the tribunal and the overall conclusion that the conclusion the tribunal reached was one that was reasonably available to it. That is an important, as it were, reference point when considering what is effectively a rationality argument. That is what this comes to. In my submission, the Upper Tribunal address that entirely correctly. Finally, at paragraph 25, again, weight going to the constitutional factors. Again, the Upper Tribunal concluded those matters had been dealt with already at paragraphs 19 to 20.
- My Lord, could I also just quickly go through the way in which the First Tier Tribunal addressed the public interest balance. Again, it is in a run of paragraphs that follow the paragraphs that deal with section 37, so in part B of the bundle, page 75 from paragraph 45. Now, paragraph 45 through to and including paragraph 50, the tribunal is addressing the various points that were advanced in support of the argument that this is the public interest in disclosure. One sees paragraph 45 addresses, as it were, the constitutional point, as the point was put to it by Mr Brown. Paragraphs 46 and 47 addresses the practice direction issue, as does paragraph 48. The argument there is that it was the practice direction, so there must be a strong public interest that should be disclosed. Paragraph 49, the question of openness and transparency and, again, the reference there "and incorporating the reasons in the decision notice." That is the paragraph that was picked by the Upper Tribunal. Paragraph 50, again, the point that, if this is the just procedural information, it is administrative and, therefore, the public interest in confidentiality is low. The tribunal considers that, again, by reference to the evidence of Mr Allan, including the closed evidence. At paragraph 51 the tribunal identifies the public interest in maintaining the confidentiality and does so by reference to preserving the legitimacy and privacy of the royal family.
- So one sees there that, in the course of its reasons, the tribunal, firstly, identifies the major competing public interest considerations and attempts to address and evaluate those against each other. There is nothing in that approach that could be characterised as anything like perverse. My Lord, in my submission, the tribunal didn't make errors of law and the Upper Tribunal itself was very clear that no error of law was made and that, also, was entirely correct.
- I appreciate various other so-called constitutional points were advanced this afternoon but, so far as the First Tier Tribunal is concerned, all it can do when addressing the public interest approach is to address the arguments put to it by the parties. Mr Brown clearly raised the question of the constitutionality of this arrangement and the tribunal considered that on the basis as it was put by Mr Brown. The fact that, on reflection, it could be put in 27 different ways does not mean that the First Tier Tribunal's approach, the way it addressed the case that was put to it, was flawed as a matter of law.
- My Lord, finally, again by reference to the claimant's skeleton argument, this is the heading at paragraph 36 and following, page 16, "Other flaws in the reasoning." So far as I can see, there were three points that were made within that section: firstly, that it was an error to conclude that the existence of a passage in Tristram and Coote that describes the practice relating royal wills met the public interest and transparency. Now, in fact the way that this was addressed is explained, firstly, by the Upper Tribunal.
- MR JUSTICE PHILLIPS: I don't think you need to deal with that point.
- MR SWIFT: Right. The next point is that there was no public interest in the confidentiality of document about procedure. My Lord, I have addressed that by reference to the paragraph I took you to covered in public interest balance section.
- The third point is that the restriction -- by this is meant the arrangement -- may have been ultra vires, section 124 of the Senior Courts Act. My Lord, if that were so, firstly, that would have been a matter identified by the Court of Appeal. It was not. Moreover, if one looks at the statutory provisions, and they are set out in the tribunal decision, paragraphs 9 to 11, the rule making power is a provision to make rules in relation to probate. We know from the Court of Appeal decision that the applications that were made in these cases were considered in accordance with the rules, that is to say on the basis of the substantive criteria at Rule 58. That is paragraph 7 of the Court of Appeal judgment.
- So, in those circumstances, the suggestion that there might be some ultra vires issue is, in my submission, a shadowy point, it is a point of no substance and, at least as I recall, it was not something specifically advanced before the First Tier Tribunal, but, as I say, even if it was, it is an I point of no substance.
- So, my Lord, when you get to the grounds actually advanced, on their own terms they are not, in my submission, properly arguable grounds. This application for permission to apply for judicial review should also fail for the reason at that, even if parts of the grounds are arguable, the important point of principle or practice, et cetera, the compelling reason additional criterion is not met.
- My Lord, before I sit down, may I just say that you were right to comment that there was a bit of inflation at beginning of my skeleton argument in relation to 54.7(a)(7). My Lord, as you explained it, that of course must be what those words mean. As I say, an arguable case that either the Upper Tribunal or the First Tier Tribunal was wrong in law and the point of principle or compelling reason. So I accept that that is the proper approach.
- MR JUSTICE PHILLIPS: Thank you very much. Thank you.
- MR SWIFT: Thank you, my Lord.
- MS PROOPS: My Lord, I will try to finish by 5.00 of course.
- Compelling reasons. The (inaudible) simply has not put forward a compelling case on this issue. We are looking here, it would seem, at information that sets the principles and the practice which are intended to either govern or influence the way in which the judiciary discharges its judicial functions. That is how it has been described to the court. The First Tier Tribunal, which of course looked at the information has at no point in its decision said "That is misdescription, it is inapt, it is not a fair reflection of the nature information."
- The Court of Appeal judgment does not help my learned friend, it helps my client's case. One paragraph that Mr Swift did not take you to, but I would like to take you back to, is paragraph 37 of the judgment. I took you to this earlier but it is absolutely crucial. The reason that the court ultimately concludes that my client should be allowed to proceed with this application is precisely because of the fundamental problems that arise from the fact that this has not been a transparent process according to identified criteria. There is secrecy around the way in which the judiciary has been discharging its judicial functions in connection with the sealing of royal wills. That is why the court then goes on to say, as a matter of general public importance, the applicant should be permitted to pursue his application, not least because that will potentially open the door to him gaining access to the material that we are concerned with in this case.
- MR JUSTICE PHILLIPS: But Mr Brown has not gone down that route. He has, instead, gone down this route and the argument against you seems to be, well, the Court of Appeal identified that these issues could be raised before the President. That seemed to be a reason why you were saying it is not a compelling reason why it should be dealt with in these proceedings.
- MS PROOPS: That argument is misconceived, and it must be for these reasons. A disclosure of documents, materials, to a party to litigation, who is subject, as you will be aware to various rules about how those materials may be used. A disclosure under FOIA is a disclosure to all the world. There would be nothing to circumscribe my client's activities in respect of information. He can discuss it with the media, he could do effectively what he liked with it, subject obviously to general legal principles. The rights, or the result that derives from a disclosure under FOIA is very different therefore to a disclosure to a party in court proceedings.
- MR JUSTICE PHILLIPS: Or, indeed, if Mr Brown decided not to pursue his application in relation to the unsealing of the will, the FOIA issue would still arise in these proceedings. It is a separate question.
- MS PROOPS: It a completely different question. The tests on under FOIA and the result under FOIA are completely different. It is disclosure to all the world.
- MR JUSTICE PHILLIPS: The point is that it need not necessarily be Mr Brown who made this application.
- MS PROOPS: Yes, and we come back to the point, FOIA cases must be dealt with on an applicant/motive blind basis. There is also of course the point that why should my client be put to the trouble of pursuing potentially very expensive, difficult multi-party set of proceedings relating to the opening of a particular royal will, in circumstances where he has not been told what the rules of the game are, because he has not seen the document that, on the face of the way it has been described to the Court of Appeal, may well govern how that application would be dealt with.
- Surely the right approach must be that he should be entitled to see what the rules of game are before deciding whether he wants to revive his application or whether he might just accept -- "Look, now that I have seen the way that this whole thing works, it is not just worth the candle(?) of me pursuing a potentially very expensive set of proceedings." But in any event, the fundamental point is the relief that you get under FOIA, or the result you get under FOIA is very different to disclosure to a party in a proceedings.
- Of course what ought to have happened, we say, in this case is that my client requested the information from the Attorney General and, free of charge, it is provided to him. He should have to go through the cumbersome and expensive litigation process to achieve that result. So the alternative remedy argument simply does not work.
- Then it is suggested, well, there is nothing really constitutionally significant about this case because everyday courts are dealing with ex parte applications to deal with matters on a confidential basis, but this case is not about a particular intra-judicial ex parte application. It is about an extra-judicial process through which the court has approved principles and practice to be applied not just in the case of a single application but generally, in circumstances where that agreement has been reached between the Palace and the Attorney General and the courts, in circumstances where the Queen is herself, as the court has quite rightly pointed out, is not even a prospective party to the proceedings.
- Now, necessarily, therefore, all the constitutional arguments that I have been advancing are absolutely central to this case and they do create a compelling reason why this case should proceed. If, as we say is the case, the First Tier Tribunal, its conclusions were unlawful, not the right result, and in fact this information should have been disclosed, what would that mean? That would mean that the public as a whole and the media that wants to report on judicial proceedings would have substantially greater insight into the way in which the judiciary discharges its judicial functions in connection with matters that engage the public interest. That is plainly a compelling reason why this case should be allowed to proceed.
- Then, my learned friend says, well, the court can have confidence in the fact that the First Tier Tribunal and the Upper Tribunal actually looked at the information and found that there was not a problem and that actually the right result had been arrived at. That is effectively inviting this court simply to blindly place its faith in the decisions of the tribunals when those are decisions that we ourselves challenge, and I would say that that would not be the right approach for the court to take. You cannot simply assume that the tribunal has got it right.
- MR JUSTICE PHILLIPS: Yes. Can I just -- what would be helpful to me is if you could move on to the arguability issues.
- MS PROOPS: Yes. Okay, so the reasons challenge: I would say despite Mr Swift's best efforts, there plainly is a fundamental mismatch. The judgment is, at best, entirely confusing. Is the information we are concerned with in this case some form of practice direction, setting principles and practice for how the court deals with applications? Or is it information that is inherently private information and simply reflecting the views of the Queen?
- MR JUSTICE PHILLIPS: It sounds like it is both.
- MS PROOPS: Then it needs to be explained how it is both because it is impossible to make sense, without an explanation, of how it could be both. If it is a set of principles, it is a practice that is intended to be relevant to the way in which the judiciary is discharging its duties, then it is not a private document at all. It cannot sensibly be described as a private document or a document that simply records the private views of the Queen. What it records -- and of course the Attorney General conceded its case on section 41, it conceded that this was not simply confidential information obtained by the Attorney General from the Queen because the substance of the information is an agreement.
- MR SWIFT: I don't think I conceded anything. I think the Upper Tribunal accepted that point was arguable but I don't think I made a concession of it.
- MS PROOPS: Well, I apologise.
- The fact is that, plainly, and it is clear from the description of the information in the tribunal's decision, this an agreement, a multi-party agreement, secretly arrived at relating to the hitherto entirely secretive judicial process by which the court sealed royal wills. It simply is not good enough for the First Tier Tribunal to say, "It is a set of principles and practice, and it is also the Queen's personal views." To an outsider it just does not make sense.
- My learned friend says, "Yes, but the tribunal has looked at the information and, if you look at the information, it does make sense. I come back to my point about, from whose perspective do you judge the adequacy of the reasons? I say it must be judged from the perspective of the appellant. The whole reason why courts are so preoccupied with the adequacy of reasons is because, if reasons are inadequate, then an appellant, an applicant/claimant, will not know whether they are in a good position, potentially, to mount an appeal. So it must be judged from my client's perspective, not from the perspective of having seen the disputed information. So there are compelling reasons for the reasons challenge alone to go ahead.
- Public interest test --
- MR JUSTICE PHILLIPS: Yes?
- MS PROOPS: -- I have to go back, I am afraid, to the First Tier Tribunal's decision, paragraphs 45 onwards. I would ask you just to read those paragraphs, 45 to 51 --
- MR JUSTICE PHILLIPS: Yes.
- MS PROOPS: -- because what the tribunal makes clear from this part of its decision is that nowhere, in no sense is it engaging with the constitutional imperatives in play in this case, there is simply no recognition of the evils inherent in a justice system alluded to in Scott v Scott; nowhere is there an acknowledgment of the constitutional dangers inherent in the sort of secret exchanges that have gone on in this case. Instead, what does the First Tier Tribunal do? First of all, it gets caught up in the technical question of whether a document is formally a practice direction or not. Now, that is a complete red herring.
- MR SWIFT: It was actually Mr Brown's case in front of the tribunal, and he spent a lot of time on it.
- MS PROOPS: That may be so but it is very clear that Mr Brown also made other arguments, comprehensively, including the arguments I am making for you today about the unconstitutionality --
- MR JUSTICE PHILLIPS: Well, they record, at 45, "to bolster his contention that secret or private arrangements have been represented to the Crown, on the one hand, and the judiciary, on the other, were unlawful or at least unconstitutional(?)." So he was clearly arguing that point.
- MS PROOPS: He was, and where is the tribunal's recognition? Actually that is a good point on the facts of this case. Or an explanation as to why it is not a good point on the facts of the case, there is none. Then the tribunal goes on to --
- MR JUSTICE PHILLIPS: Just taking that point --
- MS PROOPS: Of course.
- MR JUSTICE PHILLIPS: -- where do they factor that in after that?
- MS PROOPS: They don't.
- MR SWIFT: It is the last sentence of paragraph 45 and first sentence of paragraph 46.
- MS PROOPS: Sorry, last sentence of 45 and first sentence of 46? Well, let's see what the tribunal said in that sentence.
"As the Commissioner maintains, there is no question of there being any involvement of the doctrine or principles relating to the separation of powers with regard to the long standing procedure relating to the sealing of royal wills, as set out in Tristram and Coote referred to above. Again, the tribunal respectfully agrees."
- Well, all that amounts to is the tribunal saying we are not accepting that case. What is the basis for that rejection? It is very clear, for example, from paragraph 46 onwards that the tribunal seems to think, well, it is some salve to the public interest that members of the public can read Tristram and Coote, but plainly that is not a good answer to the problems which this case raises. Tristram and Coote does not get to the heart of the matter. It does not reveal the secret dealings and secret agreement that has been arrived at in this case.
- The Upper Tribunal deals with the issue at paragraph 16 onwards. What it says at paragraph 16:
"The decision of the Court of Appeal in Mr Brown's unsealing application, in particular at paragraphs 39 onwards, in my judgment (inaudible) falls the weight of public interest arguments in favour of disclosure in this case. However, the relative weight to be accorded to these factors was a matter for the FTT to determine."
So it is basically saying, these are all issues for the tribunal and it is not something I can get involved in. But that is perverse. It must be, because the fact is it is clear from the First Tier Tribunal's decision that they have not seen the constitutional elephant in the room and, once you appreciate that fact, it necessarily follows that you cannot be confident that they have lawfully discharged their duties in applying the public interest test.
- MR JUSTICE PHILLIPS: Yes. That is your best point, isn't it?
- MS PROOPS: I would say it was one of a number of very good points, but that is really where the heart of the case lies. This is case which does engage constitutional issues in a very direct way and neither the First Tier Tribunal nor the Upper Tribunal have really got to grips with that fact and understood --
- MR JUSTICE PHILLIPS: They don't seem to have really engaged with the fact that, on the face of it, a senior member of the judiciary has agreed, apparently, and approved a procedure in relation to a specific class of litigants --
- MS PROOPS: Yes.
- MR JUSTICE PHILLIPS: -- which is in some way outside the rules. That seems to be the big point, isn't it?
- MS PROOPS: Yes, and also there is the point that Mr Hinks made, that maybe these matters ought to find their way into modern reconstruction of the rules. It was suggested by Mr Smith, well, Mr Hinks may have been speaking out of turn, but the tribunal itself, obviously, just has not dealt with the issue.
- MR JUSTICE PHILLIPS: One of the problems, I suspect, it may be that what was agreed in relation to procedure was relatively light and that there were other matters not directly relevant to judicial proceedings which were rather more heavy and that may be why --
- MS PROOPS: That may be so but that is not how Sir Alexander Allan described the information, see further paragraph 35 of the decision.
- MR JUSTICE PHILLIPS: Where is the best place for me to see a summary of your grounds of appeal -- of your grounds of --
- MS PROOPS: I will immediately say that both the grounds in the skeleton are horribly fleshy, so, in terms of a summary -- it is not really expressed, I have to confess, in summary terms. Obviously there is the grounds of claim on page 21, adequacy of reasons put a heavy emphasis on the mismatch issue, application of the public interest test --
- MR JUSTICE PHILLIPS: What are you looking at now, the statement of facts?
- MS PROOPS: I am so sorry, I am looking at tab A of the bundle, starting on page 21. I am afraid it is not expressed in summary of form, and I apologise for that. Focus on the mismatch issue in respect of adequacy of reasons, application in the public interest test, and then there are other flaws.
- MR JUSTICE PHILLIPS: I see, so it is the headings, effectively, from paragraphs 21 onwards?
- MS PROOPS: Yes. I don't know if it assists but there is also a summary case that was set out in paragraph 5 of our skeleton, which we have sought to sum up --
- MR JUSTICE PHILLIPS: Yes, thank you.
- I am obviously not going to give judgment now. Are you available, or can some of your team be available, if I give judgment tomorrow at say 2.00?
- MR SWIFT: My Lord, I think it is unlikely that I will be around at 2.00 but Ms Clement is available at 2.00.
- MR JUSTICE PHILLIPS: Yes. Well, the other option is to leave it till next week.
- MS PROOPS: Can I just make the point that my client is obviously here today. It would be easier for him if it could be tomorrow, but I am told he is willing come back.
- I had understood it was a problem but apparently there is no --
- MR JUSTICE PHILLIPS: I was not meant to be sitting tomorrow but in fact I now have a half-day case to deal with, so I think what I will do is I will notify the parties when I will give judgment. I am not going to give a formal reserved judgment, it will be quite soon, but I think, on reflection, I will not try and do it tomorrow at 2.00, but I will deal with it before the tend of term.
- Thank you both very much.