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United Kingdom Information Tribunal including the National Security Appeals Panel


You are here: BAILII >> Databases >> United Kingdom Information Tribunal including the National Security Appeals Panel >> Network Rail Ltd v Information Commissioner and Network Rail Infrastructure [2007] UKIT EA_2006_0061 (17 July 2007)
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Cite as: [2007] UKIT EA_2006_0061

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Appeal Number: EA/2006/0061 and 0062
Information Tribunal                                  Appeal Number: EA/2006/0061
and
EA/2006/0062
Environmental Information Regulations 2004
Heard at 45, Bedford Square, London
Decision Promulgated 17th July 2007
BEFORE
INFORMATION TRIBUNAL DEPUTY CHAIRMAN
David Farrer Q.C.
and
LAY MEMBERS
Jenni Thompson
And
Henry Fitzhugh
Between
Appellant                        NETWORK RAIL LIMITED
and
Respondent           THE INFORMATION COMMISSIONER
and
NETWORK RAIL INFRASTRUCTURE LIMITED
FRIENDS OF THE EARTH
IAN FISHER
Additional Parties           EDWARD CHAMBERS
1

Appeal Number: EA/2006/0061 and 0062
For the Appellant and the First Additional Party:               Mark Shaw Q.C
For the Commissioner:                                                 Timothy Pitt - Payne
Mr. Chambers appeared in person
Mr. Fisher did not appear
Friends of the Earth (“FOE”) withdrew from the Appeals before the
Hearing.
Decision
These appeals are allowed.
Reasons for Decision
1         Introduction
On 26th March, 2005, Mr. Fisher requested information from Network
Rail Limited (“NRL”) regarding flooding of his home near the Newcastle
– Carlisle railway line. This was treated, following the intervention of
the Information Commissioner (the “IC”), as a request for information
made under the Environmental Information Regulations, 2004 (“EIR”).
On 28th July, 2005, Mr. Chambers requested information from NRL
relating to work carried out at the Dudding Hill junction in North London
in 2003 and the future use of the Dudding Hill branch.
The content of those requests, though important to the complainants,
has no bearing on the outcome of these conjoined appeals for reasons
which will become apparent.
The upshot of both requests was a denial by IRL that it was a public
authority within the definition in regulation 2(2)1, hence that it was
subject to EIR.
Though there was apparently no reply to Mr. Chambers` request.
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Appeal Number: EA/2006/0061 and 0062
2         On 26th. July, 2006 the IC issued Decision Notices .Each stated that
the relevant request should be treated as a request made under the
EIR, that NRL was a public authority for the purposes of EIR, though
not for those of the Freedom of Information Act, 2000 (“FOIA”) and
that the information sought was “environmental information” within
regulation 2(1). NRL had therefore failed in each case to comply
•    with regulation 5(1), by failing to provide information which it
held and
•    with regulation 6(2), by failing to give the complainant the
reason for its decision not to supply the information.
3         The appeals
NRL appealed against both Decision Notices on three grounds, only
one of which is now material. The appeals were consolidated since
they raised the same issue. Both Mr. Fisher and Mr. Chambers were
joined as Additional Parties. FOE was also joined so that it might argue
points on jurisdiction and the character of the information requested. It
abandoned both and did not, therefore, in the event, appear.
4         Though joined as additional parties, neither Mr. Fisher nor Mr.
Chambers felt able to add to the largely forensic arguments, which this
hearing involved. This was entirely understandable and in no way
reflects on the sincerity of the concerns, which led to their requests for
information.
5          In its Notices of Appeal NRL indicated that it was not the proper target
of the requests since, if the information sought was held at all, it was
held by Network Rail Infrastructure Limited (“NRIL”), a wholly – owned
subsidiary of NRL, which was directly responsible for the management
of NRL `s estate. Nothing hinged on this apparent confusion since, for
reasons which emerge later in this judgment, the critical issue is the
same, whichever of the two companies held the information requested.
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Appeal Number: EA/2006/0061 and 0062
Whilst the Tribunal notes the distinction between the two companies,
they are treated as one for most purposes in this judgment.
6         That issue is: Is NRL or NRIL a “public authority” within regulation 2(2)(
c) ? If either is, the Decision Notices must be upheld, since it is now
agreed that the information would, on that finding, be environmental
information within regulation 2(1).
7         Shortly after the hearing of these appeals, the decision of this Tribunal,
(differently constituted) in Port of London Authority v Information
Commissioner EA/2006/0083
was published. Alerted to this impending
decision, we gave all parties the opportunity of making further written
submissions as to its materiality to these appeals. The Appellants and
the I.C. did so and we have had regard to such submissions in
reaching our decision.
8         Background
There was no significant dispute as to the primary facts. Mr. Richard
Smith, Head of Legal Services Litigation for NRIL made a detailed
witness statement, supported by extensive documentary evidence,
setting out the relevant history and the structure, funding and activity of
NRL and NRIL, which are critical to the determination of the issue.
From his account we gratefully extract and shortly summarise the
salient features.
9         The Railways Act, 1993 (the “1993 Act”) separated the management of
the infrastructure of the railway system from the provision of train
services. Responsibility for infrastructure was transferred to Railtrack
PLC (“Railtrack”) which was privatised in 1996. Train services and all
other commercial operations were broken up and sold or franchised to
private companies through the Department of Transport (“the
Department”). Though contemporary and subsequent debate on these
measures has involved little reference to the point, the 1993 Act
implemented the provisions of Council Directive 91/440/EEC on the
development of the Community `s railways, a fact of some significance,
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Appeal Number: EA/2006/0061 and 0062
in our view, when considering whether NRL is a public authority for the
purposes of EIR.
10       Railtrack was placed in “Railway Administration” by order of the High
Court in October, 2001. Following the discharge of that order, it was
acquired by NRL in October, 2002. Railtrack was renamed NRIL and re
- registered as a private company limited by shares.
11       NRL was set up on the initiative of the Department acting in
conjunction with the Strategic Rail Authority (“SRA”) to ensure a viable
bid for Railtrack2. It was formed as a private “not for dividend “company
limited by guarantee. That means that all profits are reinvested in the
business. NRL is the parent company of all the companies in the
Network Rail group, including NRIL and neither trades nor has physical
assets or employees. It is not a listed company but operates by the
rules of corporate governance observed by publicly listed companies
and makes stock exchange announcements in the same way.
12        It has members, not shareholders and those members are required to
act always in the interests of NRL, a duty not generally imposed on a
shareholder. Its articles of association provide for three classes of
member, industry members, for example train operating companies
(“TOCs”) and freight operating companies (“FOCs”), public members,
for example commercial rail users and members of the public and a
special member, the Department, acting through an appointed
representative. Among other special rights, the special member has the
right to remove all other members in the event of fundamental financial
failure as defined in contractual arrangements between NRL and the
Department. Sixty per cent of all members are required by Article 3.2.2
and the Membership Policy to be from the private sector. Members`
powers correspond closely to those of shareholders; in particular, they
have no role in the day to day management of NRL but hold the
2 See “Network Rail – Making a Fresh Start” – Report by the Comptroller and Auditor General 14th.
May, 2004 paras. 1.16 – 1.19
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Appeal Number: EA/2006/0061 and 0062
directors to account for its conduct of NRL `s business. They may have
no financial interest in NRL.
13       Directors are appointed by the board on the basis of recommendations
of the Nominations Committee. The board fulfils the functions of any
board of a private sector company. The Department has the right to
appoint a special director but has not exercised it hitherto.
14       NRIL is a wholly owned subsidiary (through an intermediary) of NRL. It
has the same board of directors. It owns and operates the network and
employs staff. It is under the effective control of NRL.
15       Funding of NRL comes from four sources :
(i) Government grants amounting to about 33% of the total.
(ii) Borrowing on a very large scale under a Debt Issuance
programme currently guaranteed by a government
indemnity for which a fee is paid.
(iii) Track access charges (about 20%) paid by TOCs and
FOCs pursuant to track access agreements with NRIL.
(iv) Income from letting and selling NRIL `s property
(including leasing stations and depots to TOCs and
FOCs) (about 10%).
16       As from March, 2003, NRL was classified by the Office of
National Statistics as a private non – financial corporation in the
National Accounts
17       NRIL operates under a licence granted by the Department under
s. 8 of the 1993 Act. It permits NRIL to run the railway network
subject to a range of conditions relating to consumer interests,
safety, standards of service, financial accountability and
corporate governance. The licence is administered by the Office
of the Rail Regulator (“ORR”)
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Appeal Number: EA/2006/0061 and 0062
18       Responsibility for Health and Safety standards within the
network or as applying to the operation of its users was
transferred at the end of 2000 to the Rail Safety and Standards
Board (the “RSSB”) and, through further legislation, to ORR in
2003. Previously, they had been set by Railtrack. NRIL is
required to take all reasonable steps to ensure that train and
station operators comply with relevant safety cases as part of its
own health and safety duties.
19       The ORR, established by the Railways and Safety Transport
Act, 2003, is now the independent regulator for the whole
railway industry. It issues licences on behalf of the Department
and checks compliance with licence conditions.. It monitors the
terms of track access agreements, including price. It supervises
NRIL `s management of the network in the interests of its users.
It sets health and safety standards and enforces compliance.
20       In summary, NRIL `s and through it NRL `s business is running
the railway system by ensuring reasonable access to track,
appropriate timetables, proper and timely maintenance and
development of track, signalling, stations which it operates and
adequate performance of the many ancillary functions which
ensure that passengers and freight are moved safely and
efficiently about the network.
The regulations, the directive and the Convention
21       EIR implement Council Directive 2003/4/EC on public access to
environmental information (“the 2003 Directive”) of which the
material provision is Article 2(2), which defines public authority.
The Directive implements the 1998 UNECE Convention on
Access to Information, Public Participation in Decision-making
and Access to Justice in Environmental Matters, more
commonly and conveniently known as the Aarhus Convention
after the Danish town in which it was signed. Article 2.2 (b) of
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Appeal Number: EA/2006/0061 and 0062
the Convention contains the relevant definition. EIR Reg. 2(2)
sets out the definition of “public authority” which is for practical
purposes indistinguishable from those of the English versions of
directive and convention, as is to be expected.
(2) Subject to paragraph (3), "public authority" means -
(a) government departments;
(b) any other public authority as defined in section 3(1) of
the Act, disregarding for this purpose the exceptions in
paragraph 6 of Schedule 1 to the Act, but excluding -
(i) any body or office-holder listed in Schedule 1 to
the Act only in relation to information of a specified
description; or
(ii) any person designated by Order under section
5 of the Act;
(c) any other body or other person, that carries out
functions of public administration; or
(d) any other body or other person, that is under the
control of a person falling within sub-paragraphs (a),
(b) or (c) and -
(i) has public responsibilities relating to the
environment;
(ii) exercises functions of a public nature
relating to the environment; or
(iii) provides public services relating to the
environment.
We highlight in bold font the paragraphs relevant to these
appeals.
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Appeal Number: EA/2006/0061 and 0062
22       It is common ground that, if NRL or NRIL is a public authority it
must be through paragraph (c) or, in the case of NRIL, (d),
which would again require that NRL satisfied (c).
23       We have been greatly assisted by very careful submissions on
behalf of the Appellants and of the IC, supported by citation of
significant relevant authority. We shall not rehearse them
sequentially here but refer to them, where necessary, as we
consider how the issue should be determined.
Functions of public administration”
24       For the purposes of FOIA, public authorities are in most cases
designated rather than defined.3 EIR founds jurisdiction
exclusively on definition, reflecting the legislative history outlined
above. The instantly striking feature of Regulation 2(2)(c) is its
reference to “administration”. A body does not fall within EIR
simply because it carries out functions of a public nature ; they
must be administrative functions. Our attention was drawn to the
Implementation Guide to the Aarhus Convention and to the very
recent DEFRA Guidance to EIR. Paragraphs 2.15 and 2.16 of
the latter document suggest that functions of public
administration are functions normally performed by
governmental authorities as determined by the varying laws of
signatory states. The Aarhus Guide offers similar guidance to
the very similar definition of “public authority” in the Convention.
25       We have been helpfully referred to the related definitions of
“public authority” contained in s. 6(3) of the Human Rights Act,
1998 (“HRA”) which, in dealing with public authorities other than
those which act only in the public arena (“core” public authorities
), speaks of “persons certain of whose functions are “functions
of a public nature
” and in CPR Part 54.1 which , dealing with
judicial review procedures, applies them to a body “performing a
3 See sections .3(1)(a) and 5 and Schedule 1
9

Appeal Number: EA/2006/0061 and 0062
public function”. Neither of those definitions contains a limitation
as to the type of function involved, such as is found in EIR reg.
2(2)(c). Public functions plainly extend beyond administration,
however that is defined. If that were not so, the reference to
administration in reg. 2(2)(c) would be superfluous. The range of
functions must therefore be narrower than those to which such
comparable provisions apply.
26       Useful guidance as to what makes a public body a public
administrative body or one that “carries out functions of public
administration” is to be derived from the judgment of Blackburne
J. in Griffin v South West Water Services Limited [1995] IRLR 15
(ChD )[122 – 123]
where the issue was whether South West
Water (SWW) was a “public administrative body” within the
meaning of Article 1(2)(b) of Council Directive 75/129 which
dealt with collective redundancies. He observed at paragraph
123 :
“ SWW is no more an ‘administrative body’ because it
‘administers’ a service (the supply of water and sewerage
services) than is a company carrying on business,
manufacturing and distributing sweets because such a company
‘administers’ that enterprise or is a firm of solicitors because it
administers a service of supplying legal advice. I agree … that
SWW’s primary function, as a supplier of water and provider of a
sewerage service, is to be contrasted with administrative
functions such as town planning, court administration and any of
the myriad administrative functions of the civil service”.
27       Having regard to the wording of reg. 2(2)(c), the Defra guidance
as to the EIR, the guide to the definition in the Aarhus
Convention and the reasoning of Blackburne J. in Griffin, a
closely analogous case in our opinion, we conclude that, even if
NRL or NRIL is a body which carries out public functions, it is
not a body which carries out public administrative functions.
10

Appeal Number: EA/2006/0061 and 0062
28       NRL, through NRIL runs a railway system, just as SWW ran a
water supply and sewage service. It does not administer
anything, save in the sense that it runs its own business. It is not
a regulator; that is the role of the ORR. Unlike its predecessor, it
does not set safety standards. Like any commercial concern, its
ability to influence or control the conduct of those with whom it
deals derives, not from a regulatory power, but from the terms
on which it contracts, here by entering track access agreements.
29       Whatever the position in 1947, running a railway is not seen
nowadays in the United Kingdom as a function normally
performed by a government authority. Indeed the 1993 Act
reflected the view of the Conservative government of the day
that ownership of and responsibility for running a rail network
and providing train services belonged in the private sector. The
present government shows no sign of wishing to return the
railways to public ownership or control.
30       We are further impressed by the tenor of Council Directive
91/440/EEC on the development of the Community `s railways,
which was implemented by the 1993 Act. Whilst it contemplates
railway undertakings continuing to receive public funds or
remain in public ownership, it sets out firmly in the third recital
that, in the interests of competitiveness and efficiency,
“Member States must guarantee that railway undertakings are
afforded a status of independent operators behaving in a
commercial manner and adapting to market needs”
31       Section 11 is headed “Management independence”. Article 4
requires Member States to ensure that railway undertakings
have independent status and management, administration,
internal controls, budgets and accounts separate from the state.
Article 5 requires measures to enable such undertakings to
adapt to the market and run as commercial concerns.
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Appeal Number: EA/2006/0061 and 0062
32       To summarise, the Directive which gave birth in large measure
to the 1993 Act adopts the principle that running railways is an
activity for independent bodies, however created and funded,
operating as competitive, commercial concerns according to the
dictates of the market. Such an approach is the antithesis of the
proposition that running railways is a function of governmental
authorities.
33       In Port of London Authority v I.C. the Tribunal ruled that the Port
of London Authority (“PLA”) was a public authority within the
meaning of Reg. 2(2)(c). So far as functions of public
administration are concerned, the Tribunal identified a range of
regulatory and policing functions contained in the Port of London
Authority Act, 1968
, including the issue of River Works licences,
somewhat akin to planning decisions, which clearly
demonstrated that PLA performed functions of public
administration4. Indeed, it seems that PLA conceded that certain
of its functions satisfied the definition. We agree with the further
submission of the Appellants that the functions of the PLA differ
significantly from theirs.
Are NRL and NRIL public bodies at all?
34       The findings contained in paragraphs 21 – 33 are a sufficient
basis for allowing these appeals on the fairly narrow ground that
the Appellants` functions are not administrative. but we have
read and heard extensive argument as to whether NRL / NIRL
are public bodies at all. We think it right to rule on that issue, not
least because our finding on the meaning of “administrative
functions” may be tested.
35       In this broader context, decisions on s.6(3) of HRA and CPR
Part 54.1 are plainly relevant..
See paragraphs 30, 31, 38 and 40 of the decision
12

Appeal Number: EA/2006/0061 and 0062
36       We perceive little difference in the approaches of the Appellants
and the IC to the tests to be applied when determining whether
NRL or NRIL are public bodies or bodies performing public
functions. The differences lie in their application of those tests to
the case of these Appellants.
37       No single factor is decisive. In Parochial Church Council for the
parish of Aston Cantlow and Wilmcote with Billesley v Wallbank
and another [2003] UKHL 37 and [2004] 1 AC 546
, Lord Nicholl
set out the right approach very succinctly ( at paragraph 12 in
the UKHL reference ) :
“12. What, then, is the touchstone to be used in deciding
whether a function is public for this purpose? Clearly there is no
single test of universal application. There cannot be, given the
diverse nature of governmental functions and the variety of
means by which these functions are discharged today. Factors
to be taken into account include the extent to which in carrying
out the relevant function the body is publicly funded, or is
exercising statutory powers, or is taking the place of central
government or local authorities, or is providing a public service.”
Such an approach was adopted in the very recent decision in YL
v Birmingham City Council [2007] UKHL 27
to which our
attention was drawn in the Appellants` further submissions as
well as in R (on the application of Heather) v Leonard Cheshire
Foundation [2002] 2 All
ER 936 and Poplar Housing and Regeneration Community
Association Ltd v Donoghue [2002] QB 48.
38       To Lord Nicholls` list, the Appellants suggest, two other factors
can be added, namely ;
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Appeal Number: EA/2006/0061 and 0062
•    The performance of a regulatory function (R v
Disciplinary Committee of the Jockey Club, ex p Aga
Khan [1993] 1 WLR 909 (CA) at 923H
•    The degree of governmental control.
The IC, using slightly different terminology in some cases,
broadly agrees with the composite list of relevant
considerations.
39       NRL is a private company which operates like a listed public
company in many respects. That it has members rather than
shareholders seems of little consequence. It seeks to produce a
profit, like the care home in YL; the destination of that profit does
not affect its commercial motivation.
40       Its directors are appointed by the existing board and the
government exercises no influence or control.
41       It is subject to some potential control by the Government
through the special member. That provides some but, given the
degree of that control, limited support to the IC `s case.
42       Its operation serves a public interest. So do those of many large
retailers.
43       It was not created by statute and its powers are not statutory
powers.
44       It receives considerable public funding. That points to some
degree in the direction of a public body.
45       It is regulated ( by ORR ) but not a regulator. That seems to us a
completely neutral point. We note that a similar view was taken
in YL.
46       The provision of rail services, like care of the aged, is a matter
for which the state takes responsibility. That does not mean that
those who provide the service are performing a public function,
as Lord Neuberger observed in YL at 163 – 4.
47       If NRL did not perform these functions, they would be performed
by some other similar body, not by central government.
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Appeal Number: EA/2006/0061 and 0062
48       The factors identified at paragraphs 39, 40, 43 and 47 lead us
clearly to the conclusion that NRL and NRIL are not public
bodies. We find that most of the other features identified above
take the matter no further. The two that might point the other
way carry little weight, taken with all the other factors in this
case.
49       We note that in Port of London Authority v IC, in addition to the
matters recited at paragraph 33, PLA `s powers are statutory
powers and it is accountable to the Secretary of State and
Parliament in a variety of ways. The functions and powers of
PLA are clearly distinguishable from those of NRL.
50       In so far as it is necessary to review separately the position of
NRIL, we conclude that the same considerations apply
51       These conclusions are substantially fortified by the decision in
Cameron v Network Rail Infrastructure Limited [2007] 1 WLR
163
, a strike – out application, in which a review of the factors
which we set out above and others led Sir Michael Turner. to the
conclusion that there was no real prospect of the claimant
establishing that NRIL was either a core or a hybrid public
authority for the purposes of s.6(3) of HRA.. He dismissed the
idea that maintaining points and track could be regarded as the
function of a public authority.
52       This is a decision applying a kindred provision ( not involving the
administrative requirement) to one of the Appellants.
Notwithstanding the IC `s rather faint attempt to distinguish it in
his oral argument and supplementary skeleton, we find it
indistinguishable from the present case on the “public body”
issue and we respectfully adopt its reasoning.
53       Since we find that Reg. 2(2)(c) does not apply to NRL, Reg.
2(2)(d) does not apply to NRIL. We do not propose therefore to
examine further arguments relating to that provision
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Appeal Number: EA/2006/0061 and 0062
Our Conclusions
(i) The Appellants` functions are not functions of
administration, whether. public or private
(ii) Anyway, they are not public functions.
(iii) Since NRL is accordingly not a public authority by virtue
of EIR Reg. 2(2)(c), Reg. 2(2)(d) does not apply to NRIL.
(iv) Neither Appellant is, therefore, a public authority within
the meaning of EIR Reg. 2(2).
(v) The Decision Notices were therefore not in accordance
with the law.
Our Decisions.
55        A postscript
56      Notwithstanding our decision on the issue of law arising on these
appeals and without wishing to cast any doubt on the
environmental credentials of the Appellants, we have some
concerns as to its implications. NRIL is a major landowner
whose estate is intensively visited by the public, has a significant
impact on the daily lives of many people and, in the words of its
website, includes “many sites of great environmental, geological,
historical and architectural importance” as well as much
contaminated land. Yet, if our decision is correct, it has no duty
to provide information in accordance with EIR.
57       The structure, functions and accountability of NRL are clearly
unusual and it may be that the consequences for its legal
responsibilities as to environmental information, given the
practical realities of its stewardship, are therefore anomalous.
58       DEFRA and/or the Department of Transport may wish to
consider whether, by whatever route, NRIL should be brought
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Appeal Number: EA/2006/0061 and 0062
within EIR (rather than FOIA) so that it is required to supply
environmental information. We recognise that there may be no
convenient way to achieve this within the existing regulations but
believe that the present position is clearly unsatisfactory.
David Farrer Q.C.
Deputy Chairman
Date 17th July, 2007
17


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