Upper Tribunal Confirms HMCTS Not Public Authority Under FOIA

[NAME] and [NAME] [2023] UKUT 303 (AAC)

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IN THE UPPER TRIBUNAL UT ref: UA-2022-000248-GIA ADMINISTRATIVE APPEALS CHAMBER

On appeal from First-tier Tribunal (General Regulatory Chamber) ([NAME])

Between: [NAME] Appellant - v –

The [NAME] First Respondent and

The Ministry of Justice Second Respondent and

[COMPANY] Respondent

Before: Upper Tribunal Judge Wright

Decided after a hearing on 19 July 2023

Representation: [NAME] of counsel for [NAME] of counsel for the [NAME] of counsel for the Ministry of [COMPANY]

Decision date: 14 December 2023

DECISION

The decision of the Upper Tribunal is to dismiss the appeal. The decision of the First-tier Tribunal dated 30 November 2021 did not involve the making of any error of law.

REASONS FOR DECISION Introduction 1. This a somewhat unusual appeal because it concerns at its heart whether the [NAME] to which the [NAME] request was made was a “public authority” for the

[NAME] and [NAME] [2023] UKUT 303 (AAC)

2 purposes of the Freedom of [NAME] Act 2000 (“FOIA”) at the time the request was made to that [NAME]. If the [NAME] to whom the request was made was not a public authority under FOIA then that is the end of the matter. This is because the general obligation under section 1 of FOIA to provide the [NAME] requested only arises if the request is made to a “public authority”. Relevant background 2. The appeal arises from a request made by [NAME] to what was at the time Her Majesty’s Courts and Tribunals Service (“HMCTS”) on 18 March 2020. The request asked for [NAME] concerning training [NAME] understood had been delivered by an organisation called ‘Gendered Intelligence’ on ‘Trans awareness’ to judges of the employment and asylum and immigration tribunals. The request asked for the costs of the training, the contract/agreement/terms of reference for the commissioning of the training, the materials used at the training and the names of the judges who had attended the training.

3. The request led to a response at the end of March 2020. As the First-tier Tribunal (FTT) noted, the response was on Ministry of Justice (“MoJ”) notepaper and was signed by an individual on behalf of the “[COMPANY]”. The substance of that response was that the [NAME] was not held by the MoJ as: ““statutory responsibility for the provision and content of training for the [NAME] rests with the Lord Chief Justice as Head of the [NAME] in England and Wales, and the Senior President of Tribunals, in line with the Constitutional Reform Act 2005…. [and]…the [NAME] are not a public authority for the purposes of FOIA…” 4. [NAME] sought an internal review of this decision by “HMCTS/[COMPANY]” on the basis that, although the [NAME] is not a public authority for the purposes of FOIA: “the [NAME] is listed under Schedule 1 [of FOIA] [COMPANY] was formerly the [NAME] and there has been no indication that it has been removed from the scope of the Freedom of [NAME] Act.” 5. The reply to this internal review request was also issued on MoJ headed notepaper and was signed (electronically) by [COMPANY]. The material parts of that reply, as far as this appeal is concerned, read as follows: “[NAME] on judicial training that is held by [COMPANY], is only held on behalf of the [NAME] of England and Wales, who are exempt from the provisions of the FOIA 2000 by not being cited as a public authority in Schedule 1 of the FOIA. Which is why it is not held by the MoJ.

6. The above is sufficient to describe the central issue which arises on this appeal.

7. The FTT set out the issues it considered fell for its consideration in the following terms:

“(1) Is [COMPANY] a public authority for the purposes of FOIA? (2) If yes, does [COMPANY] hold any part of the requested [NAME]? (3) Irrespective of the answer to (1) above, does the Ministry of Justice hold any part of the requested [NAME]?

[NAME] and [NAME] [2023] UKUT 303 (AAC)

3 (4) If the answer to either (2) or (3) above is in the affirmative, should the Tribunal issue a Substituted Decision Notice directing production of that part of the requested [NAME] that is found to be held?” 8. The FTT answered the first of these questions in the negative: [COMPANY] is not a public authority for the purposes of FOIA. It also found that the MoJ is a public authority under FOIA, and that the MoJ held [NAME] falling within the scope of [NAME]’s request in respect of the cost of the “Trans Awareness Training delivered to the ET and AIT by Gendered Intelligence”.

9. The FTT gave detailed reasons for why it found that [COMPANY] is not a public authority for the purposes of FOIA. Given the challenge by [NAME] to the FTT’s decision on this issue, I set most of that reasoning out below. “22…..[COMPANY] is not named within Schedule 1 to FOIA. Given the unambiguous terms of section 3 of FOIA, one could be forgiven for thinking that this is all that requires saying on this issue. However, the appellant asserts that although [COMPANY] is not listed by name within Schedule 1, it is nevertheless a [NAME] listed therein as the successor to the [NAME], a [NAME] which is specifically named within that schedule.

23. Amelia Wright provided the Tribunal with detailed written and oral evidence on the history and operational scope of both the [NAME] and [COMPANY], which we accept as accurate in its entirety. This evidence was clear, plausible and consistent throughout.

24. The [NAME] was set up in 1979, following a review by Lord Justice Bridge, to provide training for judges in the criminal jurisdiction. In 1985, its role was extended to cover the provision of training in the civil and family jurisdictions and the supervision of training for magistrates and judicial chairs and members of tribunals.

25. Prior to the Constitutional Reform Act 2005 coming into force in April 2006, the position was that the [NAME] was a non- departmental public [NAME] overseen by the Lord Chancellor (a [NAME] Minister). The Permanent Secretary of the Lord Chancellor's Department (a senior civil servant) was responsible for advising the Lord Chancellor on how the [NAME]’s plans fitted into his or her overall strategy. As well as providing training, the [NAME] advised the Lord Chancellor and other government departments on the policy for, and content of, training for lay magistrates, appropriate standards for, and content of, training for judicial officers in Tribunals and on the training requirements of judges, magistrates and judicial officers in Tribunals. Operational objectives were agreed annually between the Lord Chancellor and the [NAME]. The Chair (a member of the senior [NAME]) and board members of the [NAME] were appointed by the Lord Chancellor. Each year the [NAME] made a report to the Lord Chancellor on its activities. The Lord Chancellor and the Minister of State were answerable to Parliament on matters relating to the [NAME]. Staff within the [NAME] were all civil servants.

[NAME] and [NAME] [2023] UKUT 303 (AAC)

4 26. In his oral statement to the House of Lords on 26 January 2004, the Secretary of State and Lord Chancellor set out detail on the Government’s proposals for the transfer of the Lord Chancellor’s [NAME]-related functions to the Lord Chief Justice. Judicial independence was enshrined in law with the commencement of the Constitutional Reform Act 2005 and all judicial functions previously held by the Lord Chancellor transferred to the Lord Chief Justice.

27. In November 2009, the Lord Chief Justice and the Senior President of Tribunals agreed to establish the Unified Judicial Training Advisory Board (“UJTAB”) under the chairmanship of Lord Justice Sullivan. The UJTAB was asked to advise them on unified judicial training and in its July 2010 report it recommended the establishment of a joint [COMPANY] - a single judicial training organisation in England and Wales for judges, legal advisers, magistrates and non-legal members of tribunals. The Lord Chief Justice and Senior President accepted the recommendation.

28. There was a transition period during which the [NAME] supported the Lord Chief Justice (instead of the Lord Chancellor) in his new responsibilities for judicial training. During that time, the [NAME] transitioned to being operated as an independent judicial [NAME] and part of the Directorate of Judicial Offices for England and Wales - the forerunner of the current Judicial Office.

29. On 1 April 2011, [COMPANY] came into being and at the same time the [NAME] came to an end. [COMPANY] is not a [NAME] established by statute but is a constituent part of the Judicial Office, an administrative arms-length [NAME] of the Ministry of Justice. [COMPANY] advises the Lord Chief Justice and is accountable to him through the Judicial Executive Board.

30. There is no dispute that the [NAME] was listed as a public authority in Schedule 1 to FOIA prior to the Constitutional Reform Act 2005 and that, despite the transfer of functions from the Lord Chancellor to the Lord Chief Justice as a consequence of that Act and the subsequent extension of [NAME]’s remit, it remained listed in Schedule 1 and, indeed, remains listed to this date. It is also beyond dispute that in the approach to 1 April 2011, the functions and operation of the [NAME] closely resembled, or were identical to, the functions and operation of [COMPANY] in the immediate aftermath of that date.

31. The appellant’s primary submission is that [COMPANY] is the same [NAME] as the [NAME], with the consequence that it is a public authority by virtue of the [NAME] being listed in Schedule 1 to FOIA. We reject this submission. In doing so we need say no more than that we accept Amelia Wright’s evidence that the [NAME] “came to an end” on 31 March 2011 and that “On 1 April 2011, [COMPANY], a new [NAME], came into being…”. There is nothing before us to directly contradict Amelia Wright’s evidence in this regard, and the mere fact that the [NAME] fulfilled the same functions or operated with the same structure before 1 April 2011 as the

[NAME] and [NAME] [2023] UKUT 303 (AAC)

5 [COMPANY] did from 1 April 2011 does not lead us to reject the clear and consistent evidence provided by Amelia Wright.

32. The fact that the [NAME] remained listed in Schedule 1 to FOIA, despite the significant changes brought about by the Constitutional Reform Act 2005 and the coming into being of [COMPANY] on 1 April 2011, is not indicative of [COMPANY] being the same [NAME] as the [NAME]. The leap in logic required to reach such a conclusion is simply too great and one we are not prepared to make. In such circumstances we find, contrary to the appellant’s submissions, that: (i) [COMPANY] is not the [NAME], renamed; and, (ii) the literal interpretation of the words “[NAME]” in Schedule 1 to FOIA is not “[COMPANY]”.

33. We now move on to consider the appellant’s alternative position, which is put in the following terms in paragraph 32 of the appellant’s skeleton argument of 13 October 2021: “If the Tribunal does not accept that the interpretation urged by the appellant is a straightforward literal construction of the words of the schedule, it is in any event a properly purposive construction. The will of parliament should be given effect, not thwarted: and since the [NAME] was included on the schedule when the Act came into force in 2005, and parliament has not since then evinced any intention to remove it or to take a different view of the proper status of the [NAME], giving effect to the will of parliament involves interpreting the words “[NAME]” to mean the [NAME]’s successor [NAME], the [NAME]. If necessary, it is submitted that the conditions are met for a “rectifying construction” to substitute the words “[COMPANY]” for “[NAME]”: see [COMPANY]. and [NAME] v [NAME] (a firm) and [NAME] [2000] 1 WLR 586.” 34. Once again, we reject the appellant’s submission. It is beyond legal argument that there is a presumption that the text of a statute is the primary indication of Parliament’s intention and that the enactment is to be given its literal meaning. If, on an informed interpretation, there is no real doubt that a particular meaning of an enactment is to be applied, that is to be taken as its legal meaning. If there is a real doubt, it is to be resolved by applying interpretive criteria. Where the meaning of statutory words is plain and unambiguous it is not for the courts or tribunals to interfere, nor invent ambiguities.

35. In our view the words “[NAME]” could not be clearer. They refer to the [NAME] known by that name and described above, which was set up in 1979, was in existence at the time of the passing of FOIA and which ceased to exist on 31 March 2011. What the appellant urges the Tribunal to do is to read words into FOIA that are not there. This is not beyond the scope of the Tribunal’s jurisdiction, but this jurisdiction is confined to plain cases of drafting mistakes: see [COMPANY]. and [NAME] at [592E]. The absence of an Order made pursuant to section 4 of FOIA to either remove the [NAME] from Schedule 1 to the Act or to add [COMPANY] thereto, is not akin to a drafting mistake in the words of a statute. If the tribunal were to conclude otherwise, we

[NAME] and [NAME] [2023] UKUT 303 (AAC)

6 would in effect be, in our view impermissibly, taking on a function reserved by statute to either the “Secretary of State or the [NAME]”. We have no evidence as to why [COMPANY] has not been added to the list of [NAME] in Schedule 1 of FOIA, nor do we have evidence as to why the [NAME] has not been removed from such list and, in our view, it would be entirely wrong to speculate on such matters.

36. The appellant makes one further submission in her attempt to persuade the Tribunal that [COMPANY] is a public authority for the purposes of FOIA, and that is to place reliance on responses to FOIA requests issued by [COMPANY] between 2013 and 2015, in which [COMPANY] identifies itself as being subject to FOIA. The issue of whether [COMPANY] is a public authority listed in Schedule 1 to FOIA is, however, one of legal interpretation. The fact that individuals within [COMPANY], or even [COMPANY] itself, took the position that it was a public authority for the purposes of FOIA is not a matter capable of bearing on the legal analysis required to determine that issue.” Relevant statutory framework 10. Section 1 of FOIA provides, subject to immaterial exceptions on this appeal, the core duty under FOIA. It states:

“General right of access to [NAME] held by [NAME]. 1(1) A person making a request for [NAME] to a public authority is entitled— (a) to be informed in writing by the public authority whether it holds [NAME] of the description specified in the request, and

(b) if that is the case, to have that [NAME] communicated to him.” The underlining, which is mine, makes it clear that the duty under section 1 only arises in respect of [NAME] held by a “public authority”. 11. Just what is a “public authority” for the purposes of FOIA is defined by section 3 of that Act.

“[NAME].

3.(1) In this Act “public authority” means— (a) subject to section 4(4), any [NAME] which, any other person who, or the [NAME] which—

(i) is listed in Schedule 1, or

(ii) is designated by order under section 5, or

(b) a [COMPANY] as defined by section 6. (2) For the purposes of this Act, [NAME] is held by a public authority if— (a) it is held by the authority, otherwise than on behalf of another person, or

[NAME] and [NAME] [2023] UKUT 303 (AAC)

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(b) it is held by another person on behalf of the authority.” 12. Section 4 of FOIA is also relevant, and provides, in so far as is material, as follows:

“Amendment of Schedule 1. 4.(1)The Secretary of State or the [NAME] may by order amend Schedule 1 by adding to that Schedule a reference to any [NAME] or the [NAME] which (in either case) is not for the time being listed in that Schedule but as respects which both the first and the second conditions below are satisfied.

(2) The first condition is that the [NAME] or office— (a) is established by virtue of Her Majesty’s prerogative or by an enactment or by subordinate legislation, or (b) is established in any other way by a Minister of the [NAME] in his capacity as Minister, by a government department…..

(3) The second condition is— (a) in the case of a [NAME], that the [NAME] is wholly or partly constituted by appointment made by the [NAME], by a Minister of the [NAME], by a government department…., or (b) in the case of an office, that appointments to the office are made by the [NAME], by a Minister of the [NAME], by a government department….. (4) If either the first or the second condition above ceases to be satisfied as respects any [NAME] or office which is listed in Part VI or VII of Schedule 1, that [NAME] or the [NAME] of that office shall cease to be a public authority by virtue of the entry in question. (5) The Secretary of State or the [NAME] may by order amend Schedule 1 by removing from Part VI or VII of that Schedule an entry relating to any [NAME] or office—

(a) which has ceased to exist, or (b) as respects which either the first or the second condition above has ceased to be satisfied. (6) An order under subsection (1) may relate to a specified person or office or to persons or offices falling within a specified description….” 13. Sections 5 of FOIA provides as follows:

“Further power to designate [NAME]. 5.(1) The Secretary of State or the [NAME] may by order designate as a public authority for the purposes of this Act any person who is neither listed in Schedule 1 nor capable of being added to that Schedule by an order under section 4(1), but who— (a) appears to the Secretary of State or the [NAME] to exercise functions of a public nature, or (b) is providing under a contract made with a public authority any service whose provision is a function of that authority.

[NAME] and [NAME] [2023] UKUT 303 (AAC)

8 (2) An order under this section may designate a specified person or office or persons or offices falling within a specified description. (3) Before making an order under this section, the Secretary of State or the [NAME] shall consult every person to whom the order relates, or persons appearing to him to represent such persons.” 14. No argument was made before me relying on anything in section 6 of FOIA, which defines what is a “[COMPANY]” for the purposes of section 3(1)(b) of FOIA.

15. I need not set out Schedule 1 to FOIA here. It is broken down into seven Parts covering: Part I “General” (which, for example, covers any government department); Part II “[NAME]”; Part III “[NAME]”; Part IV “Maintained Schools and other Educational Institutions”; Part V “Police”; Part VI “Other Public Bodies and Offices: General”; and Part VII “Other Public Bodies and Offices: Northern Ireland”.

16. As we shall see, the “[NAME]” was listed in Part VI of Schedule 1 to FOIA up to 1 September 2022 and so was listed as a public authority in FOIA at the time of [NAME]’s request in March 2020.

17. It is common ground that the “[COMPANY]” has never appeared in Schedule 1 to FOIA. (Nor has it been designated as a “public authority” under section 5 of FOIA.)

18. Pausing at this point, and just looking at matters generally, on the face of it the provisions in sections 3-5 of FOIA might be thought to provide a complete code for whether a [NAME] is a “public authority” for the purposes of the Act. A [NAME] is a public authority if it is named in Schedule 1 to FOIA and is not if it does not appear in Schedule 1 and is not designated by an order under section 5: see, relatedly, paragraph [56] of Sugar v BBC Sugar v BBC [2009] UKHL 9; [2009] 1 WLR 430 (discussed in paragraph forty three below). Moreover, the mechanism for making a [NAME] a public authority for the purposes of FOIA is for the Secretary of State or [NAME] to add it to Schedule 1 under section 4(1) of FOIA. However, until that has been done (and ignoring for present purposes a designation Order under section 5 of FOIA) the [NAME] is not a “public authority” under FOIA. This would appear to the plain effect of section 3(1)(a)(i) of FOIA: regardless of whether the two conditions in section 4(2) and (3) are both met, Schedule 1 has to be amended under section 4(1) in order for the [NAME] to be “listed in Schedule 1”.

19. By contrast, certain bodies (that is, those listed in Parts VI or VII or Schedule 1 to FOIA) will cease to be [NAME] for the purposes of FOIA, it would seem, simply by virtue of the [NAME] having ceased to satisfy either the condition in section 4(2) or the condition in section 4(3) of FOIA, even though the [NAME] may continue to be named in Schedule 1 to FOIA. For this class of extinguishment it is not necessary for Schedule 1 to be amended under section 4(5) of FOIA. Section 4(5) empowers, but does not oblige, the amendment by order so as to remove from Schedule 1 a [NAME] which has ceased to exist or which has ceased to satisfy either of the conditions in section 4(2) and (3) of FOIA.

[NAME] and [NAME] [2023] UKUT 303 (AAC)

9 The Upper Tribunal proceedings 20. [NAME] sought permission to appeal against the FTT on eight grounds. Many of these grounds overlap. They are that the FTT erred in law: (1) in failing to make any finding on the crucial factual issue that determined whether [COMPANY] was the same [NAME] as the [NAME], namely what was the nature of the change that took place on 1 April 2011; (2) in approaching the legal questions for its determination on the basis that the Appellant bore a “burden of proof” to satisfy it that the Commissioner’s decision was wrong in law; (3) in approaching its factual determination about the nature of the transition from the [NAME] to [COMPANY] on the basis (tacit, or implicit) that the Appellant bore the burden here too; (4) in finding (at paragraph 32) with no proper basis in the evidence that [COMPANY] was separate [NAME] from the [NAME], and not simply the same [NAME] under a new name; (5) in failing, if necessary, to give the expression “the [NAME]” a properly purposive construction to give effect to Parliament’s evident intention in the drafting of Schedule 1; (6) in failing, if necessary, to adopt an amending construction of the expression “the [NAME]” in Schedule 1 to the same end; (7) in failing, when considering the appellant’s submission that the purpose of [COMPANY] was to train the [NAME], to consider or decide what the purposes of [COMPANY] were, or whether they included the training of the [NAME]; and (8) in inferring from its conclusion that the [NAME] was held by [COMPANY] to support its judicial functions that [COMPANY] held the [NAME] on behalf of the [NAME], and (by implication) not for its own purposes.

21. Permission was refused on all eight grounds by the Chamber President of the First-tier Tribunal, Upper Tribunal Judge O’Connor. However, Upper Tribunal Judge Wikeley granted [NAME] permission to appeal on grounds 1, 3 and 4, but refused permission to appeal on the five other grounds of appeal. Judge Wikeley (rightly in my view) characterised the three grounds on which he gave permission to appeal as all “amounting to a challenge to the First-tier Tribunal’s findings of fact and reasoning in paragraphs [31] and [32] of its decision”. That is a view which [NAME] shares: see paragraph 2 of appellant’s reply of 6 January 2022. Judge Wikeley went on to comment: “it is conceivable that in the absence of any explanation as to the nature of the transition from the [NAME] to the [NAME] that “the only available inference … was that the [NAME] responsible for the training of judges had changed its name” (as it is put in ground 4). Indeed, whether or not these grounds of appeal have real merit there is in any event a public interest in ensuring that the status of the [NAME] as a public authority subject to FOIA (or not, as the case may be) is clarified at this level.”

[NAME] and [NAME] [2023] UKUT 303 (AAC)

10 22. With the consent of the parties, the remaining five grounds on which permission was being sought were the subject of a rolled-up hearing at the same time as the appeal hearing on the three grounds for which [NAME] had permission to appeal. By ‘rolled-up’ I mean that argument could be put forward on why permission to appeal should be given (or refused) on any of the other five grounds of appeal and why the appeal should be allowed (or refused) on any of those grounds. However, grounds 2 and 6 were not pursued by [NAME] before me. [NAME] also told me that [NAME] was no longer relying on the [NAME] line of argument she had made to the FTT: see paragraphs 33-35 of the FTT’s decision. Discussion and Conclusion 23. [NAME], through [NAME], raised a number of what I will term policy issues before me at outset of the oral hearing of the appeal – such as, that judicial training “should not be secret”, that decisions about training are not about the exercise of judicial functions, and that judicial independence is undermined by not being subject of FOIA – by way of general argument. I did not find these arguments to be of any real assistance. The legal issue before me on this appeal is not whether [COMPANY] ought to be listed in Schedule 1 to FOIA. As I have already said, it was common ground before me that a [NAME] called the ‘[COMPANY]’ has never appeared in Schedule 1 to FOIA. 24. [NAME]’s arguments at their core came down to two propositions First, in the statutory context set out above can the listing of the ‘[NAME]’ in Schedule 1 to FOIA up to 1 September 20221 lawfully (as a matter of statutory construction) be read as meaning the ‘[COMPANY]’? Second, though this may be no more than an aspect of the first argument, did the evidence before the FT show only that the [NAME] had done no more than change its name to [COMPANY] and, therefore, [COMPANY] had to be read as being the [NAME] at the time of [NAME]’s request in March 2020? I will take these two overarching points first before addressing, insofar as it remains necessary to do so, the grounds of appeal on which [NAME] still relies.

25. The argument that the ‘[COMPANY]’ as a matter law – or, as it was put to the FTT, as a matter of literal construction of the words of Schedule 1 to FOIA - is the same [NAME] as, and must be read as being, the ‘[NAME]’ under Schedule 1 of FOIA as at 18 March 2020 has no merit. It is not disputed that a [NAME] called [COMPANY] has never appeared in Schedule 1 to FOIA. It was therefore, per section 3(1)(a)(i) of FOIA, not listed in Schedule 1 to FOIA on 18 March 2020 and so, as a matter of law, was not a “public authority” under (section 3) of FOIA. The fact that the [NAME] remained listed in Schedule 1 to FOIA for over eleven years after it had ceased to exist is taken by the appellant, in my judgment, to prove too much. I cannot see that this historical fact alone, and absent any other considerations, can show the necessary legal intendment that [COMPANY] should be treated as the [NAME]. The most likely explanation is that the relevant Minister simply did not get round to the amending Schedule 1 of FOIA under section 4(5)(a) of FOIA once the Judicial Sturdies Board had ceased to exist. Alternatively, the Minister may have thought that as the [NAME]

1 The [NAME] was removed from Schedule 1 of FOIA with effect from 1 September 2022 by Article 2 and the Schedule to the Freedom of [NAME] (Removal of References to [NAME]) Order 2022 (SI 682 of 2022).

[NAME] and [NAME] [2023] UKUT 303 (AAC)

11 had ceased to exist, it was no longer “established” under section 4(2) of FOIA and therefore that alone was sufficient to mean it no longer constituted a public authority for the purposes of FOIA. However, the detail of the mechanisms in section 4 of FOIA for adding a [NAME] to FOIA as a “public authority” (section 4(1)) or removing a [NAME] as a public authority from the scope of FOIA (section 4(5)), points in my judgment strongly against mere inaction on the part of the Minister as a constituting a positive intendment that ‘[NAME]’ was to be read as meaning ‘[COMPANY]’ in Schedule 1 to FOIA.

26. There is also no merit in my judgment in the argument that the evidence before the FTT showed only that the [NAME] had changed its name to [COMPANY], but otherwise it was a [NAME] which was exercising the exact same functions, and therefore adopting what I will call a functional approach to statutory construction (or more accurately the application of the statutory words to the evidence) the FTT had erred in law in not finding [COMPANY] was the [NAME] in March 2020.

27. There are several problems with this argument.

28. First, as I have touched on in paragraph eighteen above, it is at least arguable, given the detailed code for adding and removing bodies as [NAME] under FOIA found in section 4 of that Act, that evidential considerations do not apply in determining whether a [NAME] which is not listed in Schedule 1 to FOIA should be held as being a [NAME] which is in fact listed in Schedule 1. In such a case it may be said that the remedy provided for by Parliament is not to go behind the references to bodies listed in Schedule 1 but instead to seek the addition of the new [NAME] and removal of the old [NAME] under, respectively, sections 4(1) and 4(5) of FOIA.

29. However, [NAME] at least was prepared to concede that there may be a case where if all that was in issue was a change of name of the public authority, it may be open to argument that the renamed [NAME], where it otherwise remains in terms of its function and responsibilities on all fours with its previous named incarnation, falls to be read as being the [NAME] listed in Schedule 1 to FOIA. I suppose such a case might fit consistently with the terms of section 4(2) or 4(3) of FOIA if it can be shown, for example, that the [NAME] with the new name remains the [NAME] established by appointment made by a Minister of the [NAME]. However, it seems to me that the evidence in such a case would need clearly to show that this was the case. 30. [NAME] stressed, however, that even if such an argument could be made, this was not such a case. I agree. There was no positive evidence before the FTT showing that all that occurred on 1 April 2011 was that the ‘[NAME]’ changed its name to the ‘[COMPANY]’, but otherwise the [NAME] remained in place as the (same) [NAME] (save for a name change) established, for example, by Royal Prerogative. The absence of a such evidence is not the same as evidence that all that occurred was a name change.

31. Second, it seems to me given the terms of section 4(1)-(3) of FOIA that the argument that [COMPANY] was the [NAME] in March 2020 required that it be shown not only that there was a mere change of name but also, and as part of this, that [COMPANY] remained the same [NAME] established by Royal Prerogative or by an enactment or subordinate legislation, or established in any other way by a Minister of the [NAME], or remained the same [NAME] as had had been appointed by the [NAME] or by a Minister.

[NAME] and [NAME] [2023] UKUT 303 (AAC)

12 32. Third, and most directly and importantly, evidence was considered by the FTT and in my judgment it was entitled to conclude on that evidence that [COMPANY] was a new [NAME] and not the same [NAME] as [COMPANY], and therefore the parts of [NAME]’s request other than the part of it which related to the costs of the training had not been made to a public authority under FOIA. That evidence was the witness statement of Amelia Wright, executive Director of [COMPANY]. Undue focus has been placed in [NAME]’s argument, in my judgment, on what occurred at midnight on 31st March 2011 and the supposed lack of explanation about what exactly changed at that point in time. This is to take Ms Wright’s evidence out of context. Read in context, as the FTT did at paragraphs 23- 29 of its decision, the FTT was entitled rationally to hold that that evidence showed that [COMPANY] was not the same [NAME] as the [NAME]. The Constitutional Reform Act 2005 introduced significant changes vesting [NAME]- related functions in (what was then) the Lord Chief Justice instead of the Lord Chancellor. One of those functions was training the [NAME]. Given the sea-change introduced by the Constitutional Reform Act 2005 with effect from April 2006, it is perhaps not surprising that it took time to ensure the appropriate structures were in place to ensure the Lord Chief Justice (and, from 2007, the Senior President of Tribunals) could deliver his statutory responsibility in respect of training. That process, on Ms Wright’s evidence, took until April 2011. However, there is nothing irrational in a point in time being needed at which the [NAME] would end and [COMPANY] came into being. Indeed, such a point in time must in almost all cases be a necessary part of such a change. The critical point, however, is that, as the FTT was rationally entitled to find, [COMPANY] was “new [NAME]”: that ‘newness’ being as a result of the changes brought in by the Constitutional Reform Act 2005.

33. There is in my judgment no merit in the appellant’s argument that the “only rational inference from Ms Wright’s evidence is that the [[NAME]] underwent substantial changes between 2005 and 2011, none of which affected its status as a schedule 1 public authority; and then changed its name with effect from 1 April 2011”. As a perversity challenge to the FTT’s findings of fact, this argument is quite hopeless. It ignores the detail of Ms Wright’s evidence and, perhaps more critically, entirely leaves out of account the constitutional reasons why a new [NAME] was considered necessary. And the argument is not assisted by making gratuitous comments which refer to Ms Wright’s evidence about the history of the [NAME] between 1979 and March 2011 being “[t]he noise of Ms Wright’s sophisticated and detailed explanation”. 34. [COMPANY] not being listed in Schedule 1 to FOIA can therefore be seen as a conscious legislative choice, post the Constitutional Reform Act 2005 to exclude the [NAME] held by an independent [NAME] and by bodies such as [COMPANY] on behalf of the [NAME] from the requirements of FOIA.

35. The above is sufficient to dispose of the first and fourth of the appellant’s grounds of appeal.

36. However, insofar as it may be necessary for me to do so, but also given the comment Judge Wikeley made when giving permission to appeal, I address the discrete criticism of [NAME] that the FTT failed to make any findings about the nature of the change that took place on 1 April 2011. That argument has no merit for the reasons given by the [NAME] in his skeleton argument. As I

[NAME] and [NAME] [2023] UKUT 303 (AAC)

13 agree with the [NAME] I need do no more than set out that part of his skeleton argument. “…the FTT did make findings as to the “nature of the change that took place on 1 April 2011”: (1) At paragraphs 25-27, the FTT noted: (i) that the [NAME] was (prior to the Constitutional Reform Act 2005 (“CRA 2005”)) overseen and accountable to the Lord Chancellor; and (ii) the developments which took place as a result of the CRA 2005, which transferred the Lord Chancellor’s [NAME]-related functions to the Lord Chief Justice. (2) At paragraph 28, the FTT noted: (i) the transition period prior to 1 April 2011, in which the [NAME] supported the Lord Chief Justice (instead of the Lord Chancellor) in his new responsibilities for judicial training; and (ii) that during this time the [NAME] transitioned to being operated as an independent judicial [NAME]. (3) At paragraph 29, the FTT noted the coming into being of [COMPANY], at the same time as the [NAME] came to an end, on 1 April 2011. (4) At paragraph 30, the FTT noted that during the ‘transition period’ prior to 1 April 2011, the functions and operations and the [NAME] “closely resembled, or were identical to” the functions and operation of [COMPANY] in the immediate aftermath of that date. (5) At paragraphs 31-32, the FTT expressly addressed – and rejected – the appellant’s submission that [COMPANY] is the [NAME], renamed. It accepted the evidence of Ms Wright that the two bodies are not the same, despite the similarity of the operations and functions of the [NAME] immediately prior to 1 April 2011 to [COMPANY] immediately after that date. The FTT found that there was nothing before it to directly contradict Ms Wright’s evidence in this regard. It was entitled to do so: indeed, the Appellant does not rely on any conflicting evidence.” 37. The only other ground of appeal for which [NAME] has permission concerns whether the FTT wrongly imposed the (legal and evidential) burden on her of showing that the [NAME] and [COMPANY] were the same [NAME]. This is an arid argument which has no merit. The argument here rests solely on what the FTT said in paragraph 19 of its decision. Having set out the relevant law the FFT said this: “19. We note that the burden of proof in satisfying the Tribunal that the Commissioner’s decision [is] wrong in law or involved an inappropriate exercise of discretion rests with the Appellant.

38. As a matter of substance there is nothing startling or wrong in this statement. Although one might quibble with the use of the word “proof”, with its connotations of establishing something on the evidence, in the context of FOIA for an appeal to be allowed under section 58 of FOIA the FTT has to “consider” that the [NAME]’s decision notice (against which the appeal is brought) is not in accordance with the law or should have involved a different exercise of a discretion which the [NAME] held. That ‘consideration’ is the end point of the

[NAME] and [NAME] [2023] UKUT 303 (AAC)

14 FTT appeal process. I do not consider that in paragraph 19 the FTT was doing any more than making the obvious point that an appellant has to put forward argument to make good their appeal that one of the section 58 remedies should apply.

39. More importantly, however, the FTT’s reasons when read as a whole show clearly in my judgment that it did not rely on the [NAME] having failed to discharge any burden of proof on her as the basis for the FTT refusing her appeal. The FTT’s conclusion that the appeal failed was based on all the evidence before it including. most notably, the detailed witness statement of Ms Wright. It must be borne in mind that Ms Wright was a witness from [COMPANY]. That itself substantially undercuts [NAME]’s argument that the FTT simply placed the onus on her to make out that [COMPANY] was the same [NAME] as the [NAME]. If that had been the case, the FTT would not have needed to consider Ms Wright’s evidence at all. However, the FFT heard from Ms Wright, who was cross- examined by [NAME] for [NAME], and it based its decision on Ms Wright’s evidence.

40. I should add that I find nothing in the FTT’s approach which offends against the [NAME]’s helpful summary of the relevant legal principles in this area of the law. These principles are: (1) the FTT is required under section 58 of FOIA to decide independently whether the [NAME]’s decision was in accordance with the law. In doing so the FTT “must apply the law afresh to the request taking account of the issues presented at the hearing or identified by the First-tier Tribunal.”: ICO v Home Office [2011] UKUT 17 (AAC) at paragraphs [55]-[60]; (2) the “ordinary presumption” is that it is for an appellant to prove their case. The burden will rest with the appellant except where statute expressly or impliedly provides otherwise: Khan v Custom and Excise Commissioners [2006] EWCA Civ 89; [2006] STC 1167 at [73.7]. Neither FOIA nor the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2008 contain any express provision about the burden of proof and neither by implication remove the ‘ordinary presumption’ either; and (3) however, the concept of the burden of proof is of secondary importance in tribunal proceedings which involve a full merits review, since to apply strict burdens of proof may prevent the tribunal from properly discharging its responsibility to decide the facts for itself and/or exercise any discretion afresh: Doorstep Dispensaree at [159].

41. I also refuse [NAME] permission to appeal on the remaining three grounds of appeal for which she sought permission (grounds (5), (7) and (8) in paragraph twenty above).

42. I cannot see that ground 5 – the FFT erred in law in failing, if necessary, to give the expression “the [NAME]” a properly purposive construction to give effect to Parliament’s evident intention in the drafting of Schedule 1 – really adds anything to the grounds of appeal I have found against above. This argument, in truth, is not really one about statutory construction but is just another way of the appellant advancing her argument that [COMPANY] was no more than a continuation of [COMPANY]. In any event, it is not arguable with any realistic

[NAME] and [NAME] [2023] UKUT 303 (AAC)

15 prospect of success that the FTT erred in law in paragraphs 33-35 of its decision in applying a literal interpretation to the names of the bodies listed in Schedule 1 to FOIA. Once the [NAME] line of argument was (rightly) abandoned by [NAME], I struggled to understand what was meant by a purposive construction of Schedule 1 to FOIA.

43. In Sugar v BBC [2009] UKHL 9; [2009] 1 WLR 430 Lord Hope stated, at paragraph [56]: “…In common with all the other public bodies and offices listed in Part VI of the Schedule the name [the BBC] tells one all one needs to know. That, indeed, is the purpose of the listing. Its purpose is to enable people who wish to exercise the general right of access to exercise it without having to go to the courts to find out whether the [NAME] or office-[NAME] to whom the request is directed is a public authority within the meaning of section 1(1). As the commentators on the Freedom of [NAME] (Scotland) Act 2002 in Current Law Statutes explain in their general note on section 3 and Schedule 1, clarity of coverage in advance was understood by the legislature to be vital. It was appreciated that to replace the list in Schedule 1 with an omnibus provision that the Act applied to bodies that provided a public service could lead to endless litigation. This was contrary to the principle that the primary role in enforcing the Act should rest with the Commissioner and not the courts: section 47(1). The system of listing is elaborate and, as section 7 recognises, will require constant monitoring to ensure that it is kept up to date. Its value, however, is that it reduces to the minimum the scope for dispute about whether a particular [NAME] or office-[NAME] is, or is not, a public authority.” Given that starting point, the scope for a purposive, as opposed to literal, construction of Part VI of Schedule 1 to FOIA seems faint if not non-existent, and would need to be better articulated than the general argument made by [NAME].

44. Grounds 7 and 8 have no arguable merit either. These grounds are: (7) that the FTT failed to decide what were the purposes of [COMPANY] and whether those purposes included training; and (8) the FTT erred in law in inferring from its conclusion that the requested [NAME] (other than on costs) was held by [COMPANY] to support its judicial functions, that [COMPANY] held the [NAME] on behalf of the [NAME], and (by implication) not for its own purposes.

45. Again, I fail to understand what these grounds add or bringing separately to these proceedings. The argument in ground 7 has no realistic prospect of success because it comes flat up against paragraphs 51-52 of the FTT’s decision where the FTT set out, which was obviously linked to and followed on from the paragraphs in the decision set out at paragraph nine of this decision above, that: “51. As we have concluded above, [COMPANY] exists to support the Lord Chief Justice and the Senior President of Tribunals to meet their statutory responsibilities for the training of the [NAME]. It is constituted both by members of the [NAME], and civil servants who provide administrative support to those members of the [NAME].

52. In acting in their roles within [COMPANY], the [NAME] are fulfilling a judicial function – to train, and to oversee the training of, judicial office holders. Anything undertaken by a member of the [NAME] under the

[NAME] and [NAME] [2023] UKUT 303 (AAC)

16 auspices of [COMPANY] is undertaken in that person’s capacity as a member of the [NAME]. The judicial constituent of [COMPANY] does not work for, nor are they any a part of, the Judicial Office. This is in contrast to the administrative staff of [COMPANY], who are part of the Judicial Office and employed in that capacity by the Ministry of Justice.

46. As for ground 8, no arguable error of law is made out either. The FTT’s analysis was based on a distinction between the judicial and administrative arms of [COMPANY] in terms of its operation. Those conclusions were based on and entirely consistent with the evidence before it: see paragraphs 46, 52 and 54 of the FTT’s decision.

47. It is for all these reasons that I have disallowed the appeal and refused permission to appeal on the other grounds of appeal still advanced by [NAME].

Approved for issue by Stewart Wright

Judge of the Upper Tribunal

On 14th December 2023