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For all the reasons given, I conclude that the no-splitting rule is a reasonable rule for the state to adopt and the indirect sex discrimination is justified. Ratio |
Remedy Ratio |
Had I reached a different conclusion, it would have been necessary to consider the difficult question of remedy. Ratio |
It is difficult for several reasons, not least because this is a statutory appeal rather than judicial review, so that we are limited to upholding or setting aside the tribunals decision and if we set it aside to re-making it ourselves or sending it back to the tribunal to decide. Ratio |
If we were to disapply Rule 2.2 in reg 3 (para 7 above), the effect of section 7(2) of the 2002 Act would appear to be that, as the father was in receipt of a prescribed benefit, he would be entitled to CTC at the full rate if he were held to be responsible for the children during the period in question, even though th... |
In other words, we would be disapplying a rule which has a discriminatory effect without any means of applying the only sensible alternative rule, which is to share the benefit between the parents. Ratio |
Section 7(2) is in primary legislation and cannot simply be ignored. Ratio |
Fortunately, we do not have to grapple with this conundrum, although of course that fact that it arises in this case would not have been a reason to hold that the impugned rule is justified. Ratio |
However I agree with the Upper Tribunal and the Court of Appeal that the rule is justified and would therefore dismiss this appeal. RPC |
Although the British Broadcasting Corporation (the BBC) is listed as a public authority in the Freedom of Information Act 2000, the Act, as I will call it, applies to the BBC only to a limited extent. FAC |
The words of limitation are found in Part VI of Schedule 1 to the Act: they provide that the Act applies only in respect of information held for purposes other than those of journalism, art or literature. STA |
I will describe these words of limitation as the designation. Ratio |
This appeal requires the court to consider the meaning of the designation. Ratio |
The focus of the debate is on the word journalism rather than on the words art or literature. Ratio |
How widely or narrowly should the phrase purposes other than those of journalism be construed? Ratio |
The answer of course lies in the narrowness or width of the concept of the purposes ... of journalism in the context of the Act. Ratio |
But the appeal also presents a more particular conundrum. Ratio |
It proceeds, albeit not on foundations as solid as one might wish, upon the premise that the information in issue was held by the BBC partly for purposes of journalism and partly for purposes other than those of journalism (or, for that matter, of art or literature). Ratio |
In a situation in which information is held for such dual and opposite purposes, does the information fall within the designation and thus within the scope of the Act? Ratio |
The primary contention made on behalf of the BBC is that, where it is held by the BBC even only partly for purposes of journalism, information is beyond the scope of the Act; and thus that, provided that the purposes of journalism are significant (i.e. more than minimal), they leave the information beyond the scope of ... |
I will describe this as the BBCs polarised construction; and it was approved by the Court of Appeal (Lord Neuberger MR, Moses and Munby LJJ) on 23 June 2010, [2010] EWCA Civ 715, [2010] 1 WLR 2278, when making the order against which this appeal is brought. Ratio |
The Court of Appeal, however, approved the construction only on the basis that the phrase purposes ... of journalism should be construed in a relatively narrow...way: see para 55, per Lord Neuberger. RLC |
Sadly the appellant, Mr Steven Sugar, is deceased. FAC |
His death occurred in January 2011, after he had filed Notice of Appeal to this court; and, by consent, the court appointed Ms Fiona Paveley to represent his estate in the appeal. FAC |
The contention made on behalf of Mr Sugar is precisely the opposite of the primary contention made on behalf of the BBC. ARG |
It is that, where it is held by the BBC even only partly for purposes other than those of journalism, information is within the scope of the Act; and thus that, provided that the purposes other than those of journalism are significant (i.e. more than minimal), they draw the information within the scope of the Act even ... |
I will describe this as Mr Sugars polarised construction. ARG |
But the very expression of these polarities foreshadows a middle way, which represents the secondary contention made on behalf of the BBC. ARG |
It is that, in circumstances in which it holds information partly for purposes of journalism and partly for purposes other than those of journalism, the designation should be so construed as to draw the information within the scope of the Act only if the purposes other than those of journalism are the dominant purposes... |
I will describe this as the dominant purpose construction. Ratio |
B: THE FACTS FAC |
By October 2003 the BBCs coverage of the Israeli-Palestinian conflict had come under close scrutiny from pressure groups both pro-Israeli and pro-Arab. FAC |
There were complaints, particularly from pro-Israeli groups, that its coverage was not impartial. FAC |
Mr Richard Sambrook, then the BBCs Director of News, decided to commission a senior journalist to analyse the BBCs domestic Middle Eastern coverage, to survey the views and analyse the complaints of the pressure groups and to suggest whether and if so how it might be improved. FAC |
Following discussion with Mr Mark Byford, then the Director of the BBCs World Service, Mr Sambrook caused Mr Malcolm Balen to be appointed to conduct the exercise. FAC |
Mr Balen had at one time been editor of the BBCs Nine OClock News but, by 2003, he had ceased to be employed by the BBC and was working as Head of News for a commercial television channel. FAC |
So Mr Sambrook caused Mr Balen to rejoin the BBC under a one-year contract, which took effect on 1 November 2003. FAC |
It was unusual to bring someone into the BBC from outside to make a report for internal use. FAC |
The contract described Mr Balen as a Middle Eastern Consultant in News but he and Mr Sambrook regarded his position more as that of a senior editorial adviser. FAC |
The contract did not specify his duties; but what was clear was that he was to have no line-management responsibilities. FAC |
For the first three months Mr Balen discussed the BBCs Middle Eastern coverage with journalists and editors, considered some of the complaints about it and gave regular oral reports to Mr Sambrook. FAC |
Then in about February 2004, in response to a request by Mr Sambrook, he began to compose a full, written, report. FAC |
It was to be a broad survey both of the quality (including the impartiality) of the BBCs coverage of Middle Eastern affairs in recent years and of the validity or otherwise of the complaints about it, taken as a whole; and it was to include practical suggestions, perhaps only tentative, for improvement of the quality o... |
In July 2004 Mr Balen sent the final version of the report to Mr Sambrook and Mr Byford. FAC |
The Balen report, as I will describe it, was an internal briefing document for the use of the BBCs top management and reflected only Mr Balens personal views. FAC |
Meanwhile, in the wake of the publication in January 2004 of Lord Huttons Report of the Inquiry into the Circumstances Surrounding the Death of Dr David Kelly CMG HC 247, there had been several changes in the top management of the BBC. FAC |
Mr Byford had become Deputy Director-General. FAC |
In August 2004 Mr Sambrook became Director of the Global News division and Ms Helen Boaden took his place as Director of News. FAC |
Mr Mark Thompson, the new Director-General, set up three new boards, including a Journalism Board (the Board), of which Mr Byford was the chair and Mr Sambrook, Ms Boaden and other senior managers were members. FAC |
The Board was to be responsible for setting the strategy which would direct, and for defining the values which would inform, journalism across all areas of the BBCs output. FAC |
At its meeting on 9 November 2004 the Board considered the Balen report. FAC |
It considered it as part of its review of strategy in relation to its coverage of conflict in the Middle East. FAC |
In response to the report the Board commissioned a paper, to be entitled Taking Forward BBC Coverage of the Middle East, which was intended to ensure that the BBC both met the highest standards of impartiality and honesty in its journalism and implemented recommendations in relation to training, editorial control and t... |
The Taking Forward paper, which in effect took forward the Balen report, was first presented to the Board in February 2005. FAC |
Perhaps in part as a result of the consideration afforded to it in the Taking Forward paper, the Balen report had a number of practical consequences. FAC |
The most obvious to the ordinary viewer of BBC television was the establishment in 2005 of the post of Middle East Editor, to which Mr Jeremy Bowen was soon appointed. FAC |
There were also internal changes in the BBC in relation to its analysis of capability, its compilation of a Key Facts Guide, its audit of the use on air of Middle Eastern experts and its development of training. FAC |
In 2005 the Board of Governors of the BBC appointed Sir Quentin Thomas to chair a panel which was charged with undertaking an external, independent, review of the impartiality of the BBCs reporting of the Israeli- Palestinian conflict. FAC |
In his report, published in May 2006, Sir Quentin recorded that his panel had been supplied with the Balen report albeit on a confidential basis in that it had been only an unpublished report prepared internally for BBC management; that the report had been helpful; and that a number of its recommendations had already b... |
C: THE FORENSIC HISTORY FAC |
Mr Sugar was a respected solicitor and a supporter of the State of Israel; he considered that the BBCs coverage of Israels conflict with the Palestinians had been seriously biased against it. FAC |
By letter dated 8 January 2005 he made a request to the BBC for disclosure to him of a copy of the Balen report pursuant to the Act. FAC |
The BBC refused the request on the basis that it held the report or, more strictly, the information in the report for purposes of journalism and thus that it lay beyond the scope of the Act. FAC |
In March 2005 Mr Sugar applied to the Information Commissioner (the Commissioner) pursuant to section 50 (1) of the Act for a decision whether the BBC had determined his request in accordance with the requirements of the Act. FAC |
By letters to Mr Sugar dated 24 October and 2 December 2005 the Commissioner, who had privately read the Balen report, communicated his decision, which was to the effect that the BBC had lawfully rejected his request. FAC |
The Commissioner observed that: (a) the purpose of the designation was to protect journalistic, artistic and literary integrity by carving out a creative and journalistic space for programme-makers to produce programmes free from the interference and scrutiny of the public; information held by the BBC fell beyond the s... |
Had the Commissioners observations stopped at that point, the issue about the disclosure of the Balen report to Mr Sugar would have been resolved long ago. FAC |
But, by a postscript, the Commissioner proceeded to set a hare running and, although he soon repented of what he had done and sought to recapture it, the hare remained at large and was chased all the way up to the Appellate Committee of the House of Lords. FAC |
It was to prove a most unfortunate distraction. FAC |
With respect to certain eminent judges with whom it was later to find favour, the postscript which the Commissioner appended to his decision was entirely misconceived. FAC |
It was that, because the Balen report was outside the designation and thus beyond the scope of the Act, the BBC was not a public authority for the purposes of the Act in relation to Mr Sugars request. FAC |
The consequence was, according to the Commissioner, that Mr Sugar had no right of appeal against his decision to the Information Tribunal (the Tribunal) under section 57 of the Act. FAC |
This consequence was said to flow from the conjunction of section 57 itself, which provided that an appeal to the Tribunal lay from the Commissioners decision notice, and of section 50, which provided that a decision notice related to a decision whether a request for information had been lawfully determined by a public... |
At first, therefore, the Commissioner took the view that his letters to Mr Sugar could not represent a decision notice; and he advised Mr Sugar that, if he wished to challenge his decision, he should seek a judicial review of it rather than appeal to the Tribunal. FAC |
On 30 December 2005, undeterred, Mr Sugar appealed to the Tribunal under section 57 of the Act. RLC |
The Commissioner and the BBC entered a preliminary objection that the Tribunal lacked jurisdiction for the reasons set out above. RLC |
By the time when, in June 2006, the Tribunal heard argument about the preliminary objection, the Commissioner had changed his mind and was supporting Mr Sugars rebuttal of it. RLC |
But the BBC energetically pursued the objection. RLC |
The Tribunal overruled it (the jurisdiction decision) and proceeded to consider the merits of Mr Sugars appeal. RLC |
Its decision dated 29 August 2006, by which it upheld Mr Sugars contention that the Balen report was within the scope of the Act (the journalism decision), will require study. RLC |
But it is convenient first to chart the development of the argument on jurisdiction to its quietus. Ratio |
The BBC appealed on points of law to the High Court under section 59 of the Act against the Tribunals jurisdiction decision as well as against its journalism decision. FAC |
Mr Sugar and the Commissioner opposed the appeal. FAC |
The BBC also issued an application for judicial review of the Tribunals jurisdiction decision, to which, in that no order was to be made on it, there is no need again to refer. FAC |
In order to protect himself against the risk that the High Court would set aside the Tribunals jurisdiction decision, Mr Sugar issued an application for judicial review of the Commissioners decision. FAC |
These proceedings came before Davis J. By a judgment delivered on 27 April 2007, [2007] EWHC 905 (Admin), [2007] 1 WLR 2583, he: (a) allowed the BBCs appeal against the Tribunals jurisdiction decision; (b) accordingly set aside its journalism decision; and (c) dismissed Mr Sugars protective application for judicial rev... |
Supported by the Commissioner, Mr Sugar appealed to the Court of Appeal against the decision of Davis J to allow the BBCs appeal against the Tribunals jurisdiction decision. FAC |
At this stage he ceased to appear in person and began to enjoy the benefit of representation by Mr Tim Eicke QC pro bono. FAC |
By order dated 25 January 2008, [2008] EWCA Civ 191, [2008] 1 WLR 2289, the Court of Appeal (Buxton and Lloyd LJJ and Sir Paul Kennedy) dismissed the appeal. RLC |
Mr Sugar appealed to the House of Lords against the dismissal of his appeal by the Court of Appeal. FAC |
By order dated 11 February 2009, [2009] UKHL 9, [2009] 1 WLR 430, the House (Lord Phillips, Lord Hope and Lord Neuberger, Lord Hoffmann and Baroness Hale dissenting) allowed the appeal. FAC |
Thus, at last, the effect of the BBCs inclusion in the Act became clear. FAC |
Even in relation to a request to the BBC for information which lay outside the designation and thus beyond the scope of the Act, the BBC remained a public authority for the purposes of the Act: see, in particular, paras 26 to 36 per Lord Phillips and para 54 per Lord Hope. FAC |
A decision by the Commissioner that a request was of such a character should therefore be, and in this case had been, set in a decision notice under section 50 of the Act and the proper avenue of challenge to it was by appeal to the Tribunal under section 57: see paras 37 and 38, per Lord Phillips. FAC |
The House therefore remitted to the High Court the BBCs appeal against the Tribunals journalism decision, which Davis J had found it unnecessary to consider. FAC |
For, from his further conclusion that the Commissioners decision had been lawful, it in no way followed that the BBCs appeal against the Tribunals journalism decision was entitled to succeed: see para 38, per Lord Phillips. FAC |
In reaching its journalism decision the Tribunal, which had privately read the Balen report, had addressed the application of the designation to a situation in which the requested information was held for dual and opposite purposes. FAC |
It had noted the polarised constructions advanced by Mr Sugar and by the BBC to which I have referred but had preferred the BBCs secondary contention, which accorded with the Commissioners approach, that in such a situation the Act required reference to the dominant purpose for which the information was held. FAC |
The Tribunal found that the BBC had originally held the Balen report predominantly for purposes of journalism; that, however, once the report had been placed before the Journalism Board on 9 November 2004, the BBC had begun to hold it predominantly for purposes other than those of journalism, namely for purposes of str... |
The Tribunal did not find and Mr Sugar does not appear to have asked it to find that, at the date of its receipt of his request, the BBC held the report solely for purposes other than those of journalism. FAC |
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