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First, his contention should probably prevail at a purely literal level: if the purposes for which the BBC holds information comprise even only to a minor extent purposes other than those of journalism, then, so I would conclude, the BBC holds it for purposes other than those of journalism...; and in my view there is p... |
But, were one to rearrange the terminology of the designation only marginally, so that it became in respect of information otherwise than held for purposes of journalism..., then the literal construction would probably yield the opposite conclusion. Ratio |
These semantic reflections with which others might reasonably disagree in any event represent far too slender a thread upon which to hang any overall conclusion. Ratio |
Second, however, and more importantly, the designation falls to be construed in the context of the Act as a whole, and thus, in particular of Part II. Ratio |
The beauty (says Mr Eicke) of construing the situation of dual purposes as falling within the scope of the Act is that the focussed exemptions in Part II then become available so as to winnow the information which should not be disclosed from that which should be disclosed; by contrast, were such a situation to be draw... |
Third, there is the bias of the Act in favour of disclosure and, in the resolution of any issue of construction, it would be permissible, as a last resort, to have regard to it. Ratio |
The BBC strongly argues that the designation defines the extent to which its information is included within the scope of the Act, as opposed to the extent to which it is excluded from it. Ratio |
But the distinction, though theoretically valid, is practically elusive: in reality the designation defines an exception, albeit very important, from the subjection of the BBC to the Act and should be construed accordingly. Ratio |
In the Court of Appeal Lord Neuberger suggested, at para 55, that the question whether information is held for purposes... of journalism should be considered in a relatively narrow way. Ratio |
With respect, his suggested departure from the natural construction of the word purposes raises in my mind a question-mark against his overall conclusion about the Acts application to a situation of dual and opposite purposes. Ratio |
No doubt his suggestion flowed from his concern, expressed at para 48, that the effect of his overall conclusion would be that relatively little information held by the BBC fell within the scope of the Act; for a relatively narrow construction of the word purposes would mitigate such an effect. Ratio |
There is in my respectful view a loose analogy here with the driver who, in proceeding down a straight road, nevertheless steers to the left and then has to rectify his position by steering to the right: he would have done better to keep straight. Ratio |
So is it necessary to choose between the two polarised constructions? Ratio |
G: THE DOMINANT PURPOSE Ratio |
Sometimes Parliament specifically refers to the .... principal purpose (section 678 (2)(a) Companies Act 2006) or to the reason (or, if more than one, the principal reason) (section 103A Employment Rights Act 1996, as inserted by section 5 of the Public Interest Disclosure Act 1998). STA |
Does Parliaments failure to make such a reference in the designation betoken its rejection of an approach that the purposes to which it there refers should be the dominant (or principal) purposes? We may confidently answer that question in the negative. Ratio |
Everything points to a conclusion that Parliament failed to consider the application of the designation to a situation in which the BBC holds the information for purposes partly of journalism and partly otherwise. Ratio |
Had it considered such a situation, it would have spelt out in one way or another how the designation should then operate. Ratio |
Bennion on Statutory Interpretation, 5th ed (2008) states at p 1268: Similarly, an enactment may lay down a qualifying condition in terms of the purpose of some person in doing an act as if it were the only purpose possible, whereas it may in the instant case, be in fact, one of several purposes. Ratio |
Here the court will construe the enactment as requiring the main or dominant purpose to be the one specified. Ratio |
It has to be acknowledged that the two authorities cited in support of the statement represent a slender foundation for the bold and unequivocal terms in which it is couched. Ratio |
The first authority is Chohan v Saggar [1992] BCC 306. PRE |
There the High Court held that the power under section 423 of the Insolvency Act 1986 to set aside a transaction entered into by a person at an undervalue for the purpose of putting assets beyond the reach of his creditor was exercisable if such was his dominant, even if not his sole, purpose. PRE |
As it happens, the decision was overruled by the Court of Appeal in Commissioners of Inland Revenue v Hashmi [2002] EWCA Civ 981, [2002] BCC 943, on the basis that, in the context of the 1986 Act, it sufficed that the statutory purpose should have been a substantial, even if not the dominant, purpose. PRE |
Laws LJ observed, at para 32, that to qualify the word purpose by the word dominant was not required in order to make sense of that Act or to give it pragmatic efficacy. PRE |
The second authority is Peach v Commissioner of Police of the Metropolis [1986] QB 1064. PRE |
There the Court of Appeal held that statements made to the police about the death of Mr Blair Peach should be disclosed to his mother in her action against the police because, although they were made partly for the purpose of a complaint against the police and so would to that extent, in principle, attract public inter... |
The court applied the decision in Waugh v British Railways Board [1980] AC 521. PRE |
There the House of Lords held that a report into a fatal accident made for two purposes namely for the purpose of the operation and safety of the railway (in which respect it would fall to be disclosed) and for the purpose of obtaining legal advice (in which respect it would fall, in principle, not to be disclosed) sho... |
The decisions in Waugh and Peach thus both relate to the resolution of conflict between two principles of law which require the existence of different purposes and both of which are engaged by the facts of the case. PRE |
No doubt the decisions demonstrate in general terms the common sense which may lie behind resort to the dominant purpose but neither represents authority upon statutory construction. PRE |
But while therefore the statement in Bennion, set out above, is in my view expressed too strongly, I consider that, as it suggests, it may well be appropriate for the court to construe a statutory requirement of a specified purpose as mandating, in the case of dual purposes, examination of whether the specified purpose... |
All will depend upon the objective meaning of the words in the statute when appraised in its context as a whole, including by reference to the purpose of the particular provision: see R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, 396 G-H, per Lord Nicholls.... |
In ordinary conversation we frequently no doubt unconsciously refine our reference to purpose to a reference to dominant purpose. Ratio |
You ask me why I went out last night. Ratio |
I tell you that I went out in order to visit a friend in hospital. Ratio |
I do not add that I did so in order also to catch the post, to buy sausages and to fill my petrol tank significant though those subsidiary purposes may have been for me. Ratio |
In the Court of Appeal Lord Neuberger identified three objections to adoption of the dominant purpose test when applying the designation to a situation in which information is held for dual and opposite purposes. ARG |
First, he said, at para 40, that the test defied the natural meaning of the words of the designation and that Parliament had not spoken, yet could have spoken, of information predominantly held for purposes other than those of journalism.... ARG |
Yet the Court of Appeals preferred solution also fails that test for its reading is of information solely held for purposes other than those of journalism.... ARG |
Second, Lord Neuberger said, at para 41, that identification of the dominant purpose would be a subjective and often speculative exercise. ARG |
I respectfully disagree. ARG |
In the case of Waugh, in the course of explaining why they favoured a test of dominant purpose in the different context to which I have referred, both Lord Simon, at p 537G, and Lord Russell, at p 545E, observed that the test would not be difficult to apply. ARG |
In BBC v The Information Commissioner, cited above, Irwin J appears to have had no difficulty in concluding that the dominant purpose for which the BBC held the financial information was that of journalism. ARG |
Indeed in my opinion it is easier for the Commissioner and the Tribunal to identify the dominant purpose than to conduct an inquiry into the existence of any purpose of journalism in accordance with the various pieces of guidance given first by Lord Neuberger at para 55 (namely to consider it in a relatively narrow rat... |
And, third, Lord Neuberger drew attention, at para 42, to the fact that, if the word purposes in the designation referable to the BBC was, in the case of dual purposes, to be construed as a reference to the dominant purpose, the same word in the designations referable to the Bank of England and to the Competition Commi... |
Lord Neuberger suggested that Parliament was unlikely to have intended that, to take the case of the Bank of England, information which it held for dual purposes would be within the scope of the Act unless the purposes of its functions with respect to monetary policy etc were dominant. ARG |
But Lord Neubergers point fails to take account of the exemptions in Part II of the Act which might in that event be available, particularly exemptions from disclosure likely to prejudice either the economic interests of the UK (section 29) or the effective conduct of public affairs (section 36(2) (b) and/or (c)). ARG |
So I find myself unable to subscribe to Lord Neubergers concerns about the dominant purpose test. Ratio |
I am convinced that, had Parliament actively considered the situation of information held by the BBC for purposes partly of journalism and partly otherwise, it would expressly have provided that the information was within the scope of the Act if it was held predominantly for the other purposes; that, however, the words... |
The further submission on behalf of Mr Sugar is that his request for disclosure of the Balen report engaged his right to receive information under para 1 of article 10 of the ECHR and that such restrictions on the exercise of his right as are permitted by para 2 of the article extend no further than is reflected by the... |
To this submission Lord Brown devotes paras 86 to 102 of his judgment below; with the essence of them I respectfully agree. ARG |
In short article 10 carries Mr Sugars case no further. ARG |
Even if (being a possibility which I would countenance somewhat more readily than does Lord Brown) the refusal to disclose the report did interfere with the freedom of Mr Sugar to receive information under the article, the words of the designation, when given the balanced interpretation which I favour, represent a rest... |
This conclusion becomes all the stronger when the court obeys the injunction cast upon it by section 12(4) of the Human Rights Act 1998 to have particular regard to the importance of freedom of expression and, in particular, to the extent to which it would be in the public interest for journalistic, literary or artisti... |
In urging this court not to take an extravagant view of any rights of Mr Sugar under article 10 Miss Monica Carss-Frisk QC on behalf of the BBC cites the decision of the House of Lords in R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26, [2008] AC 153 and, by reference, its earlier decision in R (Ullah) v ... |
It was in Ullah that, in para 20, Lord Bingham suggested that it was the duty of the House to keep pace with the evolving jurisprudence of the European Court of Human Rights (the ECtHR) no more, but certainly no less. Ratio |
It was in Al Skeini that, in para 106, Lord Brown suggested that its duty was to keep pace with it no less, but certainly no more. Ratio |
I would welcome an appeal, unlike the present, in which it was appropriate for this court to consider whether, of course without acting extravagantly, it might now usefully do more than to shadow the ECtHR in the manner hitherto suggested no doubt sometimes in aid of the further development of human rights and sometime... |
It is, therefore, my view a solitary view that, after six years, the case returns, in a full circle, to where it began; and that it was the Commissioner who both adopted the correct test and properly applied it. Ratio |
The Balen report was held for purposes of journalism. Ratio |
On the premise that it was also held for purposes other than those of journalism, it was not predominantly so held. Ratio |
That is why I consider that the report lay beyond the scope of the Act; and why I agree that the appeal should be dismissed. Ratio |
The effect of the relevant provision of Part VI of Schedule 1, when read with section 7, to the Freedom of Information Act 2000 (the Act), is that Parts I to V of the Act apply in the case of the BBC only to information held for purposes other than those of journalism, art or literature (the definition). Ratio |
I agree with the other members of the Court on the following matters that are sufficient to resolve this appeal in favour of the BBC: i) At all material times the Balen report was held by the BBC predominantly for the purposes of journalism; ii) On the true construction of Part VI of Schedule 1 to the Act information h... |
It follows that the BBC is under no duty to disclose the Balen report and that this appeal must be dismissed. RPC |
The judgments of Lord Wilson and Lord Walker have, however, disclosed an issue that is academic but is none the less of importance. Ratio |
Does the definition mean information held solely for purposes other than journalism, art or literature or information held predominantly for purposes other than journalism, art or literature? Ratio |
A similar issue arises in relation to the Bank of England, where the relevant definition is information held for purposes other than those of its functions with respect to- (a) monetary policy, (b) financial operations intended to support financial institutions for the purposes of maintaining stability, and (c) the pro... |
I am not able to find an answer to the issue in the language of the definition itself. Ratio |
It is capable of bearing either meaning. Ratio |
The answer to the issue must lie in adopting a purposive approach to the definition. Ratio |
We are concerned with a provision that provides protection against the disclosure obligations that are the object of the Act. Ratio |
What is the purpose of that protection? It is not, as is the protection against disclosure of documents protected by legal professional privilege, designed to remove inhibition on the free exchange of information. Ratio |
Were that the case the protection would focus on the purpose for which the information was obtained. Ratio |
The protection is designed to prevent interference with the performance of the functions of the BBC in broadcasting journalism, art and literature. Ratio |
That is why it focuses on the purpose for which the information is held. Ratio |
The same is true of the information provided to the Bank of England. Ratio |
The object of the protection is to prevent interference with the performance of the specified functions of the Bank. Ratio |
A purposive construction of the definition will prevent disclosure of information when this would risk interference with the broadcasting function of the BBC. Ratio |
This will not depend upon the predominant purpose of holding the information. Ratio |
It will depend upon the likelihood that if the information is disclosed the broadcasting function will be affected. Ratio |
The same is true in the case of the Bank of England. Ratio |
For this reason I do not agree with the approach of Lord Wilson to this issue. RPC |
Lord Neuberger of Abbotsbury MR at para 53 remarked that todays journalism is tomorrows archive and at para 58 In the case of journalism, above all news journalism, information held for purposes of journalism may soon stop being held for that purpose and be held, instead, for historical or archival purposes. Ratio |
I imagine that the Bank of England also archives information initially used for the purposes of carrying out its functions. Ratio |
No doubt the BBC has recourse to its archives for journalistic purposes from time to time and, if held for purposes of journalism is given a broad meaning it could be said in relation to the BBC that one of the purposes of holding archived material is journalism, albeit a relatively remote purpose. Ratio |
However, Lord Neuberger accepted that archived material would not, as such, fall within the protection afforded by the definition. RPC |
I consider that he was right to do so. RPC |
Disclosure of material that is held only in the archives will not be likely to interfere with or inhibit the BBCs broadcasting functions. Ratio |
It ought to be susceptible to disclosure under the Act. Ratio |
If possible information held for purposes other than those of journalism, art or literature should be given an interpretation that brings archived material within that phrase. Ratio |
Can this be achieved? Ratio |
I believe that Lord Walker has the answer. RPC |
He has concluded, as have I, that the protection is aimed at work in progress and BBCs broadcasting output. RPC |
He suggests that the Tribunal should have regard to the directness of the purpose of holding the information and the BBCs journalistic activities. RPC |
I agree. RPC |
Information should only be found to be held for purposes of journalism, art or literature if an immediate object of holding the information is to use it for one of those purposes. RPC |
If that test is satisfied the information will fall outside the definition, even if there is also some other purpose for holding the information and even if that is the predominant purpose. RPC |
If it is not, the information will fall within the definition and be subject to disclosure in accordance with the provisions of Parts I to V of the Act. RPC |
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