Cross v Information Commissioner and the Cabinet Office: [2016] UKUT 153 (AAC); [2016] AACR 39

Upper Tribunal Administrative Appeals Chamber decision by Mr Justice Charles on 22 March 2016.

Read the full decision in [2016] AACR 39ws.

** Judicial Summary

Environmental information – whether the Sovereign or the Royal Household a “public authority” for the purposes of the Environmental Information Regulations 2004

Following the refusal of her request for the minutes of the Royal Household’s Social Responsibility Committee meetings, Mrs Cross complained to the Information Commissioner. He rejected her complaint on the basis that neither the Sovereign nor the Royal Household constituted a public authority for the purposes of the Environmental Information Regulations 2004 (EIR). Mrs Cross’s appeal to the First-tier Tribunal was transferred to the Upper Tribunal, and among the issues before it were not only the difference in language between the EU Directive on Public Access to Environmental Information (Council Directive 2003/4/EC) and the Environmental Information Regulations 2004, but also the meaning of the phrases “the performance of services of public interest” and “special powers” within the Court of Justice of the European Union’s decision in Fish Legal and Shirley v Information Commissioner C-279/12, EU:C:2013:853, [2014] 2 WLR 568, [2014] AACR 11.

Held, dismissing the appeal, that:

  1. the Crown was personified by the Sovereign, as a legal person and a constitutional monarch, but the Sovereign was not and did not act as the Crown in the sense of government; there was a clear distinction between the public administration and executive and the Sovereign’s constitutional functions and powers (paragraphs 52 to 58);

  2. the Royal Household served the Sovereign, not the Crown in the sense of government. The roles, duties and powers of the Royal Household’s members were directed to the implementation of the Sovereign’s functions and powers and co-extensive with them and it had no separate legal personality and was not an unincorporated association or partnership. In broad and private law terms the members of the Royal Household are agents for the Sovereign (paragraphs 59 to 64 );

  3. the Sovereign, not being a part of the government, was not a public authority; as a matter of substance she held and exercised all of her functions and powers in a formal, ceremonial or personal capacity, and, under constitutional law, the Sovereign had no executive or administrative role to play when exercising her function and powers (paragraph 71);

  4. regulation 2(2)(a) and (b) of the EIR did not apply to the Sovereign. She was not a government department and did not appear in Schedule 1 to the Freedom of Information Act 2000 and the Sovereign’s addition to that list, or that of the Royal Household, would not fit easily with section 37 of the Act (paragraphs 75 to 76);

  5. the natural meaning, intention and effect of Article 2(2)(b) of the Directive meant that in order to satisfy the functional test the relevant entity must be “performing public administrative functions under national law, including specific duties, activities or services relating to the environment ” and that approach clearly reflects Recital (11) of the Directive and the Court of Justice of the European Union’s decision: Fish Legal and Shirley v Information Commissioner C-279/12 (paragraphs 86 to 94);

  6. Fish Legal and Shirley v Information Commissioner C-279/12 contained important and binding guidance on the meaning and application of the tests set by the Directive and the EIR so as to give effect to the Directive’s underlying objectives. It followed that C-279/12 should not be applied rigidly or without reference to both the Directive and the EIR, including determining whether in all the circumstances of the case the relevant entity was a functional public authority (paragraphs 99 to 100).

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