Maurizi & Ors v The Information Commissioner & Ors (Preliminary issues) [2021] UKFTT 85 (GRC)

FTT-GRC
Maurizi & Ors v The Information Commissioner & Ors (Preliminary issues)
[2021] UKFTT 85 (GRC) · 2021-01-27
[18]A particularly clear statement of the principle is to be found in the speech of Lord Bingham of Cornhill in R (Al-Skeini) v Secretary of State for Defence [2008] 1 AC 153 at [11], concerning the scope of application of the Human Rights Act 1998: “In resisting the interpretation, upheld by the courts below, that the HRA has extra-territorial application, the Secretary of State places heavy reliance on what he describes as ‘a general and well established principle of statutory construction’. This is (see Bennion, Statutory Interpretation , 4th ed (2002), p 282, section 106) that ‘Unless the contrary intention appears, Parliament is taken to intend an Act to extend to each territory of the United Kingdom but not to any territory outside the United Kingdom’. In section 128 of the same work, p 306, the author adds: ‘Unless the contrary intention appears … an enactment applies to all persons and matters within the territory to which it extends, but not to any other persons and matters.’ In Tomalin v S Pearson & Son Ltd [1909] 2 KB 61 , Cozens-Hardy MR, with the concurrence of Fletcher Moulton and Farwell LJJ, endorsed a statement to similar effect in Maxwell on the Interpretation of Statutes 4th ed (1905), pp 212-213: ‘In the absence of an intention clearly expressed or to be inferred either from its language, or from the object or subject matter or history of the enactment, the presumption is that Parliament does not design its statutes to operate [on its subjects] beyond the territorial limits of the United Kingdom.’[19]Similarly, Lord Rodger observed in Al-Skeini at [45]: 20. In a recent decision of the Supreme Court, R (on the application of KBR, Inc) (Appellant) v Director of the Serious Fraud Office (Respondent) [2021] UKSC 2 , handed down after the hearing in the instant matter, Lord Lloyd-Jones said, as follows, of the presumption:
“Subjects of the Crown, British citizens, are in a different boat. International law does not prevent a state from exercising jurisdiction over its nationals travelling or residing abroad, since they remain under its personal authority: Oppenheim’s International Law , 9th ed (1992), vol 1, Pt I, para 138. So there can be no objection in principle to Parliament legislating for British citizens outside the United Kingdom, provided that the particular legislation does not offend against the sovereignty of other states.”
[24]The presumption reflects, in part, the requirements of international law that one State should not by the claim or exercise of jurisdiction infringe the sovereignty of another State in breach of rules of international law. Thus, for example, legislation requiring conduct in a foreign State which would be in breach of the laws of that State or otherwise inconsistent with the sovereign right of that State to regulate activities within its territory may well be a breach of international law. There is clearly a compelling rationale for the presumption in such cases. However, the rationale and resulting scope of the presumption are wider than this. They are also rooted in the concept of comity. The term “comity” is used here to describe something less than a rule of international law. Judge Crawford explains that certain usages are carried on out of courtesy or comity and are not articulated or claimed as legal requirements. “International comity is a species of accommodation: it involves neighbourliness, mutual respect, and the friendly waiver of technicalities.” (Crawford, Brownlie’s Principles of Public International Law , 9th ed (2019), p 21. See also F A Mann, Foreign Affairs in English Courts , (1986), p 134.) In the particular context of claims to extra-territorial jurisdiction Crawford observes (at p 468): ‘Comity is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its law.’”[25]The lack of precisely defined rules in international law as to the limits of legislative jurisdiction makes resort to the principle of comity as a basis of the presumption applied by courts in this jurisdiction all the more important. As a result, the presumption in domestic law is more extensive and reflects the usages of States acting out of mutual respect and, no doubt, the expectation of reciprocal advantage. Accordingly, it is not necessary, in invoking the presumption, to demonstrate that the extra-territorial application of the legislation in issue would infringe the sovereignty of another State in violation of international law. ”[21]Save in relation to the adoption of the enforcement and appeal provisions in sections 50 and 57 of FOIA by the Environmental Information Regulations 2004 (‘EIR’) and the INSPIRE Regulations 2009, none of the parties contend that the right created by section 1(1) has any connection to a right or obligation subsisting in international law. Ms Iyengar, on behalf of the Information Commissioner, described FOIA as creating a new jurisdiction, and as being subject to its own rules. Certainly, insofar as Article 10 ECHR is concerned, the parties’ position accords with the decision of the Upper Tribunal in Moss v Information Commissioner and the Cabinet Office: [2020] UKUT 24 , following Kennedy v Charity Commission (Secretary of State for Justice and others intervening) [2014] UKSC 20 ; [2015] AC 455 . 22. Having reflected on the rationale for the presumption, it is difficult to see how it could operate in the instant circumstances with sufficient strength so as to displace the ordinary and literal construction of the term “any person” in sections 1(1) and 50(1) of FOIA, and in our view it is readily rebutted. 23. The purpose of FOIA is stated at its outset to be, “to make provision for the disclosure of information held by public authorities…” . As already alluded to, schedule 1 to the Act lists the public authorities to which the Act applies and each is based in the United Kingdom as, of course, is the Information Commissioner who is given regulatory responsibility. In short, the obligations imposed by FOIA fall only on those within the United Kingdom. Plainly, the imposition of obligations on those within the United Kingdom is not capable of offending the presumption against extra-territorial application. 24. Sections 1(1) and 50(1) of FOIA provide for rights and impose no extraterritorial obligations. In our view, it cannot sensibly be advanced that the provision of a right that may only be exercised within the United Kingdom, to a person who is not in the United Kingdom and who has no obvious connection to the United Kingdom is, of itself, inconsistent with the comity of nations or the established rules of international law. By enacting sections 1(1) and 50(1) of FOIA, Parliament was not seeking to assert its authority over those on the territory of another sovereign State, and the provisions do nothing to damage the mutual respect between nations or “ neighbourliness”. In such circumstances we agree with the parties that, insofar as the presumption is operative, it is weak and easily rebutted.26. Returning to the purpose of FOIA i.e. “to make provision for the disclosure of information held by public authorities…” , this is plainly furthered in the Act by the mechanism by which such a request for information can be made. Consistent with the purpose of FOIA, the scheme is uncomplicated. It requires a request to be made of the public authority in writing, provision of a description of the information being requested and a statement of the applicant’s name and an address for correspondence. The request can be transmitted by electronic means.27. It is difficult to envisage a more straightforward scheme for making a request for the publication of information. It is clearly designed to be as inclusive and easy to use as possible. For our purposes, a notable feature of section 8, and one which tends to support the contention that extra-territorial application can be implied into section 1(1), is the absence of any requirement therein, or elsewhere, to state the nationality or place of residence of the requestor. In particular, we observe that the requirement to provide an address for correspondence is not the akin to requiring details of a requestor’s place of residence. Indeed, an address for correspondence can be electronic - such as an email address.28. The implication that Parliament intended to give extra-territorial effect to section 1(1) of the Act is, in our view, further supported by considering the lens through which the purpose of the Act is to be viewed. As Lord Mance JSC describes it in Sugar v BBC (No (2)) [2012] 1 WLR 439 , at [110], FOIA “reflects the value to be attached to transparency and openness in the workings of public authorities in modern society, and its provisions should be construed “in as liberal a manner as possible” . Lord Mance later observes in Kennedy v Charity Commission [2015] AC 455 , again in the context of a consideration of FOIA, that “ Information is the key to sound decision-making, to accountability and development; it underpins democracy and assists in combatting poverty, oppression, corruption, prejudice and inefficiency. Administrators, judges, arbitrators, and persons conducting inquiries and investigations depend on it; likewise the press, NGOs and individuals concerned to report on issues of public interest.” (at [1]). In the same case, Lord Sumption JSC said of FOIA (at [153]) that it was “a landmark enactment of great constitutional significance for the United Kingdom.”29. Viewed in this context, the purpose of FOIA is obviously impinged upon if the pool of persons who can make requests for the disclose of information from public authorities is restricted. The flip side of this is, of course, that the purpose of FOIA is furthered if the pool of persons who can make a request for the disclosure of information from UK-based public authorities is as wide as possible. Again, this supports the contention that an extra-territorial application of section 1(1) of Act can be implied.30. There are other good reasons not to imply a territorial limitation into section 1(1). First, we see force in Mr Kosmin’s submission that to do so would bring inconsistency with associated legal regimes, in particular the EIR, which implement Council Directive 2003/4/EC on public access to environmental information, which in turn gives effect to the Aarhus Convention (i.e. The United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters - to which the United Kingdom remains a party).31. In summary, and we intend no injustice to Mr Kosmin’s comprehensive submissions on this point, it is submitted that although the EIR does not have express provision relating to its territorial reach, the applicable construction tools to be deployed where its terms are reasonably capable of bearing more than one meaning include the premise that, if one of the meanings which can reasonably be ascribed to the legislation is consonant with the United Kingdom’s international obligations and the others are not, the meaning which is consonant is to be preferred. Attention is subsequently drawn to Article 3(9) of the Aarhus Convention which provides that:
“the public shall have access to information…without discrimination as to citizenship, nationality or domicile, and in the case of a legal person, without discrimination as to where it has its registered seat or its effective centre of its activities”
. The point is thereafter made that, should there be a dispute as to the territorial reach of the EIR of the type which we are now considering in relation to FOIA, the outcome, consistently with Article 3(9) of the Aarhus Convention, would be that the EIR did not have any territorial limitation. 32. We also acknowledge the force of Ms Dehon’s submission, that to imply territorial limitation into section 1(1) of FOIA would lead to capricious results. The passage from Coppel, cited at [12] above, highlights a number of these. We do not propose to rehearse them again at this stage. 33. Drawing all of this together, we accept that there is no express statement in FOIA providing for extra-territorial application of any provision therein. However, for reasons we have given above, in the case of the right created by section 1(1) we find that the presumption against extra-territorial application is weak and that it has been rebutted. 34. We conclude that Parliament did not intend to impose a territorial limitation on section 1(1) of FOIA. This is supported both by the purpose of the Act and a literal and natural reading of section 1(1). This conclusion also has the substantial benefit of ensuring consistency with associated legal regimes and of preventing the sort of capricious results espoused in Coppel. We find, therefore, that a person making a request for information under section 1(1) of FOIA of a public authority in the United Kingdom, is not required to be in the United Kingdom when doing so nor, indeed, is that person required to have any connection to the United Kingdom. 35. We turn next to section 50(1) of FOIA, which provides the route by which “any person” may apply to the regulator - the Commissioner - for a decision whether a request for information made to a public authority has been dealt with in accordance with Part I of the Act. 36. Again, there is no express provision in section 50(1) providing for its extra-territorial operation but, once again, we conclude that Parliament did not intend to impose a territorial limitation in this context. We reach this conclusion ostensibly for the same reasons as those identified in the rationale above in relation to section 1(1). We add, however, that there is no obvious justification for permitting a request for information from a United Kingdom public authority to be made by “any person” anywhere in the world, even absent such person having a connection to the United Kingdom, and then imposing a territorial limitation on the use of the complaint mechanism in relation to the response received. To do so, in our view, impinges on the purpose of the legislation in equal measure to that which would follow a restrictive reading of section 1(1). We therefore conclude that Parliament did not intend to impose a territorial limitation on section 50(1) of FOIA. It follows, as a matter of common sense, that neither should such restriction be read into the right of appeal set out in section 57. Decision 37. We conclude by answering the questions posed of the parties by the Tribunal: A. FOIA does impose a duty on a public authority in the United Kingdom to inform P (a non-UK national person) in writing whether it holds information of the description specified in a request for information made by P pursuant to section 1 of FOIA, in circumstances where P was outside of the United Kingdom at the time the request for information was made. B. Section 50(1) of FOIA does give P a right to apply for a decision notice from the Information Commissioner’s Office, in circumstances where P was outside of the United Kingdom at the time the request for information was made or, alternatively, at the time the application under section 50(1) FOIA was made. C. Not applicable, the answer to both A and B being in the affirmative. D. The First-tier Tribunal does have jurisdiction to determine an appeal brought by P pursuant to section 57 FOIA, if P was outside of the United Kingdom at the time the Notice of Appeal to the First-tier Tribunal was filed. E. The answers to questions A - D above would not differ if P was outside of the United Kingdom but within the European Union on the relevant date. Additional observation 38. It was submitted by the Information Commissioner that, were the Tribunal to conclude that it had no jurisdiction in the context of some or all of the circumstances represented by the questions set out above, the Tribunal would, of necessity, have to strike out any appeal against the purported decision notice on the basis that it would be a nullity. 39. Given our conclusion on jurisdiction, this is not a matter we currently need to address. However we comment, in passing, that were the Tribunal to conclude in a case that the Commissioner has issued a section 50(3)(b) decision notice in circumstances where she had no jurisdiction to do so, the Tribunal would be bound by the decision of the Upper Tribunal in Information Commissioner v Bell [2014] UKUT 106 (AAC) , which was confirmed by a three judge panel in Information Commissioner v Malnick & ACOBA [2018] UKUT 72 (AAC) at paragraph 98. Upper Tribunal Judge O’Connor Tribunal Judge Macmillan M O’Connor M Macmillan Date 19 th February 2021 Promulgated date 24 th February 2021