Background. 19/04/13 Version 1.0 Final. 1 Sir Andrew Leggatt: Tribunal for users- One system, one Service (2001 )

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1 The Information Commissioner s Response to the Department of Justice s consultation Future Administration and Structure of Tribunals in Northern Ireland ( the consultation ) The Information Commissioner ( the Commissioner ) has responsibility in the UK for promoting and enforcing the Data Protection Act 1998 ( DPA ) and the Freedom of Information Act 2000 (FOIA) the Environmental Information Regulations 2004 ( EIRs ) and the Privacy and Electronic Communications Regulations 2003 ( PECR ). The Information Commissioner s Office ( ICO) is the UK s independent authority set up to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals. The Commissioner does this by providing guidance to individuals and organisations, solving problems where he can, and taking appropriate action where the law is broken. The Commissioner welcomes the opportunity to input into this consultation. His office has been affected by the recent period of structural reform of the tribunal system in England and Wales, largely prompted by the review of tribunals carried out by Sir Andrew Leggatt in The Commissioner has not responded using the consultation pro-forma, as many of the issues raised relate to the current tribunal system in Northern Ireland. However the Commissioner wishes to reflect his views on the consultation proposals in light of his experiences of the Non-devolved tribunal structure (of which his office comes under) and how some of the proposals within the consultation may affect or have implications for the work of his office. Background Appeals made against decisions or notices of the Commissioner are made to the First Tier Tribunal (Information Rights), which sits in the General Regulatory chamber of the First Tier Tribunal as created by the Tribunals Courts and Enforcement Act It is a non-devolved tribunal. An individual or public authority can appeal to this Tribunal against notices issued by the Commissioner under his functions in the FOIA and DPA legislation. In addition, where a certificate has been issued supporting the use of security exemptions within the 1 Sir Andrew Leggatt: Tribunal for users- One system, one Service (2001 )

2 Freedom of Information Act, the Commissioner or affected complainant may appeal to the First-tier Tribunal (Information rights) against the certificate. Legal aid is not available for tribunal cases and appeals must be lodged by the appellant within 28 days of service of the relevant notice. In all cases the Information Commissioner will be a respondent to the appeal. The changes to the Tribunal structure affecting the Commissioner s office meant that a newly created right of appeal can also be brought to the Upper Tribunal (Administrative Appeals Chamber) ( UTAAC ), replacing the previous High Court route. The Commissioner has attached at Annex A, a dashboard of outcomes of appeal cases up to January of this year for appeals taken against his decisions to the First Tier tribunal. As can be evidenced, the majority of the Commissioner s decisions have been upheld by this tribunal. The Consultation proposals The Commissioner welcomes the impetus within the consultation to rationalise the tribunal structures and administration in Northern Ireland. He has noted the contents of the consultation which have highlighted the fragmented nature of the tribunal system in Northern Ireland. Much of the impetus mirrors that which brought about reforms as enacted by the Tribunals, Courts and Enforcement Act The Commissioner has noted the Strategic Work Programme of the Ministry of Justice ( MOJ ) in relation to Administrative justice and tribunals , and the 10 strategic objectives the MOJ wish to implement in this 5 year period to strengthen those structural changes brought about by that legislation. The Commissioner has noted specifically in this strategy that the MOJ has given a commitment to work with devolved administrations as they build their own devolved programmes of tribunal administration: Each of the devolved administrations is looking to build systems that separate appeal routes from initial decision makers, in line with the principles that led to the establishment of the First-tier and the upper Tribunal in the UK. We recognise there is still work to be done both to realise the benefits of independent, two-tier tribunals in each of the devolved systems and to ensure cohesion across the UK. We will continue to work closely with each administration to support their reform programmes drawing up formal protocols where necessary. 2 (paragraph 44) As stated above, the Commissioner has not responded to those specific proposals in this response which deal with the current tribunal system in Northern Ireland, save where he considers there will be an impact in the work of his office. To this end, the Commissioner has noted the plans to merge the various first instance tribunals into an integrated structure a new tribunal with common practices and procedures which will be known as the Appeal 2 Administrative Justice and Tribunals: A Strategic work Programme

3 Tribunal (Chapter 3, paragraph 3.6, page 16). The Commissioner has noted the proposal at paragraph 3.7 where it is intended the new new tribunal should not be sub-divided into separate specialist chambers. The Commissioner also notes that point 2.5 that the Lord Chancellor is considering the transfer of responsibility for these non-devolved tribunals to the devolved Governments in Northern Ireland and Scotland and proposal at 3.5 that other jurisdictions may be merged into the new structure in the future including the newly created appeal rights, existing tribunal jurisdictions sponsored by other Departments and tribunal jurisdictions not yet devolved. Following from this the Commissioner would also like to comment on the impact of proposal at paragraph 3.40 which states: The Department is of the view that the small number of tribunal decision which are appealed in Northern Ireland each year does not justify the creation of an Upper Tier Tribunal. We propose instead to streamline the existing appeal system to provide more consistency in onward rights of appeal. This will be achieved by providing for an appeal from the new tribunal to the High Court on a point of law. The exercise of this right of appeal to the High court will require the leave of either the tribunal or the High Court. Tribunal users will continue to have recourse to judicial review through the High Court. Given the experiences of the Commissioner in relation to the structural and administrative changes to the tribunal system in England and Wales the Commissioner is supportive of the moves in Northern Ireland to rationalise the various structures and enhance the independence of the tribunal system. However on the basis of the proposals listed above in which consideration that may be given in future to merging the First Tier Tribunal (Information Rights) into the new Appeal Tribunal for Northern Ireland, he is of the view that there would be considerable advantage in allowing the First-tier Tribunal (Information Rights) to remain as a non-devolved tribunal out of this proposed new structure. The Commissioner would make the following comments in support of this: 1. The Information Commissioner regulates legislation which applies across the UK. Schedule 3 of the Northern Ireland Act 1998 lists the subject matter of the Data Protection Act 1984 and 1998 as being a reserved matter for the Northern Ireland Assembly. The subject matter of the FOIA is a transferred matter. Both pieces of legislation however cover organisations and individuals living or established in Northern Ireland. The Commissioner considers it is vital to maintain parity of approach with regards to the regulation of this legislation across all of the

4 administrations of the UK. Currently, if an individual or organisation living in Northern Ireland wishes to appeal a decision of the Commissioner they can do so to the First Tier Tribunal (Information Rights). Following from this they can seek leave to appeal to the UTAAC. The Commissioner is concerned that there is the potential for jurisdictional implications and inconsistent handling of cases if individuals in Northern Ireland can appeal to a newly established NI Appeal tribunal, yet those elsewhere in the UK continue to appeal to the First Tier Tribunal Information rights. The Commissioner is also concerned that individuals in England, Wales and Scotland could seek leave to appeal to the Upper Tribunal whereas individuals in Northern Ireland would not have this right to do so and would have to appeal to the High Court. 2. The Commissioner is of the view that the complaints adjudicated by the First tier Tribunal (Information Rights) are significantly different from those heard by other tribunals based either in Northern Ireland or in England and Wales (hence the currently established need for a specific tribunal in the UK). Both the members of the Tribunal and Commissioner s staff who represent the Commissioner at the Tribunal have built up considerable experience in this specialised area of law. The Commissioner considers the position of a specialised tribunal should remain in order to maintain the high levels of knowledge, professionalism and consistency in the consideration of complaints. Indeed the judgments from the First Tier and Upper Tier Tribunal inform much of the Commissioner s guidance, lines to take and technical advice notes which he makes available to the public and to organisations. The Commissioner is concerned that having effectively two tribunals within the UK dealing with FOIA and DPA cases could lead to inconsistency of decision making and would have ramifications for the advice provision function of his office. 3. The Commissioner would draw the Consultation s attention to the proposed changes to the Data Protection Framework currently being carried out by the European Commission 3. The Commission has proposed a new Regulation and Directive which seeks to amend Data Protection law in the member states. Whilst these changes will not be immediate the Commissioner would draw the Consultation s attention to the provisions of the new Regulation which gives individuals a right to seek a judicial remedy or lodge a complaint with a supervisory authority in another member state. Article 73 of the new Regulation states: Without prejudice to any other administrative or judicial remedy, every data subject shall have the right to lodge a complaint with a supervisory authority in any Member State if they consider that the processing of personal data relating to them does not comply with this Regulation. Articles 74 and 75 of the new Regulation allow for proceedings to be initiated by other member states. Whilst the Commissioner considers these proposals in the Regulation are less than clear at this consultative 3 New Data Protection proposals by European Commission

5 stage and would lead to a number of logistical difficulties, he considers it is important that in regard to any changes to the European data protection framework, that there is a consistent and centralised appeal structure in the form of a Tribunal in the UK to deal with such issues of cross European supervision and adjudication on complaints. Conclusion The Commissioner has welcomed the opportunity of inputting into this consultation in what he considers to be an important area of reform in a complex administrative law area. The Commissioner is happy to engage further with the Department on any aspect of his response above, and looks forward to reviewing the detail and proposals arising from this Consultation. April 2013