Three random observations following a contempt of court hearing

I recently found myself at a hearing of the Upper Tribunal in which I, as the applicant, was seeking to have the University of Exeter found in contempt of court and sanctioned.

The details are summarised well in a Local Government Lawyer article here and the full Tribunal decision is here. Some brief background follows.

The saga started over 4 years ago with a simple Freedom of Information Act request for the names of members of two advisory bodies to the university. The university declined to provide the names citing the regularly misused section 40(2) of the Act.

After going through the motions of an internal review, which upheld the refusal, I complained to the Information Commissioner whose decision upheld the university’s position. I then referred the Information Commissioner’s decision to the First-Tier Tribunal who agreed with me that the names should be disclosed and substituted a decision in place of the original one from the Commissioner.

Bizarrely the university seemed to think it did not need to act on this and it took some 14 months of my challenging their obstructive behaviour until the penny dropped and the university apologised. By that point the First-Tier Tribunal had agreed the matter should be referred to the Upper Tribunal to pronounce on whether the university was in contempt of court and the sanctions to be applied.

The purpose of this blog is to offer some personal reflections on what happened.

First, the university, despite having admitted the contempt, remained tin-eared to the disregard it appeared to have for the judicial system. The fulsome apology that it issued was addressed to me and provided the information I had requested. (In view of the time that had elapsed since the original request the information was now useless as background to an article I might have written for a local newspaper.) The university asked if, since it had now disclosed this information and apologised, I would be prepared to withdraw my case in the Upper Tribunal. This further misses the point that the case was no longer focused on me and my information requirements but on the university’s disregard for the law.

My second point is about securing remedies. Some legislation – such as Parts IV and V of the FOI Act – provides for enforcing its requirements and prescribes penalties for breaching those requirements that can be applied to any public body covered by the Act. In contrast, legislation such as that regulating local government offers no such redress, even though it specifies a vast number of do’s and dont’s.

For example, last year I had an inconclusive battle with Devon County Council about the lawfulness of their decision to restrict the numbers of members of the public attending meetings. My argument was that the council were in breach of section 100A(6)(b) of the Local Government Act 1972 (“while the meeting is open to the public, the council shall not have power to exclude members of the public from the meeting”). The council did not share my view and stuck to its policy. The only way of resolving this would be to go to judicial review. Since I do not have the financial resources for this – and I would not be alone – the scope for holding local authorities to account for non-compliance is considerably less than where they have breached a specific bit of legislation such as FOI.

My final observation is on the openness of the tribunal system. Up to and including the Upper Tribunal hearing I acted as a litigant in person, in other words without legal representation. The university was represented by a KC whereas I do not have legal training, though the Upper Tribunal chambers provide helpful guidance. The fact that individuals have the opportunity to navigate their own way through the system without having to resort to expensive legal advice is something that we should be proud of, and cherish.