The UK's Freedom Of Information Act 2000 - FOIA - has been much in the news and public debate of late, mainly in connection with allegations that the University Of East Anglia's Climatic Research Unit has acted in breach of the FOIA.
Before I go further in my analysis of what law is, and what the relevant law means in the context of the allegations against the CRU, I have some important points to make.
Firstly, I am not a lawyer and I am no Jack of Kent, you may take this as a linguistic analysis of some legalese.
Secondly, if the alleged breach of law is currently under investigation before any person or persons having the powers of a legal tribunal then it is sub judice. It would be unlawful, not to say unethical, for me to make any comment here which might prejudice a just outcome of any hearing.
That said, in order for anyone who has never studied law to understand its workings, some background information is needed.
What is law?
In a common law jurisdiction such as the UK and the USA, written law - black letter law - is created by the legislature. The legislature determines what they want the law to say.
An independent judiciary takes over from this point forward and determines what the law really says. Judges do this through a process of interpretation during any court hearing which requires such interpretation. Such judgements on interpretation from higher courts form the case law relating to the specific black letter law. Part of the lawyerly art is to know the case law that applies to a specific circumstance.
A principle of British law is that lower courts are bound by the relevant prior decisions of higher courts. This is known as the doctrine of precedent and is founded on another principle of law: stare decisis, Latin for 'let the decision stand'. A decision may only be over-ruled by a higher court.
Interpreting written law
In any interpretation of what the law actually says, courts make various presumptions, the first having to do with the sovereignty of parliament.
The Bill of Rights, 1688 asserts the sovereignty of parliament in the making of laws. It has been interpreted by the courts as having that intended effect. It follows that the doctrine of the supremacy of parliament is only effective through the will of the courts under the judicial doctrine that no act of parliament can be presumed to alter the common law. By this somewhat circular mechanism by which the courts 'allow' parliamentary law to be supreme, conflict between the legislature and the judiciary as to supremacy is neatly avoided.
The Bill of Rights, 1688 c.2 1_Will_and_Mar_Sess_2Clearly, only parliament may make law. The courts, being notionally agents of the crown cannot make law. But they can, and do, interpret it.
An Act declareing the Rights and Liberties of the Subject and Setleing the Succession of the Crowne.
[The first parts list complaints agains the previous king]
And thereupon the said Lords Spirituall and Temporall and Commons pursuant to their respective Letters and Elections being now assembled in a full and free Representative of this Nation takeing into their most serious Consideration the best meanes for attaining the Ends aforesaid Doe in the first place (as their Auncestors in like Case have usually done) for the Vindicating and Asserting their auntient Rights and Liberties, Declare
That the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall.
Late dispensing Power.
That the pretended Power of Dispensing with Laws or the Execution of Laws by Regall Authoritie as it hath beene assumed and exercised of late is illegall.
The following list is taken from my own observations, and not directly from a legal source. Law students please take note!
Principles of interpretation
The most recent applicable relevant statute law applies in preference to any earlier statute.
Statutes must be given their ordinary and literal meaning.
Where a literal interpretation would be manifestly absurd, the meaning of the words may be modified by the court so far as is necessary to avoid the absurd interpretation.
Where the literal meaning of the words does not give a clear meaning the courts may inquire as to what wrong the law is addressing. This 'mischief rule' is taken from Heydon's Case1.
If the meaning is still unclear, the courts may inquire into the intended purpose of the law. It is only in recent years that the courts have permitted argument on this from Hansard.
The will of parliament determines what is in the public interest.
In the interpretation of laws, the courts will make, inter alia, the following presumptions:
Statutes are not intended to alter the common law;
Statutes are not intended to have retroactive effect, they are effective only from the date of assent or commencement.
The law as applied to the FOIA.
It has been alleged by many people, based mainly on widely circulated private emails, that the UEA CRU has breached the provisions of the Freedom Of Information Act 2000.
Does the FOIA apply to British universities? The act applies, in its own words, to 'public authorities'. Rather than wade through a legal quagmire of written law, we can take a common sense shortcut. Most British universities have adopted a position of public2 acceptance that they fall under the scope of the FOIA 2000. On the reasonable assumption that they will have taken legal advice on this, we may assume a legal definition of universities as 'public bodies' within the scope and meaning of the FOIA.
The first rule to apply is the rule of recency: has there been legislation enacted since the FOIA 2000 having a bearing on the issue as applied to the requirement of universities to make data publicly available? Yes. A statutory instrument of 2004 must be read in conjunction with the FOIA.
Statutory Instrument 2004 No. 3391, The Environmental Information Regulations 2004, imposes a statutory duty to make environmental information available upon request. Para 5 (1) : "a public authority that holds environmental information shall make it available on request."
I suggest, reminding my readers that I am not a lawyer, that the rule of recency applies: post 2004, a request for environmental data should be made under the provisions of the 2004 S.I.
Non-compliance with a reasonable request
There are exemptions within the S.I. which are similar to those in the FOIA:
Exceptions to the duty to disclose environmental information
12. - (1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if -
(a) an exception to disclosure applies under paragraphs (4) or (5); and
(b) in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.
(2) A public authority shall apply a presumption in favour of disclosure.
12. - (5) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect -... subsequent sub headings (d), (e), (f), (g), specific to emissions, do not apply to the matter under discussion.
(a) international relations, defence, national security or public safety;
(b) the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature;
(c) intellectual property rights;
As far as UEA CRU holds data under a non-disclosure agreement with a foreign country or agency therein, it seems to me that, if S 12 - (5) (a) applies, then there is an absolute right to withhold that information from parties not signatories to any relevant agreement or contract, whether legally binding or not.
I conclude that this is an absolute right since it arises from the plain statutary wording and is embodied in a statement of law and public policy - i.e. public interest - made by a sovereign parliament. If it is indeed an absolute right, then no court, no tribunal has the power to deny the exercise of that right.
I have stated my preliminary conclusion.
I have yet to investigate the relevant case law, if any.
It may be necessary for me to accept or adopt new information as it comes to light from legal or parliamentary discussion or determination of the core issues.
Related articles on scientificblogging.com
ClimateGate – The Truth About Transparency.
The Mother Of Inquiries: Parliamentary CRU Report
1 - Heydon's Case (1584) 3 Co Rep 74 laid down four considerations, now known as the 'mischief rule' of statutory interpretation. Passage cited:
"[F]our things are to be discerned and considered: 1st. What was the common law before the making of the Act. 2nd. What was the mischief and defect for which the common law did not provide. 3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth? 4th. The true reason of the remedy; and then the office of the Judges is to always make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico."2 - See e.g. Manchester University's statement:
THE UNIVERSITY OF MANCHESTER
FREEDOM OF INFORMATION ACT 2000
The University of Manchester is a public authority as listed in schedule 1 Part IV of the Freedom of Information Act (FOIA) 2000.
As a public authority we are legally obliged to adopt and maintain a publication scheme under section 19 of the FOA.
A publication scheme is a document outlining the classes of information made routinely available to the public, the manner in which the information is available and whether there is a charge for the provision of the information.
The University of Manchester had adopted the model publication scheme developed by the Information Commissioner's Office specifically for higher education institutions in England, Wales and Northern Ireland.
The University of Manchester FOI Publication Scheme