Cross v IC & Anor

Much of Mrs Cross’ argument relates to the role and position of the Sovereign. This introduces the need to examine the position of the Sovereign and, in turn, the need to appreciate the different uses in our constitutional law of references to the Crown that are, for example, reflected in sections 6 and 7 of FOIA.

This is so notwithstanding the points that:

Also, as is pointed out at paragraph 48 of Fish Legal EU, if the relevant functions are public administrative functions the relevant entity only falls within Article 2(2)(b) if it is empowered to perform them by virtue of a legal basis specifically defined in the national legislation which is applicable to it.

A classic and regularly used explanation of what the Crown is in this sense is that given by Lord Diplock in Town Investments Ltd v Department of the Environment [1978] AC 359. At 380F to 381D he said:

As explained by that high authority, although the Crown is personified by the Sovereign, as a legal person and a constitutional monarch the Sovereign is not, and does not act as the Crown in the sense of government.

Rather the Crown in the sense of government is effectively a concept of our unwritten constitution to describe the public administration and executive of the state, or who those involved in it are and are acting for. To use the CJEU classification in Fish Legal EU at paragraph 51 which accords with the recital to the Directive and the UNECE guide (cited above) the Crown in that sense:

This constitutional classification means that there is a clear distinction to be made between on the one hand:

These distinctions are also relevant to a consideration of the funding arrangements relating to the Sovereign that have been put in place over the centuries.

In short, the distinctions provide the basis for the determination of what the relevant functions, duties, rights and powers are and so whether, on a Community law approach, they are public administrative functions applying the EIR and the Directive with the guidance given by the CJEU in Fish Legal EU.

Returning to the Crown in the sense of government, civil servants working in government departments are working for, or as, the Crown and the general position is that the functions and powers are given to the Secretary of State who is the head of a government department and officers and employees of the department make decisions that are treated as decisions ofthe Secretary of State or of the Crown under the Carltona principle (see Carltona Ltd v Commissioners of Works [1943] 2 AER 560). Also under the Crown Proceedings Act 1947 (see s. 17) the Crown in the sense of government can be sued in the name of government departments.

Transposing that to an individual (X) conducting his own business or private affairs he may do so through others (employees, officers or staff) who are acting with his express and/or ostensible authority. But although, like the civil service or a government department, that group of people could be identified by a collective description, the members of that group when acting for X will not, as such, have legal personality or be exercising X’s functions or powers as a body or entity with its own separate identity.

As we have mentioned it became common ground that for our purposes the relevant functions and powers of (i) the Sovereign, and (ii) the individuals who make up the Royal Household and so collectively the Royal Household are co-extensive. We agree with that approach.

It is clear that under English law the Royal Household has no separate legal personality and is not an unincorporated association or a partnership. The same can be said of Government Departments and civil servants as a group.

A number of groups of people are set up by decisions made by such administrative authorities (e.g. within Government Departments) to carry out public functions. Some of these are called Non-departmental public bodies (“NDPBs”). Some of those groups of people will be given a legal personality and others will not. Who they are responsible to will depend on who has set them up and their functions. On its own, their source of funding does not show whether they are (a) a part of or a public authority, or (b) responsible to a public authority.

The group of individuals that is referred to as the Royal Household (and so its members) serve and so act for and on behalf of the Sovereign as employees and in some cases also as the holders of ancient offices.

The members of the Royal Household (and so collectively the Royal Household) do not act for and on behalf of the Crown in the sense of government.

It follows that the roles, duties and powers conferred on the members of the Royal Household are directed to the implementation of the Sovereign’s Functions and Powers. Equally the public moneys voted and paid to the Royal Household are provided to promote the ability of the Sovereign to perform the Sovereign’s Functions and Powers. In broad and private law terms when dealing with outsiders the members of the Royal Household are agents for a disclosed principal, namely the Sovereign and the Sovereign is the X referred to in paragraph 58 above.

In his report Professor Blackburn gives a description of these and says:

This description covers what we have referred to as the Sovereign’s Functions and Powers. Some of them relate to the government of the state and so acts of the Crown in the sense of government. Unsurprisingly, Mrs Cross places weight on them to found the conclusion that their existence and personal exercise make the Sovereign a public authority. In particular, she relied on the Sovereign’s role in making Orders in Council and pointed us to examples of statutes giving this power in connection with matters that clearly have an impact on the environment (e.g. the Burial Acts of 1853 and 1857).

She also pointed out that although the making of Orders in Council is part of the legislative process and so on the face of it excluded by Regulation 2(3) of the EIR the ruling of the CJEU in Flachglas Torgau GmbH v Germany [2013] QB 212 at 248C and earlier at paragraphs 52 to 58 shows that such a wide approach to that exclusion cannot be taken because that power of exemption is limited to the period that the public authority is acting in the legislative process and so, after that process has come to an end, it cannot be relied on in respect of a request for environmental information made available during the process.

So we accept that the Regulation 2(3) exemption cannot be relied on to exclude all powers of the Sovereign relating to the legislative process

Helpfully Mrs Cross and the Cabinet Office provided a list of mattes they relied on to support their rival contentions. We set them out Parts 1 and 2 of the Schedule hereto. The dispute related to their effect or classification rather than their existence.

A general point applies to all of the matters relied on by Mrs Cross and so to the functions and powers of the Sovereign that are and are not part of the legislative process. Examples of the latter are the appointment and dismissal of the Prime Minister, appointments of a range of office holders (e.g. judges), dissolving Parliament, opening Parliament, awarding certain classes of Honours, and acting as Head of the Church of England and Head of the Armed Forces. In respect to all of these the Sovereign’s role is symbolic and does not include any executive role in the direction or administration of the relevant body.

This general point is that taking the correct approach, namely one based on substance not form (see the decision of the Upper Tribunal in Fish Legal UK at paragraph 106), the existence and exercise of all of the powers, duties and functions of the Sovereign relied on by Mrs Cross and the Sovereign’s role as Head of State do not mean that the Sovereign is a part of the government and so a public authority because, as a matter of substance, the Sovereign holds and exercises all of them in a formal, ceremonial or personal capacity and not in an executive or administrative capacity. Put another way, as part of our constitutional law the Sovereign does not have an executive or administrative role to play in exercising the Sovereign’s Function and Powers.

This conclusion and so the effect to this general point:

Mrs Cross sought to rely on the position of other Heads of State who have been made public authorities on their state’s implementation of the Directive (e.g. those of Germany and Bulgaria). This does not assist because, as we have already mentioned in the context of the Historic Royal Palaces Trust it is open to states to provide broader access than required by the Directive and their inclusion (and as it seems to us some of the public authorities listed in Schedule 1 to FOIA) is at least arguably based on that ability. And, in any event, it would be based on that state’s conclusion on the extent of the Directive. Also, analogies between a Head of State named as a public authority in one state with one not named in another cannot be validly made without a detailed analysis of the relevant constitutional arrangements.

Rather the relevant question is whether the Sovereign’s Functions and Powers generally , or those that are relied on or particularly emphasised by Mrs Cross, of the Sovereign mean that, on a Community law approach the Sovereign is acting as an organic or functional administrative authority and so as a public authority (as defined).

For the reasons set out above for present purposes the Sovereign is not the Crown in the sense of government and so is not part of the government at national, regional or other levels.

It is also difficult to see how the Sovereign could be included within Regulation 2(2)(a) and (b) of the EIR as the Sovereign is clearly not a government department, is not listed or described in Schedule 1 to FOIA and the addition of the Sovereign or the Royal Household to that list would not fit easily with s. 37 of FOIA.

This introduces the functional test that was the subject of the guidance given by the CJEU in Fish Legal EU.

Mr Eadie for the Cabinet Office argued that:

Miss Proops, for the Information Commissioner, argued that:

Mrs Cross argued that:

Our analysis. The summary of the arguments shows that we were presented with a wide range of argument on how to interpret and apply the relevant language, or to adopt what was said by the Upper Tribunal in Fish Legal UK to “hunt the snark”.

Under the heading Fish Legal we have set out our views on the approach to be taken to the application of the functional test or description test in paragraph 52 of Fish Legal EU (see paragraphs 34 to 41 above).Additionally, under the heading the Sovereign’s Functions and Powers we have addressed some of the arguments put to us. We now turn to the application of those conclusions to this case and other arguments raised in it by the parties.

The references in Article 2(2)(b) and paragraph 52 of Fish legal EU to the environment. Mrs Cross and the Information Commissioner argued that these references are merely examples. We do not agree.

We express our views on this argument although it can be said to be academic because (a) as appears below (see paragraph 101 below)we accept thatthe Sovereign performs service of public interest in respect of the occupied Royal palaces, and (b) the common approach before us which we have adopted is that the functional test does not require that she has to have special powers vested in her to do so.

As we have said there is a hierarchy to the provisions. This must not be approached too rigidly but it is clear that, at the first tier, the intention was that entities that it did not matter whether entities that are organically administrative authorities were performing functions relating to the environment and that if such entities held environmental information it could be requested under the Directive (see for example the UNECE guide, Recital (11) the Directive and paragraph 50 of Fish Legal EU).

At the next tier, it seems to us that the natural meaning of the language of Article 2(2)(b) of the Directive “performing public administrative functions under national law, including specificduties, activities or services relating to the environment ” is not referring to those duties by way of example of what would be public administrative functions. Rather, the meaning (and it seem to us the intention) of that language is that to satisfy the functional test the relevant entity must under national law beperforming “specific duties etc relating to the environment”.

This approach to the language clearly reflects Recital (11) of the Directive and in our view that is the effect of Article 2(2)(b) of the Directive.

The purposive argument to the contrary is that it was intended that the Directive was to have and be given a broad application and so the functional test should include any entity that under national law was performing any administrative functions. In support of that Mrs Cross referred us to the sentence in the UNECE guide (cited at paragraph 16 above): “As in subparagraph (a), the particular person does not necessarily have to operate in the environmental field”. That guide is not binding. But, in any event, it seems us that it if it is read as Mrs Cross suggests, it runs counter to Recital (11) to the Directive. Further, in our view, rather than supporting the proposition that the functional test can be satisfied by an entity that does not have any specific duties etc. in relation to the environment (and so in the language of the CJEU is not entrusted with any services of public interest in the environmental field), this sentence of the UNECE guide supports the common ground that in applying the approach set by the CJEU to the functional test the special powers do not have to relate to the services of public interest in the environmental field.

If the broad “example approach” argued for by Mrs Cross and the Information Commissioner was intended at the functional stage we see no need for Article 2(2)(b) to refer to specific duties etc. in relation to the environment, or for the CJEU to refer to services of public interest inter alia (amongst others) in the environmental field as examples of what administrative functions can be, or why such examples would assist in identifying other public administrative functions.

Also, if at the functional stage an entity does not have to be performing services of public interest in the environmental field it is not clear to us why the control test at the next tier must be over functions etc. relating to the environment whether it exists only over those functions or arises because of control of the relevant entity.

More generally, it seems to us that when you move from an organic description to a functional one, or one based on control, in respect of a Directive designed to give access to environmental information it is natural to provide that, at the second and third stages, the relevant entity has to have relevant public interest functions in the environmental field.

Further, in our view the broad “example approach” does not accord with the natural meaning of paragraph 52 of the judgment of the CJEU in Fish Legal EU. There “inter alia” and so “amongst others” describes what the entity has to be entrusted with under the relevant regime and so what has to be included within the “services of public interest” so entrusted to the entity and it is not introducing an example of what might be a “service of public interest”.

Linkage between organic and functional public authorities. The opening reference in paragraph 52 of Fish Legal EU to “administrative authorities defined in functional terms” provides a clear link between a public authority at the second tier of the hierarchy and the entities which, organically, are administrative authorities at the first tier of the hierarchy. This is because it states that this category again concerns administrative authorities but defined in functional terms rather than by an organic approach.

In our view, this means that what the entity does must have a sufficient connection with what entities that are organically part of the administration or the executive of the state do.

In our view, by paragraph 52 of Fish Legal EU the CJEU captures the need for this link by referring to entities (a) being entrusted with the performance of services of public interest, and (b) being vested with special powers. That combination is important because it is what makes a service of public interest one that counts or qualifies in determining whether the entity is an administrative authority and so a public authority under the functional definition (see paragraphs 39 and 40 above).

In our view, the use of these combined factors to describe what counts or qualifies for consideration under the functional test means that it is not appropriate to proceed on the basis that the CJEU was referring to services of public interest in a way in which it has used that description and “services of general economic interest” in other contexts. However, this does not mean that those contexts do not on an application of a Community law approach inform what are and are not the functions and special powers that together mean that the relevant entity is within the functional definition of an administrative authority and of a public authority.

It follows that we do not accept the submission made on behalf of the Cabinet Office that “services of public interest” was used in a special sense by the CJEU. Rather, it was stating that the combination of what the relevant entity is entrusted to perform (services of public interest) and the special powers given to it to assist it to do so is what has to be considered in determining whether the entity is a public authority.

The applicable legal regime. As mentioned in paragraph 40 above,we consider that both the services of public interest and the special powers must be entrusted to and vested in the relevant entity by the legal regime applicable to that entity. In our view, this linkage points to a conclusion that the combination of the performance of the services entrusted to an entity and the powers vested in it to perform those services (in the words of paragraph 52 “for this purpose”) must provide a sufficient connection between what entities that are organically part of the administration or the executive of a state do and what entities that qualify under the functional test do. So here the combination of the functions, services and powers relied on must provide a sufficient link between (a) the Sovereign, and (b) the Crown in the sense of government.

Rigidity / flexibility. In our view, the general approach to the interpretation of a Directive and Regulations to implement it carries over to the interpretation and application of the functional test as set or described by the CJEU with the result that the CJEU description should not be applied in place of the tests set by the Directive and the EIR. Rather, it is important and binding guidance on what those test mean and how they are to be applied, and like the test set by the Directive, the test set by the CJEU (which contains concepts and words that have a range of meaning) should be applied so as to give effect to the underlying objectives and purposes of the Directive including those relating to its breadth and the public interest in environmental information being made available to the public.

If follows that the CJEU test should not be applied rigidly or without reference to, and a cross check with, both the words of the Directive and the EIR and their underlying objectives and purposes. That cross check involves standing back and asking whether in all the circumstances of the case the combination of what are, or are arguably, the factors identified by the CJEU in its test result in the relevant entity being a functional public authority. The key issue on that approach is whether taking these factors together there is a sufficient connection between the Sovereign’s Functions and Powers that are relied on and what entities that organically are part of the administration or the executive of a state do.

We accept that the relevant Functions and Powers of the Sovereign include functions and powers in the environmental field in connection with the occupied Royal Palaces and some legislation. We also accept that the public has an interest in their performance that includes a public interest in the environmental issues that they engage being properly addressed and access to that environmental information. The best example of this is the management and upkeep of the occupied Royal Palaces which are held for the nation.

However, no special powers were identified that assist the Sovereign in the management and upkeep of the occupied Royal Palaces. She has no powers in respect of them that do not result from the normal rules applicable in relations between persons governed by private law. Sovereign immunity under the Crown Proceedings Act 1947 is not a power but it emphasises that in her personal capacity the Sovereign is not a part of the executive or the administration.

Also thereceipt of funds voted by Parliament is not a power and its relevance, if any, is confined to the control issue in the next category or tier of the definition of a public authority.

The Sovereign’s role in respect of that management and upkeep through the Royal Household, and its funding, is the product of our constitutional history and not simply its last step which has had the result that the Sovereign has the responsibility of managing and maintaining these buildings that are held for the nation. That history and final step has no connection, or no connection of any substance, to what the Crown in the sense of government does and so with what administrative authorities do as part of the public administration or the executive of a state. This is so even though that management and function could be done by a government department and might in the future be done by a government department.

So, in respect of the Sovereign’s Functions relating to the occupied Royal Palaces:

Turning to the other Functions and Powers of the Sovereign relied on by Mrs Cross, we repeat that some relate to legislation that has a direct impact on the environment. Many do not relate to the environment but on the common ground before us they could be relied on to satisfy the functional test.

We agree that these Functions and Powers of the Sovereign are of constitutional importance and so, in that sense, they can be classified as services of public interest, because the public is affected by their performance and product (e.g. by the coming into effect of legislation).

Whilst we agree that these Sovereign’s Functions and Powers (including those in respect of legislation) do not result from the normal rules applicable in relations between persons governed by private law this is because they have nothing to do with that aspect of the law.

Rather, all of the relevant Functions and Powers of the Sovereign result from our constitutional law and, applying that regime of law, they are not a part of what the Crown in the sense of government does and so of what administrative authorities do as part of the public administration or the executive of a state. So, in our view they are not powers of a type contemplated by the CJEU when it was referring to special powers in their description of the functional test for determining what is an administrative authority and so a public authority (as defined).

Further, as a matter of constitutional law all of the Functions and Powers of the Sovereign that are relied on are formal, ceremonial or personal and not a part of what our administrative authorities do as part of the public administration or the executive of a state.

So in respect of the other Functions and Powers of the Sovereign that are relied on by Mrs Cross:

The points that in certain circumstances the Sovereign’s Functions and Power can be exercised by someone else makes no relevant difference to their nature.

Potentially this is wider than Article 2(2)(b) because it makes no reference to the environment. In this case this does not matter because the Sovereign does have some duties and activities relating to the environment but for the reasons we have given in respect of our conclusion on the application of Article 2(2)(b) of the Directive we have concluded that the Sovereign does not carry out functions of public administration.

Mrs Cross did not rely on these provisions. In our view, she was correct not to do so.

Returning to the initial and abandoned debate on the application of this test to the Royal Household it is under the control of the Sovereign who, in our view, is not a public authority as defined.

Even if it was accepted, which we do not, that the Sovereign was an entity with the environmental functions set out, the Sovereign is not under the control of a public authority.

The facts that the Sovereign is funded by public money voted by Parliament and, for example, the Keeper of the Privy Purse has to account to Parliamentary committees do not mean that the Sovereign is under the control of the providers of the moneys be they classified as Parliament, the executive, government or administrative authorities. That office holder, and so indirectly the Sovereign, may be criticised or invited to consider doing something by such a committee and may act on such a criticism or invitation but they do not have to and the Sovereign is not controlled by terms or conditions relating to the provision of public funds or that funding itself.

The management and upkeep of the occupied Royal Palaces is therefore not controlled by a public authority.

Convention and practice results in the other Functions and Powers of Sovereign that are relied on by Mrs Cross being exercised on the advice of ministers, and others, who do form part of the government. But, in our view this does not amount to control.

It was argued before us by the Information Commissioner and the Cabinet Office that the conclusion on the application of this principle in Fish Legal EU (namely that it did not apply to public authorities under Article 2(2)(b) of the Directive) did not apply to natural persons and so, if the Sovereign was a public authority the hybridity principle would apply to her.

If we were to conclude as we have that the Sovereign is not a public authority it was common ground that we need not and should not address this argument; we agree.