By Aiden O’Neill

The author is a member of Matrix Chambers in London.

1. Introduction

1.1 One aspect of the rule of law in the context of the information age is the ideal of transparency: that members of civil society should be able to ascertain the factual and legal bases on which official decisions are being made. This leads to the need for rules governing the possibility of access by interested parties to information held by public authorities.

1.2 There is going to be a constant (productive?) tension and possibility of conflict between two information age rule-of-law principles, namely:

a) the right of individuals as individuals to protection against the misuse of data on them held by public authorities (‘data protection laws’); and

b) the right of individuals as members of civil society to know what information is being used by public authorities in making decisions in the public
sphere (‘freedom of information’ laws).

1.3 This tension is paralleled by – but does not completely mirror – the tensions already implicit in the law between:

a) the recognition of an individual’s right to privacy as against the public’s ‘right to know’ proclaimed by a free press; and

b) an individual’s legitimate expectation to respect for confidentiality as against another’s right to free expression.

2. The European Convention on Human Rights and Freedom of Information

2.1 There is no express provision in the European Convention on Human Rights directly and unequivocally guaranteeing a right of access to individual [1] or general information[2] held by public authorities as distinct from the right guaranteed – under both Article 10 ECHR and Article 11 CFR – freely to express and to receive and impart information and ideas one already has, without interference by public authority and regardless of frontiers.

Article 10 ECHR and the right to receive information

2.2 The European Court of Human Rights has begun to tease out the implications of the right to “receive … information” set out in Article 10 ECHR. [3] More recent Strasbourg case law is developing the idea, implicit in Article 10 ECHR, of a positive obligation on the State authorities – for example, in implementation of the State’s responsibility to nurture and further the freedom of the press to carry out its investigative functions in the public interest.[4] This may entail the State actively removing obstacles which exist solely because of the historic fact of public authorities holding a monopoly on information.

2.3 Thus, in Kenedi v Hungary [5] the Strasbourg Court held that Hungary’s refusal to allow a professional historian access to historical documentation (which access had been authorised by a court order) was incompatible with his rights under Article 10 ECHR, given that access to original documentary sources for legitimate historical research was an essential element of the exercise of his right to freedom of expression.[6]

2.4 Further, in Társaság a Szabadságjogokért v Hungary,[7] the European Court of Human Rights upheld the complaint of the Hungarian Civil Liberties Union that the decisions of the Hungarian courts denying it access to the details of a parliamentarian’s complaint pending before the Constitutional Court, had amounted to a breach of the Union’s right to have access to information of public interest. In the Strasbourg Court’s view, the submission of an application for an a posteriori abstract review of this legislation – especially by a Member of Parliament – undoubtedly constituted a matter of public interest. Consequently, the European Court of Human Rights found that the applicant – a recognised human rights NGO which the Court considered was properly exercising the function of “social watchdog”[8] and so was entitled to similar Convention protection to that afforded to the press [9] – was involved in the legitimate gathering of information on a matter of public importance. In these circumstances, the Strasbourg Court considered that the refusal on the part of the Hungarian Constitutional Court to release the requested information “amounted to a form of censorship” contrary to the requirements of Article 10 ECHR.

2.5 In Haralambie v Romania,[10] the Strasbourg Court reiterated the vital interest for individuals who were the subject of personal files held by the public authorities to be able to have access to them. The European Court of Human Rights emphasised that the authorities had a duty to provide an effective procedure for obtaining access to such information, and that their failure to provide for an effective and accessible procedure to enable the applicant to obtain access to his personal security files within a reasonable time constituted a violation of Article 8 ECHR. In Gillberg v Sweden [11] the Strasbourg Grand Chamber held that a criminal conviction imposed on a university professor for misuse of office following his refusal to comply with a court order requesting the release of confidential information concerning children who had participated in a research study did not, in all the circumstances, breach his negative rights under either Article 8 or Article 10 ECHR not to release information pertaining to others. Indeed the Grand Chamber found that the professor’s refusal to allow other bona fide academic researchers access to the information collected in his studies would “impinge on their rights under Article 10 ECHR … to receive information”.

2.6 The case law of the Strasbourg Court on the right under Article 10 ECHR to request and obtain information has been summarised by the Strasbourg Court in its recent decision in Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung eines wirtschaftlich gesunden land- und forstwirt-schaftlichen Grundbesitzes v. Austria. The Court found that the refusal (apparently on the basis of lack of time and resources) by the relevant Austrian authorities to provide a research NGO with suitably anonymised details of application to it for approval of transfers in agricultural/forest land had “made it impossible for the applicant association to carry out its research …. and to participate in a meaningful manner in the legislative process concerning amendments of real property transaction law in Tyrol” and so breached the NGO’s right to receive information. The Court noted that the issue of land transfers was a matter of considerable public interest and the authorities held an information monopoly of this. It summarised its approach to the Article 10 ECHR right to receive information thus:

33. The Court has consistently recognised that the public has a right to receive information of general interest. Its case-law in this field has been developed in relation to press freedom, the purpose of which is to impart information and ideas on such matters. The Court has emphasised that the most careful scrutiny on its part is called for when measures taken by the national authorities may potentially discourage the participation of the press, one of society’s “watchdogs”, in the public debate on matters of legitimate public concern. [12]

34. Furthermore, the Court has held that the gathering of information is an essential preparatory step in journalism and an inherent, protected part of press freedom. [13] However, the function of creating forums for public debate is not limited to the press. That function may also be exercised by non-governmental organisations, the activities of which are an essential element of informed public debate. The Court has therefore accepted that non-governmental organisations, like the press, may be characterised as social “watchdogs”. In that connection their activities warrant similar Convention protection to that afforded to the press. [14]” [15]

2.7 Although this line of Strasbourg case law seems to privilege the right to obtain information to recognised “public watchdogs” such as journalists and campaigning groups, the trend in UK law has been to accept that individual members of the public may have sufficient interest in or commitment to a matter such as to give them standing to raise court actions to prevent violations of (public) law, particularly as regards matters having an environmental impact where the courts have accepted that private individuals may be able to “demonstrate that they have a genuine interest in the aspects of the environment that they seek to protect, and that they have sufficient knowledge of the subject to qualify them to act in the public interest in what is, in essence, a representative capacity”. [16] In essence such individuals are acting in a public watchdog role and they too in principle should be able to pray in aid Article 10 ECHR in support of a right to information.

3. Common law constitutionalism and the UKSC

3.1 The UK Supreme Court appears to be somewhat reluctant to accept Strasbourg’s use of Article 10 ECHR to found a general right on the part of the public to receive information.

3.2 In BBC v. Sugar (No. 2) [17] the UK Supreme Court held that information within the scope of FOIA was to be disclosed if it was held predominantly other than for journalistic, artistic or literary purposes. Since the internal report at issue was not in fact predominantly held for purposes other than those of journalism, the BBC was not obliged to disclose it. It is of some note that the in the course of this litigation both sides relied – for opposite arguments – on Article 10 ECHR. The BBC argued that Article 10 ECHR case law guaranteed the integrity of journalistic sources and methods as part of the importance of freedom of expression, while the applicant claimed to have a right to receive information guaranteed to him under Article 10 ECHR. The latter claim did not find much favour with their Lordships however. Lord Phillips noted at para 68 that:

68 This appeal requires the Supreme Court to focus closely on the language and legislative purpose of the provisions of the Freedom of Information Act 2000 dealing with public authorities to which that statute has limited application. Without that focus, a long trawl through the Strasbourg jurisprudence on article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms is of little assistance.

Lord Brown expressed some scepticism about the strength of the Strasbourg jurisprudence at that time on the right to receive information (at para 94):

94 In my judgment these three cases (Kenedi v Hungary (2009) 27 BHRC 335, Matky v Czech Republic (Application No 19101/03) (unreported) given 10 July 2006, ECtHR and Tarsasag a Szabadsþgjogokor v Hungary (2009) 53 EHRR 130) fall far short of establishing that an individual’s article 10.1 freedom to receive information is interfered with whenever, as in the present case, a public authority, acting consistently with the domestic legislation governing the nature and extent of its obligations to disclose information, refuses access to documents.

Of course, every public authority has in one sense ‘the censorial power of an information monopoly’ in respect of its own internal documents. But that consideration alone cannot give rise to a prima facie interference with article 10 rights whenever the disclosure of such documents is refused.

[A]rticle 10 creates no general right to freedom of information and where, as here, the legislation expressly limits such right to information held otherwise than for the purposes of journalism, it is not interfered with when access is refused to documents which are held for journalistic purposes.”

3.3 In the more recent case of Kennedy v. Charity Commission [18] Lord Mance suggested that the apparent development by the Strasbourg Court of a right to receive information from the terms of Article 10 ECHR was “unsatisfactory”, noting:

“93 Mr Coppel … argues that the Section decisions [of the European Court of Human Rights] show that a right to receive information can arise under article 10, without any domestic right to the information. If necessary, he accepts a restriction of the right to a member of the press like Mr Kennedy or any other social watchdog. It is true that, in Tarsasag and Youth Initiative, where the complainants were interested NGOs, the court used language stressing the vital role of such social watchdogs, likening them to the press. But, as Lord Brown JSC noted in Sugar at para 94, the occupation of such a role cannot sensibly represent any sort of formal pre-condition, before breach of a domestic duty of disclosure engages article 10.1. Many organisations and individuals, including those seeking information for research or historical or personal or family purposes, may have legitimate and understandable interests in enforcing a domestic right to information. In reality, therefore, Mr Coppel’s more radical argument resolves itself into a submission that a general duty to disclose is engaged under article 10.1 by any claim based on public interest. On that basis, however, the statements of principle in the Grand Chamber decisions are history.

94 Had it been decisive for the outcome of this appeal, I would have considered that, in the present unsatisfactory state of the Strasbourg case law, the Grand Chamber statements on article 10 should continue to be regarded as reflecting a valid general principle, applicable at least in cases where the relevant public authority is under no domestic duty of disclosure. The Grand Chamber statements are underpinned not only by the way in which article 10.1 is worded, but by the consideration that the contrary view- that article 10.1 contains a prima facie duty of disclosure of all matters of public interest – leads to a proposition that no national regulation of such disclosure is required at all, before such a duty arises. Article 10 would itself become a European-wide freedom of information law. But it would be a law lacking the specific provisions and qualifications which are in practice debated and fashioned by national legislatures according to national conditions and are set out in national Freedom of Information statutes.

To similar effect was Lord Toulson who noted:

144 Since this court reviewed the Strasbourg jurisprudence on article 10 in British Broadcasting Corpn v Sugar (No 2) [2012] 1 WLR 439, there have been four further Strasbourg decisions on which Mr Coppel relies: Gillberg v Sweden (2012) 34 BHRC 247, Shapovalov v Ukraine (Application No 45835/05) (unreported) given 31 July 2012, Youth Initiative for Human Rights v Serbia (Application No 48135/06) (unreported) given 25 June 2013 and Österreichische Vereinigung v Austria (Application No 39534/07) (unreported) given 28 November 2013. In the last of those cases, the First Section (at paragraph 41) highlighted among the court’s earlier decisions Társaság a Szabadságjogokért v Hungary (2009) 53 EHRR 130, observing that the court had advanced from cases like Leander v Sweden (1987) 9 EHRR 433 “towards a broader interpretation of the notion of the ‘freedom to receive information’ and thereby towards a recognition of a right of access to information”. It drew a parallel in this context with the case law on the freedom of the press and the need for “the most careful scrutiny . . . when authorities enjoying an information monopoly interfered with the exercise of the function of a social watchdog.”

145 What is so far lacking from the more recent Strasbourg decisions, with respect, is a consistent and clearly reasoned analysis of the “right to receive and impart information” Within the meaning of article 10, particularly in the light of the earlier Grand Chamber decisions. Mr Coppel submits that the court’s “direction of travel” is clear, but the metaphor suggests that the route and destination are undetermined. If article 10 is to be understood as founding a right of access to information held by a public body, which the public body is neither required to provide under its domestic law nor is willing to provide, there is a clear need to determine the principle or principles by reference to which a court is to decide whether such a right exists in a particular case and what are its limits.”

And Lord Sumption stated:

“154 The right to receive information under article 10 of the Human Rights Convention has generated a number of decisions of the European Court of Human Rights, which take a variety of inconsistent positions for reasons that are not always apparent from the judgments. The more authoritative of these decisions, and the ones more consonant with the scheme and language of the Convention, are authority for the proposition that article 10 recognises a right in the citizen not to be impeded by the state in the exercise of such right of access to information as he may already have under domestic law. It does not itself create such a right of access. Other decisions, while ostensibly acknowledging the authority of the principle set out in these cases, appear to point towards a different and inconsistent view, namely that there may be a positive obligation on the part of the state to impart information under article 10, and a corresponding right in the citizen to receive it. However if (contrary to my view) there is a Convention right to receive information from public authorities which would not otherwise be available, no decision of the European Court of Human Rights suggests that it can be absolute or exercisable irrespective of the public interest.”

Lord Neuberger and Lord Clarke together agreed with each of these three individual judgments.

3.4 By contrast Lord Wilson (supported by Lord Carnwath) stated:

“188 I cannot subscribe to the view that the development of article 10 which was in effect initiated in the Társaság a Szabadságjogokért v Hungary case has somehow been irregular. The wider approach is not in conflict with the ‘basic’ Leander approach: it is a dynamic extension of it. The judgment in Társaság a Szabadságjogokért v Hungary is not some arguably rogue decision which, unless and until squarely validated by the Grand Chamber, should be put to one side. Its importance was quickly and generally recognised. Within a year of its delivery the European commission For Democracy through Law (‘the Venice Commission’) had hailed it as a ‘landmark decision on the relation between freedom to information and the . . . Convention’ (Opinion No 458/2009 on the Draft Law Obtaining Information of the Courts of Azerbaijan, 14 December 2009); and, in giving the judgment of the Court of Appeal in Independent News and Media Ltd v A [2010] 1 WLR 2262, Lord Judge CJ had, at para 42, specifically endorsed that description of it.

189 In the light of the judgments of the ECtHR delivered following this court’s decision in the Sugar case, in particular in the Österreichische case, this court should now in my view confidently conclude that a right to require an unwilling public authority to disclose information can arise under article 10. In no sense does this betoken some indiscriminate exposure of sensitive information held by public authorities to general scrutiny. The jurisprudence of the ECtHR, of which this court must always take account and which in my view it should in this instance adopt, is no more than that in some circumstances article 10 requires disclosure. In what circumstances? These will fall to be more clearly identified in the time-honoured way as, in both courts, the contours of the right are tested within particular proceedings.

The evolution of the right out of ‘freedom of expression’ clearly justifies the stress laid by the ECtHR on the need for the subject matter of the request to be of public importance. No doubt it also explains the importance attached by that court to the status of the applicant as a social watchdog; whether that status should be a pre-requisite of the engagement of the right or whether it should fall to be weighed in assessing the proportionality of any restriction of it remains to be seen. Equally references in the ECtHR to the monopoly of the public authority over the information may need to find their logical place within the analysis: thus, in the absence of a monopoly, an authority’s non-disclosure may not amount to an interference. Where the article is engaged and where interference is established, the inquiry will turn to justification under paragraph 2. If refusal of disclosure has been made in accordance with an elaborate statutory scheme, such as the FOIA, the public authority will have no difficulty in establishing that the restriction has been prescribed by law; and the live argument will surround its necessity in a democratic society, in relation to which the line drawn by Parliament, if susceptible of coherent explanation, will command a substantial margin of appreciation in the ECtHR and considerable respect in the domestic courts.”

3.5 The majority’s apparent unwillingness in Kennedy to follow the developing Strasbourg jurisprudence on Article 10 and the right to receive information may be thought to be reflective of a more general scepticism within the UK Supreme Court toward the influence of supra-national law on the domestic law of the UK. tribunals. This is seen in not only a more critical approach to the quality and persuasive nature of the reasoning in decisions of the European Court of Human Rights, but also a greater willingness to query any automatic or unthinking reliance upon the decisions and reasoning of the Court of Justice of the European Union. [19] Rather than look abroad for our fundamental principles, the UKSC seems now to be urging us to turn inward, to the common law.

3.6 Thus in Kennedy v Charity Commission Lord Toulson (at § 133) regretted what he saw as “a baleful and unnecessary tendency to overlook the common law. It needs to be emphasized that it was not the purpose of the Human Rights Act that the common law should become an ossuary.”

3.7 And in R (Buckinghamshire County Council) v Transport Secretary: re HS2 Lord Neuberger and Lord Mance – in rejecting what looked like a fairly clear line of CJEU case law on the issue of what might properly be expected in and of a Strategic Environmental Assessment for large infrastructure projects (such as HS2) – suggested that there may be constitutional fundamentals which even EU law could not overcome. As they noted (at § 207) that

“[T]he United Kingdom has no written constitution, but we have a number of constitutional instruments. They include Magna Carta, the Petition of Right 1628, the Bill of Rights and (in Scotland) the Claim of Right Act 1689, the Act of Settlement 1701 and the Act of Union 1707. The European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005 may now be added to this list. The common law itself also recognizes certain principles as fundamental to the rule of law.” [20]

3.8 In R (Osborn) v Parole Board the UKSC emphasised (in Lord Reed’s judgment with which the rest of the bench agreed) that the starting point in fundamental rights cases should be “our own legal principles rather than the judgments of the international court”. [21] Thus is the common law resurrected, statutes and ancient charters deemed “constitutional”, old legal rules become fundamental principles, and rights discourse de-Europeanised, re-patriated and re-branded as embodying the une certaine idée du Royaumme Uni.

3.9 An example of this tendency to go back to the future for principles such as transparency, open justice and right to information (at least about the workings of the court) is seen in the UKSC judgment in A v. BBC Scotland where Lord Reed engages in the following exercise in legal archaeology to solve a contemporary problem:

“The general principle of open justice

[23] It is a general principle of our constitutional law that justice is administered by the courts in public, and is therefore open to public scrutiny. The principle is an aspect of the rule of law in a democracy. As Toulson LJ explained in R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2013] Q.B., p.630, para.1, society depends on the courts to act as guardians of the rule of law. Sed quis custodiet ipsos custodes? Who is to guard the guardians? In a democracy, where the exercise of public authority depends on the consent of the people governed, the answer must lie in the openness of the courts to public scrutiny.

[24]The significance of the principle of open justice is illustrated by the fact that it was one of the matters covered by the constitutional legislation enacted following the accession of William and Mary. The Court of Session Act 1693, which remains in force, provides: ”That in all time coming, all bills, reports, debates, probations and others relating to processes shall be considered, reasoned, advised and voted by the Lords of Session with open doors, where parties, procurators and all others are hereby allowed to be present, as they used to be formerly in time of debates, but with this restriction, that in some special cases the said Lords shall be allowed to cause remove all persons, except the parties and their procurators.” The corresponding Act ”Anent Advising Criminal Processes with Open Doors”, passed on the same date, made similar provision for the High Court of Justiciary. As Lord Shaw of Dunfermline commented in Scott v Scott [1913] A.C., p.475, the two Acts formed part of the Revolution Settlement, and bore testimony to a determination to secure civil liberties against judges as well as against the Crown.

[25] The principle that courts should sit in public as important implications for the publishing of reports of court proceedings. In Sloan v B, 1991 S.C., p.442; 1991 S.L.T., p.550, Lord President Hope, delivering the opinion of the court, explained that it is by an application of the same principle that it has long been recognized that proceedings in open court may be reported in the press and by other methods of broadcasting in the media. ”The principle on which this rule is founded seems to be that, as Courts of Justice are open to the public, anything that takes place before a Judge or Judges is thereby necessarily and legitimately made public, and, being once made legitimately public property, may be republished” (Richardson v Wilson (1879) 7 R., p.241 per Lord President Inglis).

[26] The connection between the principle of open justice and the reporting of court proceedings is not however merely functional. Since the rationale of the principle is that justice should be open to public scrutiny, and the media are the conduit through which most members of the public receive information about court proceedings, it follows that the principle of open justice is inextricably linked to the freedom of the media to report on court proceedings.

Exceptions to the principle of open justice

[27] Since the principle of open justice is a constitutional principle to be found in the common law, it follows that it is for the courts to determine its ambit and its requirements, subject to any statutory provision. The courts therefore have an inherent jurisdiction to determine how the principle should be applied.” [22]

3.10 But the openness of the courts to public scrutiny cannot be the sole criterion to establish the legitimacy of judicial decision-making. There have to be elements, too, of predictability of decision-making and agreed limitation on what the judges can do with the law. It is precisely to embody those virtues and to protect (unelected) judges from allegations that the power they wielded in their decision-making was an undemocratic exercise in the tyranny of the dead (where past precedents rule over present circumstance) that post World War II Bills of Rights – whether the European Convention on Human Rights, the International Covenant on Civil and Political Rights or the EU Charter of Fundamental Rights – were created.

3.11 Conscious of the danger that the democratic process could itself be subverted and undermined by the political manipulation of the majority [23] democratic governments across Europe signed up and continue to sign up to these human rights charters, to ensure that minorities can be protected. These charters and the bodies of law which have built up around should not be too readily abandoned, nor the mechanisms for their enforcement be too readily disparaged by our own courts, echoing political and popular sentiment. The architecture of enforcement involved international courts and bodies – whether the European Court of Human Rights, the Court of Justice of the European Union or the UN Human Right Committee -precisely to ensure the advantages of distance and, to an extent, a necessary isolation from the immediate national political fray. This was, and is, seen as necessary in order to ensure a degree of objectivity and protection for the individual even against the interests of the nation State in all its forms and manifestation and emanations.

3.12 Given the scepticism expressed by the UK Supreme Court (albeit in remarks which were strictly obiter) to the more recent Article 10 ECHR jurisprudence of the Strasbourg Court as founding a right to receive information, it might be more fruitful in any future discussion before the court to concentrate rather on procedural obligations to information which are said to be implicit in other Convention articles.

4. Procedural obligations to information in other Convention articles

Article 2 ECHR

4.1 Article 2 ECHR proclaims the existence of the right to life and enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. The Strasbourg Court has also developed the idea of procedural duties on the State which are also said to inhere in their Article 2 duty to ensure that lives are respected. This may involve for example ensuring that a right to information arises when a death results. Pereira Henriques v Luxembourg [24] concerned the death of building labourer, who had been killed by the collapse of a wall on a construction site being operated by private companies. The Strasbourg Court in that case found that there had been no breach by the State of any of its substantive obligations under Article 2 ECHR to protect the life of the deceased workman, but that deficiencies in the conduct of the health and safety prosecution following upon his death constituted a breach of the procedural obligations under Article 2 ECHR As the Court stated:

47. The petitioners claim that Article 2 of the Convention requires the State to conduct an effective investigation in the presence of both parties to which the family of the deceased ought to have had access.

48. In this case only preliminary reports were compiled and the public prosecution service decided to abandon the case without conducting further inquiries. The petitioners were left in ignorance for a long time concerning the progress made in the accident investigation. In the end they obtained no information as to the reasons for abandoning the investigation with no follow up, apart from the fact that they could see the words ‘ ad acta inf. non etablie‘ had been written on an exhibit in the file.

49. The petitioners consider that the preliminary investigation reports determined without the shadow of a doubt, that serious breaches had been committed of work safety legislation. These same reports sowed however enormous discrepancies concerning the question of the circumstances and the potential causes of the fatal accident. Under these conditions only an in-depth investigation could have established the truth as to the events that occurred. Yet no building expert was invited to the site to give a technical opinion. On the contrary the deputy public prosecutor rejected the offer made by ITM ‘the Work and Mines Inspectorate’) to appoint such an expert and decided to abandon the case.

50. The petitioners thus conclude that the State was lacking in its obligation to provide the protection of due process in respect of the right to life.”

4.2 In its decision of 23 March 2010 in Oyal v Turkey – a case concerning the infection with HIV from blood transfusions administered to patients in the care of the Turkish national health service – the Strasbourg court further developed its Article 2 ECHR case law notwithstanding that the applicant had been duly afforded a remedy in the civil courts establishing the State’s liability (through its medical personnel) for the HIV infection and by the court making an order for damages (including a sum by way of non-pecuniary/solatium damages) which was duly enforced. The Strasbourg Court held however that in cases of public concern such as that before it, Article 2 ECHR required more. It considered that the State authorities were required to provide a fuller remedy, more adequate and tailored to the particular circumstances of the individual, and noted:

“53. The Court reiterates that Article 2 does not solely concern deaths resulting from the use of unjustified force by agents of the State but also, in the first sentence of its first paragraph, lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction. [25]

54. Those principles apply in the public-health sphere too. The aforementioned positive obligations therefore require States to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients’ lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable. [26]

58 … In the instant case, however, the applicants’ complaints must be examined under Article 2 of the Convention since they pertain to the alleged failure of the State authorities to fulfill their positive obligation to protect life by not taking preventive measures against the spread of HIV through blood transfusions and by not conducting an effective investigation against those responsible for the infection of the first applicant.” [27]

4.3 This line of case law is supportive of the idea that, for example, should the blood transfusion service in Scotland be privatised then the Scottish Ministers may well have a duty to designate the service under Section 5 FOISA to ensure compliance with the continued procedural requirements associated with Article 2 ECHR

Article 3 ECHR

4.4 Similarly it might be posited that there is a duty on the Scottish Ministers to designate privatised prison services under Section 5 FOISA to ensure compliance with the procedural protections and access to information required by Article 3 ECHR. In Mechenkov v. Russia the Court observed:

“[I]n the light of Article 3 of the Convention, the State must ensure that a person is detained under conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject the individual to distress or hardship exceeding the unavoidable level of suffering inherent in detention, and that, given the practical demands of imprisonment, the person’s health and well-being are adequately secured,[28] with the provision of the requisite medical assistance and treatment. [29]” [30]

The right to the truth

4.5 In El Masri v. Macedonia [31] the Grand Chamber ECtHR held that the victims of gross violations of human rights and the relatives of those killed or disappeared (in what the Nuremberg trial referred to as “Nacht ind Nebel operations”) had a “right to the truth” about the events that have taken place, including the identification of the perpetrators of such violations. The right to the truth was said to be triggered by gross violations, as in the case of enforced disappearances, and was said to embodied in the article 13 right to an effective remedy as well as being woven into the procedural obligations associated with Articles 2 and 3 (and 5) ECHR.

4.6 The Strasbourg Court in Al-Nashiri v. Poland again picked up again on the “right to truth” issue associated with Articles 2 and 3 ECHR, noting:

“495. [W]here allegations of serious human rights violations are involved in the investigation, the right to the truth regarding the relevant circumstances of the case does not belong solely to the victim of the crime and his or her family but also to other victims of similar violations and the general public, who have the right to know what has happened. An adequate response by the authorities in investigating allegations of serious human rights violations may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of impunity, collusion in or tolerance of unlawful acts. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. [32]

497. Moreover, the Court considers that the importance and the gravity of the issues involved require particularly intense public scrutiny of the investigation in the present case. First, those issues include the allegations of serious human rights violations, encompassing torture and occurring in the framework of a secret large-scale programme of capture, rendition, secret detention and interrogation of terrorist suspects operated by the CIA owing to cooperation with the intelligence services of Poland and many other countries. No less importantly, it involves the questions of the legality and the legitimacy of both of decisions taken by Polish State officials and of activities in which the national security and intelligence services were engaged in the implementation of the CIA High Value Detainee (“HVD”) Programme on Poland’s territory. Securing proper accountability of those responsible for the alleged, unlawful action is instrumental in maintaining confidence in the Polish State institutions’ adherence to the rule of law and the Polish public has a legitimate interest in being informed of the investigation and its results. It therefore falls to the national authorities to ensure that, without unacceptably compromising national security, a sufficient degree of public scrutiny is maintained in the present case (see also paragraph 494 above).

498. The instant case, apart from raising an issue as to an effective investigation of alleged ill-treatment contrary to Article 3 of the Convention, also points out in this context to a more general problem of democratic oversight of intelligence services (see also paragraphs 262-265 above). The protection of human rights guaranteed by the Convention, especially in Articles 2 and 3, requires not only an effective investigation of alleged human rights abuses but also appropriate safeguards – both in law and in practice – against intelligence services violating Convention rights, notably in the pursuit of their covert operations. The circumstances of the instant case may raise concerns as to whether the Polish legal order fulfils this requirement.” [33]

4.7 Continuing with the “right to the truth” line of case law and common law principles of open justice, in Mohamed Ahmed Mohamed, CF v Secretary of State for the Home Department Lord Justice Maurice Kay observed:

“19 I do not consider El-Masri v. Macedonia (2013) 57 EHRR 25 to be a new panacea for the uninformed. It no doubt has its limits. However, the express inclusion of the criterion of maintaining public confidence in adherence to the rule of law is apt. It reflects what Lord Phillips said in AF (No. 3), at paragraph 63:

‘Indeed, if the wider public are to have confidence in the justice system, they need to be able to see that justice is done rather than being asked to take it on trust.’

20 Lurking just below the surface of a case such as this is the governmental policy of “neither confirm nor deny” (NCND), to which reference is made. I do not doubt that there are circumstances in which the courts should respect it. However, it is not a legal principle. Indeed, it is a departure from procedural norms relating to pleading and disclosure. It requires justification similar to the position in relation to public interest immunity (of which it is a form of subset). It is not simply a matter of a governmental party to litigation hoisting the NCND flag and the court automatically saluting it. Where statute does not delineate the boundaries of open justice, it is for the court to do so. In the present case I do not consider that the appellants or the public should be denied all knowledge of the extent to which their factual and/or legal case on collusion and mistreatment was accepted or rejected. Such a total denial offends justice and propriety.” [34]

Article 8 ECHR

4.8 The duties under Article 8 ECHR have been said by the Court to include positive obligations on the State relative to the protection of the general environment and individual health. [35] These may include the provision of sufficient information regarding environmental threats and impact of operations permitted by the State. Thus in Guerra v Italy[36] the Court held that the state’s positive obligations to ensure effective protection of the right to respect for private and family life included the provision of information which would have enabled the applicants to assess the environmental dangers of living near a factory where an accident might occur. Similarly, in McGinley and Egan v United Kingdom[37] the Court decided that withholding documents about the exposure of the applicants to radiation at Christmas Island was a breach of Article 8 ECHR. And in Roche v United Kingdom [38] the Court found a breach of Article 8 ECHR as a result of the failure to operate an effective and accessible procedure allowing the applicant access to all relevant and appropriate information about his participation in medical tests concerned with the
effects of chemical weapons.

4.9 Article 8 ECHR may also require “the adoption of measures designed to secure respect for these rights even in the sphere of relations between individuals”. [39] Article 8 ECHR may therefore place a positive obligation to regulate and enforce the law against private industry.[40] In Hardy and Maile v. United Kingdom – which concerned a challenge by individuals living in Milford Haven and were members of the Safe Haven Residents Group, which opposed the construction and operation of two liquefied natural gas (LNG) terminals in Milford Haven Harbour – the Strasbourg Court set out how Article 8 might impose positive procedural obligations on national authorities in environmental matters. Noting as follows:

“220. A governmental decision-making process concerning complex issues of environmental and economic policy must in the first place involve appropriate investigations and studies so that the effects of activities that might damage the environment and infringe individuals’ rights may be predicted and evaluated in advance and a fair balance may accordingly be struck between the various conflicting interests at stake. [41]

221. Finally, the individuals concerned must also be able to appeal to the courts against any decision, act or omission where they consider that their interests or their comments have not been given sufficient weight in the decision-making process. [42]

245. In cases concerning hazardous activities, the importance of public access to the conclusions of studies undertaken to identify and evaluate risks and to essential information enabling members of the public to assess the danger to which they are exposed is beyond question. [43]

246. The Court has previously indicated that respect for private and family life under Article 8 further requires that where a Government engages in hazardous activities which might have hidden adverse consequences on the health of those involved in such activities, and where no considerations of national security arise, an effective and accessible procedure must be established which enables such persons to seek all relevant and appropriate information. [44]“[45]

4.10 It is of course permissible for Contracting States and their domestic courts to provide for a more stringent freedom of information regime than that required under and in terms of the ECHR, provided of course that any such national regime is itself compatible with individual’s rights protected under Article 8 ECHR.

5. The principle of transparency in EU law

5.1 Another possible source for further developing this idea as a fundamental right may also be found in EU law. The principle of transparency is stated in Articles 1 and 10 of the Treaty on European Union (“TEU”) and in Article 15 of the Treaty o the Functioning of the European Union (“TFEU”). [46] The importance of the principle of transparency is that it:

“enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system”[47]

5.2 Article 42 of the EU Charter of Fundamental Rights provides, under the heading ‘Right of access to documents’, that any citizen of the Union – and any natural or legal person residing or having its registered office in a Member State – has a right of access to documents (whether in hard copies, or in electronic or other form) of the EU’s institutions, bodies, offices and agencies. Article 42 CFR echoes the terms of Article 15 TFEU and the EU secondary legislation adopted thereunder, notably Regulation (EC) No 1049/2001. [48] The EU access-to-documents regime applies only to the EU’s own institutions, bodies, offices and agencies. Strictly, it is not a freedom of information regime. Instead, as the General Court has stated:

“[T]he concept of a document must be distinguished from that of information. The public’s right of access to the documents of the institutions covers only documents and not information in the wider meaning of the word and does not imply a duty on the part of the institutions to reply to any request for information from an individual.”[49]

5.3 In its decision in Sweden and Association de la Presse Internationale asbl (API) v Commission, the Grand Chamber seemed to set little store by the idea of compliance with the principle of transparency in decision making – at least in the context of CJEU proceedings – as being in itself of overriding public interest, and summarily dismissed ‘mere claims’ made by API to the effect that the public’s right to be informed about important issues of EU law – such as those concerning competition, and about issues which are of great political interest raised by infringement proceedings against Member States – should ‘prevail over the protection of the court proceedings’. Instead, in the Grand Chamber’s view, it is only where the particular circumstances of the case substantiate a finding that the principle of transparency is especially pressing that that principle can constitute an overriding public interest capable of prevailing over the need for protection of the disputed documents and, accordingly, capable of justifying their disclosure.[50]

5.4 In any event, the protection and promotion of freedom of information by and within the Member States remains a matter for Member States to regulate. European Union law does not yet extend to giving a right of access to documents held – in their own right rather than as agents for the EU – by public authorities of the Member States, though Recital 15 of Regulation (EC) No 1049/2001,[51] which is the central provision of the EU freedom of information regime, states:

Even though it is neither the object nor the effect of this Regulation to amend national legislation on access to documents, it is nevertheless clear that, by virtue of the principle of loyal cooperation which governs relations between the institutions and the Member States, Member States should take care not to hamper the proper application of this Regulation and should respect the security rules of the institutions.

5.5 Article 41(2)(b) of the EU Charter of Fundamental Rights specifies that the Charter right to good administration includes “the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy”. In H. N. v Minister for Justice, Equality and Law Reform, Ireland the CJEU stated:

“49. …[T]he right to good administration, enshrined in Article 41 of the Charter, … reflects a general principle of EU law.

50 Accordingly, where, in the main proceedings, a Member State implements EU law, the requirements pertaining to the right to good administration, including the right of any person to have his or her affairs handled impartially and within a reasonable period of time, are applicable in a procedure … which is conducted by the competent national authorities.”[52]

6. Conclusion

6.1 It is hoped that the foregoing survey of Strasbourg and UKSC case law shows that there is plenty of life – and plenty to develop – in the idea of freedom of information as constituting a fundamental rights, whether under the common law or in terms of the ECHR.

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Tags: human rights

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