Thread by @MForstater

We are back.
Naomi - The questions before you are
1) Is the Judicial College a public authority under FOIA
2) Does it hold the information for its own purposes
or
3) If it is the MOJ does it hold the information for its own purposes

Why it matters - your question - if a training director could dream up a course that could create a steady stream of work for a friend.

If it was treated solely as a matter for the judiciary, then without transparency there would be no way to check that sort of abuse.

This appellant's own story is powerfully important for why the Judicial College should be subject to FOI.

Ms Forstater worked for a think tank as a contractor on tax policy. Around the time the govt was consulting on the GRA 2004. Ms Forstater became engaged in that debate

Some of her took exception to her position. They objected to her taking a position against the reforms. The ET considered as a preliminary question. Discrimination on the basis of a protected belief in the immutability and importance of sex.

The ET considered whether that belief met the Grainger criteria for being a philosophical belief S10. The ET found that it was not worthy of respect in a democratic society. The EAT overturned that and found that it was.

Now looking at Mr Justice Choudhury's judgment in the EAT - Forstater's belief "sex is real, binary, immutable, important".

And looking P 83 and 87 in the ET judgment

The belief as set out would have been ordinary - is sex real. yes of course. is it important. Is it immutable? you might consider a "sex change operation" - but that it doesn't change a person's sex. And that it isn't to be conflated with "gender identity".

It is a widespread belief held by the vast the majority of the population.

That belief was commonplace until recently.
We know from the tribunal's publication that judges have been trained by Gendered Intelligence

Some of that training touched on points that are matters of extreme and urgent public debate.

Mr Justice Tayler came to the conclusion that that belief was not only wrong but so hateful that it was not worthy of respect in a democratic society.

Something has happened. That belief has gone from being commonplace to being something that at least one employment judge thinks was so hateful that it should it not be protected under S.10

What has happened. At least in part the training.

The training referred to sex as assigned at birth, that the Equality Act is limited, covered the basics of legislation.

I suggest that that material offers some clues as to how that state of affairs came to be.

Judges should not be able to be quietly nobbled behind the scenes in secret training.

Judges should decide cases based on the evidence they hear, not on the basis of pressure groups

GI is involved not only in training judges but also as an intervener in the Keira Bell case and in other cases.

This is important for judicial independence.

Returning now to the questions of the Judicial College's status.

The respondent's contention is the Judicial College and JSB are separate bodies

RM - skeleton says the JC and JSB are two separate corporate bodies.

There is nothing in AW to say that they are two separate corporate bodies. We know nothing about corporate status. They were the same type of body. Part of an arms length of the MoJ.

There was a transition period and then a change of name.

AW said that "JSB transitioned to be an independent office, working to ensure that new arrangements for the college were in place for April 2011"

A change of internal organisation and external reporting all took place while it was named in FOIA.

Then it changed name at midnight on March 31, without any further changes.

I say that where the Schedule to the FOIA says "Judicial Studies Board" it means "Judicial College"

The respondents argument is that JSB are the statutory equivalent of a broken link the statutory version of "page not found"

The judicial function in interpreting judicial words could bridge the gap, or perhaps a clarifying construction

The respondents make much of the changes brought in by the Constitutional Reform Act 2005. That goes nowhere the JSB continued for another 5 years and continued to be subject to FOIA.

The CRA 2005 cant be of any relevance or assistance at all.

Everyone simply assumed for years that the JC was the same thing as the JSB - we can see that in early FOI responses.

That is the sensible common sense understanding of those words until relatively recently.

You should interpret JC to mean JSB.

That it was not updated to the new name in Schedule I of FOIA was a drafting slip. It can be fixed with an amending construction.

It is a lesser interference with the words of Parliament than to strike JSB from the legislation.

Or.... you can consider the MoJ as the Public Authority.
The Judicial College is indeed part of the MoJ . In which case it is clear that the MoJ holds the information for its own purposes.

The JC and its purpose is crucial in this. The training of judges is its one job. Self-evidently information is held for its own purposes - training.
Purposes of the JC are also the purposes of the MoJ.
Your question about the MoJ's ability to demand information...

you asked if the MoJ asked for granular information they would be required to give it.
The JC is an arms length body of the JO.
Neither hold the information solely on behalf of the judiciary. That brings it within FOIA

Which ever body is the correct body they should provide the information.

[End of Naomi's submission]

Now Ravi Mehta for the MoJ and the Judicial College - instructed by the GLD.

We say it is a simple case of statutory construction.
We say the submissions about Ms Forstater's case and a judges behaviour is irrelevant

This information is not covered by the legislation.
The scope of FOIA is relevant public authorities. MoJ does not hold the info. The JC we say is not a public authority at all.

Section II: the general right to of FOI
The critical language is the reference to a request to a public authority as defined in the Act. Section 3i. those expressly designated in Schedule I or state owned companies

MoJ definitely is covered.
But we say it is only "holding" the information.
It is not controversial -there is guidance on this from ICO
The words "Judicial College" do not appear in the Act.

The JC is relatively new - AW's evidence was that there was a period of transition.

Because there might have been a grey area, you should treat the grey area as if it is forever more the case.

The material difference is the formal consideration of training as "for judges by judges"

The words of the statute don't say JC
The principle of independence of the judiciary is important - it explains why the change happened

No one is suggesting that there isn't a sliding scale, a hibred body. There are aspects which are administrative and there are aspects which are to do with Judicial training.

There is a statutory exemption for litigation.

We draw the line between the high level accountability of the MoJ and the granular detail of individual training events.

Do not consider parallels with other bodies. Some have legal personalities, some don't, one shouldn't analogise without evidence.

The language of the statute CRA 2005 - 'judicial independence' - recognising the interaction between the ministers and the judiciary.

The Lord Chief Justice holds the Office of President - responsibility for maintaining training, with resources from the Lord Chancellor

Parliament is making clear that the resources are made available by the administration, but it is for the judiciary to make arrangements.

AW talked about the role of the MoJ - from that evidence it is clear that the dept has a purely administrative support role.

It has limited access to information held by the College. In the Sanders case it was taken that the MoJ is not the ultimate source of decision makers.

"Holding" relates to the concept of control.
There was a period of transition. The approach has crystalised to the one before you today
Aspects of the activities of the JC are included. The judiciary recognises the importance of transparency.

There is regular publication of annual reports.
The question is not about about a cloak of secrecy.
We accept that the MoJ is a public authority. The MoJ for its own purposes holds information that relates the the JC.

The main focus that the JSB and the JC should be read together.
The two are not the same entity.
Reliance on letters in the past do not apply.
Decision in Sanders v ICO in 2015 - Mr Sanders made an info request to the MoJ for info on training.

Training materials housed on the LMS are only on behalf of the judiciary under the Lord Chief Justice.

"The judges who provide the training would be surprised to find that they are part of the judicial office"

The judicial college administration is part of MoJ. The judges are appointed individually not by the Judicial College. The course materials by judges for judges. An independent organisation responsible to the Lord Chief Justice.

You are being asked to read in words. Those are not things that courts are asked to do lightly. This is a totally different case to Inko - plain cases of drafting mistakes. The court spends quite some time looking at the legislative history. Change was a right of appeal

The criteria do not apply here.
The purpose of FOI was to have clear set of public authorities.
By inadvertence the draftsman has failed to give effect
The substance of what Parliament would have done was obvious looking a what the JC is today

The tribunal cannot decide what Parliament was thinking.
It may be that the JSB was left in to cover historic records.
We cannot find any records. It is not up to the tribunal to decide.

In Inko there was plenty of material before the court and it was "in no doubt"
Functional equivalence between JSB and JC? This is a question for parliament - the question of whether the JC should be listed and FOI and applied to it.

Clapham omnibus test - what would the public think about whether the JSB and the JC are the same body?

This is not the correct test.

You do not have the evidence.

"Held" you should be persuaded by Sanders.

J- Lynn Griffiths is there any scope to look aspects of the request?

RM - this granular information is not held.

There is public reporting of training events.
We cannot parcel out this request.

[End of Mehta]

Now Katherine Taunton for ICO. They agree with MoJ and JC.

As part of judicial independence pressure groups should not be allowed improperly to influence judicial training.

The question about whether the public should be allowed to know this information is based on FOI.

The duty applies to a public authority
The duty applies to information that is held.
Then public interest

Public interest - the factual background to the respective roles.

What the public interest cant do is make the JC a public body for the purposes of FOI

The role of the commissioner - a request has been dealt with in line with FOI

The original request was made to MHCTS

so the question returns to Schedule 1, Part 6 - the word JC do not appear in that list.

FOI contains a mechanism for removing bodies that have ceased to exist. The intention is that a body could be removed. It could be done.
The appellants argument that the JSB has not ceased to exist

The factual situation relates to that explained in Sanders. Administrative side of the JC is part of the JO. Subject to FOI.

The substantive part of the JC is the judiciary. the Judiciary is not a public authority for the purpose of FOI.

The test for held - information held for another - it isn't purely a physical concept.

You need to look at all the circumstances

It is a crucial part of the facts that the training of judges is under judicial control.

All of the relevant information was created by the judiciary for the judiciaries own purposes.

Procedural point the decision notice would have to require another response. they could use other exceptions.

Mehta: agrees

Tatum question: In relation to BUAV -does it matter whether MoJ staff hold the information for their own administrative purpose.

Taunton - Saunders is a better guide. It is a factual questions.

Now back to Naomi.

It must in fact looking at the subject matter of the request - they must hold that info for their own purposes - costs, contracts - likely to deal with TORs, presentations, they must know the details of judges trained.

They are bound to be holding it for their ancillary purposes.

Ms Taunton suggests a further appeal would be needed - neither have suggested any valid exceptions. It is not open to the MoJ to come up with exceptions.

Questions about the legitimate public interest and judicial independence do not help you directly. But they help as a sense check. If you end up with an absurd result then you should back up. There is an easy route to doing what the independence of the judiciary require

Naomi - addressing a suggestion by Mehta. i haven't abandoned any part of my skeleton.

As to Saunders - the failure of the MoJ to get to the bottom of what the JC is. Their position has shifted since Saunders from "holding on behalf of the JC" to "on behalf of the judiciary"

"on behalf of the college" -
Mr Mehta says they are separate corporate bodies. It is not a corporate body at all. It was not brought into being with legislation

This is about the failure to make a tidying up change which removed the right to access to information.

We know exactly what parliament did after the Constitutional Reform Act - they left the JSB on FOIA. They did not take it off.

The respondents have all clung to the information being held on behalf of the judiciary.

There are judges embedded in the JC and it is held by the JC. The body that does the training of judges is the JC and that is its purpose.

Thats the end .

Decision reserved.