As part of the streamlining of the tribunal process, the appeal functions of the Information Tribunal have been transferred to the First-tier Tribunal (Information Rights) which is a part of the new two-tiered tribunal system.
The new Tribunals Service
The Tribunals Service, an executive agency of the Ministry of Justice, was created in April 2006 to provide independent administrative support to central government tribunals and organisations. On 3 November 2008 a new unified Tribunal system was launched in accordance with Part 1 of the Tribunals, Courts and Enforcement Act 2007, the outcome of which was the creation of a new two-tier tribunal system – the First-tier and the Upper Tribunals. This system was designed to streamline tribunal processes and improve consistency across the wide range of appeals.
With effect from 18 January 2010, the Information Tribunal ceased to exist and all appeal functions associated with the Information Tribunal transferred across to the new General Regulatory Chamber within the First-tier Tribunal. This new tribunal is consequently referred to as the First-tier Tribunal (Information Rights). The transfer is effected in accordance with Article 2(3)(a) of the Transfer of Functions Order 2010 (SI 2010/22) ("the Transfer Order").
Structure of the First-tier Tribunal (Information Rights)
There are 12 judges in the information rights jurisdiction, all of which are solicitors or barristers with at least seven years professional experience. There are also 34 non-legal members of the Tribunal.
A panel composed of the Tribunal Judge and two non-legal members, all appointed by the Lord Chancellor, will hear the appeals. Oral hearings are open to the public.
The new system for information rights appeals
The First-tier Tribunal (Information Rights) will hear appeals from notices issued by the Information Commissioner under:
- the Data Protection Act 1998;
- the Freedom of Information Act 2000 (FOIA);
- the Privacy and Electronic Communications Regulation 2003; and
- the Environmental Information Regulations 2004.
Two new sets of rules have been created which govern the operation of the two tribunals (paragraph 2(3) of the Transfer Order):
- the Tribunal Procedure (First-Tier Tribunal) (General Regulatory Chamber) Rules 2009, SI 2009/1976; and
- the Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2968/2008.
These rules will apply to all appeals brought on or after 18 January 2010. In respect of appeals commenced prior to 18 January 2010, the Tribunal will have discretion as to whether to apply the old rules (Information Tribunal (Enforcement Appeals) Rules 2005), the new rules or a combination. The rules will be supplemented by practice directions at a later date, which will give further guidance on the appeals process.
Whether appeals are to be heard in the First-tier Tribunal or the Upper Tribunal is, in principle, determined by the new tribunal rules (and any forthcoming practice directions).
Information-rights proceedings will generally be heard in the General Regulatory Chamber of the First-tier Tribunal. However, complex or important proceedings will be heard in the first instance in the Administrative Appeals Chamber of the Upper Tribunal. Appeals from the First-tier Tribunal on enforcement decisions, often on a point of law, will be heard in the Upper Tribunal (instead of the High Court, which previously heard appeals from the Information Tribunal on points of law) with any appeals from decisions of the Upper Tribunal being heard by the Court of Appeal.
As matters currently stand, the new tribunal rules do not clearly state how FOIA appeals are to be allocated between the First-tier Tribunal and the Upper Tribunal and therefore references regarding allocation should be made to the forthcoming practice directions. The exception to this is appeals brought under s.60 FOIA (appeals against national security certificates). When a Minister of the Crown issues a certificate on grounds of national security, the appeal is automatically transferred to the Administrative Appeals Chamber of the Upper Tribunal once the application is received by the First-tier Tribunal (Information Rights).
The major reorganisation of the tribunal service is aimed at streamlining the tribunal system and ensures that there is consistency in the way in which appeals are managed through the two-tiered tribunal system. This is to replace the large number of separate tribunals which previously existed, which each had jurisdiction over a different range of appeals thereby creating the potential for inconsistencies to emerge in how appeals were managed across the different jurisdictions. It will be interesting to observe, through studying cases which are brought under the new system, how the new First-tier Tribunal (Information Rights) will work in practice and whether it will provide a more efficient and effective appeals system as has been predicted.