The Civil Procedure Rule Committee (CPRC) has been warned that continuing to ignore a Freedom of Information Act request will amount to a contempt of court, the Information Commissioner has said.
As part of an ongoing project looking at the transparency of decision making in the justice system, the mouseinthecourt has been examining the work of the various rule committees.
This site has previously reported on a civil rule change affecting Open Justice, seemingly slipped in without announcement or fanfare. The change was nestled away in the minutes of a CPRC meeting dated 4th March 2022.
We described this rule change as the introduction of “a mechanism that effectively removes the right of the public to access remote hearings“. The Incorporated Council of Law Reporting for England & Wales kindly hosted our write-up in a guest post on their blog.
After receiving no response to four e-mails, including an offer of a right to reply to our blog post, the decision was made to issue a formal request under the Freedom of Information Act.
On 7th September 2022 we asked the CPRC, with reference to the above amendment:
Q1 – Please confirm when the consultation period for this amendment opened?
Q2 – Please confirm when the consultation period for this amendment closed?
Q3 – Please confirm how many responses were received during the consultation?
[We were delayed somewhat because the request was initially made to the MOJ, which somehow took 4-weeks to issue a refusal notice on the basis that “The Civil Procedure Rule Committee is a non-executive arm’s length body and, notwithstanding that it is funded by the Ministry of Justice, has its own FOI procedures.“]
The relevance to these questions can be found in Section 2 of the Civil Procedure Act 1997:
6)The Civil Procedure Rule Committee must, before making or amending Civil Procedure Rules—
(a)consult such persons as they consider appropriate….
Civil Procedure Act 1997
This humble blogger takes the view that the public should have been consulted on the rule change given its chilling effect on the their Article 10 rights.
Unfortunately no response was received to the FOI request and so the ICO took up the baton. In a decision notice dated December 7th the Commissioner found:
“that the CPRC has breached section 10(1) of FOIA in that it failed to provide a valid response to the request within the statutory time frame of 20 working days.“
The CPRC has now been given 35 days to “provide a substantive response to the request” and was warned that a “failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of FOIA and may be dealt with as a contempt of court.“
The decision notice reveals that:
“On 17 November 2022 the Commissioner wrote to the CPRC, reminding it of its responsibilities and asking it to provide a substantive response to the complainant’s request within 10 working days. … Despite this intervention the CPRC has failed to respond to the complainant.“
Secret Committees?
Analysis of the available data shows that three committees do not publish their minutes.
There is a demonstratable public interest in revealing how, why and by whom procedural decisions are made. It ties into the principle of Open Justice which “lets in the light and allows the public to scrutinise the workings of the law, for better or for worse.“
Nuggets of information within the published minutes of the Tribunal Procedure Committee formed the basis of our recent article “Concerns raised over function of Online Procedure Rule Committee“.
A rummage through the Criminal Procedure Rule Committee minutes, with highlights published on Twitter was described as “an absolutely brilliant bit of journalistic *digging*” (the cheque is in the post!).
However, getting in touch with the committees that do not publish their minutes has proven to be quite a challenge.
The most secretive appears to be the Court of Protection Rule Committee which even the CoP Delivery manager based at Holborn cannot contact. He says he doesn’t have their contact details and my “earlier email requests were referred to a senior colleague to forward on“. Six-weeks-on from making my initial contact I’m still awaiting confirmation that the committee has even received my request.
Whilst the irony of the Civil Procedure Rule Committee being found in contempt of court would no doubt provoke a degree of amusement there is a chilling effect on transparency when information is not forthcoming.
The persistence required to pursue even these basic requests is sapping of time and energy. I’m grateful for the ICO pursuing this request on my behalf. I hope I won’t need their services again.
Mouse in the Court 