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  • Print publication year: 2010
  • Online publication date: June 2012

11 - Openness, information and the courts


The role of the courts in helping to create a more open society is vital. Greater openness depends upon the mutual co-operation of the executive, Parliament and the courts. In the early 1990s, the High Court observed that it could not create a freedom of information (FOI) statute. Parliament did by enacting the government's bill. The courts' role in the Freedom of Information Act (FOIA) is limited, though important, to appeals on points of law. The Information Commissioner (IC) and the Information Tribunal (IT) were deliberately introduced to avoid litigation and save cost. Some important judicial decisions have emerged on the FOIA and EIR as we saw in chapters 6 and 7. Courts could be called upon to make crucial decisions on review and numerous recent judgments have raised questions relating to openness. These decisions exist alongside the reforms brought about to administrative adjudication by the Tribunals, Courts and Enforcement Act 2007, which has established a two-tier system of tribunals. Some important judgments have involved the Special Immigration Appeals Commission (SIAC) and its use of secret proceedings and special counsel. There is no doubt that after years of indifference, English courts have displayed a greater awareness of the benefits to be gained from openness and freedom of expression. The common law was recognising such a fundamental right – and not simply a state concession – and it has been boosted by the Human Rights Act 1998 (HRA).

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