Freedom of Information Act
This post was written for the Spectator Health section, at short notice after the release of the spider letters. The following version is almost the same as appeared there, with a few updates. Some of the later sections are self-plagiarised from earlier posts.
The age of enlightenment was a beautiful thing. People cast aside dogma and authority. They started to think for themselves. Natural science flourished. Understanding of the natural world increased. The hegemony of religion slowly declined. Eventually real universities were created and real democracy developed. The modern world was born.
People like Francis Bacon, Voltaire and Isaac Newton changed the world for the better. Well, that’s what most people think. But not Charles, Prince of Wales and Duke of Cornwall.
In 2010 he said
"I was accused once of being the enemy of the Enlightenment,” he told a conference at St James’s Palace. “I felt proud of that.” “I thought, ‘Hang on a moment’. The Enlightenment started over 200 years ago. It might be time to think again and review it and question whether it is really effective in today’s conditions."
It seems that the Prince preferred things as they were before 1650. That’s a remarkable point of view for someone who, if he succeeds, will become the patron of that product of the age of enlightenment, the Royal Society, a venture that got its Royal Charter from King Charles II in1622.
I suppose that the Prince cannot be blamed for his poor education. He may have been at Trinity College Cambridge, his 2.2 degree is the current euphemism for a fail (it seems that he even failed to learn the dates of the enlightenment).
His behaviour has brought to the fore the question of the role of the monarchy.
A constitutional monarch is purely ceremonial and plays no part in politics. Well actually in the UK it isn’t quite as simple as that. The first problem is that we have no constitution. Things haven’t changed much since the 19th century when Walter Bagehot said “the Sovereign has, under a constitutional monarchy… three rights—the right to be consulted, the right to encourage, the right to warn.”.
These are real powers in a country which is meant to be run by elected representatives. But nobody knows how these powers are used: it is all done in secret. Well, almost all. The Prince of Wales has been unusually public in expressing his views. His views bear directly on government policy in many areas: medicine, architecture, agriculture and the environment. These are mostly areas that involve at least an elementary knowledge of science. But that is something that he lacks. Worse still, he seems to have no consciousness of his ignorance.
The Royal family should clearly have no influence whatsoever on government policies in a democracy. And they should be seen to have no influence. The Queen is often praised for her neutrality, but the fact is that nobody has the slightest idea what happens at the weekly meetings between the Prime Minister and the Queen. I doubt that she advises the prime minister to create a National Health Service, or to tax the rich. We shall never know that. We should do.
Almost the only light that has been thrown on the secret activities of Charles was the release, on 13 May, of 27 letters that the Prince wrote to government ministers in the Blair government between 2004 and 2005. It has take 10 years of effort by the Guardian to get hold of the letters. It was ike getting blood from a stone. When the Information Commissioner ruled that the letters should be made public, the decision was vetoed by the Conservative attorney general, Dominic Grieve. He said. of the "particularly frank" letters,
" Disclosure of the correspondence could damage The Prince of Wales’ ability to perform his duties when he becomes King."
That, of course, is precisely why the documents should be revealed.
If Charles’ ability to perform his duty as King is damaged, should his subjects be kept unaware of that fact? Of course not.
In this case, the law prevailed over the attorney general. After passing through the hands of 16 different judges, the Supreme Court eventually ruled, in March, that the government’s attempts to block release were unlawful. The government spent over £400,000 in trying, and failing, to conceal what we should know. The Freedom of Information Act (2000) is the best thing that Tony Blair did, though he, and Jack Straw, thought it was the worst. I expect they are afraid of what it might reveal about their own records. Transparency is not favoured by governments of any hue.
What do the letters say?
You can read all the letters on the Guardian web site. They give the impression of being written by a rather cranky old man with bees in his bonnet and too much time on his hands. The problem is that not all cranky old men can write directly to the prime minister, and get an answer.
Not all the letters are wrong headed. But all attempt to change government policy. They represent a direct interference in the political process by the heir to the throne. That is unacceptable in a democracy. It disqualifies him from becoming king.
Some letters verged on the bizarre.
21 October 2004
I particularly hope that the illegal fishing of the Patagonian Toothfish will be high on your list of priorities because until the trade is stopped, there is little hope for the poor old albatross.
No doubt illegal fishing is a problem, but not many people would write directly to a minister about the Patagonian Toothfish.
Others I agree with. But they are still attempts to influence the policies of the elected government. This one was about the fact that supermarkets pay so little to dairy farmers for milk that sometimes it’s cheaper than bottled water.
To Tony Blair 8 September 2004
". . . unless United Kingdom co-operatives can grow sufficiently the processors and retailers will continue to have the farmers in an arm lock and we will continue to shoot ourselves in the foot! You did kindly say that you would look at this . . . ".
He wrote to the minister of education to try to influence education policy.
22 February 2005
"I understand from your predecessor, Charles Clarke, that he has spoken to you about my most recent letter of 24th November, and specifically about the impact of my Education Summer School for teachers of English and History. This Programme, which involves up to ninety state school teachers each year, has been held over the past three years in Dartington, Devon, at Dunston, in Norfolk and at Buxton, in Derbyshire. I believe that they have added fresh inspiration to the national debate about the importance of English Literature and History in schools."
Despite having made substantial progress, as you may be aware I remain convinced that the correct approaches to teaching and learning need to be challenged
Then we get a reference to one of Charles’ most bizarre beliefs, alternative medicine.
24 February 2005
Dear Prime Minister,
We briefly mentioned the European Union Directive on Herbal Medicines, which is having such a deleterious effect on complementary medicine sector in this country by effectively outlawing the use of certain herbal extracts. I think we both agreed this was using a sledgehammer to crack a nut. You rightly asked me what could be done about it and I am asking the Chief Executive of my Foundation for Integrated Health to provide a more detailed briefing which I hope to be able to send shortly so that your advisers can look at it. Meanwhile, I have given Martin Hurst a note suggesting someone he could talk to who runs the Herbal Practitioner’s Association.
Yours ever, Charles
In this he opposes the EU Directive on Herbal Medicines. All this directive did was to insist that there was some anecdotal evidence for the safety of things that are sold to you. It asked for no evidence at all that they work, and it allowed very misleading labels. It provided the weakest form of protection from the deluded and charlatans. It was put into effect in the UK by the Medicines and Healthcare Products Regulatory Authority (MHRA). They even allowed products that were registered under this scheme to display an impressive-looking “kite-mark”. Most people would interpret this as a government endorsement of herbal medicines.
This got a sympathetic response from Tony Blair, someone who, along with his wife, was notoriously sympathetic to magic medicine.
30 March 2005
Dear Prince Charles
Thanks too for your contacts on herbal medicines who have been sensible and constructive. They feel that the directive itself is sound and the UK regulators excellent, but are absolutely correct in saying that the implementation as it is currently planned is crazy. We can do quite a lot here: we will delay implementation for all existing products to 2011; we will take more of the implementation upon ourselves; and I think we can sort out the problems in the technical committee – where my European experts have some very good ideas. We will be consulting with your contacts and others on the best way to do this we simply cannot have burdensome regulation here.
Yours ever, Tony
Note "absolutely correct in saying that the implementation as it is currently planned is crazy. We can do quite a lot here: we will delay implementation for all existing products to 2011".
Government support for acupuncture and herbal medicine was made explicit in a letter from Health Secretary, John Reid (February 2005). He assures the prince that government is taking action to "enhance the status of the herbal medicine and acupuncture professions".
Nothing could reveal more clearly the clueless attitude of the then government to quackery. In fact, after 15 years of wrangling, the promised recognition of herbalism by statutory regulation never happened. One is reminded of the time that an equally-clueless minister, Lord (Phillip) Hunt, referred to ‘psychic surgery’ as a “profession”.
We got a preview of the Prince’s letters a month before the release when Max Hastings wrote in the Spectator
I have beside me a copy of a letter allegedly written by him some years ago to a cultural institution, asserting the conviction that ‘there is a DIVINE Source which is ultimate TRUTH… that this Truth can be expressed by means of numbers… and that, if followed correctly, these principles can be expressed with infinite variety to produce Beauty’.
You can’t get much barmier than that.
Are the letters harmless?
That has been the reaction on the BBC. I can’t agree. In one sense they so trivial that it’s amazing that the government thought it was a good use of £400,000 to conceal them. But they are all the evidence that we’ll get of the Prince’s very direct attempts to influence the political process.
The Prince of Wales is more than just a crank. He has done real harm. Here are some examples.
When the generally admirable NHS Choices re-wrote their advice on homeopathy (the medicines that contain no medicine) the new advice took two years to appear. It was held up in the Department of Health while consultations were made with the Prince’s Foundation for Integrated Health. That’s Charles’ lobby organisation for crackpot medicine. (The word "integrated" is the euphemism for alternative medicine that’s in favour with its advocates.) If it were not for the fact that I used the Freedom of Information Act to find out what was going on, the public would have been given bad advice as a direct result of the Prince’s political interference.
The Prince’s Foundation for Integrated Health (FIH) folded in 2010 as a result of a financial scandal, but it was quickly reincarnated as the "College of Medicine". It was originally going to be named the College of Integrated Medicine, but it was soon decided that this sounded too much like quackery, so it was given the deceptive name, College of Medicine. It appears to be financed by well-known outsourcing company Capita. It’s closely connected with Dr Michael Dixon, who was medical advisor to the FIH, and who tried to derail the advice given by NHS Choices.
Perhaps the worst example of interference by the Prince of Wales, was his attempt to get an academic fired. Prof Edzard Ernst is the UK’s foremost expert on alternative medicine. He has examined with meticulous care the evidence for many sorts of alternative medicine.Unfortunately for its advocates, it turned out that there is very little evidence that any of it works. This attention to evidence annoyed the Prince, and a letter was sent from Clarence House to Ernst’s boss, the vice-chancellor of the University of Exeter, Steve Smith. Shamefully, Smith didn’t tell the prince to mind his ow business, but instead subjected Ernst to disciplinary proceedings, After subjecting him to a year of misery, he was let off with a condescending warning letter, but Ernst was forced to retire early. In 2011and the vice-chancellor was rewarded with a knighthood. His university has lost an honest scientist but continues to employ quacks.
Not just interfering but costing taxpayers’ money
The Prince’s influence seems to be big in the Department of Health (DH). He was given £37,000 of taxpayers’ money to produce his Patients’ Guide (I produced a better version for nothing). And he was paid an astonishing £900,000 by DH to prepare the ground for the setting up of the hapless self-regulator, the Complementary and Natural Healthcare Council (CNHC, also known as Ofquack).
The Prince of Wales’ business, Duchy Originals, has been condemned by the Daily Mail, (of all places) for selling unhealthy foods. And when his business branched into selling quack “detox” and herbal nonsense he found himself censured by both the MHRA and the Advertising Standards Authority (ASA) for making unjustifiable medical claims for these products.
It runs in the family
The Prince of Wales is not the only member of the royal family to be obsessed with bizarre forms of medicine. The first homeopath to the British royal family, Frederick Quin, was a son of the Duchess of Devonshire (1765-1824). Queen Mary (1865-1953), wife of King George V, headed the fundraising efforts to move and expand the London Homeopathic Hospital. King George VI was so enthusiastic that in 1948 he conferred the royal title on the London Homeopathic Hospital.
The Queen Mother loved homeopathy too (there is no way to tell whether this contributed to her need for a colostomy in the 1960s).
The present Queen’s homeopathic physician is Peter Fisher, who is medical director of what, until recently was called the Royal London Homeopathic Hospital (RLHH). In 2010 that hospital was rebranded as the Royal London Hospital for Integrated medicine (RLHIM) in another unsubtle bait and switch move.
The RLHIM is a great embarrassment to the otherwise excellent UCLH Trust. It has been repeatedly condemned by the Advertising Standards Authority for making false claims. As a consequence, it has been forced to withdraw all of its patient information.
The patron of the RLHIM is the Queen, not the Prince of Wales. It is hard to imagine that this anachronistic institution would still exist if it were not for the influence, spoken or unspoken, of the Queen. Needless to say we will never be told.
The royal warrant for a firm that sells "meningitis vaccine" that contains nothing
Ainsworth’s homeopathic pharmacy is endorsed by both Prince Charles and the Queen: it has two Royal Warrants, one from each of them. They sell “homeopathic vaccines” for meningitis, measles, rubella and whooping cough. These “vaccines” contain nothing whatsoever so they are obviously a real danger to public health.
The regulator (the MHRA) failed to step in to stop them until it was eventually stirred into action by a young BBC reporter, Sam Smith who made a programme for BBC South West. Then, at last, the somnolent regulator was stirred into action. The MHRA “told Ainsworths to stop advertising a number of products” (but apparently not to stop making them or selling them).
They still sell Polonium metal 30C and Swine Meningitis 36C, and a booklet that recommends homeopathic “vaccination”.
Ainsworth’s sales are no doubt helped by the Royal Warrants. The consequence is that people may die of meningitis. In 2011, the MHRA Chief Executive Professor Kent Woods, was knighted. It was commented, justly, that
"Children will be harmed by this inaction. Children will die. And the fault must lie with Professor Sir Kent Woods, chairman of the regulator "
But the regulator has to fight the political influence of the Queen and Prince Charles. They lost.
The attorney general, while trying to justify the secrecy of Charles’ letters, said
“It is a matter of the highest importance within our constitutional framework that the Monarch is a politically neutral figure”.
Questions about health policy are undoubtedly political, and the highly partisan interventions of the Prince in the political process make his behaviour unconstitutional.
The Prince’s petulant outbursts not only endanger patients. They endanger the monarchy itself. Whether that matters depends on how much you value the tourist business generated by the Gilbert & Sullivan flummery at which royals excel.
The least that one can ask of the royal family is that they should not endanger the health of the nation. It would help if they refrained from using their influence on matters that are beyond their intellectual grasp..
If I wanted to know the winner of the 2.30 at Ascot, I’d ask a royal. For any other question I’d ask someone with more education.
The letters have made headlines in just about every newspaper. The Guardian had extensive coverage, of course.
The Times had a front page story "Revealed: how Charles got Blair to alter health policy" [pdf]
The British Medical Journal wrote "Prince Charles delayed regulation of herbal medicines" [pdf]
For me, the most shocking item was an interview given by Jack Straw, on Radio 4’s Today Programme. He was Home Secretary from 1997 to 2001 and Foreign Secretary from 2001 to 2006 under Tony Blair. From 2007 to 2010 he was Lord Chancellor. His response to the letters sounded like that of a right-wing conservative.
Like Blair. he deplored the Freedom of Information Act that his own government passed. He defended the secrecy, and supported the Conservative attorney-general’s attempt to veto the release of the letters. Perhaps his defence of secrecy is not surprising, He has a lot to hide, His involvement in the mendacity that led to the Iraq war, the dodgy dossier, his role in covering up torture (the "rendition" scandal). And He was suspended by the Labour party in February 2015 due to allegation of cash bribes.
He is certainly a man with plenty of things to hide.
The purpose of this post is to reveal a few samples of things that are taught on a homeopathy ‘degree’ course. The course in question was the "BSc Hons homeopathy course at the University of Central Lancashire (UCLAN). Entry to this course was closed in 2008 and, after an internal review, UCLAN closed almost all of the rest of its courses in alternative medicine too. The university is to be commended for this .
The purpose of making public some of what used to be taught is not to embarrass UCLAN, which has already done the sensible thing, but to make it clear that the sort of thing taught on such courses is both absurd and dangerous, in the hope of discouraging other courses
.Three years after I first asked for teaching materials, the Information Commisioner ruled that all the reasons given for refusal were invalid, and they must be handed over. However UCLAN then appealed against the decision, so the appeal went to an Information Tribunal. That appeal was lost decisively and UCLAN was.obliged to provide the whole of the course material.
On Christmas Eve I got five large box files, 13.7 kg of documents, or 30 pounds, in old money.
Because these documents are copyright, I rely on the twin defences of fair quotation (only a tiny proportion is being quoted) and public interest. The Information Tribunal decided very firmly that it was in the public interest that it should be known what is taught on such courses, and that can be achieved if some of it is made public. Here are a few extracts.
Code of ethics
The students are given a copy of the code of ethics of the Society of Homeopaths. This is 25 pages long, but paragraph 48 is especially interesting.
48 Advertisements, stationery and name plates maintain a high standard of propriety and
integrity to enhance the reputation of homeopathy.
- Advertising shall not contain claims of superiority.
- No advertising may be used which expressly or implicitly claims to cure named diseases.
- Advertising shall not be false, fraudulent, misleading, deceptive, extravagant or sensational.
No mention though, of the fact that this code of ethics has been repeatedly breached by the Society of Homeopaths itself, on its own website. See, for example, here in 2007 and again in 2009. as well as Ernst’s article on this topic.
Anyone who has followed dialogues among homeopaths knows that "claims to cure named diseases" is the norm not the exception. The code of ethics is just a bad joke. And the (late) course at UCLAN was no exception. Take, for example, course HP3002, Therapeutic Homeopathy, module leader Jean Duckworth.
Homeopathic treatment of cancer
There was a lecture on HP3002 called "A Homeopathic Approach to Cancer (Ramakrishnan methodology [sic])".. Here are 10 slides from that lecture. It is illegal to claim to be able to cure cancer under the Cancer Act 1939. If a homeopath were to make claims like these in public they’d be open to prosecution, not to mention in breach of the SoH’s code of ethics. If cancer is not a "named disease", what is?
Specific treatments for a named disease are recommended.
What happened to treating the whole person? Now specific organs are being treated. The term "affinity", as used here, is of course sheer hocus pocus.
It is easy to forget when reading this that none of the “medicines” contain any medicine whatsoeever.
Notice that the term "remedy" is used throughout. Any reasonable person would interpret "remedy" to imply "cure", though no doubt a homeopath, if challenged, would claim that "remedy" carried no such implication. The last slide is typical of junk medicine: the personal testimonial, supplied with no detail whatsoever. Just an anecdote which is useless as evidence.
This lecture alone strikes me as a cruel (and possibly illegal) hoax perpetrated on desperate patients. Of course a true believer might get some solace from taking the sugar pills, but that is not sufficient justification.
The same course dealt with quite a lot of other "named diseases", autism, ADHD and coping with a heart attack. And, you are asked, did you think arnica is just a first aid remedy?
If that isn’t a list of "named diseases", what is? The code of ethics appears to be a total sham.
And of course never forget that the “arnica” doesn’t contain any arnica anyway. And if you don’t believe that you can read the words of Kate Chatfield, module leader on thie very course, as recorded in the minutes of evidence to the Select Committee on Science and Technology .
Q538 Lord Broers: I have a simple, technical question about homeopathy and drugs. Is it possible to distinguish between homeopathic drugs after they have been diluted? Is there any means of distinguishing one from the other?
Ms Chatfield: Only by the label.
You can read a lovely analysis of the views of Kate Chatfield by physicist A.P. Gaylard here.
The Daily Telegraph. January 8th 2009 Ian Douglas reported on this post: The workings of a BSc in homeopathy
The Lancashire Evening Post carried a big spread on January 15th, Professor seeks out the truth about ‘quackery’.
River’s Edge. News and thoughts from Preston, Lancashire reviewed the Lancashire Evening Post article on Saturday January 16th: Homeopathy at UCLAN, a degree in quackery.
The cost of trying to stop this material being revealed. UCLAN told me on 5 February 2010 that the legal costs alone were £80,307.94 (inc. VAT). That doesn’t include staff time and photocopying. I’m not convinced that this was a good way to spend taxpayers’ money.
A momentous decision was promulgated (as lawyers say) by the Information Tribunal on December 8th 2009. It marks a step forward in Freedom of Information about how universities spend your money. It has taken 3.5 years to get to this point. Perhaps now there will be an end to the attempts of every single university that I’ve
approached to conceal what they teach.
"The Tribunal upholds the decision notice dated 30th. March, 2009, dismisses the appeal and directs that all the steps required by the Decision Notice be taken within 28 days of the date of this Decision"
Back story for this case
24th July 2006. I asked the University of Central Lancashire (UCLAN) for copies of teaching materials and validation documents for their "BSc" degree in homeopathy (this degree no longer exists: it was abolished in 2008). A year later, UCLAN shut the rest of its courses in alternative medicine, after an internal review.
21 August 2006. I was sent the validation documents but refused the teaching materials as UCLAN claimed they were exempt under section 43(2) of the Freedom of Information Act (FOIA)(commercial interests). Two days later I sent a request for the mandatory internal review of the refusal.
4th October 2006. The internal review confirmed the original decision (it always does), and cited, as well as section .43(2) of FOIA, section 21.
21 October 2006. I appealed to the Information Commissioner. The basis of the appeal was that the university might have financial interests in the outcome, but not commercial interests, because universities are not commercial organisations as defined in section 43(2) of the FOIA. In addition, even if the commercial argument was not allowed, the public interest in knowing what was taught was sufficient to justify release of the requested materials.
21 January 2008. The Information Commissioner finally got round to starting on the case.
29 September 2008 The vice-chancellor, Malcolm McVicar, raised an objection to complying with my request under s.36(2)(c) of FOIA. This states that “In the reasonable opinion of a qualified person, disclosure of the information under this Act” “(c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs..”
30 March 2009. The decision of the Information Commissioner was published. It has already been described here. Apart from one trivial matter, my appeal was upheld, and UCLAN was ordered to release the requested material within 35 days. However UCLAN did not release the material, but rather launched an appeal against the Information Commissioner. The appeal was heard by an Information Tribunal.
The full text of the Freedom of Information Act is here.
The Information Tribunal
The Tribunal heard the case of University of Central Lancashire v Information Commissioner in Manchester on November 3, 4 and 5. I was an ‘additional party’ to the proceedings and attended in person for the first two days, with the aim of helping the Information Commissioner’s case. This is what the tribunal looked like.
I was amazed to find myself sitting next to the barrister for the Information Commisioner, and still more amazed to be invited to cross-question the witnesses, after she had questioned them.
The witnesses were Malcom McVicar (vice-chancellor of UCLAN), Peter Hyett, (executive director of finance at UCLAN) and David Phoenix (Deputy vice-chancellor, UCLAN).
The decision in full can be read here.
The Tribunal upholds the decision notice dated 30th. March, 2009, dismisses the appeal and directs that all the steps required by the Decision Notice be taken within 28 days of the date of this Decision.
So we won.
The details of the decision contain some matters of great interest for universities, in particular the dismissal of the idea that the public can be reassured by either internal or external (e.g. QAA) validation procedures. I’ll try to summarise them (paragraph numbering as in the decision
The one disappointing thing about the Tribunal’s decision was that it contradicted the Information Commissioner’s decision on the meaning of commercial interests.
31 "Therefore, whether on a broad or narrow construction of the statutory words, we are satisfied that UCLAN `s interests in teaching material produced for its degree courses are properly described as “commercial”.
However, that does not affect the outcome because the Tribunal decided that there was no reason to think that the course materials actually had the commercial value that UCLAN said they did. For
36 We were not impressed by the claim that third parties with copyright in the disclosed materials would be alienated by UCLAN `s compliance with a decision that this information must be provided. None gave evidence to that effect.
37 It was not clear to us how a competitor could significantly exploit access to this material, without infringing UCLAN `s copyright or brazenly aping the content of a course, which would surely attract the scorn of the wider academic community. Moreover, it seemed to us likely that most potential students would be attracted to a particular course by the reputation of the teaching staff and a range of extra – curricular factors at least as much as by a comparative study of the powerpoint presentations and notes provided to current students.
39 Finally, in this particular case, we doubt whether this course had a significant commercial value, given the limited enrolment and the virtual absence of overseas interest.
At this point, the appeal is essentially dismissed. Nevetheless, the Tribunal went on to discuss the other defences offered by UCLAN, and some of their conclusions are more interesting than the subtle distinction between ‘financial interests’ and ‘commercial interests’.
40 In the light of this finding, it is not strictly necessary to decide the balance of public interest as to disclosure. Nevertheless, since the issue has been carefully and very fully argued, we shall shortly indicate our view, had the likelihood of prejudice been established.
The commercial interest defence is subject to the public interest argument in s.1(2((b) of the FOIA’
(b) in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority
holds the information.
Hence, the decision notice says
41 As ever, the question is whether the public interest in maintaining the exemption outweighs the interest in disclosure.
On the question of public interest, the Tribunal comes down strongly on the side of the Commissioner and me.
46 The public interest in disclosure seems to us appreciably stronger. Apart from the universal arguments about transparency and the improvement of public awareness, we find that there are particular interests here, arising from the nature of a university and the way it is funded.
It is particularly interesting that the Tribunal dismissed the role of internal and external validation as a substitute for transparency. As part of their case (para 18) UCLAN had argued
"Moreover, standards were ensured by the validation procedures which were required before a course was launched and which involved independent expert external monitors and by quality assurance (Q.A.A.) which demands a continuing compliance with national standards."
This cut no ice with the Tribunal. In one of his few direct interjections the Tribunal Chairman, David Farrar Q.C., questioned a witness directly about the internal validation processes, Evidently he was not impressed by the answers. During my own cross questioning of the deputy vice-chancellor, I put to him the view that since the QAA [Quality Assurance Agency] was not allowed to take any notice of the content of courses, that getting a high mark from the QAA was not a substitute for seeing what was actually taught. The deputy vice-chancellor did not seem to disagree strongly with that view.
47 First, the public has a legitimate interest in monitoring the content and the academic quality of a course, particularly a relatively new course in a new area of study, funded, to a very significant extent, by the taxpayer. It is no answer, we consider, to say that this function is performed by the process of validation or the continuing monitoring of standards with external input. Whether or not these processes are conducted with critical rigour, it must be open to those outside the academic community to question what is being taught and to what level in our universities. The apparent perception in some quarters that the intellectual demands of some or many degree courses have been relaxed, that higher classes of degree are too lightly earned, may be largely or entirely unfounded. But it is highly important that the material necessary to a fair judgement be available. That material will often, if not always, include the basic content of the course, such as is requested here.
48 Secondly, this is especially the case where, as with the BSc. (Homeopathy), there is significant public controversy as to the value of such study within a university. In this case, that factor standing alone would have persuaded us that the balance of public interest favoured disclosure.
49 We are not attracted by the somewhat patrician argument that the general public, uninstructed in the specialist subject under scrutiny, would be incapable of forming a proper judgement. That might be so, were it impossible to seek independent expertise to assist in making an assessment. Happily, it is not.
50 Finally, there is a public interest in opening up new methods of teaching and new insights as to the content of courses, so as to stimulate the spread of good practice.
So, a hands down win on the public interest argument.
Prejudice to effective conduct of public affairs
I found incomprehensible the argument that disclosure would ‘prejudice the effective conduct of public affairs’. But it was raised (at the last minute) by UCLAN, and it was considered by the Tribunal. This defence refers to s.36(2)(c) of FOIA. It states that “In the reasonable opinion of a qualified person, disclosure of the information under this Act” “(c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs..”
As noted at paragraph 17, it is common ground, established as to (iii), by the jurisprudence of the Tribunal, that this exemption is engaged if three requirements are met. They can be shortly labelled
(i) qualified person
(ii) reasonable opinion
(iii) reasonably arrived at.
The Tribunal seemed to be distinctly unimpressed by the arguments presented by UCLAN.
56 A reasonable opinion may be one with which the Tribunal emphatically disagrees, provided it is based on sound argument and evidence. With great respect to Professor McVicar, whose sincerity is not in question, we can find no adequate evidential basis for this opinion and consider that it rests on two misconceptions as to the application of FOIA. We do not find that it passes the required test of objective reasonableness.
57 We considered separately whether the opinion was reasonably arrived at. Again, our answer is no.
58 Section 36 provides for an exceptional exemption which the public authority creates by its own action, albeit subject to scrutiny of its reasonableness, the likelihood of prejudice and the question of the public interest. That factor of itself justifies a requirement that the authority provide substantial evidence as to the advice (other than legal advice) and the arguments presented to the qualified person upon which his opinion was founded. We emphasise that no set formula is required, just a simple clear record of the process.
59 The need for such evidence is all the greater where, as here, the authority invokes s.36 for the first time after the complaint to the IC [Information Commissioner].
60 The evidence consists of a briefly argued email from Dr. Bostock suggesting that s.36(2)(c) be invoked on the very broadly argued grounds already reviewed. The tone implicitly acknowledges that the claim is rather speculative. We are not concerned with the slightly uncertain use of possibility and likely but the impression left is of a last minute idea, not really thought through or investigated
but merely discussed with solicitors to tie it in to the FOIA. It was sent to the Vice Chancellor at 3.20pm. on a Friday afternoon, 26th. September, 2008, asking for the Vice Chancellor’s agreement. That agreement was forthcoming in a single sentence without further comment in an email reply timed at 12.05pm.on the following Monday.
61 We find that the process of forming the necessary opinion was, to say the least, perfunctory, indeed far short of the careful assessment and investigation that normally supports a qualified opinion for the purposes of s.36.
62 Accordingly, we do not find that it was reasonably arrived at.
62 It is for these reasons that we uphold the Decision Notice. We record our gratitude for the helpful and succinct submissions of counsel on both sides and the incisive contribution of Professor Colquhoun. We wish to add that, whilst we have not accepted the great majority of the arguments advanced by UCLAN, we do not in any way seek to cast doubt on the veracity of the evidence of its witnesses, nor the honesty and loyalty with which they have sought to serve its interests.
63 Our decision is unanimous.
Signed David Farrar Q.C.
Watch this space to see what can now be revealed.