Cross v IC & Anor

A person is a functional public authority under Article 2(2)(b) of Directive 2003/4/EC only where the applicable legal regime entrusts it with services of public interest, including in the environmental field, and vests it with special powers. Those combined features must give the person a sufficient connection with the public administration or executive of the state.

The Sovereign is not part of the Crown in the governmental sense. Her constitutional functions, though publicly important, are formal, ceremonial or personal rather than executive or administrative. They therefore do not make her an organic or functional public authority. Public funding, parliamentary scrutiny and ministerial advice do not establish the control required by Article 2(2)(c) or Regulation 2(2)(d).

Mrs Cross requested minutes of the Royal Household’s Social Responsibility Committee. The Royal Household refused the request on the basis that it was not a public authority under the Environmental Information Regulations 2004. The Information Commissioner concluded that neither the Royal Household nor the Sovereign was a public authority and therefore that he had no jurisdiction to issue a decision notice.

Mrs Cross appealed. The appeal was transferred from the First-tier Tribunal to the Upper Tribunal and stayed pending the CJEU and Upper Tribunal decisions in Fish Legal and Shirley v Information Commissioner. Before the Tribunal, the parties accepted that the Royal Household’s relevant functions were co-extensive with those of the Sovereign. The central issue was whether the Sovereign was a public authority under the Directive or the EIR.

1. Appeal dismissed. The Sovereign was not a public authority under Article 2(2) of Directive 2003/4/EC or Regulation 2(2) of the Environmental Information Regulations 2004.

2. Applying the CJEU’s guidance in Fish Legal and Shirley v Information Commissioner, C-279/12, the Tribunal held that the functional category in Article 2(2)(b) concerns administrative authorities defined functionally. The applicable legal regime must entrust the entity with services of public interest, including in the environmental field, and vest it with special powers. The combination must have a sufficient connection with functions performed by entities organically forming part of the state administration or executive.

3. The Sovereign is distinct from the Crown in the governmental sense. The latter denotes ministers, government departments and civil servants who exercise executive powers. The Sovereign’s constitutional roles and powers, including functions connected with legislation, appointments, honours and the occupied Royal Palaces, are exercised in a formal, ceremonial or personal capacity. They do not make her part of the executive or public administration.

4. The Sovereign had no special powers of the kind required by the functional test in managing and maintaining the occupied Royal Palaces. Her other constitutional powers were not the special powers contemplated by the CJEU test. In any event, the requisite connection with governmental administration was absent. Regulation 2(2)(c) of the EIR did not produce a different result.

5. The alternative control category also failed. The Royal Household was controlled by the Sovereign, who was not a public authority. Public funding, accounting to parliamentary committees, and the convention that certain functions are exercised on ministerial advice did not amount to control by a public authority for Article 2(2)(c) of the Directive or Regulation 2(2)(d) of the EIR.

• Upper Tribunal (Administrative Appeals Chamber): Mrs Cross’s appeal, transferred from the First-tier Tribunal, was dismissed: [2016] UKUT 153 (AAC).
• Information Commissioner: The Commissioner concluded that neither the Royal Household nor the Sovereign was a public authority under the Environmental Information Regulations 2004 and that he lacked jurisdiction to issue a decision notice.