Canal and River Trust v Information Commissioner & Anor

Statutory words must be read in their statutory context. External materials cannot displace clear language that produces no absurdity. In a transfer provision, “functions exercisable” refers to functions conferred on the transferring body under the specified legislation immediately before transfer. It does not mean functions which the transferee could choose to exercise. A statutory duty and a conditional power must be capable of falling within the same description. Where a later statutory entry adopts the language of the transfer provision, it should ordinarily receive the same meaning.

Canal and River Trust appealed against two decisions of the First-tier Tribunal concerning a request by David Wolfe for information about mooring agreements and proposed mooring-charge increases. The issue was whether the information was held by the Trust as a public authority under Schedule 1 to the Freedom of Information Act 2000.

The First-tier Tribunal held that the Trust was a public authority because the relevant function could have been exercised under the British Waterways Board (Transfer of Functions) Order 2012. The Upper Tribunal had to determine the meaning of “functions exercisable” in that Order and in the corresponding FOIA entry, and whether the charges arose from the statutory power or from the Trust’s rights as landowner.

1. Appeal allowed and decision re-made. The First-tier Tribunal’s decisions were set aside under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007. The Trust was not a public authority under the Freedom of Information Act 2000 in respect of the requested information.
2. The correct starting point was article 2 of the British Waterways Board (Transfer of Functions) Order 2012. “Functions exercisable” meant functions possessed or conferred on the Board under the specified legislation immediately before transfer. The First-tier Tribunal’s interpretation, which included functions the Trust could choose to exercise, was wrong.
3. The interpretation also failed to accommodate different kinds of statutory function. A duty to maintain waterways involved no choice, while a compulsory-purchase power was conditional on ministerial authority.
4. Section 43(3) of the Transport Act 1962 concerned the imposition of charges and terms for services and facilities. The word “make” conveyed imposition rather than contractual agreement. The mooring charges in issue were not imposed under that power, but arose from contractual or landowner arrangements.
5. The amendment to Schedule 1 to FOIA adopted the language of article 2 and therefore had the same meaning. The explanatory memoranda could not displace the clear statutory language.

• Upper Tribunal (Administrative Appeals Chamber): the First-tier Tribunal’s decisions of 12 February 2021 and 7 September 2021 were set aside under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007; the decision was re-made.
• First-tier Tribunal (General Regulatory Chamber): held that Canal and River Trust was a public authority in respect of the requested information and subsequently decided how the exemptions applied.