July 23, 2015

This article was written by Eileen Weinert, Solicitor and first published in Entertainment Law Review, June 2015.

In a coup for The Guardian, the Supreme Court handed down its judgment on March 26, 2015 in the case of R. (on the application of Evans) v Attorney General. The Guardian’s ten year struggle ended in victory when the Supreme Court ruled that letters and memos written by Prince Charles to various Government departments (dubbed “Black Spider” on account of the Prince’s cursive handwriting) should be disclosed and, when it came to the application of the Freedom of Information Act, Government was not entitled to trump a court’s decision merely because it took a different view on the facts.

Facts

Rob Evans, a journalist working for The Guardian newspaper, first requested disclosure of letters to and from Prince Charles and various government departments in April 2005, under the Freedom of Information Act 2000 (“FOIA”) which provides, at s.1, a general right of access to information held by public authorities and the Environmental Information Regulations 2004 (“EIR”).

The Departments refused disclosure, which decisions were upheld by the Information Commissioner (the “Commissioner”). Mr Evans appealed to the First Tier Tribunal, which transferred the appeal to the Upper Tribunal (“UT”). Following a six day hearing of evidence and argument, which included examination of the letters themselves in closed session, the UT determined on September 18, 2012 that those letters falling within the class of “advocacy correspondence” (as opposed to purely personal letters or those within the class of “preparation for kingship”) should be disclosed.

The Government departments did not appeal that decision. Instead, on October 16, 2012, the Attorney General exercised his statutory right of “veto” under FOIA s.53(2) preventing disclosure.

Under s.53(2), the Attorney General (or any other “accountable person” under the Act including Members of the Cabinet) can override the decision of the UT and render it ineffective, if, in his opinion (formed on reasonable grounds) the government departments have not failed to comply with FOIA s.1 and EIR reg.5. In the Attorney General’s opinion, the public interest in non-disclosure substantially outweighed the public interest in disclosure. This was an exceptional case:

• The information consisted of private and confidential letters between the Prince of Wales and ministers;
• The request was for recent correspondence;
• The letters formed part of the Prince of Wales’ preparation for kingship;
• Disclosure risked damaging the principle of the Prince of Wales’ political neutrality, which could seriously undermine the Prince’s ability to fulfil his duties when he became King; and
• The ability of the Monarch to engage with the Government of the day, whatever its political colour, and maintain neutrality was a cornerstone of the United Kingdom’s constitutional framework.

Mr Evans sought judicial review of the Attorney General’s veto. His application was dismissed by the Divisional Court. He appealed to the Court of Appeal who ordered that the letters be disclosed. The Attorney General appealed to the Supreme Court. Two issues fell to be determined by the Supreme Court:

• Was the Attorney General’s certificate under FOIA s.53(2) valid?; and
• Was EIR reg.18(6) incompatible with the Environmental Information Directive such that the Attorney General’s certificate in respect of environmental information would in any event be invalid?

Judgment of the Supreme Court

The Supreme Court held by a 5:2 majority that the Attorney General’s veto was invalid.

Lord Neuberger

Lord Neuberger (with whom Lord Kerr and Lord Reed agreed) put it in the strongest terms:*Ent. L.R. 167

“A statutory provision which entitles a member of the executive to overrule a decision of the judiciary merely because he does not agree with it would not merely be unique in the laws of the United Kingdom, it would cut across two constitutional principles which are also fundamental components of the rule of law.

(1) “First, a decision of a court is binding as between the parties and cannot be ignored or set aside by anyone, least of all the executive;

(2) Second, it is a fundamental rule of law that decisions and actions of the executive are, subject to well established exceptions (such as declarations of war), reviewable by the court at the suit of an interested citizen.”

Section 53 flouted the first principle and stood the second principle on its head. Accordingly, if Section 53 was to have that remarkable effect, it must be “crystal clear” from the wording of the FOIA. In Lord Neuberger’s view, s.53 fell far short of being “crystal clear” in saying that a member of the executive could override a decision of a court because, considering the same facts and arguments, he took a different view.

The meaning of the expression “reasonable grounds” was highly dependent on its context. On the one hand was the decision of the UT, whose decisions could be appealed by the Government departments; which had particular relevant expertise and experience; which conducted a full hearing with witnesses who could be cross-examined; and whose members produced a closely reasoned decision.

On the other, was the decision of the Attorney General, an individual who consulted people (ministers) who had been on the receiving end of the very correspondence of which disclosure was sought; who received no argument on behalf of the person seeking disclosure; who received no fresh facts or evidence and who simply took a different view from the tribunal.

Lord Neuberger then considered whether there were any circumstances in which s.53 would justifiably allow a Cabinet Minister or the Attorney General to override a decision of a court. He agreed with Lord Dyson of the Court of Appeal that there were at least two types of circumstances in which a veto would be valid: a material change of circumstances since the first decision or that the first decision was demonstrably flawed in fact or in law. Lord Neuberger added a third; that the Attorney General might rely on evidence or grounds which were excluded by the Commissioner or the tribunal.

In light of Lord Neuberger’s conclusion on the first issue, it was not strictly necessary to consider the second issue as regards advocacy correspondence including environmental information. Lord Neuberger nevertheless held that EIR reg.18(6) was not compatible with art.6 of the 2003 Directive which requires that the review procedure before a court is the final decision, not capable of subsequent review by the executive.

Lord Mance

Lord Mance (with whom Lady Hale agreed) considered that s.53 must have been intended by Parliament to have, and can and should be read as having, a wider potential effect than that which Lord Neuberger attributed to it. He agreed with parts of Lord Wilson’s dissenting judgment. It was possible for the Attorney General to arrive at a different evaluation of the public interests. Disagreement as to matters of fact or law would require the clearest possible justification (and may be possible only in the limited circumstances contemplated by Lord Neuberger). However disagreement about the relative weight to be attributed to competing interests was a different matter and one which Lord Mance agreed with Lord Wilson could be a matter which s.53(2) contemplates and which a certificate could properly address, by properly explained and solid reasons.

Central to the Attorney General’s disagreement with the UT was his view that the “advocacy correspondence” in which the Prince of Wales engaged was “part of his preparation for Kingship”, or part of an “education” or “apprenticeship convention”. However, the Attorney General’s approach was in sharp disagreement with the UT’s findings and conclusions. Those findings and conclusions were based on extensive evidence and analysis of the role of the Monarch in this country, the skills and disciplines attaching to that role, the preparation regarded as necessary to understand, possess and exercise them and the relevant conventions. The Attorney General’s certificate did not engage with or give any real answer to this closely reasoned analysis and its clear rebuttal of any suggestion that a risk of misperception (the Attorney General’s fourth ground listed above) could justify withholding of disclosure.

Accordingly, the certificate failed to be justified on reasonable grounds to satisfy s.53(2) and the Court of Appeal was right to set aside the certificate.

Lord Mance agreed with Lord Neuberger’s remarks and conclusions on the second issue.

Lord Hughes (dissenting in part)

The power to disagree with the tribunal’s decision on reasonable grounds included the power to disagree with the evaluation of where the balance of public interest lies. The exercise of that power was subject to judicial review if the Attorney General had acted unlawfully or if he had materially misdirected himself, which he had not. Lord Hughes agreed with Lord Neuberger that Parliament should not be taken to have empowered a member of the executive to override a decision of the court unless it had made such intention explicit, but in Lord Hughes’ view, Parliament had plainly shown such an intention in the present instance. The words of the statute were plain. Had Parliament wished to limit the power to issue the certificate to the two circumstances described by Lord Neuberger, the subsection would have said. It followed that the Attorney General was entitled to differ from the UT on where the balance of the public interest lay. This was the principal purpose of s.53(2). His decision must be rational, but it was not seriously suggested that it was not in this case. It was a view shared by the Commissioner. It was not necessary for the Attorney General to match the remarkable detail in the UT’s judgment. Provided he explained in general terms where he differed and why, so that his reasoning could be understood, the requirements of the section were met.

Lord Hughes agreed with Lord Neuberger’s remarks and conclusions on the second issue.

Lord Wilson (dissenting)

In Lord Wilson’s view, the Court of Appeal did not interpret FOIA s.53. It re-wrote it. It invoked precious constitutional principles but Lord Wilson said, among the most precious was that of parliamentary sovereignty, emblematic of our democracy.

Lord Wilson referred to the version of the Bill printed on February 10, 2000 which conferred a discretion on a public authority to disclose information, while requiring it, in the exercise of that discretion, to have regard to the desirability of disclosure wherever the public interest in doing so outweighed the public interest in not doing so. That discretion was later eliminated from the Bill, according to Lord Wilson, in favour of a closely circumscribed power of public authorities at the highest level to override the evaluation of public interests by the Commissioner or courts in ensuing appeals—what became s.53. That power was subject to a unique array of safeguards of which Lord Wilson named eight.

The majority’s “valiant attempts” to find some circumstances in which the accountable person might have reasonable grounds for reaching an opinion different to the tribunal or court were considered by Lord Wilson to be far-fetched and serving to illuminate the deficiency of the Court of Appeal’s analysis of s.53. Its effect was that, in practice, it would almost never be reasonable for an accountable person to disagree with the decision of a court in favour of disclosure. That was contrary to Parliament’s clear intention.

Lord Wilson dissented on the second issue as well.

Comment

The decision was widely anticipated for its democratic ramifications and seriously undermines the operation of the veto regime by Government in connection with the Freedom of Information Act, as highlighted by the dissenting Lord Wilson and Lord Hughes. It also serves as a modern-day restatement of Montesquieu’s democratic principle of the separation of powers between the executive, legislature and the judiciary. It has been widely welcomed as a victory for transparency over secrecy, freedom of expression over the abuse of privilege and access to power, cloaked by the Prince of Wales under the principles of privacy and confidentiality.