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On appeal from: [2014] EWCA Civ 254

The Supreme Court dismissed the Attorney General’s appeal by a majority of 5:2 involving the challenge brought by a Guardian journalist to seek disclosure of written communications between the Prince of Wales and Parliament. By a majority of 6:1 they ruled that reg 18 of the Environmental Information Regulations 2004 was incompatible with the Council Directive 2003/4/EC and must be treated as invalid.

The Attorney General exercised the power to overrule the Upper Tribunal’s decision to disclose the information and issued a certificate under the Freedom of Information Act 2000 (FOIA), s 53, and the Environmental Information Regulations 2004 (EIR), reg 18, stating that he had, “on reasonable grounds”, formed the opinion that the departments had been entitled to refuse to disclose the written communications. The Respondent issued proceedings to quash the certificate and the Court of Appeal allowed his appeal on the grounds that the Attorney General’s reasons were not capable of constituting “reasonable grounds” and the certificate was incompatible with the Council Directive 2003/4/EC.

Lord Neuberger stated that the FOIA 2000, s 53, does not permit the Attorney General to override the decision of a judicial tribunal or Court by issuing a certificate merely because he, considering the same facts and arguments, takes a different view from that taken by the tribunal or Court. He reasoned that this would be unique in the law of the UK and would cut across two constitutional principles which are the fundamental components on the rule of law, namely that a decision of a court is binding between the parties and cannot be set aside, and that decisions and actions of the reviewable by the court, and not vice versa.

In relation to the arguments concerning the EIR 2004 Lord Neuberger considered that in the light of the wording of arts 6.1-6.3 of the 2003 Directive it would be impermissible for the executive to have another attempt at preventing disclosure, and therefore EIR 2004, reg 18, is incompatible with art 6 of the Directive.

Lord Mance in his dissenting judgment upon the s 53 point considers that it would be open to the Attorney General to issue a certificate under s 53 if he disagrees with the decision of the Upper Tribunal. However, disagreement with findings of fact or rulings of law in a fully reasoned decision would require the clearest possible justification, while disagreement as to the weight to be attached to competing public interests would require properly explained and solid reasons.

 

For judgment, please download: [2015] UKSC 21
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII