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Toby_Lovett_phThis Supreme Court decision was the final instalment in a ten-year battle for the public disclosure of the so-called ‘Black Spider memos’ under the Freedom of Information Act 2000 and the Environmental Information Regulations 2004.

Factual background

A detailed background of this case can be found in this blog’s Case Preview, but very briefly, it concerned a request by Guardian journalist Rob Evans, who in April 2005 sought disclosure of a series of written communications between HRH the Prince of Wales and various governmental departments under the FOIA and EIR. After initially denying their existence, the departments denied disclosure under sections 37, 40 and 41 of FOIA.

Appellate history

Mr Evans subsequently complained to the Information Commissioner’s Office but the departments’ refusal to disclose the letters was upheld. However, upon appeal to the Upper Tribunal, it was decided that 27 of these letters should be disclosed as these were deemed to be “advocacy correspondence” and therefore in the public interest.

Although the departments did not appeal against the Upper Tribunal’s decision, the Attorney General (as an “accountable person”) issued a certificate under section 53 FOIA, which had the effect of a veto on the decision of the Upper Tribunal. Mr Evans applied for a judicial review of the issuance of this certificate.

The High Court rejected Mr Evans’ application in the first instance, but the Court of Appeal overturned the decision, quashing the Attorney General’s certificate whilst ruling that the Attorney General did not have “reasonable grounds” to reach the decision he had.

Permission was then granted to appeal to the Supreme Court.

Supreme Court judgment

The Supreme Court dismissed the Attorney General’s appeal by a majority of 5:2 and concluded by a majority of 6:1 that regulation 18 of the EIR was incompatible with the Council Directive 2003/4/EC.

Validity of the section 53 certificate under FOIA 2000

The leading judgment, given by Lord Neuberger (with whom Lord Kerr and Lord Reed agreed), was heavily focussed on the constitutional aspects of the decision, namely the principles of the rule of law and separation of powers. To this end, it was a “basic principle that a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone, including… the executive” (paragraph 52).

Whilst the court accepted that a statute could give a member of the executive authority to override a decision of the court, even for the reason that he simply disagreed with it, it held that this must be “crystal clear” from the wording of the statute. However, section 53 fell “far short” of this in the view of the court (paragraph 58). Lord Neuberger did apply the test laid down by Lord Dyson in the Court of Appeal concerning when such a certificate could be valid under section 53 FOIA, namely when there has been “a material change of circumstances since the tribunal decision or that the decision of the tribunal was demonstrably flawed in fact or in law” (paragraph 71).

The court did identify some difficulties with this approach. Given the fact that a certificate must be issued within 20 working days (s 53(2) FOIA), a material change of circumstances would be highly unlikely. However, it suggested it would be applicable where new evidence becomes admissible or new grounds come to light within this 20-day window. Secondly, whilst dealing with the theoretical question of whether an appeal would be more suitable in the case that the tribunal was demonstrably flawed in fact or in law, Lord Neuberger pointed out that, for example, it is often only possible to appeal a decision to the extent it has gone wrong in law, with subsequent appeals generally limited to an important point of law or practice; the test at hand also provides for the case where facts come to light which indicate there have been serious flaws in the determination of the tribunal (paragraph 77).

In any case, the court acknowledged that section 53 had “a very narrow range of potential application” and contested it was “always envisaged that [it] would be rarely invoked” (paragraph 86). By applying Lord Dyson’s test, it concluded that the Attorney General did not have “reasonable grounds” as his reason to disagree with the decision of the Upper Tribunal was not based on anything new.

Lord Mance (with whom Lady Hale agreed) gave a more administrative-based focus in a separate judgment. He held that the Attorney General must be able to assert he has reasonable grounds for non-disclosure and this test was a “higher hurdle than merely rational”, requiring the “clearest possible justification” (paragraphs 129-130). He compared the thorough investigation undertaken by the Upper Tribunal of hearing evidence, which was called and cross-examined in public, to the Attorney General’s reliance on private consultations, forming his view without inter partes representations. As the Attorney General had issued the certificate “without any substantial or sustainable basis being given for the disagreement” he could not be considered to have issued the certificate on reasonable grounds within the meaning of section 53 (paragraph 145).

There were two separate dissenting judgments from Lord Hughes and Lord Wilson. Both were of the view that the Attorney General did have the power to issue the certificate as he was entitled to differ from the opinion of the Upper Tribunal. This was the intention of Parliament when in creating the provision. For Lord Hughes, the interpretation of the provision given in the leading judgment was, with respect, “simply too highly strained a construction of the provision” (paragraph 155). Thus, applying the plain words of the statute, he believed that the Attorney General had given sufficient rational reasons that the public interest lay in non-disclosure (paragraph 165).

Compatibility of the EIR with EU Law

Lord Neuberger did not consider it strictly necessary to deal with the compatibility of the certificate – as stipulated in Regulation 18(6) of the EIR – with the provisions of the Council Directive 2003/4/EC, but nevertheless concluded that this executive right was inconsistent with the 2003 Directive. Indeed, the wording of Articles 6.2 and 6.3 provided “no room for the executive to have another attempt at preventing disclosure” (paragraph 103). The Supreme Court did reject Mr Evans’ argument, with which the Court of Appeal had agreed, that the certificate was “tainted by an error of law which would invalidate it generally and not merely in respect of environmental information” (paragraph 109). However, it concluded that it was obvious that the Attorney General would have issued the certificate in respect of non-environmental information, even if the environmental information had to be disclosed (paragraph 111).

Lord Wilson gave the sole dissenting judgment on this point, maintaining that, because the certificate was open to judicial review and the courts were therefore the “ultimate arbiter”, there was no breach of the 2003 Directive (paragraph 188).

Comment

The judgment raises some fundamental constitutional issues with regard to the rule of law and the separation of powers, and demonstrates a definitive stance by the Supreme Court against the government’s power to interfere with decisions of the judiciary. It must be remembered that HRH’s privacy was no longer the issue here; indeed, the Supreme Court did not even inspect the contents of the letters.

The letters were subsequently published by the Cabinet Office in two batches on the 13 May 2015 and 4 June 2015 respectively. However, it remains to be seen whether the government will undertake a redrafting of section 53 of FOIA to make the power of a governmental veto clearer or whether it will seek to resolve the apparent incompatibility of the EIR.