The Supreme Court has ruled (by a 5:2 majority) that the Attorney General unlawfully blocked the release of letters sent by Prince Charles to government departments. R (on the application of Evans) v Attorney General [2015] UKSC 21 concerned a Guardian journalist’s request for the letters in 2005 under the Freedom of Information Act 2000 (FOIA) and Environmental Information Regulations 2004 (EIR). The government refused to disclose the letters, relying on exemptions under FOIA, including section 37 on communications with the heir to the throne. Mr Evans appealed the decision to the Upper Tribunal (the equivalent of the High Court for FOIA and EIR cases) who ordered disclosure.

This decision was not appealed, but instead the Attorney General exercised his power of veto under section 53 FOIA (which may also be invoked for the EIR), which allows him to block disclosure where he forms the opinion on reasonable grounds that the relevant public body had been entitled to refuse disclosure. The Supreme Court found that this decision was unlawful.

Lord Neuberger (and Lords Reed and Kerr) found that section 53 does not permit the Attorney General to override a decision of a judicial tribunal or court merely because he, a member of the executive, considering the same facts and arguments, takes a different view from that taken by the tribunal or court. Such a rule would cut across two constitutional principles fundamental to the rule of law:

  1. A decision of a court is binding on the parties and cannot be ignored or set aside by anyone (including the executive) except a higher court or Parliament (through legislation).
  2. Decisions of the executive are reviewable by the court at the suit of an interested citizen, subject only to limited exceptions (eg declarations of war).

Whilst Parliament can override the second principle, it would need to be “crystal clear” that it intended to do so. Lord Neuberger noted that section 53 could be used following the determination of a court or tribunal in limited circumstances (a material change in circumstances, or where the decision was demonstrably wrong in fact or law). But that was not the case here.

Lord Mance and Lady Hale agreed that the use of the veto had been unlawful on the grounds that it had not been open to the Attorney General to overrule the Upper Tribunal without any real or adequate explanation. However, they disagreed with the restrictive interpretation of section 53 that Lord Neuberger had taken.

Lords Wilson and Hughes, dissenting, thought that it had been open to the Attorney General to disagree with the Upper Tribunal in the way he did.

All except Lord Wilson agreed that the application of section 53 to the EIR breached the requirement in the 2003 EU Directive on environmental information that those requesting information had access to a court review procedure “whose decisions may become final”.

David Cameron has reportedly described the ruling as “disappointing” and suggested that FOIA should be amended to strengthen the veto. Given importance of the constitutional principles emphasised by the Supreme Court, this seems an undesirable result, and is very unlikely to occur before the general election in May.

For further information, please contact the Public & Regulatory or Media Disputes department.

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Melanie Carter

Partner and Head of Public & Regulatory

+44(0)20 7551 7615

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Rupert Earle

Partner and Head of Media Litigation

+44(0)20 7551 7609

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Posted on 27/03/2015 in Legal Updates

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