Full case report
R (Evans) v Attorney General
Reference  EWCA Civ 254
Court Court of Appeal (Civil Division)
Judge Lord Dyson (MR), Richards & Pitchford LJJ
Date of Judgment 12 Mar 2014
freedom of information – privacy – advocacy correspondence – Prince of Wales – executive power under s.53(2) of FOIA 2000 – reasonableness
Mr Evans, a journalist employed by The Guardian newspaper sought disclosure under the Freedom of Information Act 2000 (“FOIA”) and the Environmental Information Regulations (“EIR”) of correspondence sent by Prince Charles to various Government Departments between 1 September 2004 and 1 April 2005. The Departments refused disclosure and the Information Commissioner upheld that decision.
On 18 September 2012, the Upper Tribunal (“UT”) ordered that Mr Evans was entitled to disclosure of ‘advocacy correspondence’ falling within his requests, including advocacy on environmental causes, on the ground that it would generally be in the overall public interest for there to be transparency as to how and when Prince Charles sought to influence government. It made clear that the ruling did not open up correspondence by the Prince with government departments which was of a personal kind or which otherwise fell within the category of communications which by convention was regarded as part of his ‘preparation for kingship’.
On 16 October 2012, the Attorney General used the statutory ‘veto’ of section 53(2) of FOIA enabling him to block disclosure. Under section 53(2), the Attorney General (or any other ‘accountable person’ under the Act) can decide that an order against a government department shall cease to have effect, if he or she has reasonable grounds for concluding that the government departments have not failed to comply with s.1(1)(b) FOIA and reg. 5 of the EIR. The Attorney General essentially agreed with the Information Commissioner’s reasoning and stated his belief that the disclosure sought would undermine the Prince’s dignity by invading his privacy.
Mr Evans applied for judicial review of the Attorney General’s decision. On 9 July 2013, the Administrative Court held that the use of the executive power had been lawful. It considered that (1) ‘reasonable grounds’ were grounds that were rational and made sense and that it was no bar to the grounds being reasonable that they differed from other reasoning which was also rational and made sense and (2) disagreement with a prior decision was precisely what section 53(2) contemplated, without any explicit or implicit requirement for the existence of fresh evidence or irrationality in the original decision.
Mr Evans appealed to the Court of Appeal, arguing (1) that the Administrative Court had erred in its approach to section 53(2) of the FOIA; (2) that the Attorney General did not have reasonable grounds for issuing the certificate and (3) that section 53(2) was incompatible with EU law in relation to the disclosure of environmental information, namely Directive 2003/4 on Public Access to Environmental Information in conjunction with art. 47 of the Charter of Fundamental Rights of the European Union 2000.
1. What amounted to reasonable grounds under section 53(2) in this case?
2. Did the Attorney General have reasonable grounds for issuing the certificate?
3. Was section 53(2) compatible with EU law?
Allowing the application for judicial review and quashing the certificate in its entirety
1. Whether a decision was reasonable will depend on the context and circumstances in which it was made:
Lord Dyson, giving the judgment of the court, set out his reasoning as follows:
The Divisional Court was correct in finding that two opposing decisions could both be objectively reasonable. But whether it was reasonable for X to disagree with the reasonable decision of Y would depend on the context and circumstances in which X and Y were acting.
Three authorities were considered as providing a helpful analogy: R v Warwickshire County Council ex p Powergen plc (1998) 96 LGR 617, R v Secretary of State for the Home Department ex p Danaei  INLR 124 and R (Bradley) v Secretary of State for Work and Pensions  QB 114. In each case, the court had emphasised as being of particular importance the fact that the earlier decision had been made by an independent and impartial body, after a thorough consideration of the issues. In these circumstances, the court held that there had to be something more than a mere disagreement on the same material for it to have been reasonable for Y to disagree with X.
In the present case, the Attorney General had disagreed with the decision of the UT (an independent court chaired by a High Court judge) on the very question which the UT had examined in meticulous detail. The Attorney General, however, did not have any additional material and it had not been suggested that the UT had made any error of law or fact.
It was not reasonable, therefore, for an accountable person to issue a section 53(2) certificate merely because he disagreed with the decision of the tribunal. Something more was required. Examples of what would suffice were a material change of circumstances since the first decision or that the first decision was demonstrably flawed in fact or in law.
The fact that a section 53(2) certificate involved making an evaluative judgment (rather than a finding of primary fact) was not material to whether the accountable person had reasonable grounds for forming a different opinion from that of the tribunal.
2. The Attorney General did not have reasonable grounds for issuing the certificate:
The UT had reached its decision after a six day hearing during which it had heard evidence (including expert evidence) and argument at which Mr Evans, the Commissioner and the relevant Departments were all represented by leading counsel. The tribunal had considered all the material and during part of the hearing, even gone into closed session.
The UT’s decision was not appealed by the Departments. Counsel for the Attorney General had not suggested that it contained any errors of fact or law or that its conclusion was unreasonable. The Attorney General simply disagreed with the evaluation made by the UT. He therefore had no good reason for overriding the meticulous decision of the UT reached after six days of hearing and argument. It was therefore unnecessary to consider any further submissions made on behalf of Mr Evans challenging the reasonableness of the views express by the Attorney General (see  of the judgment).
3. Section 53(2) was incompatible with article 6(2) and (3) of the relevant EU Directive, in so far as the information which was the subject of a decision notice was environmental information (see - of the judgment for further discussion). Further, the certificate should be quashed in its entirety because, as regards the non-environmental information, the Attorney General had not explicitly addressed the question of how the competing public interests should be weighed (see  to  of the judgment).
This decision – the first judicial review of the exercise of the section 53 veto – has been welcomed by some as a major legal victory for press freedom over Government secrecy. The mere fact that an accountable person has reached a different conclusion from the initial decision in weighing the competing public interests involved will not pass muster.
The context specific analysis adopted by the Court of Appeal, however, must not be overlooked when considering the actual impact of this decision. Indeed, it was the absence of good reasons put forward by the Attorney General for overriding the meticulous decision of the Upper Tribunal, not Mr Evans’s right to freedom of expression, which formed the basis of Lord Dyson’s judgment.
If the decision is upheld on appeal, it may have implications for the extent to which the Prince of Wales can maintain a right of confidentiality more generally in relation to his correspondence.
NOTE: Lord Dyson granted the Attorney General permission to appeal to the Supreme Court and ordered that the Attorney General pay the Guardian’s legal costs, amounting to £96,000.
Guardian News and Media Ltd, Editorial Legal Services for the Appellant, the Treasury Solicitor for the Respondent and the Information Commissioner for the Interested Party
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.