Full case report
R (Evans) v HM Attorney General (Supreme Court)
Reference  UKSC 21
Court UK Supreme Court
Judge Lord Neuberger PSC, Lady Hale DPSC, Lords Mance, Kerr, Wilson, Reed and Hughes JJSC
Date of Judgment 26 Mar 2015
Prince Charles letters – Freedom of Information Act 2000 – Environmental Information Regulations 2004 – Constitutional Law – Executive Veto – EU Charter of Fundamental Rights
In April 2005, E (a journalist with The Guardian newspaper) sought letters and memos written by HRH Prince Charles to government ministers under both the Freedom of Information Act 2000 (“FOIA”) and, insofar as they concerned ‘environmental information’, the Environmental Information Regulations 2004 (“EIR”). The Prince’s dense hand-writing led to the information sought being described in the media as the “Black Spider” letters/memos. Disclosure was refused by various government departments, applying various exemptions. The Information Commissioner upheld those exemptions.
On E’s appeal to the Information Tribunal (as it then was) the matter was transferred to the Upper Tribunal (Walker J, UT Judge Angel, Ms Cosgrove) (“the UT”) for a trial lasting six days. The UT’s reasoned determination of 18 September 2012 allowed E’s appeal in respect of ‘advocacy correspondence’:  UKUT 313 (AAC). The government departments did not appeal this decision to the Court of Appeal.
Section 53 FOIA provides that a cabinet minister or HM Attorney General (“AG”) may issue a signed certificate within 20 days which, certifying that the signatory believes that on reasonable grounds (s)he has formed the opinion that there was no failure by the government department(s) to comply with their duties under section 1 FOIA. By Regulation 18(6) of the EIR, s.53 FOIA applies to requests for ‘environmental information’ sought under the EIR.
Because the ‘advocacy letters’ were contained within papers of a former government, the appropriate signatory was the AG, who issued a certificate (within 20 days) on 16 October 2012 setting out his reasoning for disagreeing with the UT.
E sought judicial review of the AG’s certificate on the basis that (1) the reasons given were not “reasonable grounds” in the meaning of s.53(2) FOIA; and (2) insofar as the ‘advocacy correspondence’ contained ‘environmental information’, the certificate was invalid because Regulation 18(6) was incompatible with Council Directive 2003/4/EC and/or Article 47 of the EU Charter of Fundamental Rights.
The Divisional Court (Lord Judge CJ, Davis LJ and Globe J) dismissed E’s application for judicial review  EWHC 1960 (Admin), but the Court of Appeal (Lord Dyson MR, Richards and Pitchford LJJ) allowed E’s appeal against that decision on both grounds. Lord Dyson MR gave the AG permission to appeal to the UK Supreme Court (“unusually but rightly” according to Lord Neuberger at ).
Although the Information Commissioner, UT, and AG had seen the letters and memos themselves, the Divisional Court, Court of Appeal, and Supreme Court all came to their decisions without having sight of the underlying information that E sought to be disclosed by the government departments.
1) Was the AG’s certificate under section 53(2) FOIA invalid?
2) Was EIR Regulation 18(6) incompatible with Council Directive 2003/4/EC, such that the AG’s certificate in respect of environmental information would in any event be invalid?
1) By a majority of 5-2 (Lords Wilson and Hughes dissenting), the AG’s certificate under s.53(2) FOIA was held to be invalid:
a) Lord Neuberger (with whom Lords Kerr and Reed agreed) held that Parliament would have had to use crystal clear language in order to grant the executive branch the power to override a judicial decision simply on the grounds that, having considered the same facts and arguments, the member of the executive came to a different view. Two constitutional principles fundamental to the rule of law would be violated by such an outcome: first, that decisions of the courts are binding on the parties to the case; and second, that the judiciary reviews the executive branch, and not vice versa.
b) Lord Mance (with whom Lady Hale agreed) took a narrower approach to section 53 than Lord Neuberger, agreeing (at ) in substance with parts of Lord Wilson’s dissenting judgment. It was possible for the AG to issue a certificate because he disagreed with the UT, however: 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) and; disagreement as to matters of the weight to be attached to elements of the public interest would require strong and clearly-explained reasoning . In the present matter, the AG impermissibly undertook his own redetermination. The AG’s certificate did not engage with the UT’s detailed analysis  and proceeded on the basis of findings of fact which were radically different from those found by the UT, but with no adequate explanation . Accordingly, the certificate failed to satisfy s.53(2).
c) Lord Wilson and Lord Hughes gave separate dissenting judgments, both to the effect that in section 53 FOIA, Parliament had clearly given the AG the power to issue the certificate in the way that he did. The certificate was itself judicially reviewable, on classical grounds, and this prevented any abrogation of the rule of law, by giving the judiciary the final word.
2) By a majority of 6-1 (Lord Wilson dissenting), Regulation 18(6) EIR was held to be incompatible with article 6 of Directive 2003/4/EC, which requires that the review procedure before a court is a final decision, not capable of subsequent review by the executive.
The headlines arising from this judgment will go to Lord Neuberger’s statement of constitutional principles on the separation of powers, and the fact that the ‘Black Spider’ memos of the heir to the throne will be revealed to the public.
However, the majority ratio on the proper construction of section 53(2) FOIA is less clear, with Lord Mance and Lady Hale apparently agreeing  with much of Lord Wilson’s dissenting analysis [171, 172, 174-179] on the proper construction of the section, but finding that this particular certificate failed the test of “reasonable grounds”. It may therefore still be possible for the executive branch to ‘veto’ decisions of the Upper Tribunal (or other appellate courts) using a section 53 certificate if their ‘reasonable grounds’ were extremely clear and cogent, and/or their disagreement in relation to the weight to be given to competing public interest elements is on stronger grounds [130-131].
It is to be noted that the ruling applies only to the position of letters written pre-2010 which might be sought via an FOIA request, as in 2010 section 37 FOIA was amended to include an absolute exemption for communication with the monarch and two nearest heirs to the throne. However, this exemption applies to FOIA itself, not the EIR.
The Treasury Solicitor for the Appellant; Editorial Legal Services, Guardian News & Media for the First Respondent; The Information Commissioner as the Second Respondent; Leigh Day for the Intervener (Campaign for Freedom of Information)
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.