Access to the Prince’s Letters: R (Evans) v…

In an case which has understandably received a great deal of press interest, the Supreme Court has given judgment deciding that government ministers are obliged to release certain letters sent by the Prince of Wales [2015] UKSC 21.

The history is fairly complex. The Prince of Wales had send a number of letters to government ministers. Rob Evans, a journalist, sought disclosure of these letters under the Freedom of Information Act 2000 and the Environmental Information Regulations 2004. This request was largely refused, and the refusal was upheld by the Information Commissioner. Mr Evans appealed to the Upper Tribunal, and was successful regarding a number of the letters (known as the ‘advocacy correspondence’).

The government did not seek to appeal against this decision. Rather, the Attorney General issued a certificate under s.53 of FOIA and reg. 18(6) of the EIR, to the effect that the letters could not be released.

Mr Evans judicially reviewed the certificate. His claim was unsuccessful before the Divisional Court, but successful before the Court of Appeal and the Supreme Court.

Lord Neuberger PSC gave the leading judgment, and Lords Kerr and Reed agreed with him. Lord Mance agreed as to the result (Lady Hale agreed with him). Lord Hughes agreed on the question of the Environmental Information Regulations, but disagreed regarding the interpretation of the Freedom of Information Act. Lord Wilson dissented, finding that there should be no disclosure.

Lord Neuberger’s decision was based in large part on his view that it would rarely be legitimate for a government minister to override a decision of a court. Therefore, the ‘reasonable grounds’ required by s.53 would not be made out simply if a minister disagrees with a decision of the Tribunal to order disclosure. There were however two examples of circumstances where it would be reasonable for a minister to take a contrary view: a material change in circumstances, or that the decision of the Tribunal was demonstrably wrong in fact or law. His Lordship left open the question of whether the result would be the same if the decision was one of the Commissioner, but strongly suggested that it would be: the Commissioner could appeal under s.57. Lord Neuberger also held that the EIR were inconsistent with Council Directive 2003/4/EC as regards certification. Article 6 of the Directive requires full review by a court: this is not available in the case of certification which is open only to judicial review.

Lord Neuberger held at para 115:

“It is, I think, worth mentioning that the same fundamental composite principle lies behind the reason for dismissing this appeal on each of the two grounds which are raised. That principle is that a decision of a judicial body should be final and binding and should not be capable of being overturned by a member of the executive. On the second ground, which involves EU law, the position is relatively straightforward, at least as I see it: the relevant legislative instrument, the 2003 Directive, expressly gives effect to that fundamental principle through the closing words of article 6.2 and the opening sentence of article 6.3 . On the first ground, which involves domestic law, the position is more nuanced: the relevant legislative instrument, the FOIA 2000, through section 53, expressly enables the executive to overrule a judicial decision, but only “on reasonable grounds”, and the common law ensures that those grounds are limited so as not to undermine the fundamental principle, or at least to minimise any encroachment onto it.”

Lord Mance’s view was that s.53 has a wider interpretation than Lord Neuberger would give it, but the requirement on the Attorney General is higher than “mere rationality”. The weight to be given to different considerations is something that a certificate can properly address, “by properly explained and solid reasons”.

Lord Mance agreed regarding the principles under the access to environmental information regime.

This case is a robust defence of the access to significant public information. Lord Neuberger’s judgment is also conspicuous for its emphatic endorsement of decisions by tribunals and the principles of the finality of litigation before them.

Nathalie Lieven QC appeared on behalf of the Intervener, the Campaign for Freedom of Information.