R (on the application of Evans & Anor) v Attorney General [2015] UKSC 21

Journalist Rob Evans sought disclosure of correspondence between Prince Charles and government ministers. The Upper Tribunal ordered disclosure, but the Attorney General issued a section 53 certificate overriding the decision. The Supreme Court held the certificate unlawful, upholding judicial supremacy over executive override.

Facts

Rob Evans, a Guardian journalist, requested disclosure under the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIR) of correspondence (the ‘advocacy correspondence’) passing between HRH The Prince of Wales and various government departments between September 2004 and March 2005. The departments refused, relying on exemptions under sections 37, 40 and 41 of FOIA. The Information Commissioner upheld the refusal, but on appeal the Upper Tribunal (Walker J, Judge Angel and Ms Cosgrave), after a six-day hearing with extensive evidence, ordered disclosure of the advocacy correspondence in a detailed 251-paragraph determination.

The departments did not appeal. Instead, on 16 October 2012, the Attorney General issued a certificate under section 53(2) of FOIA stating he had, on reasonable grounds, formed the opinion that the departments had been entitled to refuse disclosure. The effect was to override the Upper Tribunal’s determination. The Divisional Court dismissed Mr Evans’s judicial review challenge, but the Court of Appeal quashed the certificate. The Attorney General appealed to the Supreme Court.

Issues

Two principal issues arose:

• Whether, on the proper construction of section 53(2) FOIA, the Attorney General was entitled to issue a certificate overriding the Upper Tribunal’s determination simply because, on the same facts and arguments, he took a different view of where the public interest lay.
• Whether, insofar as the advocacy correspondence contained environmental information, the certificate was incompatible with article 6 of Council Directive 2003/4/EC and/or article 47 of the EU Charter of Fundamental Rights.

Arguments

For the Attorney General

Mr Eadie QC argued that section 53 clearly envisaged that an accountable person could override a decision notice, including one issued or upheld after a tribunal appeal, provided ‘reasonable grounds’ existed. The grounds need only be cogent and rational when viewed on their own. The Attorney General had given full reasons reflecting the Commissioner’s view and acknowledging the cogent arguments for non-disclosure. As to EU law, judicial review of the certificate was said to satisfy article 6.

For Mr Evans

Ms Rose QC submitted that ‘reasonable grounds’ had to be construed in context, in light of two fundamental constitutional principles: (i) decisions of a court bind the parties and cannot be set aside by the executive; and (ii) executive decisions are subject to judicial review. A statutory provision permitting executive override of a judicial decision required ‘crystal clear’ words. The Attorney General could not lawfully issue a certificate merely because he disagreed with the Upper Tribunal on the same evidence. Further, article 6 of the 2003 Directive required that decisions of a judicial body ‘become final’ and ‘binding’, precluding executive override in respect of environmental information.

Judgment

The Supreme Court dismissed the appeal by a majority (Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr and Lord Reed in the majority; Lord Wilson and Lord Hughes dissenting in part).

Lord Neuberger (with Lord Kerr and Lord Reed)

Lord Neuberger held that section 53 had to be construed against two fundamental constitutional principles: that a court’s decision binds the parties and cannot be set aside by the executive, and that executive decisions are reviewable by the courts. Citing R v Secretary of State for the Home Department, Ex p Simms and AXA General Insurance Ltd v HM Advocate, he emphasised that Parliament must use ‘crystal clear’ words to override fundamental rights or constitutional principles. Section 53 fell far short of this standard.

He concluded that it is not reasonable for the accountable person to issue a section 53 certificate simply because, on the same facts and arguments, he takes a different view from a judicial tribunal. The power could only be exercised on limited grounds, such as a material change of circumstances or a demonstrably flawed tribunal decision incapable of correction on appeal.

Lord Mance (with Lady Hale)

Lord Mance took a somewhat different approach but reached the same outcome. He held that section 53 must be capable of wider potential application than Lord Neuberger allowed, particularly in relation to the evaluative balancing of public interests. However, the Attorney General’s certificate could not stand because it disagreed with the Upper Tribunal’s detailed findings on the constitutional conventions (notably the so-called ‘education convention’) and on questions of fact regarding the Prince’s preparation for kingship and the risk of public misperception, without giving any adequate or reasoned basis for departing from those findings. Disagreement on the relative weight of competing interests could be permissible, but disagreement with the tribunal’s underlying factual findings required ‘the clearest possible justification’, which was absent.

Environmental information

The majority held that, in any event, insofar as the certificate covered environmental information, it was incompatible with article 6 of Directive 2003/4/EC. Article 6.2 required access to a review procedure before a court of law whose decisions ‘may become final’, and article 6.3 required final decisions to be binding on the public authority. Executive override of a judicial decision was inconsistent with these requirements. Judicial review of the section 53 certificate did not cure the defect because it did not amount to a full merits review. Regulation 18(6) of the EIR 2004, insofar as it applied section 53, was therefore invalid in this context.

Dissenting judgments

Lord Hughes considered that section 53(2) clearly empowered the Attorney General to disagree with the Commissioner’s or tribunal’s evaluation of public interest, subject to rationality. The Attorney General had given adequate, rational reasons. However, he agreed that section 53 was incompatible with the Directive in relation to environmental information.

Lord Wilson dissented more broadly, arguing that the majority had effectively rewritten section 53. Parliament had deliberately included an executive override as the price of moving from an advisory regime to enforceable disclosure obligations. The provision contained substantial safeguards. The Attorney General’s grounds were reasonable and properly engaged with the tribunal’s reasoning. Lord Wilson also considered that article 6 of the Directive had not been breached because the decision of the Upper Tribunal had been subject to judicial control through the judicial review of the certificate.

Implications

The decision strongly reinforces two fundamental constitutional principles: that judicial decisions bind the parties and cannot be set aside by the executive, and that executive action is reviewable by the courts. The case establishes that statutory powers permitting executive override of judicial decisions must be construed extremely narrowly, requiring ‘crystal clear’ Parliamentary language before they can be given such an effect.

In practical terms, the scope for use of the section 53 ‘ministerial veto’ under FOIA is now very narrow. Following a determination by a judicial tribunal, the accountable person cannot issue a certificate merely on the basis of disagreement with the tribunal’s assessment of the public interest. The veto may, on the majority view, only be invoked in exceptional circumstances such as a material change of circumstances or a demonstrably flawed tribunal decision not otherwise correctable on appeal.

In relation to environmental information, the executive override is effectively unavailable once a court or tribunal has ruled in favour of disclosure, given the requirements of the 2003 Directive that judicial decisions be final and binding.

The judgment matters significantly to public authorities, government departments, journalists, campaigners and citizens seeking information under FOIA and EIR. It strengthens the effectiveness of the statutory access-to-information regime by ensuring that judicial determinations cannot be easily overridden by the executive. The decision also exemplifies the principle of legality articulated in Simms and AXA: general or ambiguous statutory words cannot be used to override fundamental constitutional rights or the rule of law.

The case leaves some matters unresolved, including the precise scope of the section 53 power following a decision notice issued by the Commissioner where no appeal has been taken, and whether the High Court has inherent power to adopt a closed material procedure in such judicial review proceedings.

Verdict: The Supreme Court dismissed the Attorney General’s appeal (by a majority). The section 53 certificate issued by the Attorney General was held to be unlawful and was quashed. The advocacy correspondence falls to be disclosed. In any event, insofar as the certificate related to environmental information, it was incompatible with article 6 of Directive 2003/4/EC.

Source: R (on the application of Evans & Anor) v Attorney General [2015] UKSC 21