Yesterday the Court of Appeal issued its judgment in the continuing saga that is the bid by Guardian Journalist Rob Evans to obtain the information contained in a variety of letters sent by HRH Prince Charles, the Prince of Wales to a number of departments of Central Government between 1 September 2004 and 1 April 2005.
The saga has been a long one in which the Information Commissioner agreed with the Government. However, the Upper Tribunal disagreed and ordered a number of the letters to be released. The Upper Tribunal found that the letters fell into two categories: those which were about the Prince of Wales preparing to become Monarch and those which were him advocating in respect of causes which were close to him. It was this latter category of letters that the Upper Tribunal found after determining that they were not covered by the constitutional convention which provides that the heir to the throne be educated in Government business in order to prepare him (or her) for becoming King (or Queen) and that correspondence pertaining to that be confidential and not be released.
After the Upper Tribunal issued its decision the Attorney General issued a certificate under section 53 of the Freedom of Information Act 2000 (FOIA) which sets aside the decision of the Upper Tribunal. Mr Evans judicially reviewed that decision and the Administrative Court upheld the certificate. Mr Evans then appealed to the Court of Appeal which quashed the Attorney General’s certificate.
There are two separate issues to the certificate. The first one that I shall deal with here, is the EU dimension to the case. Some of the information contained within the letters amounts to Environmental Information which falls to be governed by the Environmental Information Regulations 2004 (EIRs). Those Regulations exists to transpose into domestic law a EU Directive on access to Environmental Information which in turn exists to bring into EU law the provisions of the Aarhus Convention. Therefore the principles of EU law apply to the Environmental Information and the domestic law cannot be incompatible with it. In its judgment the Court of Appeal held that the existence of the veto was incompatible with EU law. This effectively means that the veto contained in section 53 of the FOIA cannot be used in respect of information which is environmental in nature (as defined by the Directive and the Regulations).
The Directive which the EIRs transpose into domestic law provide that there should be an independent and impartial tribunal to decide upon whether a public authority has complied with its obligations, and that the decision of this independent and impartial body must be final. The EIRs have, by virtue of the application of the FOIA, an extensive appeals structure which begins with a complaint to the Information Commissioner and subsequent appeal to a specialist tribunal followed thereafter by appeals on points of law potentially all the way to the Supreme Court. While there is no single independent or impartial tribunal whose decision becomes binding, at some stage a decision will be made by an independent or impartial tribunal which is final and binding upon the public authority. However, by virtue of section 53 of the Freedom of Information Act, it can be side-stepped by someone within the Executive (in this case the Attorney General). The Divisional court, in its decision, held that the existence of the right to judicially review the decision to issue a certificate under section 53 of the FOIA. However, the Court of Appeal disagreed. The Master of the Rolls said at paragraph 55:
A judicial review of the certificate of an accountable person is substantively different from a review by a court or other independent body of the acts or omissions of “the public body concerned”. The focus of the two reviews is different.
The Court of the Appeal was of the view that as judicial review was focussed on the act of the person who issued the certificate, rather than on the public authority’s compliance with the EIRs, it was in breach of the requirements of European law; therefore it was unlawful.
The Court of Appeal also considered the Attorney General’s use of the ‘veto’ under section 53 in respect of the information contained in the letters which was covered by the Freedom of Information Act. The Court held that in order for a section under section 53 to be valid, it had to be based on reasonable grounds. The Court of Appeal decided that for the grounds to be reasonable there would have to be something more than simply disagreeing with the decision. The Master of the Rolls gave some examples of what ‘something more’ might mean in paragraph 38 of the Court of Appeal’s decision:
a material change of circumstances since the tribunal decision or that the decision of the tribunal was demonstrably flawed in fact or in law.
Such an interpretation of the law clearly significantly affects the power of ministerial veto and its effectiveness. It is also clearly against the intention of Parliament when it passed the Freedom of Information Act. The veto was placed in the Act by the Labour Government that passed it as a central element of the Act – something to act as backstop to protect central government from inappropriate releases. It was intended to place central Government in the position of being the final arbiter of what central government information is released under FOI. It is a constitutional aberration as described by both the Divisional Court and the Court of Appeal, but that is what Parliament determined when it passed the law with section 53 in it.
The Court of Appeal quashed the Attorney General’s certificate which makes the Upper Tribunal’s decision requiring release of certain letters effective again. It held that his certificate was unlawful in terms of all of the information it was intended to cover. This is certainly a key judgment and is very interesting. It engages with some important issues in respect of the ministerial veto, and it is a Court of Appeal decision. However, as much as I agree in principle with the Court of Appeals decision, I think in terms of the legal matters I suspect that it is vulnerable to being overturned, at least in part, on appeal.
I am of the view that the Court of Appeal’s decision should be treated with a bit of caution. In respect of the application of the veto on Environmental Information, the Court of Appeal’s decision appears to be entirely correct. The existence of the veto does not sit well with the requirements of the Directive and is most probably unlawful in terms of European law. However, I suspect that the Court of Appeal has fallen into error in its interpretation of section 53 insofar as it relates to information covered by the Freedom of Information Act. The veto was clearly intended to be used in the way the Attorney General used it when passed by Parliament. It was Parliament’s clear will and it would be inappropriate to read things into the legislation that as so clearly against the will of Parliament.
The Attorney General has been given permission to appeal the Court of Appeal’s decision to the Supreme Court and it will be interesting to see what the Supreme Court has to say. I suspect there will be a great deal of discussion around the meaning of the words ‘reasonable opinion’ in section 53.