Yesterday, 26 March 2015, the UK Supreme Court issued its much anticipated decision (well, certainly within Information Law circles) in R (on the application of Evans) and another v HM Attorney General. I had intended to deal write just one blog post on this decision, but as I began to write I felt that it deserved to be split up into more than one post; so, there will be four parts. The first part will deal with the background to the case, including dealing with the relevant statutory provisions. The second part will look at the Supreme Court’s decision in respect of section 53 of the Freedom of Information Act 2000. The third will look at the decision as it relates to Regulation 18(6) of the Environmental Information Regulations 2004 while the final part will be a more general comment.
On 1 January 2005 the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIRs) entered into force. In the case of FOIA it provides individuals with a statutory right to receive information held by public bodies unless the information is specifically exempt under one of the statutory exemptions in Part 2 of the Act. The EIRs provide for a statutory right of access to ‘Environmental Information’ held by public bodies, subject to certain exceptions set out in the EIRs. The EIRs implement into UK law the provisions of Directive 2003/4/EC of the European Parliament and the Council of 28 January 2003 on public access to environmental information (the Directive). These Regulations in turn implement into European Law the provisions of the Aarhus Convention.
In April 2005 Rob Evans, a journalist at the Guardian Newspaper, wrote to a number of Government departments making requests for information. Those requests concerned letters that had passed between the Price of Wales and those departments. In each case the Departments withheld the information. FOIA provides that individuals who are dissatisfied with how their request for information has been handled can complain to the Information Commissioner and this right of complaint is extended to cover requests for information under the EIRs as well. The Information Commissioner issued a series of Decision Notices upholding the decision of each Department to withhold the information.
FOIA provides for a right of appeal, by either party, to the First-Tier Tribunal (Information Rights). Rob Evans appealed to the Tribunal. The appeals were joined together and transferred to the Upper Tribunal for consideration. On the 18 September 2012, almost 7 and a half years after the requests were made, the Upper Tribunal issued a lengthy judgment (which was accompanied by a number of lengthy annexes, some closed and some open) partially allowing Rob Evans’ appeal.
The judgment by the Upper Tribunal is an example of excellent judicial writing. It set out a clear and cogent argument as to why it was allowing Mr Evans’ appeal to the extent that it did. It is clear that the Tribunal took great time and effort in compiling it. At play here are a number of constitutional conventions; one of which is the convention enabling the heir to the throne to be instructed in the business of Government in preparation for becoming the reigning Monarch. Another important convention is that the Monarch should be politically neutral. The Monarch has a constitutional role as an advisor and confident to the Prime Minister of the day and political neutrality is an important aspect of that constitutional role.
It was well known, even before these protracted proceedings, that The Prince of Wales would write many letters to Government giving his opinion and advocating causes that he held dear to him. The Tribunal drew a distinction between this type of correspondence, to which they referred to as ‘advocacy correspondence’ and the correspondence which related to the Prince’s instruction in Government business in preparation for him becoming King.
The Tribunal decided that the advocacy correspondence ought to be disclosed while that which related to his preparation for kingship was correctly withheld and should not be disclosed under FOIA or the EIRs.
It was open to the Government to appeal this decision, but it chose not to. Section 53 of FOIA and Regulation 18(6) of the EIRs gives the power to an accountable person to, within twenty working days of a decision notice being served, to issue a certificate on the basis that he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure to comply with the relevant disclosure provisions under FOIA and the EIRs.
In this case, as the information in question related to a previous Administration, it was the Attorney General who was the ‘accountable person’. This follows from the convention that only the Attorney General is entitled to see the papers of a previous Administration. As a consequence of this, the Upper Tribunal’s decision ceased to have effect; none of the correspondence would be released under FOIA and the EIRs.
Rob Evans lodged proceedings for Judicial Review of the Attorney General’s decision to issue a Certificate pursuant to section 53 and Regulation 18(6). The Administrative Court dismissed his appeal and he appealed again to the Court of Appeal. The Court of Appeal allowed his appeal and quashed the certificates, but gave leave to appeal to the Attorney General. The Attorney General appealed to the Supreme Court.
The Supreme Court, by a majority, dismissed the appeal by the Attorney General. As a consequence, the decision of the Upper Tribunal stands and the advocacy correspondence will now be released. The next two posts will look at the Supreme Court’s decision in respect of Section 53 and Regulation 18(6).