In R (Evans) v Attorney General  UKSC 21 the Supreme Court has issued a strong reminder of the importance of the principle that decisions of the Courts cannot be ignored or set aside by the Executive. This high profile case involved a request from a journalist under the Freedom of Information Act 2000 (FOIA) for correspondence between the Prince of Wales and the Government, which the Attorney General sought to use a veto under FOIA to withhold.
- The Attorney General was not entitled to override a decision of the Courts in relation to disclosure of sensitive political correspondence simply because he did not agree with it
- Any ability of the Executive to override the Courts would need to be set out in the clearest possible language in legislation, which was not the case here
- The Supreme Court was divided on the circumstances which might have entitled the Attorney General to exercise his veto
FOIA and the Environmental Information Regulations 2004 ("EIRs") create disclosure regimes whereby members of the public can request information from public authorities, who must disclose that information unless a specified exemption applies. There is an enforcement mechanism which consists of complaining to the Information Commissioner and thereafter proceedings in the Court/Tribunal system. Unusually section 53 of FOIA creates an exception for having to comply with an enforcement notice for failing to meet FOIA obligations if an "accountable person" forms the opinion on reasonable grounds that there was no failure to meet the obligations under FOIA. Similar veto powers exist under the EIRs.
In 2005 Mr Evans, a journalist with the Guardian, made a request under both FOIA and the EIRs for disclosure of letters passing between HRH the Prince of Wales and various Government departments. The Departments refused the requests on the basis that the letters were exempt. Mr Evans challenged this decision through the appeal system and in 2012 the Upper Tribunal ordered the disclosure of certain of the requested letters, following a lengthy and in-depth hearing. Rather than seek to appeal this decision, as the Government could have done through the normal course through the Courts, the Attorney General issued a certificate of veto under both statutory regimes stating that he had "reasonable grounds" for taking the view that the Departments in question were entitled to withhold the letters. The result of this was that the Attorney General had effectively allowed the Departments to ignore the decision of the Upper Tribunal.
Mr Evans challenged the use of the veto. He was unsuccessful at first instance but then successful before the Court of Appeal, and the Attorney General then appealed to the Supreme Court.
2. Judgment of the Supreme Court
By a majority the Supreme Court decided that the Attorney General was not entitled to have issued the section 53 certificate in this matter. Section 53 did not entitle the Attorney General to seek to overrule a valid decision of the Courts simply because he took a different view as to the proper outcome. This would have violated two fundamental constitutional principles, namely that decisions of the Courts are binding and cannot be ignored by the parties and that the Courts have the power to review the actions of the Executive. To overcome these basic constitutional principles Parliament would have had to give clear and express authorisation in the legislation, and the Supreme Court did not consider section 53 FOIA to be sufficient.
Instead section 53 was to be given a more narrow and restrictive interpretation. Reasonable grounds for issuing a certificate might include an exceptional change of circumstances or something which shows that the decision of the Court or Tribunal was seriously flawed but where an appeal through the normal avenues would not be possible. The use of section 53 should therefore be a rare occurrence.
In this particular situation there was no reason why the Attorney General could not have simply appealed the Upper Tribunal's decision. Instead he attempted to conduct his own fact finding exercise which ended up with a different factual basis to that reached by the Upper Tribunal without adequate explanation.
The Supreme Court did indicate that different levels of decision making may be treated differently. For example the use of the veto may be more permissible in respect of a decision of the Information Commissioner, where there has not been a full hearing and the analysis is unlikely to have been as thorough as a hearing in the Tribunal or Courts. However, given that it is possible to appeal a decision of the Information Commissioner, it would still be expected that the appeal route be pursued where possible rather than relying on use of the ministerial veto.
3. Environmental Information
The position is different under the EIRs (concerning environmental information) as the relevant European Directive (which stems from the Aarhus Convention) on which that regime is based requires refusals to disclose to be challengeable before the Courts and that the Courts decision should be final. The concept of a ministerial veto is incompatible with the Directive and therefore there can be no veto for environmental information.
This has been an extremely high profile judgment and has been praised as a victory for the rule of law, as well as a victory for the principle of transparency. All Government departments, public authorities and those who share information with public authorities need to take the obligations under FOIA and the EIRs seriously and be prepared for communications and sensitive documents to be disclosed to the general public. The Courts are increasingly unsympathetic to attempts to "cover-up" matters of public interest and public debate.