R (Evans) v Attorney General 2014 EWCA 254

Prince Charles as heir to the British throne is an assiduous letter-writer and has sent a number of letters to ministers regarding government policy on matters such as environmental issues in which he has a strong interest rather than, it would appear, the more lower level political issues of the day.

A Guardian journalist, Rob Evans, sought to obtain copies of these letters under the Freedom of Information Act. His application had been resisted by the government departments. However, the Upper Tribunal had after a hearing lasting six days, ruled in favour of Rob Evans and ordered their disclosure. Rather than the departments seeking permission to appeal this ruling, the Attorney General had - to the surprise of many – exercised his powers under section 53 Freedom of Information Act and vetoed the release of these documents.

A Divisional Court had reluctantly upheld the Attorney General's action expressing surprise that the Attorney General could act in this way. However, the Court of Appeal ruled that the Attorney General had not acted reasonably in making a section 53 order and had used a flawed approach in the exercise of his power. The Court of Appeal was also of the view that there was a breach of article 6 of the European Convention of Human Rights in that Mr Evans had been denied his right of access to a Court. The Court of Appeal also felt that the exercise of the powers under section 53 was incompatible with EU Regulations relating to access to environmental information. The Attorney General's approach was held to be defective by the Court of Appeal. The fact that he would have reached a different decision in weighing the competing interests of press access to the information and the confidentiality of the communications on governmental issues with which the Prince of Wales would be ultimately dealing in his role as constitutional monarch was insufficient to issue an order under Section 53. The Attorney General could point to no error of law or fact made by the Upper Tribunal in its judgment after the six day hearing nor had the government department sought to appeal. The Court of Appeal therefore quashed the order made by the Attorney General. The Attorney General has obtained permission to appeal to the Supreme Court – so more anon...