The Supreme Court has ruled that Dominic Grieve, as Attorney General, did not have the power to overturn the determination of the Upper Tribunal, that twenty-seven letters exchanged between Prince Charles and ministers in seven government departments between 2004 and 2005 should be released.
The question posed to the Supreme Court was:
[...] whether communications passing between HRH The Prince of Wales and ministers in various government departments [...] between September 2004 and March 2005 [...] should be disclosed pursuant to a request made by Rob Evans, a journalist who works on the Guardian newspaper.
The Supreme Court judgment brings to an end the ten-year protracted legal battle. In April 2005 Rob Evans requested the disclosure of the letters under section 53(2) of the Freedom of Information Act 2000 and regulation 18(6) of the Environmental Information Regulations 2004. Initially the departments refused to confirm having possession of the letters, but later acknowledged it. However the departments refused to disclose the letters, considering the letters exempt from the Act and the Regulations. Following this, Mr. Evans complained to the Information Commissioner, but the Commissioner upheld the departments' refusal in a reasoned determination in December 2009. Mr. Evans appeal to the First-tier Tribunal was transferred to the Upper Tribunal, which issued a reasoned determination in September 2012.
The departments did not appeal the determination of the Upper Tribunal. On October 16th the Attorney General issued a certificate claiming that he had formed the view that the departments had been entitled to refuse disclosing the letters and outlined his reasoned.
Mr. Evans sought to overturn the Certificate on the ground that the reasoning outlined by the Attorney General did not constitute reasonable grounds within the meaning of section 53(2) and, or because the "advocacy correspondence" was concerned with environmental issues, therefore the Certificate was in breach of Directive 2003/4/EC and, or Article 47 of the Charter of Fundamental Rights of the European Union. Mr. Evans' claim was dismissed by the divisional Court of the High Court, but was upheld by the Civil Division of the Court of Appeal on both grounds.
In a five-two majority verdict Lord Neuberger upheld the Court of Appeal judgment, that it is not reasonable for a member of the Executive to issue a certificate simply because he differs in opinion from that adopted by a court, for two reasons.
One, to allow a member of the Executive to overrule a judicial decision breaches two constitutional principles. The decision of a court is binding between parties and cannot be ignored or set aside, and the decisions and actions are open to review by the court at the suit of an interested party.
Two, the earlier conclusion was reached by the Upper Tribunal, a court of record, after a full public oral hearing. In contrast, the later conclusion was reached by an individual who consulted one side of the correspondence, without argument on behalf of Mr. Evans, received no fresh facts, and simply differed in opinion.
In determining on what grounds a certificate can be issued, Lord Neuberger agreed Lord Dyson Master of the Rolls in the Court of Appeal:
Although not strictly necessary, Lord Neuberger also considered the effect of the 2003 Directive on the Certificate, concluding that it would have been invalid in so far as it related to environmental information contained in the advocacy correspondence.
The departments did not appeal the determination of the Upper Tribunal. On October 16th the Attorney General issued a certificate claiming that he had formed the view that the departments had been entitled to refuse disclosing the letters and outlined his reasoned.
Mr. Evans sought to overturn the Certificate on the ground that the reasoning outlined by the Attorney General did not constitute reasonable grounds within the meaning of section 53(2) and, or because the "advocacy correspondence" was concerned with environmental issues, therefore the Certificate was in breach of Directive 2003/4/EC and, or Article 47 of the Charter of Fundamental Rights of the European Union. Mr. Evans' claim was dismissed by the divisional Court of the High Court, but was upheld by the Civil Division of the Court of Appeal on both grounds.
In a five-two majority verdict Lord Neuberger upheld the Court of Appeal judgment, that it is not reasonable for a member of the Executive to issue a certificate simply because he differs in opinion from that adopted by a court, for two reasons.
One, to allow a member of the Executive to overrule a judicial decision breaches two constitutional principles. The decision of a court is binding between parties and cannot be ignored or set aside, and the decisions and actions are open to review by the court at the suit of an interested party.
Two, the earlier conclusion was reached by the Upper Tribunal, a court of record, after a full public oral hearing. In contrast, the later conclusion was reached by an individual who consulted one side of the correspondence, without argument on behalf of Mr. Evans, received no fresh facts, and simply differed in opinion.
In determining on what grounds a certificate can be issued, Lord Neuberger agreed Lord Dyson Master of the Rolls in the Court of Appeal:
Examples of what would suffice are that there has been a material change of circumstances since the tribunal decision or that the decision of the tribunal was demonstrably flawed in fact or in law.Moreover, Lord Neuberger concluded that the limitation on the grounds upon which a certificate can be issued also apply following a decision of the First-tier Tribunal.
Although not strictly necessary, Lord Neuberger also considered the effect of the 2003 Directive on the Certificate, concluding that it would have been invalid in so far as it related to environmental information contained in the advocacy correspondence.
