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A right royal mess: Court of Appeal quashes FOIA veto for first time

Julia Marlow

Julia Marlow,

London

Ben Gaston

13 March 2014
In a judgment handed down yesterday, the Court of Appeal has – for the first time – quashed a decision of the Attorney General ("AG") to veto an Upper Tribunal ("UT") order that documents be disclosed under the Freedom of Information Act 2000 ("FOIA").

The case relates to a number of letters written by Prince Charles to various Government departments between 2004 and 2005.  An application for disclosure by a Guardian journalist, Rob Evans, under FOIA and the Environmental Information Regulations 2004 (the "EIRs") was initially rejected by the departments in question, and that decision was upheld on appeal by the Information Commissioner.  However, the UT overturned the Information Commissioner's ruling in a judgment dated 18 September 2012, described by the Master of the Rolls as "a most impressive piece of work", which ordered disclosure of "advocacy correspondence" (that is, "correspondence in which the Prince of Wales advocated certain causes which were of particular interest to him").  On 16 October 2012, the AG exercised his power as an "accountable person" under s. 53(2) FOIA to issue a certificate overriding the UT's decision to order disclosure, on the basis that (as required by that section) he had "reasonable grounds" to consider that the departments concerned had been entitled to refuse disclosure.

Mr Evans sought to quash the AG's decision by way of judicial review, but the Divisional Court dismissed his application on 9 July 2013 (that decision was discussed in our previous blog on this case).  On appeal, in the current case – R (Evans) v HM Attorney General [2014] EWCA Civ 254 – the Court of Appeal overturned the decision of the Divisional Court.

The correct approach to section 53(2) FOIA

Lord Dyson, the Master of the Rolls, concluded that it was not reasonable for the AG to issue a s. 53(2) certificate simply because he disagreed with the decision of the UT (which was an independent court that had examined the question in "meticulous detail"): "[s]omething more [was] required", such as a material change of circumstances or that the UT decision was "demonstrably flawed in fact or law".  Lord Dyson also noted that, were s. 53(2) to have the effect that followed from the Divisional Court's reasoning (ie that the "accountable person" be required only to show that his reasons for disagreeing with the tribunal were, of themselves, sensible and rational), it would be:

a remarkable provision, not only because of its constitutional significance…but also because it [would] seriously undermine the efficacy of the rights of appeal [under FOIA].

As for the reasonableness of the AG's substantive grounds for issuing the certificate (ie that the public interest was best served by withholding the information from disclosure), the Court repeated that it was insufficient for the AG simply to disagree with the UT's assessment of the public interest, and his grounds had therefore not been "reasonable".

Compatibility with EU law

Article 6(2) of the Environmental Information Directive (the "Directive") requires member states, in respect of environmental information, to provide access to a court (or other body established by law) that can review acts and omissions of a public authority that has refused to disclose information.  That court must be able to make final decisions that are to be binding on the public authority.  The Divisional Court had held that those requirements were met by the existence of the right to seek judicial review of the decision to issue a certificate under s. 53(2).  Conversely, counsel for Mr Evans argued that, in order to be compatible with the rights conferred by EU law (including under article 47 of the EU Charter of Fundamental Rights (the "Charter")), s. 53(2) should be read so as to preclude the exercise of the veto power where a tribunal has ruled that environmental information must be disclosed.

The Court of Appeal preferred the approach of counsel for Mr Evans for three reasons:

  • Judicial review would be concerned with the reasonableness of the decision of the "accountable person", rather than whether the public authority had acted in accordance with FOIA or the EIRs.
  • The veto of a court or tribunal decision by executive action was incompatible with the requirements under the Directive that that court or tribunal decision be "final" and "binding".  It was no answer that the executive veto could be subject to judicial review, an application for which could, among other things, simply fall at the procedural hurdle.
  • The Court noted that a party whose rights were violated had the right to an effective remedy under article 47 of the Charter.  By virtue of article 52, the scope of that right corresponds with the rights enshrined in article 6 of the European Convention on Human Rights.  Referring to the jurisprudence of the European Court of Human Rights, the Court of Appeal concluded that the principles of legal certainty and equality of arms were not met in this case; that position was not remedied by the availability of judicial review.

For these reasons, the Court held that, in so far as environmental information was concerned, the AG's certificate was incompatible with EU law and should be quashed.  Further, the Court went on to quash the certificate in its entirety (ie also in relation to non-environmental information), since the AG had, in the Court's view, failed properly to consider whether the public interest test would require disclosure of that non-environmental information even if (contrary to the AG's preference) the environmental information was to be disclosed.

Comment

In an era of ever-increasing scrutiny of Government – including by the Court – yesterday's Court of Appeal decision is likely to reverberate through the corridors of Whitehall.  That said, there may be some consolation for the AG, as permission has been granted to appeal to the Supreme Court.  Given the constitutional significance of the questions involved, it would be surprising if that appeal were not pursued.

 

Julia Marlow

Julia Marlow,

London

Ben Gaston

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