Supreme Court Rules Against Government In Prince Charles Letters Case

Today, the Supreme Court handed down its judgment in the case of R (Evans) v. Attorney-General. The justices dismissed the Attorney General’s appeal, and allowed the Court of Appeal’s decision to stand.

Back in 2012, the Attorney General issued a certificate under section 53 of the Freedom of Information Act 2000 in order to set aside an Upper Tribunal ruling that would have required the Government to release certain letters between the Prince of Wales and several government departments during Tony Blair’s premiership.

It’s clear that many of the justices were uncomfortable with the idea that a Minister of the Crown can effectively veto the decision of a judicial body. As the President of the Supreme Court, Lord Neuberger, observed:

A statutory provision which entitles a member of the executive (whether a Government Minister or the Attorney General) to overrule a decision of the judiciary merely because he does not agree with it would not merely be unique in the laws of the United Kingdom. It would cut across two constitutional principles which are also fundamental components of the rule of law.

The first principle is that court decisions are binding on everyone, including the Executive, unless they are overruled by a higher court or an Act of Parliament. Lord Neuberger quoted Lord Templeman’s observation in M v. Home Office [1993] UKHL 5 that “the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, [is] a proposition which would reverse the result of the Civil War.”

The second principle is that, with certain exceptions (e.g., declarations of war), acts of the Executive are subject to judicial review. Although nobody in the present case argued that the Attorney General’s certificate should be exempt from judicial review, Lord Neuberger maintained that a broad interpretation of Ministers’ power under section 53 of the Freedom of Information Act could undermine the whole concept of judicial review since judicial review is ultimately based on the idea that the Executive must obey the law as interpreted by the courts.

In theory, the doctrine of parliamentary sovereignty would allow Parliament to contravene either of these principles. But Lord Neuberger quoted the following observation of Lord Hoffmann’s from R v. Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115:

The principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.

In other words, Parliament would have had to phrase section 53 much differently in order to confer the sort of wide-ranging power that the Attorney General claimed.

The Supreme Court’s decision was not unanimous. Lords Hughes and Wilson both took the view that the Attorney General was entitled to issue the certificate. Lord Hughes argued that section 53 in its current form provided ample evidence that Parliament intended to allow the executive to override court decisions:

Section 53(2) could, no doubt, have said that a certificate could be issued only if fresh material came to light after the decision of the Commissioner or the First -tier Tribunal, but it did not. Likewise, it could have said that a certificate could be issued if the decision of the Commissioner or court could be shown to be demonstrably flawed in law or fact, but it did not. If Parliament had wished to limit the power to issue a certificate to these two situations that is undoubtedly what the subsection would have said.

Lord Wilson, on the other hand, argued that, while it would be wrong to give the executive the power to override the courts on questions of law, questions of public interest were a different matter entirely. He also quoted a judgment of Lord Hoffmann’s (this time from R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23) wherein he observed that “in a democratic country, decisions as to what the general interest requires are made by democratically elected bodies or persons accountable to them.” In Lord Wilson’s view, the Attorney General was just as capable as the courts of deciding where the public interest lay.

It will be interesting to see the fallout from this judgment. In theory, it paves the way for the release of Prince Charles’ letters. However, the Prime Minister’s Official Spokesperson has hinted that the Government might release redacted versions, which could give rise to a fresh round of litigation. The Government may also seek to amend section 53 of the Freedom of Information Act in order to shore up the ministerial veto, which could potentially lead to a nasty fight with the judges over the limits of parliamentary sovereignty.

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