I told you FOI was sexy.
The Supreme Court’s judgment in R (Evans) v Attorney General  UKSC 21 has received vast amounts of media coverage – more in a single day than everything else about FOI has received in ten years, I reckon. No need to explain what the case was about – the upshot is that Rob Evans gets Prince Charles’ ‘black spider’ letters. Here’s why.
In other words, this post summarises why the judgment went Evans’ way 5:2 on the FOIA veto and 6:1 on the EIR veto. I leave aside the trenchant dissenting judgments (Lord Wilson on both FOIA and the EIRs; Lord Hughes on FOIA only), which merit a post in their own right.
FOIA and the ministerial veto
Three of the five JSCs who found that the Attorney General’s veto under FOIA was unlawful took the following view (that of Lord Neuberger).
The constitutional context and the restrictive view of section 53
“A statutory provision which entitles a member of the executive… 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”, i.e. (i) that a court’s decisions are binding and cannot be ignored or set aside by anyone, and (ii) that the executive’s actions are reviewable by the court on citizens’ behalf. “Section 53, as interpreted by the Attorney General’s argument in this case, flouts the first principle and stands the second principle on its head” (paragraphs 51-52).
Therefore, if Parliament intends to permit the executive to override a judicial decision merely because it disagrees with that decision, it must ‘squarely confront what it is doing’ and make its intentions ‘crystal clear’. Section 53 FOIA is a long way from authorising such an override on the grounds of disagreement (paragraphs 56-58).
The upshot is that a minister cannot use section 53 to override a judicial decision simply on the grounds that, having considered the issue based on the same facts and arguments as the court or tribunal, he reaches a different view. In their context, and in light of the serious constitutional implications, the words “on reasonable grounds” in section 53 FOIA must be construed more restrictively: mere disagreement with the court/tribunal will not do.
The threshold is higher: a section 53 certificate will be lawful if there has been a material change in circumstances, or if facts or matters come to light at some point which (a) indicate that the judicial decision being overturned was seriously flawed, but (b) cannot give rise to an appeal against that decision. Such cases will be exceptional, but they are a real possibility, in Lord Neuberger’s judgment. Section 53 therefore retains some utility (see paragraphs 68, 77 and 78). Lord Kerr and Lord Reed agreed with Lord Neuberger’s restrictive view of section 53.
A less restrictive view of section 53
Lord Mance (with whom Lady Hale agreed) also found the Attorney General’s veto in this case to have been unlawful. He agreed that mere disagreement with the decision being overturned will not do. Lord Mance’s interpretation of section 53, however, is markedly less restrictive than that of Lord Neuberger: the accountable person is entitled under section 53 to reach a different view on the balancing of competing interests, even in the absence of the sorts of new considerations Lord Neuberger envisages, provided he gives properly explained and solid reasons against the background and law established by the judicial decision (see paragraphs 130-131).
There is thus more scope for a lawful veto on Lord Mance’s view – but his was not the majority view. Lord Neuberger’s more restrictive view commanded wider support. This makes a big difference to the future use of section 53.
What about First-Tier and ICO decisions?
Here are some further important implications addressed by Lord Neuberger.
This veto was against a decision of the Upper Tribunal, which is a court of record. Do the same stringent restrictions apply to an attempt to veto a decision of the First-Tier Tribunal? Answer: yes.
What about the ICO’s decisions? Is the threshold for a lawful veto equally high, or is it lower? Answer: it is lower, as the ICO’s evaluation can seldom be as exhaustive as that of a Tribunal. Nonetheless, the option to appeal to the Tribunal will be a relevant consideration: to use the section 53 power to achieve what you could also achieve by the more constitutionally appropriate route of an appeal may be an abuse of that power.
Those distinctions are important. Some section 53 certificates have been issued against First-Tier Tribunal decisions – the NHS risk register veto, for example. Others have been against ICO decisions – the High Speed 2 veto, for example. The Iraq war cabinet minutes have been the subject of two section 53 certificates – one against a Tribunal decision, the other against an ICO decision.
The EIRs and the ministerial veto
By comparison, the answer under the EIRs was relatively straightforward: Article 6 of Directive 2003/4/EC requires that refusals to disclose environmental information can be challenged before court whose decisions will be final. The ministerial veto provision does not square with that requirement. Environmental information cannot be the subject of the ministerial veto. These were the arguments advanced by Mr Evans, and by Tim Pitt-Payne on the ICO’s behalf. They were accepted by six of the seven JSCs.
So, a triumphant day for Rob Evans and The Guardian – and indeed for FOIA, the EIRs, transparency and the rule of law.
The outlook for the future use of section 53 is challenging, though there is nuance aplenty, even aside from the dissenting judgments.
Robin Hopkins @hopkinsrobin