In the latest round of the legal and political boxing match that the Evans case has become, the Upper Tribunal (“UT”), chaired by Walker J, has decided that the government should release its “schedules and lists” of “advocacy correspondence” between Prince Charles and various government departments (see the judgment here).

The UT had previously determined, in September 2012 (see Robin Hopkins’ post) that the government should release the “advocacy correspondence” it had received from Prince Charles and which had been requested by Mr Evans as long ago as 2005. The UT had not, though, issued a substituted decision notice pursuant to that determination because it had sought the parties’ further submissions on the question of appropriate redactions to the correspondence in question.

Before any further submissions had been made, however, the Attorney General had issued a veto under s 53, which veto renders the UT’s determination in relation to the “advocacy correspondence” of no effect*. (See Christopher Knight’s previous post.)

One might have thought that that would be the end of the matter so far as the UT was concerned. However, there was a second part of Mr Evans’ request which had not been ruled on substantively as part of the UT’s decision of September 2012. As well as requesting the actual correspondence, Mr Evans had requested lists and schedules of that correspondence. At the substantive hearing, Mr Evans had conceded that, if the UT found in his favour in relation to the actual correspondence there would be no need for it to go on to consider his “lists and schedules request” because he would, if in possession of that actual correspondence, be able to produce such lists and schedules himself.

Faced with the government’s veto annulling his victory with regards to the actual correspondence, Mr Evans applied to the UT inviting it now to rule on his “lists and schedules request”. The government, represented by Jonathan Swift QC and Julian Milford, argued that the UT had no power to reopen its previous decision, contending that the UT had in its September 2012 decision made a final determination that it was unnecessary to make a substantive ruling on the “lists and schedules request”. The Information Commissioner, represented by Tim Pitt-Payne QC, agreed with the government. All parties, including Mr Evans, agreed that the limited express powers that the UT has to review its own decisions did not apply in this case.

However, Mr Evans argued that none of this mattered: he said he was not asking the UT to review its decision, or to reopen it. He was simply asking the UT to decide a part of his appeal that it had not yet decided. The UT agreed.

It went on to find that, for the same reasons as it had considered the actual correspondence should be disclosed, the lists and schedules should be disclosed. The UT said that the only difference in terms of the balance of public interests so far as the lists and schedules were concerned was that both the public interest in disclosing the information and the public interest in maintaining the exemptions relied upon were less than with the actual correspondence. Overall, though, the balance was still the same and the lists and schedules should be disclosed.

We will now have to wait and see whether the government will deliver a further punch in the form of a second veto.

The government may not, however, have the last word since Mr Evans has commenced judicial review proceedings challenging the use of the veto in this case – proceedings which will be the first such challenge to the use of the veto.

Holly Stout

* There is a question mark about the effect of the veto in this case as the power of veto in s 53(2) is drafted by reference to a ‘decision notice’, but the UT had not in fact issued a substitute decision notice at the point that the veto was exercised. This is not a point that the UT needed to address in this decision, and it appears it will probably not be dealt with as part of the judicial review proceedings either.