“The world is full of obvious things which nobody by any chance ever observes.” Sherlock Holmes, The Hound of the Baskervilles.
What else can there possibly be to say about Evans not covered in Robin’s excellent post from Thursday? One can contemplate the possible amendments the Government might make (how much clearer could Parliament have made the purpose of section 53), and what other changes might be made at the same time, especially in the light of the PM referring to FOIA as one of the “buggerations” of Government in the Times magazine yesterday. One can analyse the dissenting judgments, which is certainly worthy of time. One can remark again on the constitutional importance of the Supreme Court emphasising the rule of law.
Most information law practitioners probably think there isn’t really anything in Evans that is going to be very relevant to their daily lives. Even central Government FOIA officers have onlyseen seven vetos in ten years, so Evans isn’t going to make much of a practical difference.
But. Almost in passing, there is one passage in the judgment of Lord Neuberger (if not the majority judgment, at least the leading judgment) which is worthy of notice.
As has been previously pointed out on this blog, the Upper Tribunal in Defra v ICO & the Badger Trust  UKUT 526 (AAC) set the cat amongst the FOIA pigeons (if that is not too much of a mixture of animal metaphors) by suggesting at - that it was an open question whether the public interest balance was to be assessed at the time of the request/response or afresh at the time of the Tribunal hearing. That baton is now being taken up in the latest round of the interminable APPGER litigation.
However, it is possible that the Supreme Court has beaten them to it. The time of the assessment of the balancing exercise was a point of some relevance to the reasoning of Lord Neuberger, because a (powerful) objection to the reasoning of the Court of Appeal (including from me) was that the two permitted exceptional categories, particularly the reliance on fresh evidence, did not leave much room for application of the veto where the public interest was adjudged at or around the time of the request. Lord Neuberger, unlike the Court of Appeal, sought to address the point. In doing so, he noted at  that:
“It is common ground, in the light of the language of sections 50(1), 50(4) and 58(1), which all focus on the correctness of the original refusal by the public authority, that the Commissioner, and, on any appeal, any tribunal or court, have to assess the correctness of the public authority’s refusal to disclose as at the date of that refusal.”
As the text sets out, no contrary point was argued, but Lord Neuberger does not express any dissent about it and sets out the legal basis for it in the statutory language. Moreover, he went to reiterate the point, and the exceptions to it, at :
“However, although the question whether to uphold or overturn (under section 50 or sections 57 or 58) a refusal by a public authority must be determined as at the date of the original refusal, facts and matters and even grounds of exemption may, subject to the control of the Commissioner or the tribunal, be admissible even though they were not in the mind of the indivdual responsible for the refusal or communicated at the time of the refusal to disclose (i) if they existed at the date of the refusal, or (ii) if they did not exist at that date, but only in so far as they throw light on the grounds now given for refusal“.
It is difficult to see how the obiter musings of the Upper Tribunal in Badger Trust can withstand this, fairly prolonged, piece of Supreme Court reasoning. Arguments may be made that it was common ground, and possibly that was obiter itself, but it will self-evidently persusive that such experienced and eminent counsel agreed such a standpoint, and that the leading judgment relies upon it.
Perhaps the debate door is shut only shortly after being opened? Perhaps Evans has something to say to FOIA lawyers outside the scope of the veto power after all? Perhaps, perhaps, perhaps…
PS A prize (kudos only though) for the first person to spot the link between opening and closing of this post.