Prince Charles, the Guardian and the Unreasonable Veto

As promised last week, this post contains a slightly fuller account of the Court of Appeal’s judgment in R (Evans) v HM Attorney General [2014] EWCA Civ 254. The history of the case is manifold and has been covered on this blog innumerable times (see: here, here and here). In essence, the Upper Tribunal held in a very lengthy judgment that some of the correspondence written by Prince Charles to various governmental departments ought to be disclosed in the public interest. The Attorney General then issued his statement of reasons under section 53 FOIA, which has the effect of vetoing the judicial decision. On any view, the veto is a highly unusual provision. The Divisional Court dismissed the judicial review of that veto. Mr Evans, a Guardian journalist, appealed.

The Court of Appeal allowed the appeal, with Lord Dyson MR delivering the leading judgment. It accepted that two persons may each have different but reasonable views of an answer to a question such as the balance of public interests. But where one of those bodies was an independent and impartial tribunal or court which had conducted a full examination of the issues, for the AG to have “reasonable grounds” to take a different view (as section 53(2) requires) he must be able to show that the tribunal had demonstrably erred in law or fact, or that there had been a material change of circumstances. Neither of those applied in this case: at [37]-[39]. The statement of reasons was accordingly unlawful. The Court applied an analogy from cases taking this approach in the planning and immigration context.

The Court’s view certainly exercises a control over the veto. The two examples it gives for a veto role are apparently intended to be narrow ones. A demonstrable error seems to permit a veto only where an appeal would clearly be successful. A material change in circumstances seems a particularly difficult category to apply where the long-standing principle of FOIA is that the public interest is adjudged as at the time of the request. The Court of Appeal did, however, grant permission to appeal to the Supreme Court, so this judgment will not be the last word on the matter.

Some of the information requested, although it is not publicly known how much, was environmental information under the EIR. The Court of Appeal agreed with Mr Evans that the right to an effective remedy under the Directive and the European Charter precluded the use of a veto of a final and binding court decision. Judicial review was not an adequate remedy in this sense because it was directed at the veto, and not the underlying decision to refuse the request for information: at [55]. A veto meant that the court or tribunal decision was not final or binding, because a judicial review may not be bought or it might fail on procedural grounds, and in any event would not bind the original refusing department because it would not be a party to the veto proceedings: at [56]. Moreover, a veto also meant that there was not an effective remedy before a court which was Article 6 ECHR compliant, in the sense that the principle of legal certainty and finality of judgments was undermined, and that there was an inequality of arms because a requestor cannot veto a tribunal decision which rules against him: at [57]-[66].

The Court held that the entirety of the statement of reasons had to be quashed on this basis too because the AG had not carried his own public interest balancing exercise which reflected the greater public interest in disclosing the non-EIR material once the EIR material had been disclosed.

Lord Dyson MR did not feel it necessary to decide whether Wednesbury review was sufficiently flexible to comply with the standard required by the Directive (in particular, whether Sullivan LJ had been right in Birkett v DEFRA [2011] EWCA Civ 1606 at [23] to suggest a de novo hearing was required) given his reasoning more generally, but suggested that had it been necessary to decide the point he would have had to make a reference to the CJEU: at [73].

Evans has contributed a large amount to information law jurisprudence, and with an appeal to the Supreme Court to come, it is the gift that keeps on giving…

Christopher Knight