Why Evans gets the spiders

March 26th, 2015 by Robin Hopkins

I told you FOI was sexy.

The Supreme Court’s judgment in R (Evans) v Attorney General [2015] 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

 

Assessing the FOIA veto power

September 17th, 2014 by Robin Hopkins

For those of you still following the Prince of Wales correspondence veto saga, and who have access to law journals in print or online, you may be interested to read the casenote published in the latest issue of the Law Quarterly Review discussing the Court of Appeal judgment. The casenote is by 11KBW and Panopticon stalwart Chris Knight. The full reference is CJS Knight, ‘The Veto in the Court of Appeal’ (2014) 130 LQR 552.

 

The Prince Charles veto: JR fails due to availability of JR

July 10th, 2013 by Robin Hopkins

As Chris Knight reported this morning, judgment has been handed down in R (Evans) v HM Attorney General [2013] EWHC 1960 (Admin). The Upper Tribunal had ordered disclosure of certain correspondence between Prince Charles and government ministers (termed ‘advocacy correspondence’). The government – the Attorney General specifically – exercised the power of veto under section 53 of FOIA. The requester, Guardian journalist Rob Evans, brought judicial review proceedings. The Administrative Court dismissed his claim.

It did so despite “troublesome concerns” about the section 53, which it considered to be a “remarkable provision”.

For example, the Lord Chief Justice said: “The possibility that a minister of the Crown may lawfully override the decision of a superior court of record involves what appears to be a constitutional aberration” (paragraph 2); “It is an understatement to describe the situation as unusual. Indeed the researches of counsel suggest that it is a unique situation and that similar statutory arrangements cannot be found elsewhere in this jurisdiction” (paragraph 9); “It is not quite a pernicious “Henry VIII clause”, which enables a minister to override statute but, unconstrained, it would have the same damaging effect on the rule of law” (paragraph 10).

Nonetheless, a close examination of the wording and features of section 53 satisfied the court that it was not flawed on constitutional grounds. Parliament was mindful of what it was doing in enacting section 53. There are strict time limits and limits on who can issue a section 53 certificate; it must be laid before Parliament with reasons, it must be made on “reasonable grounds” and “the jurisdiction of the courts does not even purport to be ousted” (paragraph 81 in the judgment of Davis LJ). In effect, Parliament chose to build section 53 into a FOIA as an express check and balance on disclosure.

The Lord Chief Justice summed up the court’s assessment of section 53: “These provide that the ministerial override will be ineffective unless reasonable grounds for its exercise are identified. These reasons must be laid before Parliament for scrutiny and, if appropriate, parliamentary action. Making the reasons public in this way ensures that they are also immediately available for press and public scrutiny and, if appropriate, critical comment. More important, perhaps, is that the override decision of the minister is not final. The exercise of the override is itself subject to judicial scrutiny” (paragraph 13).

The court considered the meaning of “on reasonable grounds”, the key language from section 53. What standard did this connote? Davis LJ said “reasonable” meant just that: it did not needed to be glossed either by reference to Wednesbury standards, nor by reference to any higher standard.

The court was persuaded that the statement of the Attorney General’s reasons in this case did indeed demonstrate “reasonable grounds” for the decision. The Attorney General had guided himself by the government’s published policy which states that the veto will only be used in exceptional cases. He had considered and engaged with the Upper Tribunal’s decision. He addressed both FOIA and the EIR. He gave his view that great weight should be attributed to the importance of the convention of preparation for kingship, the need to avoid a chilling effect on related communications, the preservation of confidences and the need to avoid damage to the perception of political neutrality. The Commissioner himself had agreed with those factors and conclusions in his decision notice.

In the court’s view, the Attorney General’s reasons ‘made sense’. There can be “cogent” arguments for and against disclosure (as indeed the Upper Tribunal acknowledged were present in this case), and FOIA/EIR public interest assessments are not so much matters of fact or law (or a mix of both), but are exercises in evaluation. In that light, if it was said that the Attorney General could not simply prefer his own opinion to that of the Upper Tribunal, the rhetorical answer was “why not?”. Moreover, he was entitled to address the correspondence as a whole, rather than on a document-by-document basis.

Mr Evans had also argued that insofar as the veto related to environmental information, it was incompatible with the “access to justice” provisions of the Aarhus Convention and of the Environmental Information Directive. The court was not persuaded: the availability of judicial review sufficed for those purposes.

The Guardian has announced its intention to appeal.

Postscript:

It should also be remembered that this is not the only strand of the Rob Evans/Prince of Wales letters litigation. As Panopticon reported earlier this year, the Upper Tribunal has separately ordered disclosure of a schedule describing the withheld information. That decision is also subject to appeal: it has not (yet?) been vetoed. The saga continues.

Robin Hopkins

 

BACKDOOR ATTEMPT TO OBTAIN IRAQ WAR CABINET MINUTES FAILS

December 2nd, 2010 by Robin Hopkins

The minutes of the Cabinet meetings at which it was decided to go to war in Iraq have resurfaced for consideration by the Tribunal. First time round, the Tribunal agreed with the Commissioner that the minutes should be released, but the final word went to Jack Straw, by means of a ministerial veto – which was not subject to a judicial review challenge – issued under section 53 FOIA.

The requester in that case subsequently sought a backdoor route to the minutes, by requesting them under FOIA from the ICO itself. He also sought “background papers which show the processes of thought behind the Information Commissioner’s conclusion that the Cabinet minutes in question should be disclosed”. The ICO did not hold the minutes themselves, but it did hold some handwritten notes made by the then Commissioner, Richard Thomas, and by an ICO caseworker when visiting the Cabinet Office to inspect the minutes. It also held a confidential annex to the Decision Notice, which fell within the veto. All of these he refused to disclose.

The usual FOIA complaints and appeals process ensued, with the Commissioner issuing a decision notice in respect of his own refusal, and then defending that notice before the Tribunal in Lamb v IC (EA/2009/0108).

The basis of the refusal was section 44 FOIA, which provides that information is exempt if its disclosure is “prohibited by or under any enactment”. The Commissioner relied for the latter on section 59 of the DPA, which says that the Commissioner may not disclose information he obtained under the auspices of the Act “unless the disclosure is made with lawful authority”, which arises where “having regard to the rights and freedoms or legitimate interests of any person, the disclosure is necessary in the public interest”.

As the Tribunal accepted, this is a much higher threshold than the usual public interest test under FOIA: under section 59, there is effectively a presumption against disclosure.

The Tribunal was satisfied that this information was “obtained from” the Cabinet Office, notwithstanding the Appellant’s challenge on that point.

It also agreed with the Commissioner’s application of section 59. Much of the Appellant’s argument turned on the importance of the material he sought. This, said the Tribunal, overlooked the point that the Commissioner had already decided in the Appellant’s favour concerning the Cabinet minutes which he sought. The Tribunal also commented that:

“It is no part of the freedom of information regime to provide a mechanism by which a party who prosecuted a successful complaint to the Information Commissioner in the past may have his or her winning margin reassessed in the light of events subsequent to the date of the original victory”.

The Tribunal did not comment on whether the mere existence of the veto gave rise to the engagement or effectiveness of section 59. Nor did it speculate as to the circumstances in which reliance on section 59 could be defeated – although the wording of that section clearly envisaged this prospect.

 

JACK STRAW EXERCISES MINISTERIAL VETO (AGAIN)

December 11th, 2009 by Anya Proops QC

In February of this year, Justice Secretary Jack Straw issued the first ministerial veto under s. 53 FOIA. The veto, which met with considerable public controversy at the time, was issued in response to an Information Tribunal decision which required disclosure of minutes of a Cabinet meeting at which the government decided to go to war in Iraq (see further my paper on this issue). Yesterday, Mr Straw announced that he was exercising his powers of veto for a second time. The new veto has been issued in respect of a decision of the Commissioner requiring disclosure of minutes of the Cabinet Ministerial Committee on devolution to Scotland and Wales and the English Regions 1997. In the public announcement of the veto, Mr Straw stated that disclosure of the information in issue would have put the convention of collective cabinet responsibility at ‘serious risk of harm’. He also stated that he considered the circumstances of the case to be exceptional. Notably, similar points had been used to justify the veto in respect of the Iraq minutes. See further the certificate and Mr Straw’s Statement of Reasons and Veto. The effect of the veto is that the appeal against the Commissioner’s decision, which was due to be heard by the Information Tribunal at the end of January 2010, will now be aborted as the effect of the veto is that the decision notice ceases to have effect. The Commissioner has today issued a statement in response to the veto. The statement expresses regret and concern that the veto was issued in circumstances where the Tribunal had yet to adjudicate on the Cabinet Office’s appeal (cf. the Iraq minutes case where the veto was issued subsequent to the tribunal’s decision). The Commissioner will in due course issue a report to Parliament on the matter.

 

Government Vetoes Disclosure of Iraq Information

February 26th, 2009 by Anya Proops QC

Jack Straw has announced that he is exercising powers under section 53 FOIA to prevent minutes of Cabinet meetings held in the period leading up to the Iraq war from being disclosed under FOIA. The announcement, which was made to Parliament on 24 February 2009, follows in the wake of the Information Tribunal’s decision in January 2009 that the minutes should be disclosed. It is understood that this is the first time the Government has used the powers of veto under section 53. Jonathan Swift of 11 KBW acted on behalf of the Cabinet Office before the Tribunal. 11 KBW’s Timothy Pitt Payne acted for the Commissioner.

Section 53(2) FOIA:

‘A decision notice or enforcement notice to which this section applies shall cease to have effect if, not later than the twentieth working day following the effective date, the accountable person in relation to that authority gives the Commissioner a certificate signed by him stating that he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure falling within subsection (1)(b)’

 Tribunal decision:

https://www.informationtribunal.gov.uk/DBFiles/Decision/i288/Cabinet%20Office%20v%20IC%20&%20C%20Lamb%20(EA-2008-0024,29)%20-%20Decision%2027-01-09.pdf

Media Reports:

https://www.guardian.co.uk/politics/2009/feb/24/iraq-freedom-of-information

https://www.google.com/search?sourceid=navclient&ie=UTF-8&rlz=1T4GGLD_enGB311GB311&q=bbc+straw+cabinet