The Prince of Wales’ letters case – information access ban unlawful

A recent case generated high-octane headlines at the time – “Prince Charles’s ‘Meddling’ Lobbying Letters MUST be Released, Appeal Court Rules” being a fairly representative example.¹ This is an interesting ruling by the Court of Appeal on the circumstances in which the Attorney General is justified in exercising the statutory “veto” under the Freedom of Information Act 2000 (FOIA), which enables the Attorney General to block disclosure.

The issue for the court was whether the Attorney General had been wrong to veto the right of Mr Evans under the FOIA to access correspondence between the Prince of Wales and certain government ministers on various matters including the environment. The Master of the Rolls held that, on these facts, the Attorney General had no reasonable grounds for issuing a certificate under section 53(2) of the FOIA overriding the Tribunal’s decision. In any event, his power to issue the certificate was incompatible with the Environmental Information Directive (2003/4/EC) (EID) to the extent that the information concerned was environmental information.

There are two caveats to bear in mind:

1. permission was granted for the Attorney General to appeal to the Supreme Court; and
2. when considering the overall impact of the decision, the Court of Appeal took an approach very much based on the particular facts.

Background

Guardian journalist Rob Evans sought disclosure under FOIA and the Environmental Information Regulations 2005 (EIR) of a number of letters between Prince Charles and government departments written over a seven-month period between 1 September 2004 and 1 April 2005. The departments refused disclosure. Those decisions were subsequently upheld by the Information Commissioner.

The Upper Tribunal, however, ruled that the letters should be disclosed to the extent that they fell into a category defined as “advocacy correspondence”. This would include correspondence in which the Prince advocated certain causes that were of particular interest to him, including environmental causes.

The departments did not appeal. Instead the Attorney General, as an “accountable person” within section 53(8) of the FOIA, issued a certificate under section 53(2) overriding the Tribunal’s decision. The Attorney General considered that the public interest favoured withholding the information, among other things, to preserve the Prince’s political neutrality and to ensure that he was not inhibited from corresponding frankly with ministers where a frank correspondence assisted his preparation for Kingship and the exercise of the Sovereign’s duties on his succession to the throne.

Mr Evans sought judicial review of the Attorney General’s certificate. His application was dismissed by the Divisional Court.

On Mr Evan’s appeal against the Divisional Court’s refusal to grant judicial review, the issues to be determined were:

1. whether the Attorney General had failed to show “reasonable grounds” for his opinion contrary to section 53(2);
2. whether the issue of a section 53(2) certificate to override a decision of the Upper Tribunal was compatible with EU law; or, if not
3. whether the unlawfulness of the Attorney General’s decision relating to environmental information tainted the entirety of his certificate.

Decision

Giving the leading judgment, the Master of the Rolls held that what constitutes “reasonable grounds” must be determined objectively depending on the context and the circumstances in which the decision is made. In the present case, the Attorney General had disagreed with the decision of the Upper Tribunal, which was an independent court chaired by a High Court judge, on a question which it had examined in great detail. The Attorney General did not have any additional material, nor did he suggest that the Tribunal made any error of law or fact. It was accepted that the Tribunal’s decision was a reasonable one.

In those circumstances, the Master of the Rolls did not consider it reasonable for an accountable person to issue a section 53(2) certificate merely because he disagreed with the Tribunal’s decision: something more was required, such as a material change of circumstances since that decision was made, or that the decision was demonstrably flawed in fact or in law.² The Attorney General had not challenged the Tribunal’s findings of fact that were adverse to those of the Departments. He had simply disagreed with the Tribunal’s evaluation. It was held that this was insufficient to amount to “reasonable grounds”.

The Master of the Rolls also considered that section 53(2) must be read and given effect as being without prejudice to the directly enforceable Community rights of persons having the benefit of those rights.³ As such, it was incompatible with Article 6(2) and (3) of the EID to the extent that the information contained in the decision notice was environmental information. The natural and ordinary meaning of those provisions of the Directive was clear. It required that an applicant had access to a review by a court of law (or other independent and impartial body established by law) in which (a) the acts or omissions of the “public authority concerned” could be reviewed and (b) the decisions of the court or other body might become “final” and “binding”.

In the Attorney General’s view, the Directive contemplated that the decision of such a court or impartial body might cease to be final and binding if a third party (i.e. the accountable person) issued a certificate purporting to have such effect. His argument was that, where a certificate was issued, the right to review the public authority’s acts or omissions was satisfied by a right of judicial review of the certificate. The Master of the Rolls rejected that argument, finding that judicial review of a section 53(2) certificate was not sufficient to meet the requirements of the Directive. A judicial review of an accountable person’s certificate was substantively different from a review by a court or other independent body of the acts or omissions of “the public body concerned”. The question on a judicial review was not whether the public authority failed to act in accordance with its FOIA/EIR duties, but whether the accountable person had reasonable grounds for forming the opinion that the public authority had not failed to act. On a judicial review, the court might conclude that the accountable person had reasonable grounds for forming such an opinion, although it would itself have decided the issue differently.

Further, where a Member State provided a procedure in accordance with Article 6(2) for that State to confer on the executive a right to override a decision that was made in accordance with the procedure, such a right would necessarily mean that the decision was not final and binding.

Additionally, anyone whose EU law rights were violated had the right to an effective remedy before a tribunal which complied with the requirements of Article 47 of the Charter of Fundamental Rights. By Article 52, the scope of that right was equivalent to the right of access to a court under Article 6 of the European Convention on Human Rights. Section 53(2) essentially breached basic principles of the rule of law, access to court, finality and fairness, and also the right to equality of arms.

Furthermore, the principle of legal certainty required that “where the courts have finally determined an issue, their ruling should not be called into question”.⁴

Finally, the availability of judicial review did not deal with the issue of lack of equality of arms. The Master of the Rolls observed that a tribunal decision could be set at nought by an accountable person merely on the basis that he had reasonable grounds for intervening, while there was no corresponding right for a person who is subject to a tribunal’s decision that is adverse to him.⁵

For all these reasons, the Master of the Rolls concluded that the certificate was incompatible with EU law to the extent that the information to which it related to was environmental information. But he also considered that such unlawfulness tainted the entire certificate. While the Attorney General had dealt with the environmental information and the non-environmental information separately, he had not explicitly addressed the question of how the competing public interests should be weighed in relation to the non-environmental information if it was necessary to disclose the environmental information in any event. There was nothing in the Attorney General’s statement of reasons to indicate that, in his opinion, the non-environmental information should be withheld even if the environmental information was to be disclosed. As such, the section 53(2) certificate would be quashed in its entirety.

Comment

In some quarters this decision has been hailed as something of a breakthrough for individuals (and in particular journalists) seeking information using FOIA. The judgment does not, however, focus on the Article 10 rights of Mr Evans; rather, this decision is informed by the absence of good reasons put forward by the Attorney General for overriding the carefully reasoned decision of the Upper Tribunal. While much has been written on whether the Prince has sought to “meddle”, the case has reached a stage now where wider issues are at stake, including fundamental rights under the Charter and Convention. It seems likely that the case will go all the way to the Supreme Court: not only has the Court of Appeal confirmed that the Attorney General has no power to overrule the Tribunal in relation to environmental information, but in other cases where he has such power, it may now be significantly diminished in the absence of further clarification.

Jon Oakley and Jessica Welch

Associate and Trainee, Michael Simkins LLP

1. R (Evans) v Attorney General [2014] EWCA Civ 254 (12 March 2014).
2. See R v Secretary of State for the Home Department ex p Danaei [1998] INLR 124.
3. See Autologic Holdings plc v IRC [2006] 1 AC 118.
4. See for example Ryabykh v Russia (2005) 40 EHRR and Borshchevskiy v Russia (App no 14853/03).
5. Stran Greek Refineries v Greece (1994) 19 EHRR 293 applied.