So we cannot see Prince Charles’ advocacy letters after all

9 July 2013 by David Hart KC

R (o.t.a Rob Evans) v. Attorney-General,  Information Commissioner Interested Party, 9 July 2013 – read judgment

As we all know, the Prince of Wales has his own opinions. And he has shared those opinions with various government departments. Our claimant, a Guardian journalist, thought it would be interesting and important for the rest of us to see those opinions. So he made a request under the Freedom of Information Act and the Environmental Information Regulations to see these documents.

No joy, says the Administrative Court. Yes, a tribunal had ordered production of the letters, but that order had been overridden by the Attorney-General. What, says anybody used to the idea that courts do their bit, and the government does its bit – that’s unfair, government cannot override what the courts say.

The complication, as we shall see, is that the override is built into FOIA.

Section 53 of FOIA enables the Attorney-General to decide that an order against a government department shall cease to have effect, if he or she had reasonable grounds for so concluding. So when the Upper Tribunal (presided over by a High Court judge) ruled that the letters should be produced, the AG got out his pen and disagreed with the UT. He explained his reasons, in a form attached to the judgment. Essentially, he disagreed with the UT’s evaluation of various conventions about what the PoW should or should not do as part of his education towards monarchy. Those fascinated by such stuff might want to look at [45] of the judgment.

The principle that the executive can override the court did cause a certain raising of the judicial eyebrows. The Lord Chief Justice said that

it was an understatement to describe the situation as unusual

and Davis LJ, who gave the main judgment, said it was remarkable.

But what saved the day for the AG was, paradoxically, the fact that the Court on judicial review could assess the reasonability of the AG’s refusal to accept the conclusion of another court. But, as Mr Evans pointed out, these are different tests. The UT was deciding things on the evidence before it. That could be overridden but the override could only be overridden by the Courts on judicial review if it was unreasonable – as Davis LJ explained, if the AG had not advanced “cogent” reasons for setting aside the decision of the Court below.

This Court thought that the AG’s reasons were not unreasonable. The issue in the case was essentially evaluative, and it was far from surprising that decision-makers might differ in that evaluation. Neither, therefore, would be unreasonable, even though each would say that the other was wrong.

There was then a sub-plot, one, as devotes of my posts will know, is dear to my heart –  the Aarhus Convention and the EU Directive on public access to environmental information which implemented it into EU law, and thus into the EIRs. Some of the information, given the PoW’s interests, was environmental – His Royal Highness has tangled with the EIRs before – see my post on his oysters. Mr Evans submitted that the AG’s certificate

was unlawful because s.53 of FOIA (as purportedly applied to environmental information requests by Regulation 18 of the 2004 Regulations) was not compatible with the Directive or with Article 47 of the EU Charter of Fundamental Rights. Nothing in the Directive, it is said, permits a right of executive override with regard to environmental information. This particular argument was supported by the Information Commissioner.

Article 6 of the EU Directive not only mandates the availability of a review procedure by Article 6.1 but in addition by Article 6.2 mandates access to a court of law  where the acts and omissions of the public authority can be reviewed. Further, such decision on such a review is required to be “final” and to be “binding” on the public authority. It was submitted that the availability of the executive override under s.53 with regard to environmental information “flouts” such requirements of Article 6 of the Directive and is contrary to the principle of effectiveness under EU law.

The Court was unpersuaded. It thought that it was up to national law to decide what system of review was required by Article 6(2). Hence, the system of judicial review of any AG’s certificate was capable of amounting to such a system of review. At which point, the argument got into very familiar (and paradoxical) territory. Mr Evans, arguing for invalidity (see end [125]), was saying that judicial review was too narrow for Aarhus purposes (even though he was bringing a judicial review) – see what the Aarhus Convention Compliance Committee has said about this. The Government pointed to cases such as (another) Evans (my post here) doubting this conclusion under a similar provision in Article 9 of Aarhus. Davis LJ agreed, approving the conclusions in Evans that :

 the expressed concerns of the Aarhus Convention Compliance Committee did not bind the English courts and in any event did not “identify the variations in the intensity of Wednesbury review that reflect the nature of the interests affected”

Davis LJ added

Judicial review is a procedure consistent with the requirements of Article 9.4 of the Aarhus Convention. It is a flexible procedure, enabling an appropriate intensity of review where such intensity of review is called for… In the present kind of case, close scrutiny by the court is called for: and such close scrutiny of the reasons given for the accountable person’s opinion must require – and has here required – a close scrutiny by the court of the initial decision to withhold. Indeed, if there were substantive or procedural illegality or irregularity in the original decision such a review by the court, under section 53, should reveal it. In my view, that amply complies with the requirements of Article 6.2 of the Directive.

Hence, the section 53 procedure was not incompatible with EU law on environmental information.

Comment

The upshot was that the judicial review failed. The judges did not like the override, but finessed it by ensuring that real abuses of the override could be struck down on review by the Courts. So, honours may have been regarded as even between the Courts and government – a warning shot was fired to ensure that simple governmental embarrassment could not found the override in future – cogent reasons had to be advanced if government wanted to disagree with any order made by Information Commissioner or Court.

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