The Tale of the Black Spider: The Supreme Court speaks

27 March 2015 by Matthew Flinn

Photo credit: The Guardian

Matthew Flinn

And so, the long legal saga of the Black Spider Letters finally comes to a close.

I last blogged about this case back in October 2012. At that time, the Attorney General had ignited controversy by invoking a little-known power under section 53 of the Freedom of Information Act 2000 (FOIA).

Under that provision, he issued a certificate which effectively vetoed a decision of the Upper Tribunal that a number of items of correspondence sent by Prince Charles to seven Government Departments (characterised as “advocacy correspondence” as opposed to personal letters) had to be disclosed to Mr Rob Evans of the Guardian newspaper.

Since that time, there have been judicial review proceedings in the Divisional Court, with a subsequent appeal to the Court of Appeal, and finally the Supreme Court, which handed down its judgment just a few days ago. In total, the battle has lasted for around ten years, and no less than sixteen judges, including the then Lord Chief Justice, the Master of the Rolls and now seven Supreme Court Justices, have weighed in. At last, it is official and final: the Black Spider Letters (so-named because of Prince Charles’ characteristic scrawl in black ink) are to be released to the public.

The media is abuzz. What will the letters reveal? What will be the impact upon the convention of a politically neutral monarch? Will Prince Charles even remain viable as heir to the throne? Fascinating questions, but the focus of this article is of course the legal landscape traversed by the litigation, which has been – I promise – just as interesting!

The Black Spider Letters were first requested by Mr Evans under the auspices of FOIA in April 2005. My earlier post sets out the various steps that were taken following his request, in accordance with the statutory regime, and provides a summary of the approach adopted by the Upper Tribunal, which, having considered the letters, decided that the public interest in their disclosure outweighed the public interest in keeping them confidential.

That was the essential question it needed to address under section 2 of FOIA, and it did so in great detail, and at great length. As I noted in my earlier post, it was fascinating to see the Upper Tribunal give consideration to the fundamental but amorphous principles of the United Kingdom’s unwritten constitution (the “Cardinal Convention”, the “Tripartite Convention” and the “Education Convention”), and weigh them up against much more modern phenomena, such as the right to privacy and the strong public interest in transparency. It just goes to show that those early tutorials in constitutional law can be put to use in a modern lawyer’s career!

When the Attorney General issued his certificate under section 53 of the Act, the legal ground shifted. He reached a different view from the Upper Tribunal on the merits of disclosure, but his decision was subject to judicial review, which required the identification of an error of law. The subsequent hearings in the Divisional Court, Court of Appeal and Supreme Court were thus very different in their content. The judges did not review the letters themselves in order to weigh up the interests for/against their disclosure. They simply looked at whether or not, as a matter of law, the Attorney General was entitled to issue the certificate in the way he did. One might expect that to be a dry legal exercise, but, once again, this case has given rise to an interesting examination of some of the most fundamental principles of the British constitution.

The leading judgment in the Supreme Court was given by the President, Lord Neuberger (with whom Lords Kerr and Reed agreed). His decision was essentially founded on the constitutional principles of the rule of law and the separation of powers. He articulated them as follows at paragraph 52:

First, subject to being overruled by a higher court or (given Parliamentary supremacy) a statute, it is a basic principle that a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone, including (indeed it may fairly be said, least of all) the executive. Secondly, it is also fundamental to the rule of law that decisions and actions of the executive are, subject to necessary well established exceptions (such as declarations of war), and jealously scrutinised statutory exceptions, reviewable by the court at the suit of an interested citizen.

The upshot of these principles is that, in general, it is not open to a member of the government to overrule a court simply because he/she disagrees with its conclusions (indeed: were that not the case, tyranny would be hard to avoid).

However, another fundamental constitutional principle is that parliament is supreme, and such a power seems to be precisely what parliament provided for in section 53, which is worded as follows:

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).

Lord Neuberger got around this by invoking yet another constitutional principle: the principle of legality. That principle holds that if parliament intends to legislate against the rights of its citizens or other fundamental principles of the constitution, it must do expressly, and using the clearest possible words. As Lord Browne-Wilkinson said in R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539:

A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament.

Lord Neuberger thus concluded that, if section 53 was to mean that the Attorney General could veto the decision of the Upper Tribunal simply because he had reasonable (i.e. rational) grounds for disagreeing:

…it must be “crystal clear” from the wording of the FOIA 2000, and cannot be justified merely by “general or ambiguous words”. In my view, section 53 falls far short of being “crystal clear” in saying that a member of the executive can override the decision of a court because he disagrees with it.

The question then became: in what circumstances could there be “reasonable grounds” for differing from a decision of the Upper Tribunal, such that it was legally permissible to issue a certificate under section 53?

Lord Neuberger adopted the view of the Court of Appeal in this respect: that a certificate could only be issued following determination by a court or judicial tribunal where there was “a material change of circumstances since the tribunal decision or that the decision of the tribunal was demonstrably flawed in fact or in law”. As those circumstances did not apply in this case, the certificate was invalidly issued and had to be quashed.

The approach of Lord Neuberger does raise further difficulties, as he himself  acknowledges in his judgment. For example, a section 53 certificate needs to be issued within 20 days of the relevant decision, but how likely it is that a change of circumstances could arise within that period of time? If a decision notice was flawed in fact or law, why not appeal? What are the considerations that apply when a decision notice is issued by the Information Commissioner rather than a judicial tribunal, and there is no appeal?

He gamely engages with those problems in paragraphs 71 – 84 of his judgment, but concludes that such problems “all ultimately concern the practical consequences of the interpretation, and, quite apart from the fact that some of those problems arise in any event, they are simply not commensurate with the fundamental constitutional issues which seem to me to be so centrally in point.”

However, those problems, and the (at times) tortuous nature of Lord Neuberger’s reasoning in addressing them, were highlighted by the dissenting judges (Lords Wilson and Hughes), who took the view that the interpretation placed upon section 53 by the majority was too strained to be viable. The section meant what it said – that a certificate could be issued if there were reasonable (i.e. rational) grounds for disagreement, albeit the consequence of doing so may be to veto a judicial determination. The principle of legality had, in their view, been satisfied.

Clarence House has been reported as saying that it was “disappointed the principle of privacy had not been upheld”. This is a reminder, perhaps, that originally this case was largely about the competing rights of a journalist to information, and the right of a member of the royal family to conduct correspondence privately. However, as the case wound its way through the court system, it became a rather different beast. Ultimately, it evolved into a case about statutory interpretation, against the context of the most fundamental principles of constitutional law. On so many occasions, complex cases are able to resolve themselves into a simple question of weighing up individual rights. In this instance, a case about individual rights developed into something much larger and more complicated. (I should point out that the Court also addressed questions of statutory interpretation relating to the Environmental Information Regulations 2004, which I have not considered in this post.)

I indicated in my earlier blog post that “the judiciary may yet have the last word”. So it has turned out, at least in the case of the Back Spider Letters. But is it the final word in relation to section 53 of FOIA? The political indications are that it is not. Various news websites have reported David Cameron as saying:

Our FOI laws specifically include the option of a governmental veto, which we exercised in this case for a reason. If the legislation does not make Parliament’s intentions for the veto clear enough, then we will need to make it clearer.