I have written before about the saga concerning the disclosure of so-called advocacy correspondence sent by Prince Charles to Government Departments: in particular, about the Upper Tribunal’s decision, holding that the correspondence had to be released under the Freedom of Information Act 2000; the Attorney-General’s subsequent decision to use the “veto” power under that Act to block disclosure in spite of the Tribunal decision; and, most recently, the Administrative Court’s decision upholding the lawfulness of the Attorney-General’s exercise of the veto power. I will not, therefore, attempt to summarise the issues or the history, which can be found in my earlier posts on this subject.
The Court of Appeal has now weighed in: and it has disagreed with the Administrative Court, ruling that exercise of the veto power was unlawful on two grounds. One of those grounds concerns EU law, and is not the concern of this post. The other ground relates to domestic administrative law: in particular, to the reasonableness of the Attorney-General’s decision. The notion of reasonableness enters into play not only because general principles of administrative law require Ministers to act reasonably, but also thanks the specific terms of the Freedom of Information Act’s veto regime, as set out in section 53 of the Act. It provides that a veto can have effect only by means of a certificate which states that the relevant Minister “has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure [to comply with relevant provisions of the Act]”.
The Administrative Court rightly concluded that this required the existence of, as opposed to mere belief as to the existence of, reasonable grounds, thereby opening up the question of reasonableness to full judicial scrutiny. But this leads on to the further question: what should count as reasonable in circumstances such as these? It is well known that the concept of reasonableness in administrative law can mean relatively little, classic formulations treating as unreasonable only those decisions that border on the absurd. Not so, however, in this case. Like the Administrative Court, the Court of Appeal held that something more exacting than bare Wednesbury reasonableness was needed, but the two Courts disagreed about what should take its place.
The Administrative Court applied a “cogent reasons” test, finding that the Attorney-General’s reasons for disagreeing with the Upper Tribunal passed muster. However, the Court of Appeal was not so easily satisfied. Lord Dyson MR, giving the only reasoned judgment in the Court of Appeal, had this to say about Davis LJ’s reasoning in the Administrative Court:
At paras 113 to 116, he then considered whether the Statement of Reasons appended to the section 53(2) certificate demonstrated “reasonable grounds”. He concluded that the views and reasons expressed by the Attorney General as to where the balance of public interest lay were “proper and rational”. They “made sense” (original emphasis). They were “cogent”. It was perfectly possible for each of two diametrically opposed arguments and conclusions to be cogent: “[t]hat one conclusion may be proper and reasonable does not mean that the contrary conclusion is improper and unreasonable”. Section 53(2) did not require that the decision to be overridden was itself unreasonable or otherwise flawed in a public law sense. Davis LJ said that the position “is demonstrably put on an altogether more open basis by the wording of section 53”.
Lord Dyson MR rejected this approach. In doing so, he adopted a significantly more exacting conception of reasonableness:
In my view, whether a decision is “reasonable” depends on the context and the circumstances in which it is made. I agree with the Divisional Court that two opposing decisions or opinions may both be objectively reasonable. But whether it is reasonable for X to disagree with the reasonable decision or opinion of Y depends on the context and circumstances in which X and Y are acting. That is well illustrated by the three authorities on which Miss Rose [for the claimant] relies.
The three cases in question were R v Warwickshire County Council ex p Powergen plc (1998) 96 LGR 617, R v Secretary of State for the Home Department ex p Danaei [1998] INLR 124 and R (Bradley) v Secretary of State for Work and Pensions [2009] QB 114, [2008] EWCA Civ 36. Lord Dyson MR said:
In each case, the court asked whether it was reasonable for Y to make a decision which was contrary to the earlier decision of X. In each case there was a judicial review challenge to the reasonableness of the later decision. In my view the cases provide a helpful analogy. In each of them, the context in which the reasonableness of Y’s decision was to be judged was that it was contrary to the earlier decision of X, which was an independent and impartial body that had conducted a full examination of the very issues that Y later had to determine. In each case, the court emphasised as being of particular importance the fact that the earlier decision had been made by an independent and impartial body, after a thorough consideration of the issues. In these circumstances, the court held that there had to be something more than a mere disagreement on the same material for it to be reasonable for Y to disagree with X.
Applying this approach, Lord Dyson MR concluded that the Attorney-General had failed to demonstrate reasonable grounds for exercising the veto power.
It follows then that, it in cases like these, it will be reasonable for decision-maker Y to reject decision-maker X’s view only if there are reasonable grounds for the disagreement, the mere fact of disagreement being insufficient to establish this. In one sense, therefore, the limitations upon decision-maker Y’s discretion in such cases derives not so much from the intensity of the court’s review as from the constricted territory upon which any “reasonable grounds” must bite: the fact that it would have been reasonable for decision-maker X to reach the view that decision-maker Y prefers is insufficient to establish the reasonableness of Y’s rejection of X’s view.
However, while this is an important part of the story, it is not the whole of it. As well as requiring decision-maker Y’s reasonable grounds to bite upon something more particular than that which the Attorney-General in this case would have liked, it is clear from the Court of Appeal’s judgment that the notion of reasonableness is itself conceived of in more-demanding terms in this context. This is coloured by the institutional context in which decision-maker Y’s discretion falls to be exercised. An important part of that context is the institutional status and capacity of decision-maker X which will (usually) have been deployed in an effective manner via a thorough and careful process of decision-making. In such circumstances, it is right, in normative terms, that decision-maker Y should find itself under a justificatory burden heavier than that which can be imposed by the bare Wednesbury concept. The effective dismissal by a Government Minister of a carefully-reasoned judgment rendered by an independent and impartial body like the Upper Tribunal is necessarily constitutionally suspect in prima facie terms, and calls for a justification more weighty than which conventional rationality review can demand. As a result, it is appropriate in such circumstances that the reviewing court imposes a greater burden of justification – or, as I have put it elsewhere, exhibits less “starting-point deference” – when determining what decision-maker Y must establish if its decision is to be lawful.
Viewed thus, the Court of Appeal’s decision in Evans forms part of an increasingly-subtle scheme of substantive review which demonstrates several helpful truths about the modern law in this area. In particular, it shows (1) that the reasonableness concept can be invested not just with bark (which is arguably all that the Administrative Court managed) but also with bite; (2) that the demands imposed by substantive review are calibrated by considerations more sophisticated than bald questions about whether “rights” are at stake; and (3) that more-demanding substantive review can (and sometimes should) be delivered without resort to the concept of proportionality.
Public Law for Everyone 