Prince Charles, freedom of information, judicial review and the separation of powers: R (Evans) v Attorney-General

The Administrative Court gave judgment earlier today in R (Evans) v Attorney-General [2013] EWHC 1960 (Admin). The case concerns a challenge to the legality of the Attorney-General’s decision to use s 53 of the Freedom of Information Act 2000 to block the disclosure of letters written to Ministers by Prince Charles. The s 53 veto was issued in order to avoid having to release the letters following a decision by the Upper Tribunal holding that the public interest required their disclosure. I have commented in previous posts on the decision of the Upper Tribunal and on the Attorney-General’s decision to override that decision by invoking s 53.

In today’s decision, the Administrative Court held that the use of the executive override power was lawful. Four aspects of the judgment strike me as interesting. First, the court rightly held that the existence of reasonable grounds for the exercise of the override power should be treated as a jurisdictional precondition: that is, as a condition which the court has to consider to be satisfied. If the court is not satisfied that reasonable grounds exist, the exercise of the power will be unlawful. Davis LJ, giving the leading judgment, explained this point at [85]:

Section 53(2) has, on one view, not in terms been so drafted, by the strict order of the wording, as explicitly to require the existence of “reasonable grounds” as a jurisdictional condition precedent before a certificate may be given. Rather, the requirement is worded to the effect that the accountable person, in certifying, must state that he has on reasonable grounds formed the relevant opinion. However, this cannot, in my view, mean that the accountable person can, as it were, self-certify as to the availability of reasonable grounds. In my view, the language chosen clearly is sufficient to connote that an objective test is to be applied: albeit, as is also clear, in the context of an expression of opinion on what, ultimately, is a matter of judgment. Thus reasonable grounds for the certificate must exist; and if reasonable grounds do not exist the certificate is invalid and of no effect.

Second, the court had to decide what this meant: when would “reasonable” grounds exist? Davis LJ, at [89], correctly rejected the suggestion that a deferential Wednesbury standard should apply:

In the present statutory context, I can see no reason why the court should be required to consider anything less than (albeit no more than) the existence of reasonable grounds. I do not think that requirement should be glossed by invocation of the Wednesbury “principle” so as to introduce some lesser (let alone vaguer) requirement. There is also this consideration. The exercise of the override power would not involve any interference with any civil right personal to Mr Evans himself. That might tend to support a lower intensity of review by the court. But that is, in my opinion, completely overtaken by the fact that the executive is, ex hypothesi, interfering with the decision of a specialist body or tribunal or court. That is a very sensitive situation, calling for appropriately close scrutiny by the courts on a judicial review challenge. At the same time, however, nothing in the language of the section either requires or entitles the reviewing court to substitute its own opinion as to where the balance of the public interest lies.

This approach is right for two reasons. Once the existence of reasonable grounds is characterized as a jurisdictional precondition, we are out of the territory—i.e. review of the substance of the decision itself—in which Wednesbury is (sometimes) appropriate. There is no constitutional need for jurisdictional review as to the existence of reasonable grounds to be circumscribed by reliance upon Wednesbury. Moreover, the power concerned—which allows the executive in effect to override the decision of an independent judicial body—is extraordinary. Its exercise therefore warrants the most careful form of judicial oversight, and, in particular, one that transcends Wednesbury review. Davis LJ acknowledged this point at [90]:

In the circumstances, I was altogether more receptive to Miss Rose’s submission to the effect that the reasons given in a certificate under s.53(2) must be “cogent”. Ins aying that, I would not go so far as notionally to write in any such requirement as a gloss to what Parliament has in terms provided – viz “on reasonable grounds”. Nevertheless that submission, in my view, reflects the remarkable nature of the power conferred. As I see it, if an accountable person is to interfere, by way of exercise of the power of executive override, with the decision of an independent judicial body then that accountable person must be prepared and able to justify doing so. I am reluctant to talk in terms of burden of proof. But in terms of burden of argument the burden is in practice on the accountable person to show that the grounds for certifying are reasonable. He seeks to do so, as expressly required by s 53(6) with regard to a decision notice, by the giving of reasons for his opinion. Thereafter he must expect those reasons, in any subsequent judicial review proceedings, to be the subject of appropriately close scrutiny by the court.

Third, objectionable though s 53 is, the court rightly rejected an argument advanced by the claimant that would, if accepted, have emptied it of content. The argument was explained by Davis LJ at [93]:

Miss Rose went on to submit that matters placed under consideration by a judicial body such as a tribunal or court were to be categorised either as matters of fact; or as matters of law; or as matters of mixed fact and law. She in effect said that matters of fact were for the tribunal: and the accountable person could not thereafter have reasonable grounds for interfering with such findings of fact absent some particular reason such as the emergence of fresh evidence. As to matters of law, she said that the executive could not on reasonable grounds interfere with a holding of law by a judicial body: to do so, indeed, would subvert the entire doctrine of the rule of law. The same approach, she said, likewise applied to matters of mixed fact and law.

In rejecting this argument, Davis LJ said at [108]-[109]:

In truth, what was in issue here – as I hope the summary of the Information Commissioner’s decision and the summary of the Upper Tribunal’s decision set out above illustrates – was a difficult exercise in evaluation. (It certainly was not simply a matter of discretion, which also – as s.58 of FOIA connotes – may be present in any decision.) The judgment here called for was a value judgment as to where the balance of the public interest lies. As the Upper Tribunal itself recognised, it ultimately depends on the weight to be accorded to the various competing factors. To style all this as simply comprehending questions of fact and law therefore does not meet the actuality of the situation.

The fundamental flaw in the claimant’s argument was that it appeared to presuppose that the obvious rationality of the Upper Tribunal’s decision foreclosed on the possibility that reasonable grounds might exist for overriding it. But, said Davis LJ at [115]:

[I]t is perfectly possible – indeed it is the experience of every judge – for each of two diametrically opposed arguments and conclusions in a particular case properly to be styled as cogent. That one conclusion may be proper and reasonable does not mean that the contrary conclusion is improper and unreasonable. It does no harm to remember that in Secretary of State for Education and Science v Tameside BC [1977] AC 1014, Lord Denning MR in the Court of Appeal had famously cautioned against the error of a decision maker thinking that anyone with whom he disagrees is being unreasonable (p.1026B). In any event, the scheme and language of s.53 of FOIA is not such as to require the accountable person, before he may properly certify, to form the view on reasonable grounds that the decision (whether of Information Commissioner, tribunal or court) proposed to be overridden was itself unreasonable or otherwise flawed in a public law sense. The position is demonstrably put on an altogether more open basis by the wording of s.53: even if the accountable person does himself have to be able to justify, on reasonable grounds, his departure from the earlier decision.

Fourth, the remarks of the Lord Chief Justice, in a separate, concurring judgment, are noteworthy. He said that the court’s approach to judicial review in a case like this had to be informed by the extraordinary nature of the s 53 override power. Having acknowledged, at [10], that legislative supremacy entitles Parliament to override judicial decisions by enacting primary legislation, he said at [11]:

Parliament created a right in members of the public to be granted a great deal of but not all the information held by public authorities. It provided, further, that the decisions of the public authorities adverse to disclosure should be subjected to a number of different methods of independent, and ultimately judicial, examination. Thereafter, on the basis that the final responsibility for deciding the public interest should remain with ministers, they were vested with the power to override the judicial decision. If that were the full extent of this legislative structure, then, while recognising that the relevant minister may have a particular insight into and a major contribution to make to the protection of the public interest, I should entertain the very gravest reservations whether this provision could fall within the constitutionality principle. Unconstrained by the internal legislative structure, rather than by reference to the much vaguer good sense of or wise discretion of any individual minister, we should be addressing a remarkable provision which empowered the minister to set aside the decision of a court after litigation in which the department for which he is responsible was the unsuccessful party. (Emphasis added)

Picking up a theme reflected in his Mansion House speech of last week, he continued at [12]:

It is fundamental to the constitutional separation of powers, the independence of the judiciary, and the rule of law itself that, although judicial decisions may be reversed by legislation (but very rarely with retrospective effect) ministers are bound by and cannot override judicial decisions: in our constitution that power is vested in Parliament. If ever the Government or any minister in the Cabinet could, without more, but in particular because of dissatisfaction with a judicial decision, not merely ignore it, but nullify it, the elementary entitlement of the citizen to effective recourse to independent courts would be extinguished.

Lord Judge CJ stopped short of saying what he would have done had Parliament designed a scheme that failed to satisfy the “constitutionality principle”, but the fact that he articulated such a principle and elaborated upon it in this way is striking. He concluded that, in fact, the “constitutionality principle” was satisfied because (i) the legislative scheme left open the possibility of judicial oversight of the exercise of the override power and (ii) such oversight could take an appropriately rigorous form. Lord Judge CJ’s reliance upon the “constitutionality principle” therefore—as so often in English public law—informed not any analysis of the validity of the legislative scheme but rather an analysis of its proper meaning and application.

Herein lies the bittersweet reality of the Administrative Court’s decision in Evans. The existence of the override power is fundamentally objectionable on separation of powers grounds. Indeed, it is hard to think of a more flagrant breach of the separation of powers than the allocation to the administrative branch of a power to dispense with the judgment of an independent judicial tribunal. But, as Lord Judge CJ’s (half-hearted) nod to parliamentary supremacy reminds us, the most the court could do was to make the best of a bad job by applying the law in a way that best satisfied the requirements of constitutional principle. This it did by insisting that s 53 decisions must be subject to close scrutiny by the reviewing court. But it was always clear from the Attorney-General’s statement of reasons for exercising the power that his decision was likely to survive even careful scrutiny. Had it not, then the court would have left itself open to the accusation of airbrushing s 53 out of the statute. And that, of course, is the one thing it cannot do so long as Parliament’s sovereign capacity to craft arrangements that breach fundamental constitutional principles continues to be acknowledged.