Of Black Spiders and Constitutional Bedrock: The Supreme Court’s Judgment in Evans

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The legal saga concerning the “black-spider memos” that Prince Charles is in the habit of sending to Ministers, inflicting upon them his often-eccentric views, is a long one. It has its origins in freedom-of-information requests issued to several Government departments by a Guardian journalist. Disclosure was sought of “advocacy correspondence” — that is, letters setting out Charles’s views about matters of public policy — sent to the relevant Departments by Charles in the mid-2000s. Today, such requests would be doomed to failure, since section 37 of the Freedom of Information Act 2000 was amended in 2010 so as to render communications with the heir to the throne absolutely exempt from disclosure. However, that amendment does not bite upon the correspondence that is the subject of the present proceedings. In a path-breaking decision issued in 2012, the Administrative Appeals Chamber of the Upper Tribunal ordered the release of the letters, holding that the constitutional role of the heir to the throne was not such as to generate a public-interest justification for withholding them.

However, the Attorney-General subsequently exercised the so-called veto power under section 53 of the Act. The effect of section 53 is that orders to disclose information under the Act are rendered ineffective if the Attorney-General certifies that he has “reasonable grounds” for having formed the opinion that non-disclosure would not be unlawful. The Attorney-General sought to justify his use of the veto on the ground that disclosure of the letters would have undermined public confidence in Charles’s capacity to serve as monarch, given the that strongly held views contained in the letters might cause people to question his political neutrality. The legality of the Attorney-General’s veto was challenged by way of judicial review. Although in 2013 the Administrative Court upheld the use of the veto, the Court of Appeal last year ruled that the Attorney-General had acted unlawfully.

The Supreme Court has now given judgment in R (Evans) v Attorney-General [2015] UKSC 21 (hand-down video) (press summary) (judgment). It held, by a five-to-two majority, that the Attorney-General’s use of the veto power was unlawful on domestic-law grounds. (A second point, concerning EU law, will not be considered here.) Three aspects of the judgment will be brought out in this post. Each is constitutionally significant, but, as we will see, each successive aspect of the case considered in this piece takes us into increasingly fundamental constitutional territory.

Administrative Law

Early reactions to Evans have emphasised its significance in constitutional-law terms — unsurprisingly, given the weight placed upon basic constitutional principles in the leading judgment given by Lord Neuberger (with whom Lords Reed and Kerr agreed). As we will see, their approach relieved them of any significant obligation to consider, in administrative-law terms, the lawfulness of the Attorney-General’s decision. Viewed thus, the Neuberger judgment adopted a top-down, constitutional-law approach. That judgment is considered below. Meanwhile, Lord Mance’s concurring judgment (with which Lady Hale agreed), adopted comparatively bottom-up, administrative-law approach.

Lord Mance’s judgment — like the Court of Appeal’s ruling — turned upon a close evaluation of the reasonableness of the Attorney-General’s decision. Unlike Lords Neuberger, Reed and Kerr, Lord Mance and Lady Hale were prepared to accept that section 53 of the Act, at least in principle, permits the Government to veto freedom-of-information decisions merely because it disagrees with them. Crucially, however, the disagreement must be adequately reasoned. That much is clear from the text of section 53(2) which, as noted above, requires that the Attorney-General supplies “reasoned grounds” for the use of the veto. Normally, whether such grounds exist would be determined by reference to the Wednesbury principle, which requires the decision to be rationally defensible in the sense of not being manifestly unreasonable. The hurdle, viewed from the Government’s perspective, is not a high one.

However, in line with the Court of Appeal, Lord Mance said that section 53(2) erects a “higher hurdle” than “mere rationality”. Disagreement with a judicial tribunal’s fully reasoned findings of fact or rulings of law, he said, would “require the clearest possible justification”. Indeed, he indicated that furnishing such justification might be such an uphill task as to erode any practical difference between the outcomes likely to be yielded by his administrative-law based approach and Lord Neuberger’s invocation of top-down constitutional principles.

Lord Mance went on to flesh out the justificatory standard he had in mind, making two contrasting points. First, he said that scrutiny would be particularly close given that

the Upper Tribunal heard evidence, called and cross-examined in public, as well as submissions on both sides. In contrast, the Attorney General, with all due respect to his public role, did not. He consulted in private, took into account the views of Cabinet, former Ministers and the Information Commissioner and formed his own view without inter partes representations.

However, he went on to draw an important distinction between questions of fact and law, on the one hand, and questions pertaining to the balancing of public interests, on the other. In relation to the latter, he had sympathy with the dissenting judgment of Lord Wilson. Lord Mance said that

disagreement about the relative weight to be attributed to competing interests found by the tribunal is a different matter, and I would agree with Lord Wilson that the weighing of such interests is a matter which the statute contemplates and which a certificate could properly address, by properly explained and solid reasons.

Applying this approach, Lord Mance concluded that

it was [not] open to the Attorney General to issue a certificate under section 53 on the basis of opposite or radically differing conclusions about the factual position and the constitutional conventions without, at the lowest, explaining why the tribunal was wrong to make the findings and proceed on the basis it did.

For Lord Mance and Lady Hale, then, the case turned upon a close assessment of the reasonableness of the Attorney-General’s decision. But this was not a rationality assessment in its normal, Wednesbury guise; it was a substantially more-exacting process which placed a substantial — and, on these facts, insuperable — hurdle in the Government’s way. This approach is to be commended. It reflects a sensitive application of the separation of powers doctrine, showing that constitutional objections to relatively intensive substantive judicial review are not uniformly compelling, and that in certain contexts — such as where the Executive seeks to override the reasoned decision of an independent judicial body — closer-than-usual scrutiny is called for. It is possible, therefore, to characterise the Mance/Hale approach as one based upon administrative-law doctrine, the application of which is informed by and is sensitive to the particular constitutional and institutional context within which the impugned decision was taken.

Constitutional Law

In contrast, Lord Neuberger (with whom Lords Reed and Kerr agreed) painted with much broader brush strokes. Indeed, his judgment is largely devoid of analysis of the defensibility — judged in reasonableness terms — of the decision to invoke the veto power. Instead, Lord Neuberger’s judgment proceeds at a higher level of abstraction, yielding the result that even the “clearest possible justification” (Lord Mance’s bottom line) is incapable of rendering the use of the veto power lawful. Instead, Lord Neuberger — endorsing the view advanced by Lord Dyson MR in the Court of Appeal — said that resort to the veto would be lawful only in the event of “a material change of circumstances since the tribunal decision” or if “the decision of the tribunal was demonstrably flawed in fact or in law”.

This meant that Lord Neuberger had to defend the ostensibly paradoxical view that

it is not reasonable for an accountable person to issue a section 53 certificate simply because, on the same facts and admittedly reasonably, he takes a different view from that adopted by a court of record after a full public oral hearing

On this analysis, “reasonably” taking a different view from the Upper Tribunal (or the Information Commissioner) would not supply “reasonable grounds” for the purpose of section 53(2). It is clear that this position can be reached only by virtue of a very strained interpretation of the legislative language. However, Lord Neuberger considered that such an interpretation was warranted. He began by saying of section 53(2) that:

A statutory provision which entitles a member of the executive (whether a Government Minister or the Attorney General) to overrule a decision of the judiciary merely because he does not agree with it would not merely be unique in the laws of the United Kingdom. It would cut across two constitutional principles which are also fundamental components of the rule of law.

The two constitutional principles in question are that

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

and that

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.

Lord Neuberger invoked the House of Lords’ seminal judgment in Anisminic v Foreign Compensation Commission [1969] 2 AC 147, in which a statutory provision that apparently ousted judicial review of certain executive action was, depending on one’s point of view, either robustly interpreted or effectively disapplied. Anisminic, said Lord Neuberger, highlights the “constitutional importance of the principle that a decision of the executive should be reviewable by the judiciary”. Of course, no-one was suggesting that this decision — that of the Attorney-General to use the veto — was immune from judicial review; Lord Neuberger’s point, however, was that if the veto power were readily exercisable, the effect would be to permit the Executive to dispense with the judicial decisions of the Upper Tribunal. This would “stand on its head” the principle that underpins the constitutional importance of the availability judicial review of Executive action — namely, the yet-deeper principle that requires the Executive to be subject to the law as interpreted and applied by independent courts.

The question, then, was ultimately one of statutory interpretation — but the approach to interpretation was to be informed by the common-law principle of legality, which holds that general or ambiguous language is insufficient to displace fundamental constitutional values or rights. In a section of his judgment that might have been entitled “Common Law Constitutionalism’s Greatest Hits”, Lord Neuberger referred with approval to, and quoted from, not only Anisminic, but also Jackson v Attorney General [2005] UKHL 56, R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 and R v Secretary of State for the Home Department, ex parte Pierson [1998] AC 539. This led Lord Neuberger to the view that

if section 53 is to have the remarkable effect argued for by Mr Eadie QC for the Attorney General, it must be “crystal clear” from the wording of the FOIA 2000, and cannot be justified merely by “general or ambiguous words”.

Applying this crystal-clear words test, Lord Neuberger concluded that

where, as here, a court has conducted a full open hearing into the question of whether, in the light of certain facts and competing arguments, the public interest favours disclosure of certain information and has concluded for reasons given in a judgment that it does, section 53 cannot be invoked effectively to overrule that judgment merely because a member of the executive, considering the same facts and arguments, takes a different view.

If Parliament had wanted the Executive to be able to override in such circumstances, it would have had to say as much in terms. This construction of section 53(2) is clearly open to the charge that it is strained; it is clearly not the most natural interpretation of the language used in the statute. However, whether such criticism is well-founded turns upon a further, more fundamental, question.

Constitutional Architecture

That question pertains, ultimately, to the nature of the constitution’s underlying architecture. This fact and its implications are apparent from the contrasting approaches adopted by Lord Neuberger, on the one hand, and Lord Hughes, one of the dissentients, on the other. What they were not disagreeing about is the notion that the rule of law favours Executive compliance with judicial decisions, and that it favours the availability of judicial review of administrative action. What they were disagreeing about is the way in which the rule of law and the sovereignty of Parliament are to be understood as relating to one another. This is apparent from the following passage from Lord Hughes’ judgment:

The rule of law is of the first importance. But it is an integral part of the rule of law that courts give effect to Parliamentary intention. The rule of law is not the same as a rule that courts must always prevail, no matter what the statute says. I agree of course that in general the acts of the executive are, with limited exceptions, reviewable by courts, rather than vice versa. I agree that Parliament will not be taken to have empowered a member of the executive to override a decision of a court unless it has made such an intention explicit. I agree that courts are entitled to act on the basis that only the clearest language will do this. In my view, however, Parliament has plainly shown such an intention in the present instance.

This raises an issue I explored in my recent Current Legal Problems lecture concerning the nature of common-law constitutionalism. I argued that the common law’s recognition of fundamental constitutional rights and principles must be understood in nuanced, rather than binary, terms. Asking whether a given principle or right is acknowledged at common law is insufficient; rather, it is necessary to ask more-searching questions — about the nature and extent of the common law’s protective commitment to such norms and, ultimately, about their resulting constitutional security in the face of administrative or legislative infraction.

The contrasting judgments of Lords Neuberger and Hughes illustrate this thesis. On Lord Hughes’ analysis, any common-law acknowledgement of those aspects of the rule of law that require Executive submission to the law and judicial review is substantially undermined by the limited protective commitment evidenced by his approach. Indeed, Lord Hughes appeared to apply a reverse principle of legality by presuming that the veto power should be capable of being used in given circumstances unless the statute specifically ruled out such use:

In the end this issue does not admit of much elaboration; it seems to me to be a matter of the plain words of the statute. The alternative postulated is simply too highly strained a construction of the section. Section 53(2) could, no doubt, have said that a certificate could be issued only if fresh material came to light after the decision of the Commissioner or the First -tier Tribunal, but it did not. Likewise, it could have said that a certificate could be issued if the decision of the Commissioner or court could be shown to be demonstrably flawed in law or fact, but it did not. If Parliament had wished to limit the power to issue a certificate to these two situations that is undoubtedly what the subsection would have said.

Lord Neuberger’s approach is radically different, and represents a further reinvigoration of and return to the notion of common-law constitutionalism — one that matches rhetorical acknowledgment of fundamental rights and values with tangible forms of judicial protection. Indeed, his approach evidences a maximalist commitment to the interpretive protection of fundamental constitutional values. By definition, this interpretive approach stops short of denying the sovereignty of Parliament — Lord Neuberger was careful to omit any endorsement of those passages in Jackson and AXA that cast doubt on the principle — but this does not rob it of significance. Rather, it means that — as Lord Hoffmann put it in Simms, in a passage endorsed by Lord Neuberger in Evans — “Parliament must squarely confront what it is doing and accept the political cost”. This does not provide any watertight legal guarantee of basic constitutional rights and values. However, it serves to puncture, in an entirely legitimate way, the distinction that is often drawn between legal and political modes of constitutionalism, permitting legal-constitutional values to permeate — if not, in the final analysis, to absolutely constrain — the political-legislative process.

Not all judges — not all Supreme Court judges — accept that interpretive protection of fundamental constitutional norms is as far as the courts may legitimately go. Of course, such judges almost invariably accompany dicta touching upon the possibility of judicial disobedience to constitutionally suspect legislation with lavishly extravagant examples such as a full-frontal assault upon the basic tenets of democracy or the evisceration of the courts’ powers of judicial review. However, it occurs to me that if, as has been hinted today by the Prime Minister, section 53(2) of the Freedom of Information Act were redrafted so as to attempt to confer wide powers of Ministerial override of judicial decisions, such a provision might plausibly be considered to fall into that category — if it exists at all — of legislation so constitutionally egregious as to test the courts’ commitment to the absolute supremacy of Parliament. The very fact that courts clothe judgments such as Evans in the conceptual apparatus of interpretation demonstrates that they are certainly not spoiling for a fight such as this. Far from it. But Evans — and the broader stream of recent jurisprudence that places common-law constitutionalism front-and-centre — suggests that it would be a complacent Government that took the outcome of such a confrontation with the judges entirely for granted.