New paper: A Tangled Constitutional Web — The Black-Spider Memos and the British Constitution’s Relational Architecture

I have written before about the Evans case concerning the Government’s attempt to block the release under the Freedom of Information Act 2000 of correspondence between the Prince of Wales and Ministers. I have now completed work on an article on this case that will appear in the October 2015 issue of the journal Public Law. The abstract of the article is as follows:

This paper examines the decision of the UK Supreme Court in R (Evans) v Attorney-General [2015] UKSC 21, [2015] 2 WLR 813. The case, which concerned the legality of the UK Government’s attempt to block the disclosure under the Freedom of Information Act 2000 of correspondence between the Government and the Prince of Wales, raises a series of interlocking constitutional questions. The paper considers the significance of the Supreme Court’s judgment by reference to those questions, paying particular attention to the light it casts upon the relationship between the constitutional doctrines of parliamentary sovereignty, the rule of law and the separation of powers. The paper distinguishes two distinct judicial techniques adopted in the case – turning respectively upon administrative-law and constitutional-law methodology – and assesses the legitimacy of the strikingly activist approach evidenced by those judges who adopted the latter methodology.

The full text of a draft version of the article can be downloaded here via SSRN.