A postscript on the Evans case: The report of the Independent Commission on Freedom of Information and the Government’s response

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The so-called black-spider memos written by Prince Charles to Government Ministers turned out to be rather more pedestrian than many had anticipated. But the judgment of the Supreme Court in R (Evans) v Attorney-General [2015] UKSC 21, handed down in March 2015, requiring the disclosure of the correspondence, was anything but pedestrian. Indeed, as I have argued in another blogpost and in an article in Public Law, the judgment reveals substantial differences of constitutional perspective within the Court.

The case turned upon the question whether it had been lawful for the Attorney-General, under powers granted to the Government by the Freedom of Information Act 2000, to override an order issued by the Upper Tribunal requiring the disclosure of the letters. The majority’s conclusion that it had not been lawful for the Attorney-General to do that so irked the Government that it announced a review of the Act. Indeed, the Prime Minister went as far as to indicate that the Supreme Court’s interpretation of the override, or veto, power might be legislatively reversed:

Our [freedom of information] 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.

Against that background, the Government established an Independent Commission on Freedom of Information. That Commission has now published its final report. So far as the veto power is concerned, the Commission concluded that Parliament had intended the executive to ‘have the last word when it came to whether information should be released under the Act’. The Commission went on:

In our view the veto is an important and valuable part of the Act, and is fundamental to its balanced architecture. However, the decision of the majority of the Justices of the United Kingdom Supreme Court in R (Evans) v Attorney General [2015] UKSC 21 in practice means that there are serious doubts that the veto can be exercised as Parliament intended.

However, while the effect of the Evans judgment is to make the veto power exercisable in circumstances narrower than those which the Commission took Parliament to have intended, the Commission noted that in his judgment in Evans, Lord Neuberger, a member of the majority, had indicated that the courts would acknowledge a broader veto power if Parliament were to make ‘crystal clear’ its intention that such a power should exist. In the light of that, the Commission concluded that

the correct course of action is for the legislation to clarify beyond doubt that the executive has the ability to exercise a veto in those cases where it considers it appropriate. Aside from the intention of Parliament, the executive is trusted with responsibility for national security, defence and international relations, and is in a unique position to assess the wider public interest, and is directly accountable to Parliament and the electorate in a way that others are not.

The Commission went on to say that:

The government should legislate to make clear that the power to veto is to be exercised where the accountable person takes a different view of the public interest in disclosure. This should include the ability of the accountable person to form their own opinions as to as to all the facts and circumstances of the case, including the nature and extent of any potential benefits, damage and risks arising out of the communication of the information, and of the requirements of the public interest.

Given the Commission’s conclusions on this point, and bearing in mind the evident ministerial dissatisfaction with the Evans judgment, it is perhaps surprising that as soon as the report was published the Government indicated that it would not be implementing the Commission’s recommendation concerning the veto power (or, indeed, making any other changes to the Act). Cabinet Office Minister Matthew Hancock responded to the Commission’s report by saying:

After 10 years, we took the decision to review the Freedom of Information Act and we have found it is working well. We will not make any legal changes to [freedom of information]. We will spread transparency throughout public services, making sure all public bodies routinely publish details of senior pay and perks.

Whether the Government should have sought to amend the Act—as the Commission recommended and as Richard Ekins and Christopher Forsyth argued it should in their Policy Exchange paper on Evans—is, for present purposes, neither here nor there. Rather, the point is that the Government could have chosen to procure legislation making ‘crystal clear’ Parliament’s position as to the intended breadth of the override power. In this way, the doctrine of parliamentary sovereignty could have been asserted in the face of what some, including Ekins and Forsyth, have characterized as judicial overreach by the Supreme Court in Evans.

Indeed, the dissenting Justices in Evans itself evidently considered their colleagues in the majority to have crossed a constitutional Rubicon: Lord Hughes thought that Lord Neuberger’s interpretation of the veto power rendered it ‘vestigial’, while Lord Wilson said that, far from interpreting the relevant provision of the Act, Lord Neuberger ‘re-wrote’ it. However, as I argue in my article in Public Law on Evans, the stridency with which the views of Lords Hughes and Wilson are advanced conceals or overlooks an inherent contestability so far as the relationship between the fundamental principles of the British constitution is concerned. To assert that the majority (or at least Lord Neuberger and those who agreed with him) got it wrong, or went too far, in Evans implies a particular—but contestable—view regarding the extent to which our understanding of what parliamentary sovereignty means is and ought to be conditioned by our understanding of what other basic principles, most obviously the rule of law and the separation of powers, mean. Lord Neuberger plainly took a different view of those matters from Lords Wilson and Hughes (and, to a lesser extent, Lord Mance). But to assert (as Lords Hughes and Wilson in effect do) that Lord Neuberger was wrong because Parliament is sovereign merely serves to invite the question what parliamentary sovereignty means. It undoubtedly means that courts must give effect to Parliament’s enactments, but a bald assertion of sovereignty does not engage with the nature of the interpretive process that must necessarily precede the giving of effect to legislation.

This is not to deny that the courts would be obliged to take notice if Parliament were to choose to amend the Freedom of Information Act so as to emphasise the breadth of the veto power. But in doing so, Parliament would be forced to confront head-on and explicitly any political costs involved in conferring generous powers upon Ministers to override judgments issued by a superior court of record such as the Upper Tribunal. In this way, the position adopted by the majority in Evans—and, in particular, by Lord Neuberger—neatly encapsulates the way in which fundamental rights and values occupy a hybrid political-legal status within our constitutional system. The values that informed Lord Neuberger’s interpretation of the override provision in Evans are evidently legal in the sense that they fundamentally shaped judicial construction of the legislation. However, as is inevitable in a system in which legislative supremacy continues to be acknowledged, the parameters within which such values can be given effect are set by the relevant legislation—including by any revisions to the legislation that might be made by Parliament in the light of prior judicial interpretations of it.

Yet this cuts both ways. Just as such principles operate within parameters informed by legislative manifestations of parliamentary sovereignty, so the extent to which Parliament is politically capable of legislating is informed, in part, by parameters laid down by fundamental constitutional principles. In that way, such principles—and the way in which they are judicially curated, as in Evans—operate not as hard legal constraints upon Parliament, but, ultimately, as political constraints. Parliament could have reversed the prospective implications of Evans by re-enacting the override power in a way that would have precluded the sort of narrow interpretation rendered in Evans. The fact that the Government has chosen not to procure such legislation inevitably reflects a pragmatic calculation that its political capital can be invested more profitably than in making the case for legislation that would, according to some of the Justices in Evans, cut across basic constitutional values. Viewed thus, the majority’s position in Evans is not an affront to parliamentary sovereignty: rather, it is a reminder that Parliament’s authority falls to be exercised within a constitutional framework that also acknowledges other fundamental principles, and that undermining such principles is a step that Parliament should not, and cannot, lightly take.