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. Continue reading “Of Black Spiders and Constitutional Bedrock: The Supreme Court’s Judgment in Evans“
Although at one level astonishingly complex, the issues at stake in R (Barclay) v Secretary of State for Justice (No 2)  UKSC 54 (press summary) (judgment) can be stated relatively simply for the purpose of seeking to understand its broader significance. Article 6 of the European Convention on Human Rights requires, among other things, judicial independence and impartiality. In Barclay (No 2), it was argued that the office of Chief Judge of Sark, one of the Channel Islands, failed to comply with Article 6.
Recently enacted local legislation, making provision in relation to the office of Chief Judge, formed the subject-matter of the challenge. Predecessor legislation had already been considered in earlier litigation (culminating in R (Barclay) v Secretary of State for Justice (No 1)  UKSC 9). The challenge to the new legislation failed in the UK Supreme Court, not on the ground that the human-rights argument was without merit, but because the question should have been resolved by local courts rather than by the courts of England and Wales or by the UK Supreme Court. It would be inappropriate, the Supreme Court held, for UK courts (a term that will be used to include both the courts of England and Wales and the UK Supreme Court) to address this matter in Barclay (No 2), and it had been wrong for them to do so in Barclay (No 1).
These issues may appear to be highly technical and of little relevance beyond the specific context of the Channel Islands. However, the significance of the Barclay judgment is considerably greater than that. This post will explain and comment on the two key issues that arose in Barclay (No 2) — namely, whether UK courts had jurisdiction to consider the matter; and, if they did, whether they should have exercised such jurisdiction. Continue reading “Beyond Sark: The implications of the Barclay case”
Last night, Lord Neuberger, the President of the UK Supreme Court, gave the 2013 Tom Sargant Memorial Lecture. His text, available here, is worth reading in full, but here are some choice excerpts. The rule of law, said Lord Neuberger, “can mean different things”: At its most basic, the expression connotes a system under which the relationship between the government and citizens, and between citizen and citizen, is governed by laws which are followed and applied. That is rule by law, but the rule of law requires more than that. First, the laws must be freely accessible: that means as available and as … Continue reading Lord Neuberger on the rule of law and access to justice
The Administrative Court gave judgment earlier today in R (Evans) v Attorney-General  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. Continue reading “Prince Charles, freedom of information, judicial review and the separation of powers: R (Evans) v Attorney-General”
Lord Judge, the Lord Chief Justice, spoke about judicial independence in his Mansion House speech this week. (The full text of the speech is available here on the CrimeLine Blog, and there is a report on the Telegraph website.) Lord Judge warned that we must remain vigilant against the slightest encroachment on judicial independence, not because judicial independence represents some traditional flummery, some bauble, some meaningless superficiality, but because without an independent judiciary the rule of law would collapse. He said that it was inconceivable that in this country the army might threaten our elected government. It is inconceivable that a judge might lose … Continue reading The Lord Chief Justice on judicial independence and the rule of law