Prince Charles letters must be disclosed, Supreme Court rules
Letters from the Prince of Wales to various Government departments seeking to influence policy decisions were subject to disclosure under the freedom of information legislation in force at the time, and the Attorney General was not entitled to overrule an Upper Tribunal decision to that effect, the UK Supreme Court ruled today.
By a five-two majority, and a six-one majority on a separate question relating to the Environmental Information Regulations 2004, the court dismissed an appeal from a Court of Appeal decision on a judicial review brought by journalist Rob Evans, quashing a certificate issued by the Attorney General.
The then Attorney General, Dominic Grieve QC, had issued the certificate under s 53(2) of the Freedom of Information Act 2000 and reg 18(6) of the 2004 Regulations, stating that he had, on “reasonable grounds”, formed the opinion that the departments concerned had been entitled to refuse disclosure of the letters, setting out his reasoning.
Mr Evans claimed that the reasons given were not capable of constituting “reasonable grounds”, and that so far as the correspondence was concerned with environmental issues, the certificate was incompatible
with Council Directive 2003/4/EC.
Lord Neuberger (with whom Lord Kerr and Lord Reed agreed) considered that s 53 did not permit the Attorney General to override a decision of a judicial tribunal or court merely because he, a member of the executive, considering the same facts and arguments, took a different view. This would be unique in the laws of the United Kingdom and would cut across two fundamental constitutional principles, namely that a decision of a court was binding between the parties, and that decisions and actions of the executive are reviewable by the courts, and not vice versa. Clear words had to be used if the statute was to have that effect, and s 53 was "a very long way indeed" from being clear enough.
Lord Mance (with whom Lady Hale agreed) considered that it would be open to the Attorney General to issue a certificate under s 53 if he disagreed with the decision of the Upper Tribunal. However, disagreement with findings of fact or rulings of law in a fully reasoned decision would require the clearest possible justification (and might only be possible in certain circumstances), while disagreement as to the weight to be attached to competing public interests would require properly explained and solid reasons. In this case the Attorney General impermissibly undertook his own redetermination of the relevant factual background. His certificate did not engage with the closely reasoned analysis of the Upper Tribunal, proceeded on the basis of findings which differed radically from those of the Upper Tribunal without adequate explanation, and could not be regarded as satisfying the test for issue of a certificate.
Dissenting, Lord Wilson and Lord Hughes held that s 53 had to mean that the Attorney General was entitled to issue the certificate if he disagreed with the Upper Tribunal on reasonable grounds, which included a different evaluation of where the balance of public interest lay.
Regarding the Environmental Information Regulations, the majority (Lord Wilson dissenting) ruled that article 6 of the directive required that a final ruling be given by a court of law or similar body, whose decisions were to be binding on the public authority holding the information, and it would be impermissible for the executive to have another attempt at preventing disclosure. Regulation 18(6) was therefore incompatible with article 6.
The 2000 Act has since been amended to provide an absolute exemption from freedom of information requests in relation to communications with the sovereign, the heir to the throne, and the next in line.