Black Spiders Weaving Webs: The Constitutional Implications of Executive Veto of Tribunal Determinations
| Author | Robert Craig |
| Date | 01 January 2016 |
| DOI | http://doi.org/10.1111/1468-2230.12171 |
| Published date | 01 January 2016 |
Executive Veto of Tribunal Determinations
decision-making about international peace and security. Appropriately con-
figured principles for power-sharing should not be regarded as unwelcome
constraints. Instead, they should be recognised as both balancing prop and
safety net that will ultimately enhance the power, effectiveness and influence
of Security Council and courts alike.
Black Spiders Weaving Webs: The Constitutional
Implications of Executive Veto of Tribunal
Determinations
Robert Craig∗
In R(Evans)vAttor ney General, the Supreme Court quashed the Attorney General’s statutory
veto of the Upper Tr ibunal’s original determination made under freedom of information
legislation. The Upper Tribunal had held that so-called ‘advocacy’ memos should be published
after a full hearing on the merits. The Supreme Court split five to two, with the lead judgment
of Lord Neuberger using constitutional rather than administrative language and focusing on
the rule of law. This note raises four objections to the lead judgment. First, it argues that the
Upper Tribunal was acting in an executive not judicial capacity and the veto was not therefore
a breach of the rule of law. Secondly it suggests the veto clause is best understood as a variant
Henry VIII clause. Thirdly, it suggests Lord Neuberger’s judgment is founded on a paradox.
Finally, it argues that the judgment undermines parliamentary sovereignty. Future implications
are then considered.
INTRODUCTION
Some of Prince Charles’ eccentric and now infamous ‘black spider memos’ to
government departments have finally been released.This is because in R(Evans)
vAttorney General1(Evans), the Supreme Court quashed the Attorney General’s
statutory veto of the Upper Tribunal’s original deter mination. The Upper
Tribunal had held that so-called ‘advocacy’ memos should be published under
the Freedom of Information Act 2000 (FOIA). As interesting as the discussion
of the relevant constitutional conventions was, after that determination, it is the
analysis of some fundamental constitutional issues raised by the executive veto
of the Upper Tribunal determination which is likely to make Evans req uired
reading for public law students for yearsto come. Its importance is demonstrated
by the fact that it was heard by seven judges in the Supreme Court as well as
∗The author would like to thank John Finnis, Alison Young and Jo Murkens for their helpful
comments on an earlier draft. Responsibility remains with the author.
1R (on the application of Evans) and another (Respondents) vAttorney General (Appellant) [2015] UKSC
21 (Evans). Readers familiar with the facts, and pressed for time, could do worse than read the
following paragraphs: Neuberger: [49]-[59] and [69]-[97]; Mance: [122]-[131] and [142]-[151];
Hughes: [152]-[166]; Wilson: [168]-[183].
166 C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited.
(2016) 79(1) MLR 147–182
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Robert Craig
Dyson MR and Judge LCJ in the Court of Appeal and Divisional Court
respectively. It raises a number of separation of powers issues but in particular
it confronts directly whether the executive can lawfully veto decisions of the
Upper Tribunal which is a ‘superior court of record’ and was therefore treated
as part of the judiciary.2This note will focus solely on those constitutional
issues.3
BACKGROUND
In 2005, The Guardian newspaper made Freedom of Information requests to
seven government depar tments for disclosure of various memos sent to them
by Prince Charles. Universal refusal by the departments led to a complaint
to the Information Commissioner who agreed that the memos should not be
published. Undeterred, The Guardian appealed the decision and the First Tier
Tribunal, perhaps recognising the importance of the issues raised, transferred
the appeal directly to the Upper Tr ibunal which reversed the Information
Commissioner’s decision after a full hearing on the merits.
Section 53 of the FOIA permits an ‘accountable person’ to veto such de-
cisions where he has ‘reasonable grounds’ to do so. The Attorney General
decided to exercise the veto to prevent disclosure of the memos. This case
note considers the next and final stage in this story which was an application
for judicial review on two grounds brought by Mr Evans, a journalist working
for The Guardian, against the use of that veto. The Divisional Court, consist-
ing of Lord Judge LCJ, Davis LJ and Globe J held that the Attor ney General
had acted lawfully. The Court of Appeal overturned the Divisional Court’s
judgment, with the Master of the Rolls, Lord Dyson, delivering the single
judgment. The Supreme Court dismissed an appeal by the Government on 26
March 2015, by five to two.
THE SUPREME COURT DECISION
Lord Neuberger
It must be mentioned at the outset that four of the judges in the Supreme Court
explicitly disagreed with Lord Neuberger’s reasoning. Lord Neuberger’s lead
judgment (Lord Kerr and Lord Reed agreeing) closely followed, and expanded
2 Tribunals, Courts and Enforcement Act 2007, s 3(5).
3 Much less controversial was the second ground of the appeal which was decided by six to
one (Lord Wilson dissenting) and where the three relevant judgments substantially agreed with
each other and the Court of Appeal. The second ground was in any event rendered moot by
the decision on the first ground. The issue essentially was whether judicial review of the veto
satisfied the requirements of European law. The majority considered that the ‘merits’ of the veto
decision had to be reviewableto comply with the directive in question and that therefore judicial
review was insufficient. The upshot of the majority’s analysis was that those memos containing
environmental information must be published to comply with EU law.
C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited.
(2016) 79(1) MLR 147–182 167
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