R (on the application of Evans) and another v Attorney General (Campaign for Freedom of Information Intervening)

JurisdictionEngland & Wales
JudgeLord Neuberger,Lord Kerr,Lord Reed,Lord Mance,Lady Hale,Lord Hughes,Lord Wilson
Judgment Date26 March 2015
Neutral Citation[2015] UKSC 21
CourtSupreme Court
Date26 March 2015
R (on the application of Evans) and another
(Respondents)
and
Attorney General
(Appellant)
before

Lord Neuberger, President

Lady Hale, Deputy President

Lord Mance

Lord Kerr

Lord Wilson

Lord Reed

Lord Hughes

THE SUPREME COURT

Hilary Term

On appeal from: [2014] EWCA Civ 254

Appellant

James Eadie QC

Karen Steyn QC

Josh Holmes

(Instructed by Treasury Solicitor)

Respondent (1)

Dinah Rose QC

Ben Jaffey

Aidan Eardley (Instructed by Jan Clements, Editorial Legal Services, Guardian News & Media Ltd)

Respondent (2)

Timothy Pitt-Payne QC (Instructed by The Information Commissioner)

Intervener (Campaign for Freedom of Information)

Nathalie Lieven QC

Richard Stein

Julianne Morrison (Instructed by Leigh Day)

Heard on 24 and 25 November 2014

Lord Neuberger

( with whom Lord Kerr and Lord Reed agree)

Introductory
1

This is an appeal brought by HM Attorney General against the decision of the Court of Appeal quashing a certificate which he issued on 16 October 2012 pursuant to section 53(2) of the Freedom of Information Act 2000 ("the FOIA 2000") and regulation 18(6) of the Environmental Information Regulations 2004 ("EIR 2004"). The underlying question in this appeal is whether communications passing between HRH The Prince of Wales and ministers in various government departments ("the Departments") between September 2004 and March 2005 (which I shall call "the letters") should be disclosed pursuant to a request made by Rob Evans, a journalist who works on the Guardian newspaper. The effect of the Attorney General's certificate ("the Certificate") would be to prevent such disclosure, but the effect of the Court of Appeal's decision would be to permit such disclosure.

2

It is worth explaining at the outset of this judgment that, if valid, the effect of the Certificate would be to override a decision of the Upper Tribunal, which is a judicial body and which has the same status as the High Court. The first argument raised by Mr Evans is that the statutory provision giving the Attorney General, a member of the executive, the power to overrule a judicial decision should, as a matter of constitutional principle, be interpreted restrictively, and that the Certificate is therefore invalid. His second argument is that, at least so far as the Certificate applies to "environmental information", it is invalid, as the provisions of an EU Directive prevent a decision of a judicial tribunal ordering disclosure of such information being overridden by a member of the executive.

The background facts and law
The procedural history in summary
3

The procedural history is unusual, but it can be briefly summarised. Mr Evans requested disclosure of the letters from the Departments, pursuant to both the FOIA 2000 and the EIR 2004, in April 2005. After initially refusing to state whether or not they had any of the letters, the Departments in due course admitted that they did, but refused to disclose them on the ground that they considered the letters were exempt from disclosure under sections 37, 40 and/or 41 of the FOIA 2000 and the equivalent provisions of the EIR 2004. Mr Evans complained to the Information Commissioner ("the Commissioner"), who upheld the Departments' refusal in reasoned determinations promulgated in December 2009. Mr Evans then appealed to the tribunal, and the matter was transferred to the Upper Tribunal (Walker J, UT Judge Angel and Ms Cosgrave) ("the UT"), who conducted a full hearing, with six days of evidence and argument. The UT issued their determination on 18 September 2012, and it was to the effect that many of the letters, which they referred to as "advocacy correspondence", should be disclosed – [2012] UKUT 313 (AAC).

4

The Departments did not appeal against this determination. However, on 16 October 2012, the Attorney General issued the Certificate stating that he had, on reasonable grounds, formed the opinion that the Departments had been entitled to refuse disclosure of the letters, and set out his reasoning.

5

Mr Evans then issued proceedings to quash the Certificate, on two grounds, namely (i) the reasons given by the Attorney General were not capable of constituting "reasonable grounds" within the meaning of section 53(2) of the FOIA 2000, and/or (ii) because the advocacy correspondence was concerned with environmental issues, the Certificate was incompatible with Council Directive 2003/4/EC ("the 2003 Directive") and/or article 47 of the EU Charter of Fundamental Rights ("the EU Charter"). The Divisional Court (Lord Judge CJ, Davis LJ and Globe J) dismissed his claim – [2013] EWHC 1960 (Admin), [2014] QB 855. However, the Court of Appeal (Lord Dyson MR and Richards and Pitchford LJJ) allowed his appeal on both grounds ( [2014] EWCA Civ 254; [2014] QB 855), and, unusually but rightly, gave the Attorney General permission to appeal to this court.

6

The position in practice is as follows. If the Attorney General's appeal to this court fails on the first ground, then all the advocacy correspondence would have to be disclosed, and the second ground would be moot. If the Attorney General's appeal on the first and second grounds both succeed, then the Certificate would stand and none of the advocacy correspondence would have to be disclosed. If the Attorney General's appeal succeeds on the first ground but fails on the second ground, then to the extent that the advocacy correspondence contains environmental information, it would have to be disclosed, but there is a dispute as to whether that would also apply to the other information in the advocacy correspondence ("the non-environmental information"). There is also an argument as to the extent to which the advocacy correspondence contains environmental information, but that is not before us, and therefore the meaning of "environmental information" does not have to be considered on this appeal.

7

Before explaining the legislative and procedural background and then turning to the issues, it is, I think, right to mention that the points which this court has to decide involve determining issues of legal principle. Accordingly, like the Divisional Court and the Court of Appeal, we have not seen the letters, and our only knowledge of their contents is based on what the Commissioner and the UT considered it appropriate to reveal in their reasoned determinations (as I have called them in order to avoid any confusion with a "decision notice", which is a defined term in the FOIA 2000, as explained below). Unlike us, they had the function of deciding whether the letters should be disclosed on "the merits", ie in the light of all the relevant facts and competing public interests for and against disclosure, and that required them to consider the content of the letters.

8

Part I of the FOIA 2000 is concerned with "Access to Information Held by Public Authorities". Section 1(1) states that:

"Any person making a request for information to a public authority is entitled –

(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b) if that is the case, to have that information communicated to him."

9

Section 2 explains that this right is subject to the exemptions set out in Part II, and that some of the exemptions are absolute, which is self-explanatory, while others are "qualified", which means that they are subject to the test that "in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information". Sections 3–7 are concerned with identifying what is a "public authority", and sections 8–17 deal with the procedures (including time limits and fees) for making and answering requests for information. Section 17(1) requires any notice of refusal to "specify" both the exemption relied on, and "(if that would not otherwise be apparent) why the exemption applies". Section 18 creates the post of Information Commissioner.

10

As stated in section 2, Part II deals with "Exempt Information". Sections 37, 40 and 41 are directly in point for present purposes. Section 37 provides for an exemption in relation to communications with the Sovereign, other members of the Royal Family or the Royal Household. Until January 2011, this was a qualified exemption, but, as a result of an amendment to the FOIA 2000 by section 46 of, and Schedule 7 to, the Constitutional Reform and Governance Act 2010, the exemption in section 37 is now absolute in relation to communications with the Sovereign, the heir to the throne, and the next in line. It is common ground that the original, qualified, version of section 37 is applicable in the present case.

11

Section 40 of the FOIA 2000 ("section 40") contains an absolute exemption in relation to "personal information", subject to the data protection principles set out in the Data Protection Act 1998. Section 41 of the FOIA 2000 ("section 41") exempts information which, if disclosed, "would constitute an actionable breach of confidence". Although that is an absolute exemption, public interest in disclosure is normally a defence to a claim for breach of confidence, and it appears to be accepted that it could, in principle, operate as an effective answer to reliance on section 41. It is also right to refer to section 35(1), which exempts "[i]nformation held by a government department if it relates to" certain issues, and they include "(a) the formulation or development of government policy" or "(b) Ministerial communications", which, by section 35(5) would extend to "any communications … between Ministers of the Crown".

12

Part III of the FOIA 2000 deals with the "General Functions of Lord Chancellor and Information Commissioner". The Commissioner's general functions are set out in section 47, and they include promoting, disseminating, teaching,...

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