The Curious Tale of the Black Spider Memos

DOI10.3366/elr.2015.0252
Pages101-106
Published date01 January 2015
AuthorHayley J Hooper
Date01 January 2015

In Regina (On the Application of Evans) v Her Majesty's Attorney General and the Information Commissioner 1

Regina (On the Application of Evans) v Her Majesty's Attorney General and the Information Commissioner [2014] EWCA Civ 254, [2014] 2 WLR 1334 (henceforth “Evans (Court of Appeal)”).

the English Court of Appeal quashed a certificate issued by the Attorney General under section 53(2) of the Freedom of Information Act 2000 (“FOIA”). The certificate refused disclosure of “advocacy correspondence” between Prince Charles in his capacity as heir to the throne and seven government departments. The original freedom of information request had been made by journalist Rob Evans on behalf of The Guardian newspaper. The advocacy correspondence was “correspondence in which the Prince of Wales advocated certain causes which were of particular interest to him”.2

Ibid para 18.

It had become known as the “black spider memos” in reference to the Prince's distinctive handwriting style. Section 53(2) empowers an “accountable person” (in this case the Attorney General) to issue a certificate overturning a judicial order to release information, but the decision to issue such a certificate preventing disclosure must be made on “reasonable grounds”.3

FOIA s 53(2).

Since 19 January 2011, the information requested by Evans has fallen under an “absolute exemption” under section 37(1) of the FOIA4

As amended by the Constitutional Reform and Governance Act 2010 sch 7 para 3.

which prevents disclosure of all information relating to communications with the heir to the throne. At the time of the original request, however, the information was the subject of a “qualified exemption”. This means that the information can only be withheld if the public authority holding it concludes that “in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information”.5

FOIA s 2(1)(b).

Some of the information requested by Evans was environmental information which is governed by European Union law.6

Environmental Information Regulations 2004 SI 3391/2004 and Council Directive 2003/4 OJ 2003 L 41/26.

The relevant European Directive also contained a public interest test in relation to disclosure which mirrored the structure of the FOIA test.7

2004 Regulations rule 12(1)(b).

The relevant government departments initially refused Mr Evans' requests for disclosure of the information and their decisions were confirmed by the Information Commissioner.8

Information Commissioner's Office, reference FS50425063, available at http://ico.org.uk/∼/media/documents/decisionnotices/2012/fs_50425063.ashx .

However, on 18 September 2012 the Upper Tribunal allowed an appeal against the Commissioner's decision by ordering disclosure of the information deemed “advocacy correspondence”, after conducting an extensive evaluation (in open and closed sessions) of whether disclosure was in the public interest.9

Evans v Information Commissioner [2012] UKUT 313 (AAC) (“henceforth Evans (Upper Tribunal)”).

Instead of appealing against the Upper Tribunal's decision to the Court of Appeal, the Attorney General exercised the certification power. Evans then unsuccessfully sought judicial review of this decision before the Administrative Court.10

Regina (Evans) v Her Majesty's Attorney General and the Information Commissioner [2013] EWHC 1960 (Admin); [2013] 3 WLR 1631 (“henceforth Evans (Administrative Court)”).

On appeal to the Court of Appeal, the certification power was described as a “constitutional aberration” by the Lord Chief Justice because it allows the executive to reverse a judicial decision in a manner clearly at odds with the doctrine of the separation of powers. That constitutional aberration remains notwithstanding the decision, since it was clearly the intention of Parliament that ministers should have such a power. However, the case remains significant as it clarifies and raises the threshold for “reasonable grounds” for disagreement with a judicial decision; and, in respect of the environmental information, it demonstrates the strength of judicial protection of rights available under the EU Charter of Fundamental Rights. By raising the threshold for reasonable grounds, the Court of Appeal's decision will have wider implications across UK freedom of information law. It may also prove persuasive should a similar dispute arise in the...

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