The people to blame for our not being able to see Prince Charles’ lobbying correspondence with the government are not the judges – it’s the people who passed the FOI Act.
So, perhaps to no one’s great surprise, the judicial review application by the Guardian’s Rob Evans of the Attorney General’s ministerial veto has failed. As three of 11KBW’s array of brilliant information law advocates were instructed in the proceedings, I am sure we will see a Panopticon blog post shortly, and I wouldn’t try to compete with what will be the usual clear and percipient legal analysis (for which, also, see this excellent post from Mark Elliott). However, I wanted to address what I see as a potential misapprehension that this was an expression by the High Court that it agreed that the Attorney General was correct to issue a certificate vetoing disclosure of correspondence between Prince Charles and government departments. While the natural outcome of the court’s judgment is that the correspondence will not be disclosed, what was actually to be decided, and ultimately was decided in the Attorney General’s favour, was whether the exercise of his powers was lawful.
Under section 53(2) of the Freedom of Information Act 2000 (FOIA) a decision notice issued by the Information Commissioner (IC) (or later remade by a tribunal) ceases to have effect if an “accountable person” (effectively, either a Cabinet Minister or the government’s senior law officer) issues a certificate stating that he has “on reasonable grounds” decided that there was in fact no prior failure by the government department in question to comply with a request for information under FOIA. It is a power of executive override of a decision made by the statutory regulator (the IC). Its place in the statutory, and constitutional, scheme is what people should be objecting to, particularly in light of what the court in this case found.
The case dates back to the earliest days of the commencement of FOIA. Evans had requested correspondence between Prince Charles and various government departments, but those departments had refused to disclose. In a detailed and complex analysis the Upper Tribunal (the case having been transferred from the First-tier Tribunal) last September decided that, although the FOIA exemption (at section 37) relating to communications with the Royal Household was engaged, the public interest fell in favour of disclosure of the information (two points of note: first, the section 37 exemption, which was at the time of the request a qualified one, subject to the application of the public interest, has since been amended to make it absolute; second, there were other exemptions engaged, but the section 37 was the focal one).
There was potentially further right of appeal, to the Court of Appeal and, ultimately, the Supreme Court. So why did the government not follow this route? The Campaign for Freedom of Information have issued a press release in which their Director Maurice Frankel says “Ministers should have to appeal against decisions they dislike and not be able simply to overturn them”. I agree (of course) but the reason the government departments did not appeal in this case is because any appeal would have had to have been on a point of law – the more senior courts could not have substituted different findings of fact, or decided whether an exercise of discretion should have been exercised differently. In short, I suspect the government did not appeal because they knew they would have been unsuccessful (or rather, their lawyers would presumably have advised, as lawyers do, that the chances of success were low).
Davis LJ, giving the leading judgment in the High Court, identified that
The underlying submission on behalf of the claimant is, in effect, that the accountable person is not entitled simply to prefer his own view to that of the tribunal
to which he countered
why not? It is inherent in the whole operation of s.53 that the accountable person will have formed his own opinion which departs from the previous decision (be it of Information Commissioner, tribunal or court) and may certify without recourse to an appeal. As it seems to me, therefore, disagreement with the prior decision…is precisely what s.53 contemplates, without any explicit or implicit requirement for the existence of fresh evidence or of irrationality etc. in the original decision which the certificate is designed to override. Of course the accountable person both must have and must articulate reasons for that view…[It] is for the accountable person in practice to justify the certification. But if he does so, and that justification comprises “reasonable grounds”, then the power under s.53(2) is validly exercised. Accordingly, the fact the certificate involves, in this case, in effect reasserting the arguments that had not prevailed before the Upper Tribunal does not of itself mean that it is thereby vitiated
The power to issue a certificate exists under section 53(2), even if, as Lord Judge said, such a power “appears to be a constitutional aberration”. If it exists, it can be exercised, subject to it being done so lawfully. To admit of another interpretation, says David LJ, would be (taken with the claimant’s other arguments) to
greatly [narrow] the ostensible ambit of s.53. As a matter of statutory interpretation I can see no justification for such a limitation, either on linguistic grounds or on purposive grounds
Parliament chose to enact s53, and any potential inherent constitutional imbalance or threat to the rule of law in its having done so is overcome by the availability of judicial review:
for the purposes of s.53 of FOIA, Parliament has provided the procedure by which this statutory provision is to be mediated. It is to be mediated, on challenge by way of judicial review, by the courts assessing whether the Secretary of State has certified “on reasonable grounds”. That involves no derogation from the fundamental principle of the rule of law: on the contrary, it is an affirmation of it.
For the same reasons, any challenge as to whether the exercise of the veto (as applied to environmental information under the Environmental Information Regulations 2004) offends the relevant sections of the originating EC Directive and the Aarhus Convention (specifically, those that deal with the need to have a “review procedure”) could also be met by reference to the availability of judicial review (although one wonders, along with the Aarhus Convention Compliance Committee, whether judicial review meets the requirement to be not “prohibitively expensive”).
And ultimately, and relatively straighforwardly, it fell to the court to
consider whether the Attorney General has shown in the present case reasonable grounds for certifying as he did…[and] the Statement of Reasons appended to the certificate, once carefully read and analysed, does indeed demonstrate such “reasonable grounds”. The views and reasons expressed as to where the balance of public interest lies are proper and rational. They make sense. In fact, I have no difficulty in holding them to be “cogent”. Indeed – especially given that the Attorney General’s reasons and conclusions are in many respects to the like effect as those previously provided by the Information Commissioner – it will be recalled that the Upper Tribunal had itself, in paragraph 4 of its decision, acknowledged that there are “cogent arguments for nondisclosure”
So, if you want to criticise the fact that the Attorney General was allowed to veto disclosure of Prince Charles’ correspondence with the government, don’t criticise the judges, don’t even criticise (too much, at least) the Attorney General himself – rather, criticise Parliament which passed the law.
UPDATE: 25 July 2013
The Guardian reports that permission has been granted to appeal to the Court of Appeal.
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