CA says Prince Charles’ advocacy letters should be produced

by David Hart QC

R (o.t.a Rob Evans) v. Attorney-General, Information Commissioner Interested Party, 12 March 2014 – read judgment

The Court of Appeal (reversing a strong court including the former Lord Chief Justice – see my previous post) has decided that correspondence between the Prince of Wales and various government departments should be released. A Guardian journalist had made a request under the Freedom of Information Act and the Environmental Information Regulations to see these documents. The Upper Tribunal had agreed that they should be disclosed.

At that point, the Attorney-General intervened and signed a certificate saying “no”.

This intervention was made under section 53 of FOIA which enables the AG to decide that an order against a government department shall cease to have effect, if he or she had “reasonable grounds” for so concluding. And the AG did so conclude; he disagreed with the UT’s evaluation of various conventions about what the Prince of Wales should or should not do as part of his education towards monarchy.

The Divisional Court

The Divisional Court had been a tad surprised that a statute could enable a member of the executive to override an existing adjudication of a court, in this case, the UT of 3 members including a High Court judge. But it thought that constitutional proprieties governing the balance between the executive and the courts were preserved because the AG’s own decision to issue the certificate was itself subject to judicial review.

But the devil is in the detail; a successful judicial review only arises if there is some error of law in the AG’s decision, and this, according to the Divisional Court, included subjecting the decision to “close scrutiny” of a more intensive nature than would be required on an assessment of Wednesbury irrationality. Using that standard of review, there was no error of law and the AG’s prohibition on production of the letters could stand.

The Court of Appeal

The principal decision turned on what is meant by that innocent and much-used word “reasonable” which, like many legal concepts, is significantly affected by the context in which it is used. The CA thought that the key element of context was that in any s.53(2) intervention there had been a prior decision by an independent and impartial body – a court. In that context, it was not “reasonable” for the AG to intervene merely because he disagreed with the decision of the UT. As the CA put it

Something more is required. Examples of what would suffice are that there has been a material change of circumstances since the tribunal decision or that the decision of the tribunal was demonstrably flawed in fact or in law

It relied on three cases from planning, immigration and parliamentary ombudsman contexts in which this test had been applied to circumstances in which local or central government sought to depart from existing findings by a court or tribunal: the cases are discussed at [23]-[28].

The AG had not applied this test in drafting his certificate. Mere disagreement did not amount to reasonable grounds and his decision fell to be quashed because he had carried out his decision-making process using a flawed approach.

The EU/Aarhus point

Some of the information, given the PoW’s interests, was environmental. This information engaged the Aarhus Convention and the EU Directive on public access to environmental information which implemented Aarhus into EU law, and thus into the Environmental Information Regulations.

Mr Evans argued that the s.53(2) override was unlawful because s.53 of FOIA (via EIR reg.18) was not compatible with Article 6 of the Environmental Information Directive or with Article 47 of the EU Charter of Fundamental Rights. His argument was supported by the Information Commissioner.

The CA, again disagreeing with the Divisional Court, found for Mr Evans. Put simply, s. 53(2) insofar as it is applied to environmental information is in breach of EU law.

The key provisions are in Article 6 of the EU Directive which not only required a review procedure by Article 6(1) but by Article 6(2) “access to a review procedure before a court of law or another independent and impartial body established by law”, whose decisions shall be “final” and (Article 6(3)) “binding” on the public authority.

Now evidently the findings of the UT (or indeed other courts) were neither final nor binding on the executive, if the AG could simply reach for s.53(2) and displace those decisions by signing the relevant certificate. The AG’s argument however was that that was not the end of it, because domestic courts provided for judicial review which inevitably entailed a review of the AG’s decision.

The CA was unimpressed. The review required under Article 6 was not the same as the review provided in judicial review. As the Master of the Rolls put it in [55]

The focus of the two reviews is different. …..the direct and central question on a judicial review is not whether the public authority concerned failed to act in accordance with its FOIA/EIR duties. Rather, it is whether the accountable person had reasonable grounds for forming the opinion that the public authority had not failed so to act. On a judicial review, the court may conclude that the accountable person had reasonable grounds for forming such an opinion although it would itself have decided the issue differently. That difference is not a mere matter of form….In short, for the purposes of article 6(2), the focus of a judicial review of a section 53(2) certificate is on the wrong decision.

The CA also relied upon the right to an effective remedy before a tribunal conferred by Article 47 of the EU Charter. This is equivalent to the right to access to court under Article 6 ECHR, and thus brings in ECtHR case law. The CA (at [60]-(63]) found assistance in a pair of Russian cases in Strasbourg: Ryabykh v Russia and Borshchevskiy v Russia. In Ryabykh, a court had given judgment in the applicant’s favour. The judgment was the subject of a “supervisory review” by the Presidium of the Belogrod Regional Court who set it aside. The ECtHR found a violation of article 6. The ECtHR said (para 51) that one of the fundamental aspects of the rule of law is the “principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question”. Legal certainty presupposes respect for the principle of finality of judgments: “the mere possibility of two views on the subject is not a ground for re-examination” (para 52) – wording which had particular resonance for the AG’s reasons for intervening. The ECtHR also said that the right of a litigant to a determination by a court would be illusory if a state’s legal system allowed a judicial decision which had become final and binding to be quashed by a higher court on an application made by a State official (para 56). Hence, by using the supervisory review procedure, the Presidium of the Regional Court infringed the principle of legal certainty and the applicant’s “right to a court” under article 6(1) ECHR.

The CA heard a good deal of argument on what standard of review was required by Article 6(2) of the Environmental Information Directive. The Divisional Court thought that system of judicial review of an AG’s certificate was capable of amounting to such a system of review. The Master of the Rolls appears to have been inclined to follow Sullivan LJ in Birkett to the effect that de novo review was required, which is not afforded by judicial review, but ultimately concluded that (a) such a conclusion was not necessary for its decision and (b) had it been so, the outcome was not sufficiently clear-cut (acte clair in EU jargon) and he would have been inclined to refer it to the CJEU in Luxembourg.

The outcome

The Court decided that the AG applied the wrong test in issuing his certificate. As the CA summarised it at [81],

The mere fact that he reached a different conclusion from the UT in weighing the competing public interests involved was not enough. He had no good reason for overriding the meticulous decision of the UT reached after six days of hearing and argument. He could point to no error of law or fact in the UT’s decision and the Government Departments concerned did not even seek permission to appeal it.

In addition, any environmental information to and from the Prince could not be subject of a certificate, because the certification procedure was in breach of the EU Directive on Environmental Information.

Comment

Two powerful courts have approached a case with instinctive dislike of this executive override of a highly reasoned decision by a tribunal. The Divisional Court felt constrained to decide that the ultimate decision was lawful. The CA did not. The case has all the hallmarks of one which will go to the Supreme Court, if not to the CJEU on the more fundamental question as to whether environmental information can ever be subject to such an override.

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