Mike Gordon: Prince Charles’ Correspondence Back in Court – Reflections on R. (Evans) v. Attorney General

The Administrative Court is the latest body to become involved in the on-going saga related to disclosure of the Prince of Wales’ correspondence with government departments. In the recent case of R. (Evans) v. Attorney General [2013] EWHC 1960 (Admin), the Guardian journalist Rob Evans challenged the legality of the government’s decision to veto disclosure of the relevant correspondence between Prince Charles and a range of government ministers. Disclosure of most of this material had been ordered under the Freedom of Information Act 2000 (FOIA) by the Upper Tribunal, allowing an appeal from Evans against the earlier decision of the Information Commissioner that the correspondence sought could be withheld.

In particular, the Upper Tribunal ruled that what it called ‘advocacy correspondence’ – communication with government departments in which the Prince of Wales sought to advance a specific view or promote a particular cause – ought to be disclosed because ‘it will generally be in the overall public interest for there to be transparency as to how and when Prince Charles seeks to influence the government’, [2012] UKUT 313 (AAC), [4]. Such advocacy correspondence was not, in the view of the Upper Tribunal, covered by the constitutional convention that the heir to the throne can be (confidentially) instructed in the business of government in preparation for rule. Nor was the general public interest in transparency outweighed by other factors advanced as cautioning against disclosure, which included a general desire to maintain confidentiality between correspondents, the protection of the Prince of Wales’ political neutrality, or the potential for a ‘chilling effect’ on the frequency or frankness of communication between the government and the heir to the throne.

After the appeal of Evans was allowed by the Upper Tribunal, the government moved to exercise its power under s.53(2) of FOIA to veto the disclosure of Prince Charles’ advocacy correspondence. The Attorney General, on 16^th October 2012, issued a certificate that he had, as required by the FOIA, on ‘reasonable grounds’ formed the opinion that there has been no failure to comply with the government’s general duty to provide access to information on request (set out in s.1(1)(b) FOIA). The certificate was also laid before both Houses of Parliament, and set out the reasons for the decision, as explicitly required by s.53(3)(a) and s.53(6) FOIA respectively. The government’s published policy on the use of the s.53 veto, carried over from previous Labour administrations, was also said to have been complied with, the Attorney General confirming that this was considered to be an ‘exceptional’ case.

In the most recent case, Evans sought to challenge the legality of the Attorney General’s certificate by judicial review. The Administrative Court rejected his arguments that (i) the decision to exercise the veto was generally unreasonable; and (ii) the very availability of the veto in relation to the ‘significant’ elements of the correspondence classed as ‘environmental information’, and therefore subject to the Environmental Information Regulations 2004, was unlawful, due to its incompatibility with the EU Directive (2003/4/EC) the 2004 Regulations sought to implement, and Article 47 of the EU Charter of Fundamental Rights. Leaving aside discussion of argument (ii) – a narrower issue which related only to part of the advocacy correspondence ordered to be disclosed by the Upper Tribunal – three points seem especially worthy of consideration in this post.

First, the Administrative Court sought to make it explicitly clear that the exercise of the veto was to be subject to ‘close judicial scrutiny’ because of the very nature of the power in question. Davis LJ, giving the main judgment of the court, noted that the veto was ‘a remarkable provision’, in so far as it enabled an executive override of judicial decisions, [79]. Judge LCJ was perhaps even more strident, describing s.53 as a ‘constitutional aberration’, [2]. Both judges rejected the government’s attempt to invoke the classic notion of Wednesbury unreasonableness ‘so as to introduce some lesser… requirement’ of review (Davis LJ at [89], Judge LCJ at [14]). Yet the standard of review ultimately employed did not seem as intrusive as might have been expected from the way it was advertised by the judges.

The substantive quality and coherence of the reasons advanced by the government were not interrogated in significant detail, with much argument dedicated instead to the question of whether a minister could exercise the veto simply because they disagreed with a previous decision. Davis LJ rejected this argument, holding that it would ‘greatly narrow the ostensible ambit of s.53’ if it were accepted that the veto could only be used where a previous decision had been based on an error of fact or law, [110]. Indeed, Davis LJ held that ‘disagreement with the prior decision (be it of Information Commissioner, tribunal or court) is precisely what s.53 contemplates, without any explicit or implicit requirement for the existence of fresh evidence or irrationality etc. in the original decision which the certificate is designed to override’, [111]. Evidently influenced by the fact that the Information Commissioner and the Upper Tribunal had both previously, albeit to varying degrees, accepted the cogency of the arguments for non-disclosure (see e.g. [113]), and the fact that the Attorney General’s reasoning ‘had regard to and has engaged with the decision of the Upper Tribunal’, [73], Davis LJ held that the government had demonstrated reasonable grounds for its decision to veto. The reasons expressed were ‘proper and rational’; indeed, in basic terms ‘[t]hey make sense’, [113].

This decision is likely to be disappointing for many, especially those who believe that transparency as to royal influence over government business is a matter of the utmost democratic importance. Indeed, the Court of Appeal’s decision was (unsurprisingly) the subject of critical comment in an editorial in The Guardian: ‘having painted the veto as indefensible, the judges then elected to uphold it’. Yet while political dissatisfaction with the government’s decision to exercise the veto is very well founded – to conceal the contents of letters which are not politically neutral to protect the perceived political neutrality of the Prince of Wales seems circular at best – the Court of Appeal’s judgment that the government’s action was legally reasonable seems sound.

To ask courts to go further and overturn a decision which we may find politically unreasonable would be to distort the legislative scheme created by Parliament. While the Court of Appeal felt that the power of veto granted to the government was a profound one, Davis LJ also noted that this ‘seems to have been appreciated by Parliament in enacting s.53’, with a number of conditions therefore placed upon its exercise, [81]. Indeed, noting that ‘part of the scheme of the FOIA is to construct a series of available exemptions – whether absolute or qualified – to modify the general requirement of disclosure’, Davis LJ recognised that s.53 itself, understood with respect to the broader purpose of this legislative regime, could be conceived as one of the ‘checks and balances which Parliament has thought necessary to provide’, [83]. We may agree or disagree about whether the FOIA creates the best balance between disclosure and exemption of official information, yet to encourage courts to depart freely from this framework is hardly a democratic solution to what is, undoubtedly, a democratic problem.

Secondly, with particular respect to the judgment of the Lord Chief Justice, the invocation of the ‘constitutionality principle’ in this context is striking, [11]. What precisely this means is unclear, but Judge LCJ argued that only judicial oversight of the exercise of this veto power – a power effectively for a government minister to override a judicial decision – could offer ‘the necessary safeguard for the constitutionality of the process’, [14]. What precisely the notion of ‘constitutionality’ adds to the discussion in this context is also unclear, and Davies LJ’s leading judgment does not seek to rely on this principle, opting more straightforwardly to seek to interpret the meaning of s.53 both literally, and as part of the broader legislative scheme.

What is clear is that some judges are becoming much more comfortable in making appeals to such abstract public law principles when deciding specific cases, whether calling upon those principles is strictly necessary to resolve the case before them or not. And, with this ‘principle of constitutionality’ a prime example, these principles are often utilised without their contestable nature being recognised. In Evans, the notion of constitutionality seems to be employed to demonstrate that government activity must be inherently limited and strictly controlled by law. Yet the limitation of government is not the predetermined purpose of constitutional law and practice (as Martin Loughlin, to offer just one leading example, has persuasively argued). Judicial appeals to the notion of constitutionality which are based on this background assumption are therefore liable to continue to be greeted sceptically – especially when unnecessary to dispose of the case before them – by those concerned about the rhetoric and reality of judicial supremacism.

Thirdly, although the outcome of Evans is that Prince Charles’ advocacy correspondence is not to be disclosed (The Guardian has, however, confirmed it will appeal the decision), the FOIA has still produce some limited degree of transparency. In having to explain and justify its exercise of the veto to a legally reasonable standard, as the FOIA explicitly requires, the government was forced to reveal a number of compelling facts about the nature of the Prince of Wales’ correspondence with government departments. The letters reflected Prince Charles’ ‘most deeply held views and beliefs’, were ‘in many cases particularly frank’, and ‘contain remarks about public affairs which would… potentially have undermined his position of political neutrality’ (see [12] of the Statement of Reasons, appended to the Court of Appeal’s judgment as Annex A).

As the FOIA was amended in the final days of the previous government to make such future correspondence absolutely exempt from disclosure (by s.46 and Schedule 7 of the Constitutional Reform and Governance Act 2010), these somewhat cryptic insights into the nature of the relationship between the heir to the throne and the government may be the last made public for some time. Yet while the details of how the Prince of Wales sought to influence government policy may remain concealed, as do whatever consequences may have been the result, the government itself has conceded, in exercising and justifying the veto, that such attempts have been made. Having this established officially and beyond doubt, in such intriguing terms, is no small achievement. Those who find the level of continued support for the (‘constitutional’) monarchy difficult to understand may simply have to draw on this to console themselves that the political neutrality of the heir to the throne has been exposed as a fiction, and hope that constitutional practice can evolve in such a way as to minimise future royal influence over the government.

Dr Mike Gordon is a Lecturer in Public Law at Liverpool Law School, University of Liverpool.

Suggested citation: M. Gordon, ‘Prince Charles’ Correspondence Back in Court – Reflections on R. (Evans) v. Attorney General’ UK Const. L. Blog (22nd July 2013) (available at http://ukconstitutionallaw.org)

3Comments

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1

John D on July 22, 2013 at 6:43 pm

Students of UK constitutional law interested in the powers of our unelected monarchy should also investigate the principle of royal consent.
See http://www.bbc.co.uk/news/uk-politics-21024828 for more detail.
2

Jeff King on July 23, 2013 at 9:12 am

Dear Mike,
I agree with most of this excellent analysis. However I disagree with this bit: ‘n Evans, the notion of constitutionality seems to be employed to demonstrate that government activity must be inherently limited and strictly controlled by law. Yet the limitation of government is not the predetermined purpose of constitutional law and practice (as Martin Loughlin, to offer just one leading example, has persuasively argued). Judicial appeals to the notion of constitutionality which are based on this background assumption are therefore liable to continue to be greeted sceptically – especially when unnecessary to dispose of the case before them – by those concerned about the rhetoric and reality of judicial supremacism.’

The insistence on observing the rule of law is not in my view to be equated with a libertarian view of constitutionalism that Loughlin rightly rejects, and I think the view as you state it risks conflating scepticism of liberal/libertarian constitutionalism with scepticism of judges. Judges can and do play an active constitutional role in a state with a proactive constitution. The judges’ more basic point here seems to me that the executive power to set aside a quasi-judicial or judicial judgment offends the political principle of the rule of law, and this follows directly from the most basic analyses of what the rule of law is, whether we consider clarity, certainty, finality, not allowing executive discretion to pervert application of the law, giving us a clear statement of our rights, and so on. Parliament certainly ratified that vision in s.1 of the Constitutional Reform Act of 2005, but so has government in many statements and guidance, not to mention bragging in foreign jurisdictions. If our system of public law is to be based on the common law, then there is a very clear role for judges in making statements such as these to keep these ideas afloat in the fabric of the common law. They also exert force on how to resolve other issues, such as degree of judicial scrutiny, which way to decide in situations of doubt, or how to adjudicate close ties in balancing exercises.

Great post. Thank you very much.
Jeff
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  Mike Gordon on July 23, 2013 at 1:02 pm
  
  Dear Jeff,
  
  Many thanks for your detailed and thought-provoking response.
  
  I think you’re right that what I say above does link together liberal constitutionalism and judicial activism in quite a broad way (and perhaps too broadly as well – the perils of blogging!). Yet while I wouldn’t want to give the impression that the two are inherently connected, the former is often used as a justification for the latter, and in the UK, I would argue that the courts are at least partially responsible for the conflation of the two (Thoburn might be a leading example of this). Of course, you’re absolutely right that scepticism of judges in general must be justified on other grounds, as there is nothing to say that activist judges must be liberals/libertarians. And while I think there are good democratic (and other) reasons for being concerned about judicial activism, I certainly accept that courts have an important role to play in public law in ensuring the legality of government activity (for me, this is the core of the rule of law), something which the court has ensured in Evans.
  
  In relation to your point about executive override being contrary to the rule of law, I agree that this is probably the essential point the court was trying to make. But if so, first, I’m not sure what the invocation of ‘constitutionality’ adds to the discussion – this seems to be presented as a doctrine above and beyond the rule of law, and I’m not sure what other pre-commitments come along with it. The rule of law may be similarly contestable, but at least it’s a narrower (and probably more familiar) concept to attempt to navigate. And second, even if the very existence of this veto power does violate the rule of law, if as you say (and I agree) this is a political principle, what could the consequences be of the court recognising this? Legally, there is little they can do without dramatically ‘re-interpreting’ the legislation, or claiming a common law strike down power (and this would be a very odd case for the Crown’s courts to make the first attempt to do so!). As you say, perhaps this is about keeping the ideas afloat in the fabric of the common law, or ensuring that there is judicial pressure on the government to keep use of the veto limited to ‘exceptional’ cases. But when we see, in cases like Jackson and Axa, the courts taking such concepts and trying to use them to engineer changes in established legal doctrine, there is no guarantee that, in time, concepts such as ‘constitutionality’ won’t be fleshed out further and give rise to some contentious political outcomes. I may well be reading too much into the LCJ’s brief comments but, for me, it seems to fit with a broader pattern of judicial capture of contested constitutional principles.
  
  Thanks again, Mike