On Thursday 26th March the Supreme Court concluded, to the delight of The Guardian and the dismay of the Prime Minister, that communications between Prince Charles and government Ministers – the so-called ‘black spider memos’ – should be released. This has been a long saga, involving issues of freedom of information, discussion of constitutional conventions surrounding the behaviour of a Monarch in training, which now also includes the principle of legality and the nature of the relationship between parliamentary sovereignty and the rule of law. Such a cornucopia of delights for constitutional lawyers guarantees that the case has earned its place in the ‘Constitutional law Case list Hall of Fame’, with the promise of further delight as the memos, once released and savoured, cast an insight into the relationship between the Crown and the Government.
The facts of the case are well-known and need only be briefly stated. Evans, a Guardian journalist, issued a request under the Freedom of Information Act 2000 for the release of correspondence between Prince Charles and various Ministers. Some of these memos contained environmental issues, and so a request was also made under the Environmental Information Regulations. The request was initially refused. Following a series of appeals, culminating in a full hearing before the Upper Tribunal, the request to release the ‘advocacy correspondence’ was approved. However, no memos were forthcoming. Section 53 of the Freedom of Information Act empowers a ‘person in authority’ – in this case the Attorney General – to issue a certificate in response to a notice to fulfil a Freedom of Information Request. A certificate can be issued when the person in authority has ‘on reasonable grounds formed the opinion that, in respect of the request or requests concerned there was no failure’ to comply with the enforcement notice. A certificate, once issued, means that the enforcement notice ‘shall cease to have effect’. However, the decision of the Attorney General was itself subject to judicial review and Evans challenged the issue of the certificate, claiming that it was unlawful as contrary to section 53 of the Freedom of Information Act 2000 and, with regard to the advocacy correspondence which contained information about environmental issues, that it was contrary to the ‘Access to Environmental Information’ Directive (Directive 2004/3 EC) and Article 47 of the EU’s Charter of Fundamental Rights. The Divisional Court dismissed the judicial review action. The Court of Appeal allowed the judicial review and, in a split decision, so did the Supreme Court. The Court decided 5:2 that the certificate was unlawful under the 2000 Act and 6:1 that the certificate was contrary to EU law. As this is a blog post on UK constitutional law, I will focus on the lawfulness of the certificate according to section 53 of the Freedom of Information Act 2000.
As Mark Elliott expertly explains, the way in which their Lordships reached their conclusions is as important as the substance. The issue turned on what is meant by ‘reasonable grounds’ that there would be no failure to comply with an enforcement notice. Lord Neuberger, with whom Lords Kerr and Reid agreed, concluded that ‘reasonable grounds’ could not mean that the Attorney General could issue a certificate merely because he would have reached a different conclusion to the Upper Tribunal. In other words – there is no ‘substitution of judgment’. He reached his conclusion through his use of the principle of legality, a principle of interpretation which means that only clear and specific words can be used to legislate contrary to fundamental constitutional rights. If ‘reasonable grounds’ did mean that the Attorney General were able to effectively overturn a decision of the Upper Tribunal, merely because he would have reached a different conclusion to the Upper Tribunal, then this would contravene two important fundamental principles of the constitution. First,
‘it is a basic principle that a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone including (indeed it may fairly be said, least of all) the executive’ [para 52].
‘it is also fundamental to the rule of law that decisions and actions of the executive are … reviewable by the court at the suit of an interested citizen.’ [para 52].
‘Reasonable grounds’ is not sufficiently clear to empower the Attorney General to override decisions of the Upper Tribunal merely because, if he had decided the issue, he would have reached a different conclusion. In these circumstances, there would only be ‘reasonable grounds’ to issue the certificate if there was a ‘material change of circumstances’ since the Tribunal decision was taken, or if the decision was ‘demonstrably flawed in fact or in law’.[para 71] This was not the case and, therefore, the Attorney General did not have reasonable grounds to issue the certificate which would have overturned the decision of the Upper Tribunal.
Lord Mance and Lady Hale, whilst agreeing that it was unlawful for the Attorney General to issue the certificate, reached their conclusion in a different manner and provided a different interpretation of ‘reasonable grounds’. The starting point for Lord Mance’s judgment is not the principle of legality, but the contextual application of the principles found in prior judgments concerning the extent to which governmental departments are bound by decisions of administrative tribunals. Lord Mance distinguished between disagreements with the findings of fact and law, and disagreements over the relative weight to be given to the interests the tribunal needed to balance to determine whether disclosure was in the public interest. Given that the tribunal held a full hearing, but the Attorney General consulted in private and formed his own view without hearing both sides, Lord Mance agreed that it would require the clearest possible justification for the Attorney General to overturn findings of fact or law. However, when the Attorney General was disagreeing about the relative weight to be given to different interests, ‘reasonable grounds’ required thoughtful engagement with the decision of the Upper Tribunal and an account of the reasons for reaching a different conclusion, as required by other provisions of section 53. The requirement of reasons and the scrutiny of those reasons afterwards would enable the court to ensure that the Attorney General had reasonable grounds for issuing the certificate and was not merely disagreeing with the Upper Tribunal. In the words of Lord Mance:
‘I do not consider that it was open to the Attorney General to issue a certificate under section 53 on the basis of opposite or radically differing conclusions about the factual position and the constitutional conventions without, at the lowest, explaining why the tribunal was wrong to make the findings and proceed on the basis it did’. [para 145].
Lord Hughes disagreed, concluding that the issue of the certificate was lawful under section 53 of the Freedom of Information Act 2000. Section 53 empowers the Attorney General to issue the certificate if he disagrees with the decision of the Upper Tribunal on ‘reasonable grounds’ and this must include the ability to disagree on the degree of weight to be given the different interests when assessing whether disclosure of the advocacy correspondence was in the public interest. To construe the section otherwise was to strain the words of Parliament too far. However, he did agree that the issuing of the certificate was contrary to EU law and that, therefore, the advocacy correspondence on environmental issues should be released. Lord Wilson agreed with Lord Hughes that the issuing of the certificate was not contrary to the Freedom of Information Act but disagreed on the matter of EU law, concluding that it was lawful under EU law to issue the certificate. To interpret section 53 in the manner proposed by Lord Neuberger was not to interpret but to re-write the section. Moreover, whilst the principle of the separation of powers would have been breached were the executive to be able to override a tribunal decision on a matter of law, this was not the same when it came to the weighing up of competing interests to determine the public interest.
Lord Wilson noted the temptation before the court to
‘seek to maintain the supremacy of the astonishingly detailed, and inevitably unappealed, decision of the Upper Tribunal in favour of disclosure of the Prince’s correspondence!’. [para 168].
In a similar manner, there is a huge temptation facing any constitutional commentator to see this judgment as a showdown between two constitutional principles. Alas, I do not share Lord Wilson’s strength of character. It is impossible not to savour the statements of Lord Neuberger of the ‘constitutional importance of the principle that a decision of the executive should be reviewable by the judiciary’ [para 54] and his repetition of the principle of legality, where courts acknowledge the principle of Parliamentary sovereignty, whilst applying principles of constitutionality. Nor can one fail to enjoy the rebuttal by Lord Hughes that
‘[t]he rule of law is of the first importance. But it is an integral part of the rule of law that courts give effect to Parliamentary intention. The rule of law is not the same as a rule that courts must always prevail, no matter what the statute says’ [para 154]
accompanied by the statement of Lord Wilson that the Court of Appeal ‘invoked precious constitutional principles but among the most precious is that of parliamentary sovereignty, emblematic of our democracy’. [para 168]. In one corner stands ‘the rule of law’; in the other stands ‘parliamentary sovereignty’. Each fought a valiant fight, but the narrow victory went to ‘the rule of law’.
Just as it would be too simplistic to decide Evans by succumbing to the temptation to side against the establishment and uphold the supremacy of the court, it is too simplistic to see Evans as a simple showdown between parliamentary supremacy and the rule of law or yet another victory for common law constitutionalism. First, although Lord Neuberger cites AXA and Jackson, he makes no specific claim in this case that the rule of law prevails over parliamentary sovereignty. He makes it clear that that principle of legality is a principle of statutory interpretation, and that, given parliamentary sovereignty, statutes can override both the final authority of judicial decisions and the requirement of judicial review. The disagreement between Lord Neuberger, Lord Mance, Lord Hughes and Lord Wilson is more subtle. Neither argues that one constitutional principle always overrides the other. The question is as to the way in which these principles inter-relate. How far does statutory interpretation to uphold the rule of law extend before it undermines parliamentary sovereignty?
Second, although as Mark Elliott rightly points out, Lord Neuberger’s judgment reasons in a more top-down as opposed to bottom-up manner than Lord Mance’s judgment, both are careful to provide contextualised reasoning, with Lord Neuberger drawing on principles from the same cases relied on by Lord Mance. Both examine the nature of the powers of the Upper Tribunal and the Attorney General and the way in which they were exercised in this case. This judgment is not an example of axiomatic constitutional doctrines, where the rule of law always requires as strained a construction as possible of statutory provisions. It is careful to take account of the specific context.
Third, despite their disagreements it is possible to find a small element of consensus. Lord Mance, Lord Hughes and Lord Wilson are careful to delineate between a disagreement as to the law or the facts on which a conclusion is based and one where there are disagreements as to the weighing of competing interests. There are only reasonable grounds for the Attorney General to override decisions of the Upper Tribunal when disagreeing on the facts or the law where there is a material change of circumstances, or where these legal or factual assessments were demonstrably flawed – at least this is the opinion of Lord Neuberger and probably of Lord Mance and Lady Hale. When dealing with the weighing of competing interests, however, there can be ‘reasonable grounds’ to overturn the decision, not because the Attorney General would have reached a different conclusion, but where he had provided clear reasons for this, with these reasons clearly engaging with the argument of the Upper Tribunal and providing a reasoned justification for this disagreement, (per Lord Mance and Lady Hale) or where the Attorney General had ‘reasonable grounds’ to disagree (per the dissent of Lord Hughes and Lord Wilson).
If this is a possible consensus from the judgment of the Supreme Court, then it is one with which it is hard to disagree. To allow for a narrow scope of ‘reasonable grounds’ when a certificate is used to overturn a decision of the Upper Tribunal on matters of fact or law is to show the appropriate degree of respect for the decisions of the Upper Tribunal, whilst allowing for overrides when needed to correct glaring errors. The Upper Tribunal produced an extensive, clearly reasoned judgment, with access to the memos (the courts judicially reviewing the Attorney General’s decision did not see the memos as they were not needed to assess the lawfulness of issuing the certificate) after hearing both sides. It has specific expertise in this area of the law. This does not mean that the Upper Tribunal is impervious to mistakes. But these features, coupled with the importance of the rule of law, require that any statutory authority to effectively overturn a decision of the Upper Tribunal should be narrowly construed. The power to overturn this decision should only be exercised where it is clear that the Upper Tribunal has made an error and where it is clear that the person having this power to overturn is able to correct this error. When dealing with the weighing up of competing interests, the relative expertise and knowledge of the Upper Tribunal does not carry as much weight. It can be reasonable to disagree as to the definition of the public interest. This is exacerbated on the facts of Evans, where a determination of the public interest is determined against the backdrop of competing interpretations of constitutional conventions regarding the relationship between the Monarch and the executive, and a Monarch-in-training and the executive. There is little clarity on this issue. It is also hard to argue that the Upper Tribunal has greater expertise or better constitutional authority to resolve this matter. However, given the rule of law and the fact that any certificate will contradict a resolution of the Upper Tribunal, these reasonable grounds need to be fully justified and subject to scrutiny. It is not enough to merely state disagreement. The Attorney General needs to explain clearly how he has reached a different conclusion. In return, when carrying out judicial review the courts should scrutinise the reasoning of the Attorney General but be wary of overturning the certificate of the Attorney General merely because they would have reached a different outcome from the Attorney General.
This possible consensus also casts some light on how we should interpret the constitutional grand-standing as regards the battle between parliamentary sovereignty and the rule of law. It is not the case that either ‘parliamentary sovereignty’ or the ‘rule of law’ always does or always should prevail over the other. Nor is it clear that there is a consensus as to precisely what is meant by ‘parliamentary sovereignty’ or ‘the rule of law’. To balance ‘parliamentary sovereignty’ and the ‘rule of law’ by focusing on the precise meaning of words, or the distinction between ‘interpretation’ and ‘appeal’, or to speculate on what Parliament would have enacted if its attention had been drawn to the specific issue before the court, is to focus on the wrong issues. Nor is it appropriate to cite such grand constitutional principles out of context. Rather, we need to focus on the justifications of parliamentary sovereignty and the rule of law applied to the specific context of each case if we are to better understand the UK constitution.
Evans will lend itself to a range of interpretations – so here is mine. I would argue that the case does not concern parliamentary sovereignty but parliamentary legislative supremacy. By this I mean that Parliament can legislate on any subject matter it wishes save one – it cannot bind its successors – and that courts can interpret, but cannot contradict, clearly expressed statutory provisions. It does not entail that courts can only interpret legislation so as to uphold the intentions of Parliament. This is because I argue that parliamentary legislative supremacy is justified not because it aims to ensure that Parliament is supreme, but because it ensures that supremacy is shared between the legislature and the courts. In particular, it ensures that Parliament alone is not capable of elevating issues to ones of constitutional importance by entrenching them through a requirement of a specific ‘manner and form’ of legislation, or by requiring an additional component to the law-making process. Any such change commenced by Parliament requires acceptance by the courts for its completion. The principle of legality may require express and clear words to provide evidence of an intention to legislate contrary to an important constitutional principle, but it is still possible for such legislation to be enacted, albeit through Parliament paying the political cost of doing so by ensuring its intentions to legislate in this manner are clearly and specifically expressed.
Applying this understanding of the relationship between parliamentary legislative supremacy and the rule of law to this case requires careful thought as to the relationship between the executive, administrative tribunals, the judiciary and the legislature, focusing on the precise nature of their constitutional roles and their institutional differences. There are clear constitutional reasons for not allowing the executive to override the decision of an administrative tribunal. If the legislature nevertheless provides for such a possibility, this needs to be interpreted against this constitutional backdrop. Constitutional principles would point to the authority of the administrative tribunal to determine issues of law and fact. This is reinforced by institutional considerations. The Upper Tribunal had the relevant information, the requisite expertise and provided a clearly reasoned conclusion. In these circumstances, it is only reasonable to overturn its decision as to the law or facts when there is a change of relevant facts or where there is a blatant error of fact or law that the Attorney General is in a position to correct. The situation is not the same as regards the weighing of competing interests, where it may be reasonable for the Upper Tribunal and the Attorney General to disagree, particularly when this involves the assessment of conventions regulating the relationship between the Monarch and the government. Here, reaching a better outcome may be furthered when the Attorney General has greater ability to overturn the determination of the Upper Tribunal, particularly given that this is also subject to judicial review. However, this will only be the case when the Attorney General provides reasons and engages effectively with the arguments of the Upper Tribunal, explaining why a different conclusion is justified.
The situation is different, however, as regards the removal of judicial review, or the power of the executive to ignore judicial determinations. These aspects of the rule of law are a part of our constitutional bedrock as the principle of parliamentary legislative supremacy. Without the maintenance of these principles, courts and the legislature are unable to work together effectively to provide a better and more legitimate determination of constitutional principles. If courts override legislation, Parliament is no longer able to effective participate in constitutional exchanges. Its voice is overridden. In a similar manner, if the legislature empowers the executive to ignore judicial determinations, courts are unable to perform their constitutional role. Their voice in the constitutional exchange is overridden. Protecting both parliamentary legislative supremacy and effective judicial review enables the UK constitution to develop, with institutions interacting effectively to develop legitimate constitutional principles. If either is undermined, this interaction can no longer take place. It is for this reason that courts do and should protect judicial review. And it requires the courts to maintain their stance to protect judicial review even in the face of its possible removal by legislation, just as Parliament, when enacting section 18 of the European Union Act 2011 maintained its stance against the courts claim that the principle of parliamentary legislative supremacy was one of the common law and hence could be modified by the courts. Constitutional showdowns like Evans are necessary component of the UK’s constitution. But their impact and importance are far more subtle than claims of a shift between common law or political constitutionalism would have us believe.
Alison Young is an Associate Professor of Law and a Fellow of Hertford College, University of Oxford.
(Suggested Citation: A. Young, ‘R (Evans) v Attorney General  UKSC 21 – the Anisminic of the 21st Century?’ U.K. Const. L. Blog (31st Mar 2015) (available at http://ukconstitutionallaw.org))