Se-shauna Wheatle and Roger Masterman: The ‘Constitutional Aspect’ in Evans v Attorney General

Se-Shauna Wheatle and Roger MastermanAs we devour (and, perhaps, mourn the disappointing content of) the communications between the Prince of Wales and UK government departments, we continue to dissect the more fascinating Supreme Court judgment in Evans, which finally prompted release of the correspondence. The request by Rob Evans of The Guardian for disclosure of the letters pursuant to the Freedom of Information Act 2000 (FOIA) and Environmental Information Regulations (2004) had been rejected by the relevant government departments, a rejection which was then upheld by the Information Commissioner. When, following appeals, the Upper Tribunal decided that the letters should be disclosed, the Attorney General issued a Certificate under section 53 of the FOIA, stating that on reasonable grounds, he had concluded that the government departments had been entitled to refuse disclosure of the letters.

The issue of the certificate was the subject of judicial review proceedings, with the Divisional Court dismissing Evans’ application and the Court of Appeal allowing his subsequent appeal (and granting the Attorney General permission to appeal to the Supreme Court). The Supreme Court sought to resolve two questions, the first being the validity of the Attorney General’s Certificate overriding the notice requiring disclosure of the communications between the Prince of Wales and government departments. The second issue, which received much less attention from all the Justices, was the consistency of the Attorney General’s Certificate with EU Directive 2003/4/EC to the extent that the Certificate applied to communications about environmental matters.

Constitutionalising the Issue

The multiple speeches delivered by the Supreme Court bench in Evans are differentiated not only by their conflicting conclusions on the two central questions decided by the court. More fundamentally, the judges were divided on their framing of the issue regarding the validity of the Attorney General’s Certificate. There were two critical approaches to the framing of this issue, with Lord Neuberger (who was joined by Lord Kerr and Lord Reed) characterising the question as a constitutional issue and Lord Mance (who was joined by Lady Hale) treating the matter as a question of administrative law. The main dissent from Lord Wilson sought to deliver a response to both approaches, but he can be placed in the constitutionalist camp as the more forceful elements his speech were squarely directed at disputing Lord Neuberger’s explicitly ‘constitutional’ reasoning. The remaining Justice – Lord Hughes – also framed the issue as one of administrative law, though he departed from the findings of Lord Mance and Baroness Hale on the sufficiency of the reasons advanced in support of the Attorney General’s decision.

These two approaches were revealed in the interpretation of section 53(2), which confers power on an ‘accountable person’ (in this case, the Attorney General) to override a notice ordering disclosure by issuing a ‘certificate signed by him stating that he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure’ to comply with the relevant provisions of the FOIA. The interpretation of section 53(2) could have been approached as a question of mere statutory interpretation and administrative law, as was done in other judgments, most notably that of Lord Mance. However, the constitutional path chosen by Lord Neuberger focussed on the idea that an executive override of a judicial decision was said to ‘cut across two constitutional principles which are also fundamental components of the rule of law.’ [para 52] The two rule of law fundamentals were identified as ‘the basic principle that a decision of a court is binding …and cannot be ignored or set aside by anyone, including (indeed it may fairly be said, least of all) the executive’ and secondly, that ‘decisions and actions of the executive are, subject to necessary well-established exceptions … reviewable by the court at the suit of an interested citizen.’ [para 52] (It is worth noting that this latter point appeared not to be disputed in the Supreme Court, with all seven Justices finding that the ministerial veto was subject to judicial review.) The constitutional approach most clearly evidenced in the first principle – Lord Neuberger’s ‘finality’ principle – had a significant impact on the decision through the interpretive presumptions generated by the principle of legality. Both the elucidation of the rule of law and the summary of (and addition of substance to) the principle of legality set out in the judgment will undoubtedly make a significant contribution to public law discourse in the United Kingdom.

While Lords Mance, Hale and Hughes (the latter dissenting in part) saw the crux of the decision as lying in the adequacy of the reasons advanced by the Attorney General for issuing the Certificate under s.53 (with Mance and Hale finding those reasons to be inadequate for the purposes of issuing the Certificate), the constitutional approach served to lift the issue from the specificity of the legal wrangling in the decade long quest by Mr Evans to obtain the ‘black spider memos’. On account of what Lord Neuberger described as the ‘constitutional aspect’ of the case, both the issue of the Certificate’s validity and the consequences of the court’s determination of that issue, became more general and broader in scope. This generalising of the issue occurred in two ways. Firstly, far from viewing the matter as a concern discretely related to British constitutional values and British law, Lord Neuberger stated that an interpretation of section 53(2) of the FOIA ‘which entitles a member of the executive … to overrule a decision of the judiciary merely because he does not agree with it would not merely be unique in the laws of the United Kingdom.’ Using this framing, the implications of the interpretation of section 53(2) would therefore extend beyond the provincial because they would undermine the global and/or universal values which attach to the rule of law. Secondly, beyond a geographical expansion of the scope of the issue, elevating the issue from the details of administrative law and situating it within the constitutional components of the rule of law suggests that the applicable principles are so fundamental that they not only contain independently applicable norms, but also that they are impervious to differing views on controversial matters. Lord Neuberger was overt on this score, as after describing the two principles, he explained their normative import in the following terms:

And the fact that the member of the executive can put forward cogent and/or strongly held reasons for disagreeing with the court is, in this context, nothing to the point: many court decisions are on points of controversy where opinions (even individual judicial opinions) may reasonably differ, but that does not affect the applicability of these principles.

This account of the rule of law approaches the understanding of constitutional norms that obtains in nations with entrenched constitutions, but is, of course, tempered by the acknowledgement that the principles apply ‘subject to parliamentary supremacy’. [para 52]

A Continuing Common Law Resurgence?

There has been a flurry of common law activity in the United Kingdom’s apex court over the past decade. This activity began with a bang with the assertions in Jackson regarding the residual power of the courts to enforce the rule of law, and gained renewed steam in the reassertion of the relevance of common law rights in Osborn v Parole Board, Kennedy v Information Commissioner and A v BBC.

Lord Neuberger’s judgment supplies some content to the often elusive rule of law by indicating two ‘constitutional principles’ that are said to be components of the rule of law. Though, regrettably, he failed to expound on the implications of the two principles and the authorities that support their characterisation as ‘fundamental components’ of the rule of law, Lord Neuberger helpfully identified the two relevant components as the principle that the decision of a court is binding and the requirement that executive decisions be reviewable by the court. Yet, his judgment did not confront the complexities of either principle. Regarding the first, while Lord Neuberger supports the finality principle using dicta from M v Home Office, in the light of section 53 the circumstances in Evans are qualitatively different from a standard judicial review case. An executive override in reliance on section 53 is distinct from the bare refusal of the Home Office Minister to comply with a court order on the basis of advice that the court acted outside its jurisdiction. The second principle of reviewability also needs further qualification and unpacking; while this principle has achieved broad support and application from at least GCHQ onwards, we are all too aware – particularly from cases involving the review of prerogative powers– that given the right amount of deference, a deferential review might differ little in practice from non-justiciability.

Beyond the content of the rule of law, the contribution made by Evans to common law jurisprudence is particularly pronounced in its elucidation and use of the principle of legality. While the recent common law rights cases showed the substance of common law rights protection, Evans contributes by articulating the methodology of common law protection through the principle of legality. The importance of method should be underscored in a context in which the resurgence of common law rights can be discounted and minimised by claims that parliamentary supremacy will thwart any attempt at strong judicial enforcement of common law norms. The principle of legality provides an interpretive mechanism through which courts can enforce common law rights and common law constitutional principles by requiring a clear statement that legislation is intended to override fundamental rights or constitutional principles. It is this mechanism which adds some teeth to the case law articulating common law rights, while simultaneously acknowledging that a clear, unambiguous statement from Parliament would settle the matter. In this way the principle of legality serves to reconcile parliamentary supremacy and the rule of law, as Alison Young argues in her excellent post on this blog.

Despite the steps taken in filling out both the content of the rule of law and the method of enforcing common law protections, there are still difficult constitutional questions that remain unanswered (and even unasked). As with Jackson, there are unresolved issues surrounding compliance with the rule of law and the correspondence between non-compliance and appropriate judicial action. Thus, it remains unclear what form of wording is required for the courts to adjudge that the statutory language is clear enough to demonstrate that Parliament has ‘squarely confront[ed] what it is doing and accept[ed] the political cost’. Certainly, the plurality and the partial dissent penned by Lord Hughes revealed starkly different views on the clarity of the terms of section 53(2). Thus, while in Lord Neuberger’s view, the section ‘falls far short of being crystal clear’ [para 58], Lord Hughes had no hesitation in concluding that the section ‘can mean nothing other than that the accountable person … is given the statutory power to override the decision of the Information Commissioner, and/or of a court after appeal from the Commissioner, if he disagrees with it on reasonable grounds’.

While Evans most certainly contributes to debates around the incremental constitutionalisation of the common law – both through adding substance to the principle of legality and through the overt judicial application of free-standing constitutional principle – it also serves to emphasise that in departing from the terra firma of administrative law (and perhaps also from the principled security of the sovereignty doctrine) both caution and clarity are required.

Se-shauna Wheatle is a Research Associate in Public Law at Durham University.

Roger Masterman is a Professor of Law at Durham University.

(Suggested citation: S. Wheatle and R. Masterman, ‘The ‘Constitutional Aspect’ in Evans v Attorney General‘ UK Const. L. Blog (22nd Jun 2015) (available at