FOIMan explains why the ruling of the Supreme Court in relation to Prince Charles’ “black spider memos” is so significant – and why FOI campaigners should be cautious in their celebrations.
On 1 January 2005, FOI came into force. Later that same year, the Guardian’s Rob Evans made Freedom of Information requests to government departments for correspondence with Prince Charles, the heir to the throne. Ten years later, the Supreme Court has finally ruled that those letters (or many of them at least) must be disclosed. The full story of those ten years – together with many of the key court decisions – can be read in Matt Burgess’s excellent piece on the FOI Directory site.
This ruling is important – and for me, pleasantly surprising. After the Court of Appeal considered this case last year, I gave my analysis on this blog, and it turns out I was wrong. Though not entirely. My prediction was that the Supreme Court would rule that the veto was legitimate in relation to information subject to FOI, but that the European law that underpins the Environmental Information Regulations (EIR) would lead to a ruling that the veto cannot apply to environmental information. As it turns out, the Court ruled that the veto was not legitimate in either case, though there was more support from the Justices for the veto not applying to EIR (6:1 as opposed to a 5:2 ruling on the use of the veto in relation to FOI).
Huge congratulations are due to Rob Evans and the Guardian. Rob and the Guardian have been persistent in pursuing the release of the letters, even when all around (or many of us) were sceptical of their success. But I now want to consider the implications of this judgment for FOI and EIR.
Firstly, what does this mean in terms of the release of correspondence between members of the Royal Family and public bodies? One of the reasons that this case is so important is that it is now pretty much the last chance any of us will get to see what is said in correspondence like this, unless it is leaked (or relates to environmental matters – see below). This is because FOI was amended in 2010 – during the wash-up of the last government – to make the exemption covering relations with the monarch and their two nearest heirs absolute. This means that the government and other public bodies will be able to refuse all future requests for correspondence with Prince Charles under FOI. This ruling will not change that. But at the time of Rob Evans’ request, the exemption was subject to a public interest test, and that is how we have reached this point. If the correspondence is released, then that will be the last FOI disclosure of Prince Charles’ letters.
That said, the ruling is significant in terms of environmental information. Given the Prince’s known interest in environmental matters, it is likely that public bodies will hold many letters from the heir that would fall under the EIR. All the exceptions (the EIR equivalent of exemptions) under EIR are subject to a public interest test, and this judgment makes clear that Ministers cannot exercise the veto in relation to any decision to disclose information falling under EIR. So we may well see future disclosures of correspondence from Prince Charles relating to environmental issues.
But in many ways, the most important implication of this ruling has nothing to do with the Royal Family. The point of this appeal was to consider whether the Attorney General was entitled to exercise the controversial veto at section 53 of FOI. And the judgment says some pretty important things about the veto.
It says that it is not enough for government ministers to disagree with Commissioner, Tribunal and Court rulings on FOI – the use of the veto has to be justified:
“…it appears to me that there is a very strong case for saying that the accountable person cannot justify issuing a section 53 certificate simply on the ground that, having considered the issue with the benefit of the same facts and arguments as the Upper Tribunal, he has reached a different conclusion from that of the Upper Tribunal on a section 57 appeal.” para. 68 of the judgment
But it also confirms the view expressed by the Lord Chief Justice in the High Court decision on this case that the veto itself is “a constitutional aberration”. The ability of the executive to overturn the decision of a court of law:
“…would be unique in the laws of the United Kingdom and would cut across two constitutional principles which are fundamental components of the rule of law, namely that a decision of a court is binding between the parties and cannot be set aside, and that decisions and actions of the executive are reviewable by the courts, and not vice versa.” Press Summary
So the effect of this ruling is to call into question almost all use of the veto, certainly up to this point, and potentially in the future. This is a huge defeat for the government.
Without wanting to pour cold water on well-deserved celebrations, that is exactly the reason why I think we need to be cautious. Governments don’t like huge defeats. And the veto has been used by both the last two governments. David Cameron has already released a statement saying that the law will need to be amended to reinforce the veto and make its future use clear and unassailable. Speaking at 11KBW’s Information Law Conference last week, barrister Tim Pitt-Payne, who has represented the Commissioner as well as government departments in FOI cases, expressed his view that if this ruling went against the government, it was likely to reopen the question of the application of the section 35 exemption for policy formulation. When the Justice Select Committee examined FOI three years ago, it decided that section 35 didn’t need to be strengthened, as the veto provided a backstop for government if it needed to protect internal discussions.
Today’s ruling will lead to another period of reevaluation of FOI by government, and may well provoke attempts to provide more protection for government information. FOI campaigners and others will need to be vigilant.