The Legal and Political Constitutions Collide: R. (Evans) v. Attorney General, [2015] UKSC 21

What sort of a King will Prince Charles be? A clue may lie in the contents of the so-called “black spider” letters he sends to government ministers, so named because they are typed up after Prince Charles writes them out in longhand and sent after he supplements them with additional cursive script.

The Upper Tribunal ordered the disclosure of some of these letters to the Guardian newspaper, which had requested them under access to information legislation ([2012] UKUT 313). Much clamour ensued: the law was amended to ensure that no letters would be disclosed in the future; and the Attorney General exercised a veto power in respect of the disclosure of the black spider letters. Section 53 of the Freedom of Information Act provides for a veto where the Attorney General has “reasonable grounds” for its exercise. The veto was accompanied by a detailed decision explaining why the Attorney General considered it to be in the public interest to refuse to disclose the black spider letters.

The newspaper sought to quash the veto, in litigation that terminated last week with R. (Evans) v. Attorney General, [2015] UKSC 21, a decision that features a clash between two diametrically opposed visions of the British constitution and an ultimate conclusion that is somewhere in the middle of the two. I fear it was not possible for me to resist the “huge temptation facing any constitutional commentator to see this judgment as a showdown between two constitutional principles“!

In finding for the newspaper, the UK Supreme Court split three ways. A plurality of three (Lords Neuberger, Kerr and Reed) drew on fundamental constitutional principles to construe the veto power narrowly and quash its exercise in this case. A minority of two (Lord Wilson and Lord Hughes) read the veto power broadly and upheld its exercise. Whereas two more (Lord Mance and Lady Hale) agreed with the conclusions of the plurality but on much narrower grounds.

Why did the Attorney General veto the Upper Tribunal’s decision? From the Attorney General’s own summary (at para. 44 of the UKSC decision):

• The fact that the information in question consisted of private and confidential letters between The Prince of Wales and Ministers.
• The fact that the request in this case was for recent correspondence.
• The fact that the letters in this case formed part of The Prince of Wales’s preparation for kingship.
• The potential damage that disclosure would do to the principle of The Prince of Wales’s political neutrality, which could seriously undermine the Prince’s ability to fulfil his duties when he becomes King.
• The ability of the Monarch to engage with the Government of the day whatever its political colour, and maintain political neutrality as a cornerstone of the UK’s constitutional framework

Lord Neuberger took an approach that can fairly be described as legal constitutionalist in nature, an approach that emphasizes the role of the courts in upholding the rule of law by imposing standards drawn from the common law on executive action. The following paragraph is telling:

First, subject to being overruled by a higher court or (given Parliamentary supremacy) a statute, 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. Secondly, it is also fundamental to the rule of law that decisions and actions of the executive are, subject to necessary well established exceptions (such as declarations of war), and jealously scrutinised statutory exceptions, reviewable by the court at the suit of an interested citizen. Section 53, as interpreted by the Attorney General’s argument in this case, flouts the first principle and stands the second principle on its head. It involves saying that a final decision of a court can be set aside by a member of the executive (normally the minister in charge of the very department against whom the decision has been given) because he does not agree with it. 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 (at para. 53).

Having considered a series of decisions in which the courts had invoked fundamental principles to narrow the scope of executive and legislative action, Lord Neuberger concluded “that where, as here, a court has conducted a full open hearing into the question of whether, in the light of certain facts and competing arguments, the public interest favours disclosure of certain information and has concluded for reasons given in a judgment that it does, section 53 cannot be invoked effectively to overrule that judgment merely because a member of the executive, considering the same facts and arguments, takes a different view” (at para. 59). His solution was to give s. 53 a “significantly narrower application than it might otherwise have had, in order to respect the two fundamental constitutional principles identified” (at para. 87). Specifically, he endorsed the Court of Appeal’s approach, requiring “a material change of circumstances since the tribunal decision or that the decision of the tribunal was demonstrably flawed in fact or in law” (quoted at para. 71, approved at para. 78).

Crashing headlong into this legal constitutionalist vision was that offered by Lords Wilson and Hughes. The rule of law is one fundamental principle of the British Constitution. But, as Lord Hughes put it, “it is an integral part of the rule of law that courts give effect to Parliamentary intention” (at para. 154).  Here, Parliament had used “plain words”: it authorized the sweeping veto power, subject only to the condition that the Attorney General have “reasonable grounds” for its exercise; it did not erect the imposing hurdles developed by Lord Neuberger (at para. 155). Accordingly, as long as the Attorney General directed himself properly in law, took a rational view of the facts and “explained in general terms where he differs and why, so that his reasoning can be understood, the requirements of the section are, I think, met” (at para. 162). Taking a different view of the facts was “a matter of judgment of the possible reaction of sections of the public on which an experienced politician is at least as entitled to a view as a court” (at para. 165). Moreover, as Lord Wilson pointed out, the veto power is exercisable by a politician who is accountable to Parliament and, ultimately, the electorate (at para. 171). In a lengthy passage, Lord Wilson summarized very well the case for maintaining the veto:

Having studied the disputed correspondence, the Upper Tribunal had conceded, at the outset of its determination, that there were “cogent arguments for non-disclosure” and indeed the Commissioner, for his part, had persuaded himself that they outweighed those in favour of disclosure. So it would have been surprising for the Divisional Court to have concluded that the Attorney General had no reasonable grounds for his opinion. It is true that, once the Upper Tribunal’s determination was disseminated, the Attorney General’s opinion would be reasonable only if, in his statement of reasons, he demonstrated engagement with its reasoning. But he did so. He began his analysis with a summary of the conclusions of the Upper Tribunal and later, at para 13 (set out in para 132 of Lord Mance’s judgment) summarised the six main aspects of the public interest in disclosure which it had identified. In para 14 he described them as good generic arguments for disclosure but explained that in his view they were substantially outweighed by public interest considerations militating against disclosure which were “centred upon The Prince of Wales’ preparation for Kingship and the importance of not undermining his future role as Sovereign”. Earlier in his statement the Attorney General had explained each of these two aspects in some detail. The Upper Tribunal had recognised the existence of a tripartite convention under which, on a confidential basis, the Sovereign has a right to be consulted by government, to encourage it and to warn it; so preparation of the Prince for Kingship was, among other things, preparation for his exercise of rights under the tripartite convention. Confidential dialogue with Ministers was therefore, so the Attorney General asserted at para 9, an important aspect of the preparation of the Prince for Kingship in that it enabled him better to understand the business of government, by which no doubt the Attorney General intended to include the value for the public, as well as for the Prince, in his coming to understand such political difficulties as may have surrounded some of his enthusiasms. The second aspect of public interest to which, at para 10, the Attorney General referred was cast on the undeniable importance that the Sovereign should be neutral as between political parties. There was no doubt that the Prince was neutral in that sense but, so the Attorney General asserted, there was a risk that disclosure might engender a contrary perception which would be difficult to dispel and which therefore might seriously compromise his future role as monarch (at para. 181).

In short, the Attorney General had put his mind to the arguments made by the Upper Tribunal and he prepared a reasoned response. He was accountable to Parliament and the public for his decision to wield the veto. And Parliament itself had put the veto power in place. For a political constitutionalist, any sanctions for these legislative and executive actions must be political, not judicial.

In the middle of this clash fell Lord Mance (with whom Lady Hale agreed). Not quite Lord Neuberger’s full-throated invocation of constitutional first principles and not quite Lords Hughes and Wilson’s deference to legislative and executive choice. Rather, a general acceptance that Parliament can authorize a radical measure such as a veto of the decision of an independent tribunal, tempered by an acknowledgment that searching judicial scrutiny is required of the rationality of any such veto.

The analysis must be “context-specific” (at para. 128): “When the court scrutinises the grounds relied upon for a certificate, it must do so necessarily against the background of the relevant circumstances and in the light of the decision at which the certificate is aimed” (at para. 130). On the one hand, mere disagreement with the findings of the Upper Tribunal would not be sufficient: it would “require the clearest possible justification” in legislation to authorize a veto on such grounds (ibid.). On the other hand, “disagreement about the relative weight to be attributed to competing interests found by the tribunal is a different matter,…which the statute contemplates and which a certificate could properly address, by properly explained and solid reasons” (ibid.).

Here, however, the Attorney General had erred by “undertaking his own redetermination of the relevant background circumstances” (at para. 131). He had given no “real answer” to the Tribunal’s “closely reasoned analysis and its clear rebuttal of any suggestion that a risk of misperception could justify withholding of disclosure” (at para. 142). Accordingly, the veto was based on “findings which differed, radically, from those made by the Upper Tribunal,…without any real or adequate explanation” (at para. 146). In substance, then, searching scrutiny of the Attorney General’s reasons, respectful of the possibility that an accountable political actor might sometimes permissibly wield a veto, but conscious of the violence to the constitutional order of permitting the executive to set aside decisions of independent tribunals on the basis of mere disagreement. A very British sort of constitutionalism, one might say!

For other commentary, see Mark Elliott and Alison Young. I should say, that even though I think the case reveals competing visions of the UK constitutional order, I agree with this passage from Alison’s commentary:

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.

This content has been updated on April 2, 2015 at 11:16.