The media might still be buzzing with the news of the birth of Princess Charlotte of Cambridge, but her grandfather has had some media limelight of his own in recent months, albeit for very different reasons. On 26 March 2015, the Supreme Court held that the government's veto of an order to publish 27 letters between HRH the Prince of Wales and several government departments was invalid. It held that the letters should be published in accordance with the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIR) (R (Evans) and another v Attorney General  UKSC 21).
The FOIA and the EIR both give individuals the right to make a request for the disclosure of information held by public authorities. The authority is bound to disclose the information, save in the case of some exemptions.
Under both pieces of legislation, the government is entitled to veto a decision or enforcement notice against any government department where an ‘accountable person’ (including the Attorney General and any Cabinet minister) certifies that he considers, on reasonable grounds, that there was no failure to communicate the requested information.
The case concerned requests made by journalist Rob Evans under the FOIA and the EIR for the publication of a number of letters written by Prince Charles to various government ministers between September 2004 and April 2005. Although the requests were initially refused, the Upper Tribunal ordered the disclosure of 27 of the letters.
The Attorney General responded to the Upper Tribunal's decision by issuing a veto certificate. He did this on the basis that the letters were private, they formed part of the Prince's preparation for kingship and they had the potential to damage the Prince's political neutrality.
Mr Evans applied for judicial review of the Attorney General's decision to issue the veto. The case in the Supreme Court was the hearing of the Attorney General's appeal against the Court of Appeal's decision to allow Mr Evans's application.
The Supreme Court dismissed the Attorney General's appeal and ordered the publication of the letters.
The majority of the Supreme Court agreed that the right of veto did not give the executive the power to override the judiciary simply because the executive does not agree with the judiciary's decision. Whilst this was, in theory, a possibility, any statute purporting to do this would have to be "crystal clear"; the relevant power in the FOIA and the EIR fell far short of this threshold.
The Supreme Court considered that, in order for the government to overrule a court or tribunal judgment, there must have been a ‘material change of circumstances’ since the decision or the decision of the tribunal must have been ‘demonstrably flawed in fact or in law’. The result is that in fact, the application of the right to veto is very limited.
Furthermore, the veto power in the EIR was found to be incompatible with the 2003 European Directive that led to their implementation. The Directive requires all member states to ensure that applicants for information have access to the review of public authorities' actions by an independent and impartial body or by the courts, with a final decision becoming binding on the public authority holding the information. The Supreme Court, by a 6-1 majority, agreed with Mr Evans's argument that provision for a governmental veto ran contrary to this requirement, as the Upper Tribunal's final decision should be binding and should not be overruled.
The ICO has welcomed the decision as providing further clarity on laws that are still relatively new and uncertain. The decision is also good news from the point of view of individuals looking to make FOIA/EIR requests from government departments, as it restricts the circumstances in which the government will be able to veto a decision requiring it to disclose certain information.
In terms of what will happen next, this is not yet clear and will depend to an extent on the feelings of the new government. David Cameron's reaction to the Prince Charles ruling highlighted the need for clarity in the right to veto. Will the new government try to push through amendments to the legislation that would make it easier for it to veto FOIA decisions? And what will happen to the EIR – will they be amended to make them compatible with the Directive or will it simply be a matter of interpretation in future cases? This will certainly be an interesting area for data protection and freedom of information practitioners to keep an eye on in the coming months.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at May 2015. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.
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