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Focus on Regulation

High Court concerned by executive veto, but Black Spider remains in the shadows

The High Court has expressed concern over the “constitutional aberration” that allows the government to block disclosure under the Freedom of Information Act, but upheld the application of this veto to the so-called “Black Spider” letters sent by Prince Charles to various government departments. The case is interesting both for its position within the wider debate on the functioning of the constitutional monarchy, and because of the unprecedented power of veto provided to the government by s.53 of the Freedom of Information Act, which raises concerns about the government’s ability to override judicial and parliamentary decisions. The case also highlights the constitutional importance of judicial review as a check on executive power and the significance attached to the giving of proper reasons by ministers.

Since 19 January 2011, the absolute exemption in s.37(1) of the Freedom of Information Act, covering “correspondence with Her Majesty”, has been extended to include correspondence with the heir to the throne. This request, brought by Guardian journalist Rob Evans, related to earlier correspondence: a number of letters (many hand-written, hence the moniker) sent by the Prince of Wales to seven different government departments, over a seven month period between 2004-2005.

The initial request for information was declined by the departments in question, which the Information Commissioner decided was not unlawful. In September 2012, the Guardian was successful in its appeal to the Upper Tribunal, which decided that disclosure of “advocacy correspondence” was in the public interest as there should be “transparency as to how and when Prince Charles seeks to influence government”.

However in October 2012, the Attorney General, Dominic Grieve, issued a certificate under s.53(2) of the Freedom of Information Act. This section states that a Freedom of Information Act decision or enforcement notice shall cease to have effect if the ‘accountable person’ (in England, either a cabinet minister or the Attorney General) gives the Information Commissioner a signed certificate stating that he has on reasonable grounds formed the opinion that, in respect of the requests concerned, there was no failure to comply with the general right of access in s.1 of the Freedom of Information Act. The certificate thus overrides the court’s decision that there was such a breach.

Evans and the Guardian brought a judicial review against this decision. Counsel for the newspaper did not directly challenge the lawfulness or existence of the s.53 power, but argued that this exercise of the power was not justified and that there were no reasonable grounds for departing from the Upper Tribunal’s decision.

The s.53 power was described by the court as an “executive override” that allows the Attorney General to overrule the judiciary – even at Supreme Court level – without any further recourse to Parliament. The court noted that “it is an understatement to describe the situation as unusual. Indeed, the researches of counsel suggest that it is a unique situation and that similar statutory arrangements cannot be found elsewhere in this jurisdiction.”

According to Lord Chief Justice Judge, s.53 raises “troubling concerns.” He said that the power “is not quite a pernicious ‘Henry VIII clause’, which enables a minister to override statute but, unconstrained, it would have the same damaging effect on the rule of law…  If ever the government, or any minister of the cabinet could, without more, but in particular because of dissatisfaction with a judicial decision, not merely ignore it, but nullify it, the elementary entitlement of the citizen to effective recourse to independent courts would be extinguished.”

Considering s.53 in this context, the court saw the requirement that the Attorney General provide reasonable grounds for his exercise of the power, alongside the fact that the exercise of the power is itself subject to judicial scrutiny via judicial review, as providing the necessary constitutional limits upon the power. Following on from this, there was no requirement for the judicial review appellant to demonstrate that the minister had acted ‘unreasonably’ in the Wednesbury sense. Rather, “the principle of constitutionality” required that the minister address the decision of the Upper Tribunal and explain in clear and unequivocal terms why, notwithstanding the decision of the court, the executive override was exercised on public interest grounds.

On examining the issues, the court decided that the Attorney General had acted reasonably. In particular, the court held that the grounds explained in the Statement of Reasons accompanying the s.53 certificate were “cogent” and “proper and rational” in explaining where the balance of the public interest lay.

The approach taken by the court has led to some criticism that judicial review is an insufficient safeguard to ensure the constitutionality of the veto. Maurice Frankel, the director of the Campaign for Freedom of Information, has been quoted as saying “This case shows the veto will be upheld at judicial review even if the disclosure decision is thoroughly and well argued and contains no error. Ministers don’t have to show they are right and the tribunal or court is wrong, only that they have reasonable grounds for taking a different view about the public interest. The veto is a powerful tool and judicial review too limited a safeguard.”

As for the wider debate, the Attorney General’s Statement of Reasons justified the veto on the basis that the correspondence was part of the Prince’s “preparation for becoming king” and that disclosure of the correspondence could damage his ability, as monarch, “to engage with the Government of the day whatever its political colour, and maintain political neutrality.” This has led some critics to argue that this reasoning is circular; seeming to suggest that in order to protect the heir’s position as a politically neutral figure, his allegedly energetic political advocacy must not be disclosed to the public.

The Guardian intends to appeal.