In a milestone judgment yesterday, the Supreme Court held that the veto issued by the Attorney General preventing the disclosure of letters written by HRH Prince of Wales was unlawful.
R (Evans) v Attorney General  UKSC 21 is a story of the Guardian newspaper's ten year battle to access letters sent by HRH Prince Charles to various government departments, under the Freedom of Information Act (FoIA) and Environmental Information Regulations (EIR). Mr Evans, a journalist for the Guardian, first requested disclosure of the communications from government departments in April 2005, just a few months after FoIA and EIR came into force. The departments exempted those letters from disclosure and Mr Evans complained to the Information Commissioner, who upheld the departments' refusal. Mr Evans appealed to the Information Tribunal and the matter was transferred to the Upper Tribunal which, on 18 September 2012, held that several of the letters should be disclosed.
On 16 October 2012, the Attorney General issued a certificate under s.53(2) FoIA and reg.18(6) EIR that he had, on 'reasonable grounds' determined that the departments had been entitled to refuse disclosure of the letters. If the certificate was valid, its effect would be to override the decision of the Upper Tribunal.
Mr Evans then issued proceedings to quash the certificate on the following grounds:
- The reasons provided by the Attorney General were not capable of constituting 'reasonable grounds'; and
- In so far as the letters related to environmental issues, the certificate was incompatible with Council Directive 2003/4.
The Divisional Court dismissed Mr Evans' claim; however the Court of Appeal allowed the appeal on both grounds. Yesterday's Supreme Court judgment is the result of the Attorney General's appeal against the Court of Appeal's decision.
The Supreme Court held that the veto under FoIA was unlawful on the basis that FoIA does not permit the Attorney General to override a decision of a court by issuing a certificate merely because he takes a different view. The Supreme Court also held that the provisions in the EIR which permit the Government to issue a veto in cases falling within the scope of the environmental information access regime were invalid, as they were incompatible with the EU Directive 2003/4 on public access to environmental information.
It seems that the Supreme Court has drawn a line in the sand, making it clear that the government of the day cannot overrule the decisions of the courts in relation to the application of FoIA simply because it disagrees with the courts' view. It is also significant that the veto cannot be used in respect of decisions taken to exempt from disclosure environmental information. It has yet to be seen how, if at all, this or the next government will respond to the judgment. It seems unlikely that this level of scrutiny was anticipated a little over ten years ago when FoIA and EIR were introduced. There is little doubt, however, that it would be politically challenging for any government to attempt to limit the scope of what is now a well established access to information regime.