ON APPEAL FROM THE DIVISIONAL COURT, ADMINISTRATIVE COURT, QUEEN'S BENCH DIVISION
THE LORD CHIEF JUSTICE, LORD JUSTICE DAVIS , MR JUSTICE GLOBE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE PITCHFORD
|THE QUEEN ON THE APPLICATION OF EVANS
|- and -
|HER MAJESTY'S ATTORNEY GENERAL
|- and -
|THE INFORMATION COMMISSIONER
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Jonathan Swift QC and Julian Milford (instructed by the Treasury Solicitor) for the Respondent
Timothy Pitt-Payne QC (instructed by the Information Commissioner) for the Interested Party
Hearing dates: 24, 25 & 26 February 2014
Crown Copyright ©
Master of the Rolls:
"Any person making a request for information to a public authority is entitled—
(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him."
"shall cease to have effect if, not later than the twentieth working day following 'the effective date', the accountable person in relation to that authority gives the Commissioner a certificate stating that he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure falling within subsection (1)(b) [ie a failure to comply with section 1(1)(a) or (b)]."
The "effective date" is defined in section 53(4). The "accountable person" is defined in section 53(8).
The Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters ("the Aarhus Convention")
"Each Party shall ensure that, subject to the following paragraphs of this article, public authorities, in response to a request for environmental information, make such information available to the public within the framework of national legislation…."
"1. Each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law.
Final decisions under this paragraph 1 shall be binding on the public authority holding the information. Reasons shall be stated in writing, at least where access to information is refused under this paragraph.
2. Each Party shall, within the framework of its national legislation, ensure that members of the public concerned
(a) Having a sufficient interest
(b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition,
have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention.
What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention.
"1. Member States shall ensure that any applicant who considers that his request for information has been ignored, wrongfully refused (whether in full or in part), inadequately answered or otherwise not dealt with in accordance with the provisions of Articles 3, 4 or 5, has access to a procedure in which the acts or omissions of the public authority concerned can be reconsidered by that or another public authority or reviewed administratively by an independent and impartial body established by law……
2. In addition to the review procedure referred to in paragraph 1, Member States shall ensure that an applicant has access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final….
3. Final decisions under paragraph 2 shall be binding on the public authority holding the information. Reasons shall be stated in writing, at least where access is refused under this Article."
The EU Charter of Fundamental Rights
"Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law…."
"In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection."
The decision of the UT
"4. For reasons which we explain below, we conclude that under relevant legislative provisions Mr Evans will, in the circumstances of the present case, generally be entitled to disclosure of "advocacy correspondence" falling within his requests. The essential reason is that it will generally be in the overall public interest for there to be transparency as to how and when Prince Charles seeks to influence government. The Departments have urged that it is important that Prince Charles should not be inhibited in encouraging or warning government as to what to do. We have not found it necessary to make a value judgment as to the desirability of Prince Charles encouraging or warning government as to what to do, for even assuming this to have the value claimed by the Departments we do not think the adverse consequences of disclosure will be as great as the Departments fear. In broad terms our ruling is that although there are cogent arguments for non-disclosure, the public interest benefits of disclosure of "advocacy correspondence" falling within Mr Evans's requests will generally outweigh the public interest benefits of non-disclosure.
5. It is important to understand the limits of this ruling. It does not entitle Mr Evans to disclosure of purely social or personal correspondence passing between Prince Charles and government ministers. It does not entitle Mr Evans to correspondence within the established constitutional convention that the heir to the throne is to be instructed in the business of government. Nor does it involve ruling on matters which do not arise in the present case. Thus, for example, it is conceivable that there may be correspondence which, although outside the established constitutional convention, can properly be described as preparation for kingship. Or it may be that correspondence concerns an aspect of policy which is fresh and time needs to be allowed for a "protected space" before disclosure would be in the public interest. While they do not in our view arise in the present case it is possible that for these or other reasons correspondence sought in other cases may arguably not be disclosable."
The Attorney General's certificate
The first issue: the correct approach to section 53(2) of the FOIA
The case for Mr Evans
"…the inspector's conclusion on that issue, because of its independence and because of the process by which it is arrived at, necessarily becomes the only properly tenable view on the issue of road safety and this is determinative of the public benefit."
"…it does not seem to me reasonable for the Secretary of State to disagree with the independent adjudicator who heard all the evidence unless only:
(1) the adjudicator's factual conclusion was itself demonstrably flawed, as irrational or for failing to have regard to material considerations or for having regard to immaterial ones—none of which is suggested here;
(2) fresh material has since become available to the Secretary of State such as could realistically have affected the adjudicator's finding—this too was a matter we considered in Powergen…."
"The desirable objective of an independent scrutiny of decisions in this field would be negated if the Secretary of State were entitled to act merely on his own assertions and reassertions about relevant facts contrary to express finding made at an oral hearing by a special adjudicator who had seen and heard the relevant witnesses. That would approach uncomfortably close to decision-making by executive or administrative diktat. If therefore the Secretary of State is to set aside or ignore a finding on a factual issue which has been considered and evaluated at an oral hearing by the special adjudicator he should explain why he has done so, and he should not do so unless the relevant factual conclusion could itself be impugned on Wednesbury principles, or has been reconsidered in the light of further evidence, or is of limited or negligible significance to the ultimate decision for which he is responsible."
"I am not persuaded that the Secretary of State was entitled to reject the ombudsman's finding merely because he preferred another view which could not be characterised as irrational. As I have said earlier in this judgment, it is not enough that the Secretary of State has reached his own view on rational grounds; it is necessary that his decision to reject the ombudsman's findings in favour of his own view is, itself, not irrational having regard to the legislative intention which underlies the 1967 Act: he must have a reason (other than simply a preference for his own view) for rejecting a finding which the ombudsman has made after an investigation under the powers conferred by the Act."
The Divisional Court
"….the aggrieved applicant is not required to go so far as to demonstrate that the minister's decision is 'unreasonable' in the familiar Wednesbury sense. Rather, the principle of constitutionality requires the minister to address the decision of the Upper Tribunal (or whichever court it may be) head on, and explain in clear and unequivocal terms the reasons why, notwithstanding the decision of the court, the executive override has been exercised on public interest grounds."
"111. It is inherent in the whole operation of section 53 that the accountable person will have formed his own opinion which departs from the previous decision (be it of Information Commissioner, tribunal or court) and may certify without recourse to an appeal. As it seems to me, therefore, disagreement with the prior decision (be it of Information Commissioner, tribunal or court) is precisely what section 53 contemplates, without any explicit or implicit requirement for the existence of fresh evidence or of irrationality etc. in the original decision which the certificate is designed to override. Of course the accountable person both must have and must articulate reasons for that view. And as I have said, it is for the accountable person in practice to justify the certification. But if he does so, and that justification comprises "reasonable grounds", then the power under section 53(2) is validly exercised. Accordingly, the fact the certificate involves, in this case, in effect reasserting the arguments that had not prevailed before the Upper Tribunal does not of itself mean that it is thereby vitiated."
Conclusion on the first issue
The second issue: did the Attorney General have reasonable grounds for issuing the certificate?
The third issue: is section 53(2) compatible with EU law?
The case for Mr Evans
"23. Notwithstanding the need for a speedy decision as to whether or not, and if not why not, environmental information is to be released, it is to be noted that the Directive does not set a precise time limit for reconsideration and/or administrative review under Article 6. Although that stage of the procedure must be "expeditious", there is no such requirement for the next stage: legal review under Article 6(2). This reflects the, inevitable, tension between the need for a speedy answer, and the need to obtain a correct answer which properly balances the important public interests which may be in conflict. Article 6 recognises the potential importance of these issues by providing for a thorough review process in which the merits, both factual and legal, of a decision to refuse to release environmental information will be reconsidered afresh by independent and impartial bodies, both administrative and legal. The Court or other legal body conducting the review under Article 6(2) is not reviewing the decision made by the administrative reviewer under Article 6(1), it is reviewing "the acts or omissions of the public body concerned." Thus, the court must consider de novo the propriety of releasing the information. Such a process is bound to discover errors and omissions in the exceptions relied upon in initial decisions, and it would be surprising, given the balancing exercise required by the Directive, if those errors were incapable of subsequent correction."
The Divisional Court
"… to conclude otherwise would be to put form over substance. It seems to me that it will inevitably be an integral part of a review by the court of the reasonableness of the grounds given by an accountable person that there be included a review of the decision to withhold the information in the first place: the act or omission of the public authority concerned. After all, the certificate itself is required, by the very terms of s.53(2) and Regulation 18, to direct itself as to whether there has been a failure to comply with s.1(1)(b) or Regulation 5(1) of the 2004 Regulations. Inevitably, therefore, the reasons for the certificate will have to engage with the substance of the original decision of the public authority to withhold. The court will thus review that; and that is so even where the court is not required to replicate the entire exercise undertaken by the decision-maker. It may be that such a review of the act or omission of the public authority will have been at one remove, as it were. But there will still, in my view, have been a substantive review of that act or omission of the public authority."
Conclusion on the third issue
"to give a binding decision which may not be altered by a non-judicial authority to the detriment of an individual party is inherent in the very notion of a 'tribunal, as is confirmed by the word 'determination' ("qui decidera"). This power can also be seen as a component of the 'independence' required by Article 6(1)".
Nature of the review required by article 6(2)
"With regard to judicial review of compliance with the principle of proportionality, the court has thus said that the Community legislature must be allowed a broad discretion in areas which involve political, economic and social choices on its part, and in which it is called upon to undertake complex assessments."
And at para 34:
"The Court of First Instance also correctly held….that the Community Court's review of the legality of such a decision must therefore be limited to verifying whether the procedural rules and the duty to state reasons have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error of assessment or a misuse of powers."
Does the unlawfulness of in the Attorney-General's certificate in relation to environmental information taint the entire certificate?
"16. I take the view that, for the reasons I have set out above, the public interests in non-disclosure of the disputed information in this case substantially outweigh the public interests in its disclosure.
17. In those circumstances, I conclude that all the non-environmental information in the correspondence falls within the exemption in section 37(1) of the Act for information relating to members of the Royal Family (as it applies to requests made prior to 19 January 2011); and that the public interest in maintaining the exemption outweighs the public interest in disclosure.
18. I also conclude (to the extent necessary) that the non-environmental information in the correspondence is exempt from disclosure under the absolute exemptions in sections 40 and 41 of the Act. In particular:
(1) The information is personal data relating to The Prince of Wales for the purposes of section 40 of the Act. Its disclosure would breach data protection principles, because it would be unwarranted by reason of prejudice to The Prince of Wales's rights, freedoms and legitimate interests, for the same reasons I have set out above. In those circumstances, the information is exempt from disclosure under section 40; and
(2) The information consists of confidential information obtained from The Prince of Wales. The disclosure of the information otherwise than under the Act would constitute an actionable breach of confidence, because against the public interests I have outlined above, there would be no public interest defence to such an action. Accordingly, the information also falls within the absolute exemption for confidential information in section 41 of the Act.
19. For the same reasons, I have concluded that the environmental information within the disputed correspondence is exempt from disclosure under regulation 12(5)(f) and regulation 13 EIR:
(1) Disclosure of the information would adversely affect the interests of its provider (The Prince of Wales) for the purposes of regulation 12(5)(f); the information satisfies the other conditions in the regulation; and the public interest is in favour of maintaining the exemption; and
(2) The information is exempt from disclosure under regulation 13 EIR (personal data) for the same reasons that non-environmental information within the correspondence is exempt from disclosure under section 40 of the Act."
Lord Justice Richards:
Lord Justice Pitchford: