By Mark Elliott
Professor of Public Law, University of Cambridge
The UK Supreme Court’s judgment in R (Evans) v Attorney General  UKSC 21 formed the conclusion to a lengthy saga that began with a series of requests under the Freedom of Information Act 2000 for disclosure by Government Departments of the so-called ‘black spider memos’ sent to them by Prince Charles. The Government refused to disclose this correspondence, but a judicial body, the Upper Tribunal, later concluded that the public interest favoured the release of the black-spider memos under the Freedom of Information Act and issued a ‘decision notice’ ordering their disclosure.
Once a court or tribunal has issued a judgment, that is normally the end of the matter (unless a right of appeal to a higher court or tribunal is exercised). Unusually, however, section 53 of the Freedom of Information Act enables Government Ministers in certain circumstances to override or veto decision notices issued under the Act. In Evans, a Minister — the Attorney General — exercised the section 53 ‘veto power’. This had the effect of setting aside the Upper Tribunal’s decision notice, thus relieving the Government of any obligation to release Prince Charles’s letters.
Like other acts and decisions of Government Ministers, the Attorney General’s exercise of the veto power under the Freedom of Information Act is subject to judicial review. This means that it is possible to ask a court to rule on whether the Minister has acted lawfully; the court can quash, or strike down, a ministerial act or decision that is found to be unlawful. That is precisely what happened in this case.
The Attorney General’s use of the section 53 power was challenged through judicial review. The Supreme Court concluded the Attorney General had acted unlawfully, meaning that the veto he had sought to exercise was legally ineffective. The Upper Tribunal’s decision notice therefore stood, and the memos had to be released in accordance with that decision notice.
The case is constitutionally controversial because, in reaching their conclusion, some of the Supreme Court Justices adopted what some critics — including some of the other Justices who decided this case — considered to be a very strained, even indefensible, interpretation of section 53 of the Freedom of Information Act.
Three of the Justices concluded that although section 53 is phrased in general, arguably broad, terms, it can only lawfully be exercised in very limited circumstances. On one view, this approach is to be celebrated because it ensures that fundamental constitutional principles — including the principle that says everyone, including the Government, must respect courts’ judgments — are upheld.
On another view, however, such an approach is constitutionally improper because it undermines the principle of parliamentary sovereignty by failing to give proper effect to the intention that Parliament had when it enacted the veto power.