Supreme Court Rules Prince Charles Letters Must be Released

Introduction

It has been widely reported in the media that the Supreme Court has ruled that letters sent by Prince Charles to various government departments expressing ‘particularly frank’ views must be made public.

The so-called ‘black spider memos’ – a reference to Prince Charles’ handwriting – expressed Princes Charles’ own deeply held views and beliefs on particular matters.

This article explores the background to the case, and the decision of the Supreme Court.

Background

The Freedom of Information Act 2000 (‘FOIA 2000’) enables members of the public to see documents held by many public bodies, subject to certain exemptions. The Environmental Information Regulations 2004 (‘EIR 2004’) enable members of the public to see documents containing ‘environmental information’, again subject to certain exemptions.

In April 2005, Rob Evans, a journalist working for the Guardian newspaper, requested release of the letters that passed between Prince Charles and various government departments. Those requests were made under both FOIA 2000 and EIR 2004. However, the government departments refused to release the letters on the ground that they considered the letters were exempt. Mr Evans complained to the Information Commissioner, who upheld the refusals. Mr Evans then appealed to the Information Tribunal, and the matter was transferred to the Upper Tribunal. After a full hearing the Upper Tribunal decided, in September 2012, that many of Prince Charles’ letters (referred to as ‘advocacy correspondence’) had to be released. The government departments did not appeal the decision.

However, in October 2012, the Attorney General, the Government’s senior law officer, issued a certificate under section 53(2) FOIA 2000 and regulation 18(6) EIR 2004 stating that he had, on ‘reasonable grounds’, concluded that the government departments had been entitled to refuse disclosure of the letters, and set out his reasoning. In essence, the Attorney general said the public interest in releasing the letters was outweighed by the public interest in not releasing the letters. In particular, there was a strong public interest that the letters should not be released in order to preserve the following three ‘constitutional conventions’ (informal, but well-respected customs):

1. the monarch should be able to consult, encourage and warn their government – the so-called ‘tripartite convention’;
2. the heir to the throne should be instructed in the business of the government in preparation for their reign – the so-called ‘education convention’; and
3. the monarch is expected to act in accordance with ministerial advice – the so-called ‘cardinal convention’.

In addition to preserving those conventions, the Attorney General also pointed to the private and confidential nature of the letters, and that the content of the letters might jeopardise Prince Charles’ political neutrality. The same reasons had effectively been given by the government departments at the outset and by the Information Commissioner when refusing to order the release of the letters.

If the certificate issued by the Attorney General was valid, its effect would be to override a decision of the Upper Tribunal, a judicial body with the same status as the High Court.

Evans started proceedings to ‘quash’ (or cancel) the certificate on the following grounds:

1. the reasons given by the Attorney General were not capable of constituting ‘reasonable grounds’; and/or
2. in so far as the advocacy correspondence was concerned with environmental issues, the certificate was incompatible with Council Directive 2003/4/EC (“the 2003 Directive”), a European Union (EU) piece of law which overrides English law under the European Communities Act 1972.

The Divisional Court dismissed his claim. However, the Court of Appeal allowed Evans’ appeal on both grounds. The Attorney General appealed to the Supreme Court. The issue before the Supreme Court was therefore whether the certificate was valid, and in particular:

1. whether the Attorney General was entitled to issue a certificate under section 53 FOIA 2000 that he had ‘on reasonable grounds’ formed the opinion that the government departments had been entitled to refuse to release the letters;
2. whether, in any event, regulation 18(6) EIR 2004 complied with the relevant provisions of EU law; and
3. if it did not, whether the certificate could stand even in relation to the non-environmental information.  

It is worth noting that the Supreme Court had not seen the advocacy correspondence and did not need to in order to determine the issues.

The Judgment of the Supreme Court

The case was heard by seven Justices of the Supreme Court. In summary, the Supreme Court dismissed the Attorney General’s appeal. By a majority of 5:2 the Court held that the Attorney General was not entitled to issue a certificate under section 53 FOIA 2000 in the manner that he did and therefore that the certificate was invalid.

By a majority of 6:1 the Court held that regulation 18(6) was incompatible with the 2003 Directive and must be treated as invalid, and therefore that the certificate would in any event have been invalid to the extent it related to environmental information.

The judgement, known as R (Evans) v Attorney General [2015] UKSC 21, can be read here.

Reasons for the Decision: FOIA 2000

In relation to the appeal concerning FOIA 2000, Lord Neuberger (with whom Lord Kerr and Lord Reed agreed) concluded that section 53 FOIA 2000 did not permit the Attorney General to override a decision of a judicial tribunal or court by issuing a certificate merely because he, a member of the Government, took a different view after considering the same facts and arguments. To allow that would be unique in the laws of the United Kingdom and would cut across two constitutional principles which are fundamental components of the rule of law, namely that a decision of a court is binding between the parties and cannot be set aside, and that decisions and actions of the Government are reviewable by the courts, and not vice versa (paragraph [52] of the judgment). Clear words had to be used if the Act was to have that effect, and section 53 was a very long way from being clear enough (paragraphs [58]-[59]).

Lord Mance (with whom Lady Hale agreed) reached the same conclusion as Lord Neuberger but for different reasons. He said that it would be open to the Attorney General to issue a certificate under section 53 if he disagreed with the decision of the Upper Tribunal. But, disagreement with findings of fact or rulings of law in a fully reasoned decision would require the clearest possible justification, while disagreement as to the weight to be attached to competing public interests would require properly explained and solid reasons [130-131]. In this case the Attorney General unjustifiably undertook his own redetermination of the relevant factual background, which he was not entitled to do. The Attorney General’s certificate did not engage with the closely reasoned analysis of the Upper Tribunal and proceeded on the basis of findings which differed radically from those made by the Upper Tribunal without real or adequate explanation. This could not be regarded as satisfying the test for issue of a certificate (paragraphs [142], [145]).

Lord Wilson and Lord Hughes each gave judgments disagreeing with the majority. They concluded that the Attorney General was entitled to issue the certificate under section 53 for the reasons he did.

Reasons for the Decision: Environmental Information Under the 2003 Directive

On the issue of environmental information, Lord Neuberger and Lord Mance (with whom Lady Hale, Lord Kerr, Lord Reed and Lord Hughes agreed) noted that article 6.1 of the 2003 Directive requires that, following a refusal by a public authority of a request for environmental information, the refusal must be reconsidered or reviewed administratively. They also noted that under article 6.2 the person seeking the information must have access, after the administrative review, to a review procedure before a court of law or similar body whose decisions may become final. Finally they noted that article 6.3 requires that the final decisions of the court should be binding on a public body holding environmental information (paragraph [100]). In light of these provisions, they held that it would be impermissible for the government to have another attempt at preventing the release of the letters, and therefore regulation 18(6) EIR 2004 was incompatible with article 6 of the 2003 Directive (paragraph [103]). However, that conclusion only applied to the environmental information (paragraph [111]).

Lord Wilson disagreed on this issue, holding that making a section 53 certificate in relation to environmental information whose release had been ordered by a court or judicial tribunal was not incompatible with the provisions of the 2003 Directive.

Conclusion

The Supreme Court’s decision means that the letters will now have to be released and made public. This will undoubtedly be a disappointment to Prince Charles, who values his privacy and wrote the letters on the understanding that they would remain private.

The Guardian’s decision to pursue the release of the letters is, perhaps, a curious one. It appears to have been premised on the belief that the letters will show Prince Charles to be a political figure, whose actions have to be scrutinised as part of democracy. However, basic constitutional theory dictates that a monarch, or future monarch, has no influence on the government. Indeed it is the monarch who must follow ministerial advice. The government makes policy and is accountable for it. A monarch, with their wealth of knowledge on state affairs, is entitled to consult, encourage and warn their government in the interests of the nation. But a monarch can have no influence on policy. So is there a need to see their communications to government, when the views contained within may show a political persuasion and compromise the public political neutrality which is so important for every monarch, who remains head of state whatever the political position of the government of the day?

What are your thoughts?