Question 1: Constitutional Conventions in Evans
Evans v Attorney General (2015) concerned a dispute over disclosure of the so-called ‘black
spider letters’, correspondence written by the (then) Prince Charles to various government
ministers. The Supreme Court’s decision in this case drew upon constitutional principles such
as the rule of law and parliamentary sovereignty (which we’ll learn about in later sessions).
But Evans also raised issues of constitutional convention, and we will focus on this aspect of
the judgment for this seminar. Answer the following questions:
A. Provide a brief overview of the facts and litigation background in Evans (further detail is
available at paras [1]-[50] of Lord Neuberger’s judgment if you need it).
An appeal brought by HM Attorney General against the decision of the Court of Appeal
quashing a certificate which he issued on 16 October 2012 pursuant to section 53(2) of the
Freedom of Information Act 2000 (“the FOIA 2000 ”) and regulation 18(6) of the
Environmental Information Regulations 2004 (“ EIR 2004 ”). The underlying question in this
appeal is whether communications passing between HRH The Prince of Wales and ministers in
various government departments (“the Departments”) between September 2004 and March
2005 (which I shall call “the letters”) should be disclosed pursuant to a request made by Rob
Evans, a journalist who works on the Guardian newspaper. The effect of the Attorney
General's certificate (“the Certificate”) would be to prevent such disclosure, but the effect of
the Court of Appeal's decision would be to permit such disclosure.
2. It is worth explaining at the outset of this judgment that, if valid, the effect of the
Certificate would be to override a decision of the Upper Tribunal, which is a judicial body and
which has the same status as the High Court. The first argument raised by Mr Evans is that the
statutory provision giving the Attorney General, a member of the executive, the power to
overrule a judicial decision should, as a matter of constitutional principle, be interpreted
restrictively, and that the Certificate is therefore invalid. His second argument is that, at least
so far as the Certificate applies to “environmental information”, it is invalid, as the provisions
of an EU Directive prevent a decision of a judicial tribunal ordering disclosure of such
information being overridden by a member of the executive.
A journalist challenged the Attorney General’s decision to issue a certificate under the
Freedom of Information Act and Environmental Information rules preventing disclosure of
“advocacy correspondence” written by Prince Charles to government ministers. Paras. 1,
3. The information sought included “environmental information.” In issuing the certificate,
the Attorney General overrode a decision by the Upper Tribunal directing the correspondence
to be disclosed. Para. 3.
The Freedom of Information Act allows the Attorney General to override certain decisions if he
has “reasonable grounds” for doing so. In this case, the Attorney General's reasonable grounds
were that he had “formed the opinion that the Departments had been entitled to refuse the
requests for disclosure.” Para. 19. The Court of Appeal rejected this defence, noting that
“reasonableness” in this context requires more than a mere disagreement with the decision of
the tribunal; rather, it requires a material change in circumstances or a finding that the
tribunal made a demonstrable flaw in law or fact. Para. 37-39.
The Court went on to consider whether the provisions of the Freedom of Information Act
invoked by the Attorney General were consistent with the EU Environmental Information
Directive. It concluded that use of the veto to overrule a tribunal’s decision violated the
Directive because it denied the petitioner access to an independent and impartial body
established by law in which the acts or omissions of the public authority can be reviewed and
resolved in a final and binding decision. The Court declared: “A judicial review of the
Evans v Attorney General (2015) concerned a dispute over disclosure of the so-called ‘black
spider letters’, correspondence written by the (then) Prince Charles to various government
ministers. The Supreme Court’s decision in this case drew upon constitutional principles such
as the rule of law and parliamentary sovereignty (which we’ll learn about in later sessions).
But Evans also raised issues of constitutional convention, and we will focus on this aspect of
the judgment for this seminar. Answer the following questions:
A. Provide a brief overview of the facts and litigation background in Evans (further detail is
available at paras [1]-[50] of Lord Neuberger’s judgment if you need it).
An appeal brought by HM Attorney General against the decision of the Court of Appeal
quashing a certificate which he issued on 16 October 2012 pursuant to section 53(2) of the
Freedom of Information Act 2000 (“the FOIA 2000 ”) and regulation 18(6) of the
Environmental Information Regulations 2004 (“ EIR 2004 ”). The underlying question in this
appeal is whether communications passing between HRH The Prince of Wales and ministers in
various government departments (“the Departments”) between September 2004 and March
2005 (which I shall call “the letters”) should be disclosed pursuant to a request made by Rob
Evans, a journalist who works on the Guardian newspaper. The effect of the Attorney
General's certificate (“the Certificate”) would be to prevent such disclosure, but the effect of
the Court of Appeal's decision would be to permit such disclosure.
2. It is worth explaining at the outset of this judgment that, if valid, the effect of the
Certificate would be to override a decision of the Upper Tribunal, which is a judicial body and
which has the same status as the High Court. The first argument raised by Mr Evans is that the
statutory provision giving the Attorney General, a member of the executive, the power to
overrule a judicial decision should, as a matter of constitutional principle, be interpreted
restrictively, and that the Certificate is therefore invalid. His second argument is that, at least
so far as the Certificate applies to “environmental information”, it is invalid, as the provisions
of an EU Directive prevent a decision of a judicial tribunal ordering disclosure of such
information being overridden by a member of the executive.
A journalist challenged the Attorney General’s decision to issue a certificate under the
Freedom of Information Act and Environmental Information rules preventing disclosure of
“advocacy correspondence” written by Prince Charles to government ministers. Paras. 1,
3. The information sought included “environmental information.” In issuing the certificate,
the Attorney General overrode a decision by the Upper Tribunal directing the correspondence
to be disclosed. Para. 3.
The Freedom of Information Act allows the Attorney General to override certain decisions if he
has “reasonable grounds” for doing so. In this case, the Attorney General's reasonable grounds
were that he had “formed the opinion that the Departments had been entitled to refuse the
requests for disclosure.” Para. 19. The Court of Appeal rejected this defence, noting that
“reasonableness” in this context requires more than a mere disagreement with the decision of
the tribunal; rather, it requires a material change in circumstances or a finding that the
tribunal made a demonstrable flaw in law or fact. Para. 37-39.
The Court went on to consider whether the provisions of the Freedom of Information Act
invoked by the Attorney General were consistent with the EU Environmental Information
Directive. It concluded that use of the veto to overrule a tribunal’s decision violated the
Directive because it denied the petitioner access to an independent and impartial body
established by law in which the acts or omissions of the public authority can be reviewed and
resolved in a final and binding decision. The Court declared: “A judicial review of the
