Evans, R (on the application of) v HM Attorney General & Anor

Section 53 of the Freedom of Information Act 2000 permits an accountable minister to override a decision notice or judicial decision only where the statutory opinion is formed on objectively reasonable grounds. The power is constitutionally exceptional, but it is not confined by a requirement that the earlier tribunal or court decision was irrational, legally flawed, or unsupported by fresh evidence. The minister may reach a different evaluation of the public-interest balance, provided reasons justify the departure and receive close judicial scrutiny. The reviewing court must give full weight to the earlier decision and examine the minister’s reasons with an intensity appropriate to the constitutional context, without substituting its own view of the public interest. The same approach applies where the power is incorporated into the environmental-information regime.

The claimant sought disclosure of correspondence between the Prince of Wales and government departments under the Freedom of Information Act 2000 and the Environmental Information Regulations 2004. The Information Commissioner initially upheld the refusals. On appeal, the Upper Tribunal allowed disclosure of most of the advocacy correspondence: [2012] UKUT 313 (AAC).

The Attorney General then issued a certificate under section 53 of the Act and regulation 18(6) of the Regulations, stating that he had reasonable grounds for concluding that there had been no failure to comply with the disclosure duties. The central issues were the meaning and constitutional limits of section 53, whether the certificate was lawfully issued, and whether the power could validly apply to environmental information.

1. The claim was dismissed. The Attorney General’s certificate was valid and the court declined to quash it.

2. Section 53 contains an exceptional executive override of a decision notice or judicial decision. Its constitutionality is supported by the statutory safeguards: a restricted class of accountable persons, a short time limit, parliamentary scrutiny, reasons, and judicial review.

3. “On reasonable grounds” imposes an objective requirement. The accountable person cannot merely self-certify that reasonable grounds exist. The court must assess whether reasonable grounds existed, but the statutory language does not impose the narrower Wednesbury standard or require the earlier decision to have been irrational or legally flawed.

4. The accountable person must address the earlier tribunal or court decision directly, give clear reasons for departing from it, and be able to justify the override. The earlier decision must receive full weight. The court conducts close scrutiny because the executive is interfering with an independent judicial decision, but it does not substitute its own evaluation of the public-interest balance.

5. The dispute concerned an evaluative judgment about competing public interests and constitutional conventions, rather than a challenge to a primary finding of fact or a pure ruling of law. Section 53 therefore permitted the Attorney General to prefer his own properly reasoned evaluation, even though it substantially repeated arguments rejected by the Upper Tribunal and relied on no fresh evidence.

6. The Attorney General’s reasons were rational and cogent. He was entitled to consider the correspondence as a whole rather than item by item. His certificate therefore satisfied section 53(2).

7. Regulation 18 validly applied section 53 to environmental information. Article 6.2 of the Directive leaves the manner of review to national law. Judicial review of the accountable person’s reasons necessarily includes substantive scrutiny of the original refusal, and therefore provides the required review procedure. The claim also failed in relation to environmental information.

8. The court did not examine the requested correspondence itself. The claim was dismissed.

The claim was brought directly for judicial review of the Attorney General’s certificate. The judgment records that the Upper Tribunal had allowed the claimant’s appeal against the Information Commissioner’s decision and ordered disclosure of most of the advocacy correspondence: [2012] UKUT 313 (AAC). The High Court dismissed the present judicial review claim.