R (on the application of Evans) and another v Attorney General

This appeal concerned whether the Attorney General's certificate under section 53(2) of the Freedom of Information Act 2000 could lawfully override an Upper Tribunal decision ordering disclosure of written communications between the Prince of Wales and Government ministers. The Supreme Court held that an accountable person may not properly issue a section 53 certificate simply because he disagrees with the judgment of a court or tribunal after a full adversarial hearing: "reasonable grounds" requires more (for example material new evidence, a demonstrable legal or factual flaw or other exceptional circumstances). The Court also held that, insofar as the information consisted of "environmental information", the incorporation of section 53 into the Environmental Information Regulations 2004 (regulation 18(6)) was incompatible with article 6 of Council Directive 2003/4/EC, because the Directive requires that final judicial decisions on environmental information be binding on public authorities.

The applicants (a journalist and the Information Commissioner) sought judicial review of a certificate issued by the Attorney General on 16 October 2012 which purported to prevent disclosure of correspondence between HRH The Prince of Wales and government ministers between September 2004 and March 2005. The correspondence had been the subject of a request under the Freedom of Information Act 2000 and the Environmental Information Regulations 2004, the Departments initially refused, the Information Commissioner issued reasoned determinations in December 2009 upholding the refusals, and the Upper Tribunal (after a full public hearing with evidence and cross-examination) allowed the applicant's appeal in September 2012 and ordered disclosure of much of the so-called "advocacy correspondence".

The Attorney General then issued a certificate under section 53(2) FOIA, which had the effect of nullifying the tribunal's decision notice. The applicants challenged the certificate by judicial review on two grounds: (i) under domestic law the certificate could not properly be issued where it simply records a different balancing of the public interest from that reached by a court or tribunal on the same material; and (ii) insofar as the correspondence comprised environmental information, the section 53 override as applied by regulation 18(6) EIR was incompatible with article 6 of Council Directive 2003/4/EC (and related EU law), which requires final judicial decisions on environmental information to be binding on public authorities.

The Divisional Court dismissed the applicants' claim, the Court of Appeal allowed it, and the Attorney General appealed to the Supreme Court. The Court examined the statutory scheme of FOIA, the purpose and structure of section 53, the nature and status of the Upper Tribunal, and relevant constitutional principles. It concluded that the operation of section 53 must be read in a way that protects the finality and binding force of judicial determinations reached after full adversarial hearings: an accountable person cannot properly issue a certificate merely because he, having seen the same material, takes a different view. The Court identified the kinds of circumstances in which a certificate could still be lawful after a tribunal decision (for example, material change of circumstances, previously unavailable evidence, or a demonstrable error in the tribunal's decision), but emphasised that such occasions will be rare. On EU law, the Court held that regulation 18(6), as applied to article 6 of the Directive, was incompatible with the Directive insofar as it allowed the executive to override final judicial decisions on environmental information; final judicial decisions under article 6 must be binding on public authorities. The majority therefore dismissed the Attorney General's appeal, quashing the certificate; they also held that, in any event, the certificate would be invalid insofar as it purported to apply to environmental information. The judgment notes separate and partly dissenting opinions which would have given different weight to section 53's reach.

Appeal dismissed. The Supreme Court concluded that section 53(2) cannot be used to overturn a judicial determination simply because the executive disagrees: "reasonable grounds" requires materially more (for example new evidence, demonstrable error or similar exceptional circumstances). Further, insofar as the correspondence comprised environmental information, regulation 18(6) EIR read with section 53 was incompatible with article 6 of Council Directive 2003/4/EC because the Directive requires that final judicial decisions be binding on public authorities.

Information Commissioner determinations (December 2009) -> appeal to tribunal transferred to the Upper Tribunal which decided for disclosure ([2012] UKUT 313 (AAC)) -> Attorney General issued a certificate (16 October 2012) -> Judicial review issued in the Divisional Court which dismissed the application ([2013] EWHC 1960 (Admin)) -> Court of Appeal allowed the appeal ([2014] EWCA Civ 254) -> appeal to the Supreme Court ([2015] UKSC 21).