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

An executive certificate under section 53 of the Freedom of Information Act 2000 cannot override a judicial disclosure decision merely because the accountable person reasonably prefers a different assessment on the same material. Reasonable grounds require more than rational disagreement. A departure from a tribunal’s reasoned findings requires the clearest justification.

For environmental information, article 6 of Directive 2003/4/EC requires an independent merits determination which can become final and bind the public authority. An executive override, followed only by ordinary judicial review, does not satisfy that requirement.

A journalist requested disclosure of correspondence in which the Prince of Wales advocated views to government ministers. The Departments and Information Commissioner refused disclosure, but the Upper Tribunal ordered much of the advocacy correspondence to be released: [2012] UKUT 313 (AAC).

The Attorney General issued a certificate under section 53(2) of the Freedom of Information Act 2000 and regulation 18(6) of the Environmental Information Regulations 2004, purporting to override the tribunal’s decision. The Divisional Court dismissed the ensuing judicial review claim: [2013] EWHC 1960 (Admin). The Court of Appeal allowed the claimant’s appeal and quashed the certificate: [2014] EWCA Civ 254.

The Supreme Court considered whether the certificate rested on reasonable grounds and whether an executive override concerning environmental information was compatible with article 6 of Directive 2003/4/EC.

1. Appeal dismissed by a majority. Lord Neuberger, with Lord Kerr and Lord Reed, held that section 53 of the Freedom of Information Act 2000 must be read in accordance with the rule of law and the principle of legality. A judicial determination binds the parties unless reversed by a higher court or legislation. General or ambiguous statutory language does not authorise the executive to set such a determination aside merely because it takes a different view on the same material.

2. Accordingly, after a court or judicial tribunal has ordered disclosure following a full hearing, an accountable person cannot establish “reasonable grounds” merely by rationally disagreeing with its assessment. A certificate may remain possible in exceptional circumstances, including relevant new material or a demonstrable flaw which could not appropriately be corrected by appeal. The Attorney General’s certificate contained no such basis and was invalid.

3. Lord Mance, with Lady Hale, reached the same result by a narrower approach. Section 53 permits a properly reasoned reassessment of the weight of competing public interests, but “reasonable grounds” impose a higher threshold than rationality. Departure from a tribunal’s findings of fact or law requires the clearest possible justification. The certificate contradicted the Upper Tribunal’s detailed findings about preparation for kingship, confidentiality, political neutrality and likely consequences of disclosure without adequately explaining why those findings were wrong. It therefore did not satisfy section 53(2).

4. Six justices, including Lord Hughes, concluded that the certificate was independently ineffective concerning environmental information. Article 6.2 and article 6.3 of Directive 2003/4/EC require access to an independent merits review whose final decision binds the public authority. Once the Upper Tribunal had ordered disclosure, the executive could not reopen the merits. Ordinary judicial review of a section 53 certificate was not an adequate substitute because it did not ordinarily determine the merits of disclosure. Regulation 18(6) of the Environmental Information Regulations 2004 was incompatible with the Directive to that extent.

5. Lord Hughes dissented on the domestic-law issue. He considered that section 53 expressly permitted a rational executive reassessment of the public-interest balance, although he agreed that the certificate was ineffective for environmental information. Lord Wilson would have allowed the appeal in full, holding that the statutory safeguards and judicial review made the override lawful.

1. United Kingdom Supreme Court: By a majority, dismissed the Attorney General’s appeal and upheld the quashing of the certificate: [2015] UKSC 21.
2. Court of Appeal: Allowed the claimant’s appeal on the domestic-law and EU-law grounds and quashed the certificate: [2014] EWCA Civ 254.
3. Divisional Court of the High Court: Dismissed the judicial review claim: [2013] EWHC 1960 (Admin); [2014] QB 855.
4. Upper Tribunal: Allowed the appeal from the Information Commissioner and ordered disclosure of the advocacy correspondence: [2012] UKUT 313 (AAC).
5. Information Commissioner: Upheld the Departments’ refusal to disclose the correspondence.