Prince Charles Letters must be disclosed

In R oao Evans v Attorney General and R oao Evans & Information Commissioner v 7 Govt  Depts C1/2013/2250 the head of the Civil judiciary in England and Wales, Lord Dyson, ruled that the Attorney General (AG), Dominic Grieve, did not, with a 53(2) certificate under the Freedom of Information Act, have reasonable grounds to quash the decision of the Upper Tribunal and that to block the publication of the letters by Prince Charles to government ministers, was unlawful.

The relevant section is  53(2) Exception from duty to comply with decision notice or enforcement notice.

“A decision notice or enforcement notice to which this section applies shall cease to have effect if, not later than the twentieth working day following the effective date, the accountable person in relation to that authority gives the Commissioner a certificate signed by him stating that he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure falling within subsection (1)(b).”

In 2012 Dominic Grieve suppressed the Upper Tribunal Administrative Appeals Chamber’s decision (UT) for the letters to be released under the Freedom of Information Act. He said that releasing the letters

“could damage the Prince of Wales’ ability to perform his duties when he becomes King”

A judicial review of that decision was unsuccessful in the Administrative court.

The Court on judicial review could assess the reasonableness of the AG’s refusal to accept the conclusion of another court.  The UT was deciding things on the evidence before it. That could be overridden but only be overridden by the Courts on judicial review if it was unreasonable .If the AG had not advanced “cogent” reasons for setting aside the decision of the Court below.

In the Court of Appeal Lord Dyson, with reference to the Attorney General, ruled that

 “the mere fact that he reached a different conclusion from the [upper tribunal] in weighing the competing public interests involved was not enough”. He went on to say “ He had no good reason for overriding the meticulous decision of the UT reached after six days of hearing and argument. He could point to no error of law or fact in the UT’s judgment approved by the court”.  With regard to the 53(2) certificate under the Freedom of Information Act, Lord Dyson said this was incompatible with EU law.

In the meantime, the Campaign for Freedom of Information, which was an interested party in the case, embraced Lord Dyson’s ruling. Maurice Frankel, director of the Campaign said

 “The FOI Act as an elaborate appeal process which the government could have used to challenge a decision it believed was wrong.  Instead it has attempted to squash the decision, by passing the need to argue its case by use of a veto”.

In light of Lord Dyson’s ruling it will be more difficult for the government to try and overturn any tribunal case decision, particularly where, as in this case, Lord Dyson described “the meticulous decision of the Upper Tribunal reached after six days of hearing and argument”.

Just being in disagreement with the decision will not be sufficient, the government will have to show why the decision is flawed or that circumstances have changed since it was reached.


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