R (Evans) v Attorney General

Facts

Evans, a journalist, requested under the Freedom of Information Act 2000 and the Environmental Information Regulations 2004 disclosure of correspondence between the Prince of Wales and several government departments. The departments refused. After an appeal process, the Upper Tribunal held that the correspondence should be disclosed. The Attorney General then issued a certificate under section 53 of the 2000 Act stating that, on reasonable grounds, he had formed the opinion that the departments had acted properly in refusing disclosure.

History

Evans sought judicial review of the certificate. The Divisional Court dismissed the claim. The Court of Appeal allowed his appeal and held the certificate invalid. The Attorney General appealed to the Supreme Court, which dismissed his appeal.

Issue

Whether section 53 of the Freedom of Information Act 2000 allowed an accountable person to issue a certificate overriding a final decision of the Upper Tribunal on the ground that he took a different view of the same facts, and whether the certificate was valid.

Held

The Attorney General's appeal was dismissed by a majority of five to two. The certificate was invalid, because section 53 could not be read as permitting the executive to override a judicial decision on the merits simply because the Attorney General disagreed with it.

Ratio

• A statute is not to be read as authorising a member of the executive to override a decision of a court on the same facts and law merely because he disagrees with it, unless Parliament has said so in clear terms, since this would offend the constitutional principles that judicial decisions are binding and that the executive may not set them aside.
• A certificate under section 53 can be valid where there has been a material change of circumstances or the court's decision was demonstrably flawed in law or fact, but the Attorney General's differing view of the public interest on the same material was not enough.

The judgments

Key reasoning

• The rule of law requires that decisions of courts be respected by the executive, and the principle of legality means Parliament must use clear language if it intends to authorise the executive to depart from that.
• The ordinary meaning of section 53 might suggest that it allowed the Attorney General to disagree, but the wording was not sufficiently clear to override constitutional principle, and could be read down to cases where the court's decision was flawed or circumstances had changed.
• The Attorney General's stated reasons were a different view of the weight of the public interest, which the Upper Tribunal had already decided, so the opinion could not be said to be formed on reasonable grounds in the statutory sense.

Where it fits in the module

Evans is on two lines of the Oxford course: the principle of legality as a way in which common law constitutional principles shape the interpretation of statutes, and the rule of law and judicial independence of the kind recognised in section 1 of the Constitutional Reform Act 2005. It tests whether the Supreme Court has overstepped by reading words that appear clear, which raises the debate on parliamentary sovereignty and common law constitutionalism. It also shows the role of the Attorney General as a minister whose decisions may be reviewed.

Criticisms

• The majority gave section 53 a meaning at odds with its plain words and its legislative purpose, so that the case may be seen as the court rewriting the statute under the guise of interpretation.
• The principle of legality was used to read down a provision that Parliament had deliberately enacted to give the executive a veto, which is arguably inconsistent with parliamentary sovereignty.
• The judgments differ in their reasoning, with some relying on constitutional principle and others on narrower statutory or EU law grounds, so the decision leaves the extent of the constitutional principle uncertain.