Prince Charles’s letters to government departments can be disclosed under the Freedom of Information Act 2000 (FOI), the Supreme Court has held, in a decision which reinforces the rule of law.
The legal dispute arose after a journalist sought permission to view the “black spider memos” that Prince Charles sends to Ministers.
Mark Elliott, reader in public law, Cambridge University, says: “The judgment of Lords Neuberger, Reed and Kerr strongly reinforces the rule of law and makes it clear that, absent crystal-clear legislative permission, the courts will not tolerate the idea of the executive overriding judicial decisions with which it disagrees.
“More broadly, this reasoning forms part of a stream of Supreme Court jurisprudence that reprioritises the common law in constitutional terms and underlines its capacity to protect fundamental rights and values.”
Rob Evans, a journalist for The Guardian, made an FOI request to see the letters in April 2005, but was refused access. The Upper Tribunal ordered that a category of information—“advocacy correspondence”—be disclosed, but this was overridden by the Attorney General, who issued a s 53 certificate. In 2012, the then Attorney General Dominic Grieve said disclosure of the letters might undermine Prince Charles’ “position of political neutrality”.
Evans sought judicial review of the Attorney General’s decision, arguing that it was unlawful because it was not based “on reasonable grounds” and was incompatible with the Environmental Information Directive and Article 47 of the EU Charter of Fundamental Rights.
The Supreme Court held 5-2 this week that the Attorney General was not entitled to issue a certificate and therefore the certificate was invalid, in Evans v Attorney General [2015] UKSC 21.
The justices concluded that s 53 FOI does not permit the Attorney General to override a judicial decision merely because he, a member of the executive, took a different view on the same facts and arguments. To do otherwise would be counter to the rule of law principles that a decision of a court is binding, and that executive decision are reviewable by the courts and not vice versa.
However, such access to princely letters is unlikely to be granted in future. According to Elliott: “Today, such requests would be doomed to failure, since s 37 of the Freedom of Information Act 2000 was amended in 2010 so as to render communications with the heir to the throne absolutely exempt from disclosure.”
