Black spiders and the letter of the law

Before Easter, the UK Supreme Court heard one of the most significant cases on freedom of information law since the Freedom of Information Act 2000 and Environmental Information Regulations 2004 came into force.

https://www.youtube.com/watch?v=oFfJmkybeD0

At its heart were letters and memos which the Prince of Wales had written to various government ministers and politicians in the middle of the last decade--often referred to as 'black spider' letters because of the heir to the throne's distinctive handwriting.

The journalist Gareth Evans of the Guardian newspaper had been trying for many years to have this material published under freedom of information legislation. On 26 March 2015, the court ruled that the letters and memos should be disclosed.

LexisNexis recently interviewed Dinah Rose QC of Blackstone Chambers who acted for the Mr Evans. Here’s what she had to say on this important case. For lawyers, it’s clear that the legal significance of the case extends beyond just freedom of information laws…

What is the significance of this case?

The case is significant partly because of its facts—people are very interested to see what Prince Charles has written in his letters to ministers.

However, for lawyers, it has a wider legal significance. The Supreme Court has emphasised the constitutional importance of the principle that the government, like everyone else, is bound by the decisions of a court, and that it would be reasonable for a government minister to override a court judgment only in the rarest of circumstances.

Lord Neuberger’s judgment re-states the importance of the principle of legality—that Parliament may override fundamental rights only if the legislation uses ‘crystal clear’ language to that effect. This could be very important if a future government repealed the Human Rights Act 1998, leaving the common law as the main source of fundamental rights in the UK.

What were the main issues arising?

The main issues were whether it was reasonable for the Attorney General to veto the decision of the Upper Tribunal ordering the disclosure of the letters, and whether the statutory right of veto was in any event incompatible with EU law on the disclosure of environmental information.

To what extent is the judgment helpful in clarifying the law in this area?

The result of the judgment is clear. However, the matter is complicated by the fact that, of the majority of five, two separate judgments (the judgments of Lord Neuberger and Lord Mance) take rather different approaches.

There remains scope for argument about the breadth of the veto power under FIA 2000 in future cases.

However, as far as environmental information goes, the judgment definitively rules that no ministerial veto can be used. It also confirms that the right to appeal against a refusal to disclose environmental information must be a full merits appeal.

What happens next?

This case will now return to the Upper Tribunal for some final issues to be resolved before the letters are disclosed. There is no further right of appeal for the government.

How does this fit in with other developments in the law in this area?

The Freedom of Information Act 2000 has already been amended to give an absolute exemption to royal correspondence.

However, there is no such amendment in relation to environmental information, and nor could there be, compatibility with EU law. It thus remains possible for requests to be made for the disclosure of correspondence from Prince Charles which falls within the broad definition of environmental information in the EIR 2004.

Interviewed by Robert Matthews. The views expressed by our legal analysis interviewees are not necessarily those of the proprietor.

https://twitter.com/DinahRoseQC/status/581031726849269762

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https://twitter.com/ClarenceHouse/status/581038932676243456

https://twitter.com/ICOnews/status/581462351460876289

https://twitter.com/ICOnews/status/581052565971988480

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