Editor’s Note: Last week Policy Exchange’s Judicial Power Project published a report by Professors Richard Ekins and Christopher Forsyth on Judging the Public Interest: the Rule of Law vs the Rule of Courts. The Project has invited commentators with a range of views to reply to the report. Some might be expected to be more sympathetic to the report and others much less so. The first reply is by Professor Adam Tomkins from the University of Glasgow.
Professors Ekins and Forsyth have written an excellent account of the Supreme Court’s dangerously misguided decision in the Evans case. This short post offers a number of points designed to support and supplement the analysis set out in the Ekins and Forsyth paper.
My starting point is different from Ekins and Forsyth: unlike them I do take a view both on whether the Heir to the Throne’s correspondence should have been published (I think it should have been) and on whether a ministerial veto of the sort found in section 53 FOIA should be part of the United Kingdom’s freedom of information law (I think it should be). Ekins and Forsyth deliberately express no view on either point, as they wish to focus solely on the manifest inappropriateness of the Supreme Court’s (and the Court of Appeal’s) “wayward … misinterpretation” of statute.
I gave evidence to the Upper Tribunal in Evans on the meaning and application of the constitutional conventions concerning the Heir to the Throne. I was on the Guardian’s side. My position was – and remains – that the information commissioner erred when he said in his initial decision notices that constitutional convention generated “an explicit (and weighty) expectation that … communications [between the Prince of Wales and ministers] would be confidential”. I argued that the Prince’s own actions – that is to say, his various interventions in public and political debate – had undermined any such expectation. For sure, constitutional convention strongly protects the Royal Family’s political neutrality. But when, as in the Prince of Wales’s case, that neutrality has been willingly surrendered, the reason for the convention falls away.
The decision of the Upper Tribunal is a fascinating account of the relation of constitutional law to constitutional convention, and goes into considerable detail on the two accounts of this matter that were in front of the Tribunal – mine on behalf of the claimants and Professor Rodney Brazier’s on behalf of the respondents. The Tribunal’s analysis complements and, in certain respects, supersedes the famous Crossman Diaries case in the 1970s.
Curiously, when the Attorney General certified that, in his judgment, the public interest lay firmly against the disclosure of the correspondence, he confirmed the core of the Guardian’s case: namely, that (in the Attorney General’s words) “much of the correspondence does indeed reflect the Prince of Wales’s most deeply held personal views and beliefs” and that “the letters … potentially have undermined his position of political neutrality”. Indeed, in some respects the Attorney General went further than the Guardian’s legal team had been able to because, of course, he had read the correspondence in question whereas the Guardian had not been able to. Thus, the Attorney stated that “the letters in this case are in many cases particularly frank” and that they “contain remarks about public affairs which would in my view, if revealed, have had a material effect upon the willingness of the government to engage in correspondence with the Prince of Wales”.
When in 2012 I read the Attorney General’s reasons for exercising his section 53 power, I thought “job done”. The Guardian had won. What mattered, I thought, was not getting hold of the correspondence, but establishing that the Heir to the Throne was acting certainly unwisely and inappropriately and probably unconstitutionally in his dealings with ministers. When the Attorney General concluded that disclosure of the correspondence “could seriously undermine the Prince’s ability to fulfil his duties when he becomes King” how could any other conclusion be sustained?
For these reasons I thought it was entirely unnecessary for the Guardian to challenge the Attorney General’s decision by way of judicial review: the newspaper was challenging a decision that had made its case for it.
Despite the fact that I was for the disclosure of the correspondence, I thought the Supreme Court (and Court of Appeal) were profoundly wrong in quashing the Attorney General’s section 53 certificate. This is because, on a matter such as this, deciding where the balance of public interests lies is not and should not be a question of law for the courts to rule on. Rather, it is and should be a question for responsible ministers to decide, accountable as they are for such a decision to Parliament. The critical words are those italicised: “on a matter such as this”. The question here is whether, on balance, the public interest in openness outweighs the public interest in safeguarding the confidentiality of correspondence between members of the Royal Family and government ministers. Now, had the Guardian been targeting Her Majesty the Queen, I would have had no hesitation in saying that the public interest clearly favoured non-disclosure. Throughout her reign, the Queen has been an exemplary modern monarch in jealously keeping her political opinions private. Regrettably, however, the contrast with the Heir to the Throne is stark. Because of his many and wholly voluntary public interventions in all manner of political controversies, from agriculture to architecture and from health to the armed services, there is a very real public interest in knowing what sort of influence he seeks to wield with ministers. Does this public interest outweigh that of maintaining confidentiality? That was the question in this case for the information commissioner, for the Upper Tribunal, and for the Attorney General.
Absent the Freedom of Information Act that question would have been entirely for the government departments and Royal Household to answer. It would not have been a question of law for any court or tribunal. FOIA created new legal rights and new legal remedies. Before that Act, neither statute nor the common law recognised general rights of access to government information – the control and publication of government information was left largely to the government to dictate. It would publish what it wanted when it wanted to: other information would generally remain closed and subject to such regimes as provided for in the Official Secrets Acts and the Public Records Act. It is important to bear in mind that FOIA did not replace a regime of access to information that had already been provided by the common law: there was no such regime.
At the time of the passing of the Freedom of Information Act, both government and Parliament knew that the new legal rights and remedies created by that legislation would sometimes result in determinations of where the balance of the public interest lies that would be at odds with the government’s view. But it was no part of the Act’s purpose (nor of Parliament’s intention) to turn the sometimes delicate question of where the balance of public interests lies into a question wholly of law for the courts uniquely. On the contrary, the “safety valve” of section 53 was expressly designed to ensure that, in the most sensitive cases, Parliament and responsible ministers would continue – as they always had – to have the last word. This is because the constitutional judgment of where the balance of the public interest lies is – and always has been – one for ministers. Why? Because it is a matter on which there is ample room for reasonable disagreement; it is a matter on which there should be open debate; it is a question, ultimately, of political judgment, not of legal right.
This is true not only in the context of freedom of information, but generally. Planning decisions that depend upon an assessment of where the balance of the public interest lies are recognised by the courts to be matters for responsible ministers. As Lord Hoffmann put it in the leading case of Alconbury, the constitutional principle is that “in a democratic country, decisions as to what the general interest requires are made by democratically elected bodies or persons accountable to them” ( 2 AC 295, at para 69). Lord Hoffmann was right about this in Alconbury, and the Supreme Court should have approached Evans in the light of this principle (as Lord Wilson pointed out in his dissent: para 171).
In 2012 the House of Commons Justice Committee undertook post-legislative scrutiny of the Freedom of Information Act. Jack Straw, who as Home Secretary had steered the measure onto the statute book, told the Committee that “the inclusion of the veto was something that I pursued vigorously, with the full support of Mr Blair. Without the veto, we would have dropped the Bill.” The all-party Committee concluded unanimously that “given that the Act has provided for one of the most open regimes in the world for access to information at the top of Government, we believe that the veto is an appropriate mechanism, where necessary, to protect policy development at the highest levels” (HC 96 of 2010-12, para 179). I respectfully agree, and it is unfortunate that the Justice Committee’s learned report on FOIA was not cited in Evans. Section 53 was and remains both a prudent and an important part of the Freedom of Information Act. It is statutory recognition of an important constitutional truth: that determining what is in the public interest may be a political question, appropriately left for responsible ministers rather than for the courts of law.
Evans is not the first time that the UK’s highest court has failed to have regard to this constitutional truth. In 1995 the House of Lords ruled by a three-to-two majority that the Home Secretary had acted unlawfully in announcing that he would not bring certain provisions of legislation into force (R v Home Secretary, ex parte Fire Brigades Union  2 AC 513). Dissenting in that case, Lord Mustill reminded their Lordships that if the minister had failed to have proper respect for parliamentary process, that was a matter for Parliament and not for the courts. So too here. Right or wrong, the Attorney General’s amply reasoned decision to use his section 53 power was a matter for Parliament, not for the courts. As Lord Mustill stated in the 1995 case to which I have just referred, it is to Parliament that we should turn “to check executive errors and excesses; for it is the task of Parliament and the executive in tandem, not of the courts, to govern the country” ( 2 AC 513, at 567).
Like the Fire Brigades Union case, Evans is animated by a sense that there is no such thing as a constitutional problem that cannot be solved by the judiciary and, perhaps also, that no constitutional problem is solved until it is solved judicially. Lord Hoffmann saw the folly of this in Alconbury, as did Lord Mustill in the Fire Brigades Union case. The failure by the majority in Evans to acknowledge that the rule of law is accompanied by other powerful means of constitutional accountability – in particular, by the rules and practices of ministerial responsibility to Parliament – encourages the courts to trespass into matters that are properly Parliament’s. Inevitably this politicises the judiciary and blurs constitutionally important lines between law and politics. When that happens, the first casualty is the integrity of the rule of law. None of this is necessary. None of this is desirable. And none of it is in the public interest.
Adam Tomkins is the John Millar Professor of Public Law at the University of Glasgow