Legal brief: From our royal correspondent

5th June 2014

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Marcus Dennis

Stephen Tromans says a court decision to reveal the content of communications between Prince Charles and government ministers will improve access to environmental information

In R (Evans) v Attorney General [2014] EWCA Civ 254, a journalist employed by the Guardian sought disclosure, under the Freedom of Information Act 2000 and the Environmental Information Regulations 2004, of several written communications between the Prince of Wales and various government departments in 2004 and 2005.

The departments refused disclosure and the information commissioner upheld those decisions. On appeal, the Upper Tribunal ruled that the communications should be disclosed because they were defined as “advocacy correspondence”.

The attorney general then issued a certificate purporting to override the decision of the tribunal because, in his opinion, there was no failure on the part of the departments to comply with the Act and Regulations. The attorney general considered that the public interest favoured withholding the information to preserve the political neutrality of the Prince of Wales and ensure that he was not inhibited from corresponding frankly with ministers.

On appeal, the Court of Appeal focused on several issues, including the test for determining whether the attorney general had shown “reasonable grounds” for forming his opinion and whether the issue of a certificate to override a decision of the tribunal was compatible with EU law – in particular, the Environmental Information Directive (2003/4/EC) and art 47 of the EU Charter of Fundamental Rights.

Tell all

Lord Dyson, master of the rolls, gave the court’s judgment in favour of disclosure. He stated that where the decision of the attorney general was contrary to the earlier decision of an independent and impartial body that had conducted a full examination, there had to be something more than a mere disagreement on the same material for it to be reasonable to overrule that decision.

In R (Evans) the attorney general did not have any additional material and it had not been suggested that the tribunal made any error of law or fact, and the decision was accepted to be a reasonable one. It was, therefore, not reasonable for the attorney general to issue a certificate merely because he disagreed with the tribunal’s decision.

On the question of compatibility with EU law, the UK Act had to be read as not permitting the power to be exercised where, as in the present case, a tribunal had ruled that environmental information must be disclosed and the public authority against which the ruling was made had chosen not to appeal. Unless read in that way, the section would be incompatible with the Directive insofar as the information subject to the decision notice is deemed to be environmental information.

Final and binding?

Article 6(2) and (3) of the Directive require that an applicant is able to access a review by a court or another independent and impartial body, which should consider the acts or omissions of the public authority concerned. The decisions of the court or other body become “final” and “binding”.

The existence in the UK of the right to seek judicial review of a certificate was not sufficient to meet the requirements of art 6(2), however. First, such a judicial review of a certificate was substantively different from a review by a court, or other independent body, of the acts or omissions of the public body concerned. Second, where a member state provided a procedure in accordance with art 6(2), it was incompatible with art 6(3) for the state to confer on the executive a right to override a decision made in accordance with that procedure. Such a right would necessarily mean that the decision was not final and binding.

Third, anyone whose rights under EU law were violated had the right to an effective remedy before a tribunal, which complied with the requirements of the Charter of Fundamental Rights. The scope of that right was equivalent to the right of access to a court under art 6 of the European Convention on Human Rights. For these reasons, the certificate was incompatible with EU law insofar as the information to which it related was environmental information.

While somewhat esoteric in terms of the princely subject matter, the decision has great significance in terms of the public’s rights of access to environmental information and can expect to be widely cited in future.

The law in summary

The Freedom of Information Act 2000 aims to provide public access to information held by public authorities. The Act covers any recorded information that is held by a public authority in England, Wales and Northern Ireland, and by UK-wide public authorities based in Scotland. Scottish public authorities are covered by Scotland’s own Freedom of Information (Scotland) Act 2002.

Likewise, the Environmental Information Regulations 2004 provide public access to environmental information held by public authorities, such as government departments, local authorities and the NHS. The Regulations cover any recorded information held by such bodies in England, Wales and Northern Ireland. Scottish public authorities are covered by the Environmental Information (Scotland) Regulations 2004.

EU Directive 2003/4/EC aims to ensure that environmental information is systematically available and distributed to the public across the bloc. The EU Charter of Fundamental Rights brings together in a single document individuals’ fundamental rights and freedoms under six titles: dignity, freedoms, equality, solidarity, citizens’ rights and justice.

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