A Tangled Constitutional Web: The Black-Spider Memos and the British Constitution's Relational Architecture

Abstract

This paper examines the decision of the UK Supreme Court in R (Evans) v Attorney-General [2015] UKSC 21, [2015] 2 WLR 813. The case, which concerned the legality of the UK Government's attempt to block the disclosure under the Freedom of Information Act 2000 of correspondence between the Government and the Prince of Wales, raises a series of interlocking constitutional questions. The paper considers the significance of the Supreme Court's judgment by reference to those questions, paying particular attention to the light it casts upon the relationship between the constitutional doctrines of parliamentary sovereignty, the rule of law and the separation of powers. The paper distinguishes two distinct judicial techniques adopted in the case - turning respectively upon administrative-law and constitutional-law methodology - and assesses the legitimacy of the strikingly activist approach evidenced by those judges who adopted the latter methodology.

Keywords: constitutional law, administrative law, rule of law, parliamentary sovereignty, separation of powers, freedom of information

JEL Classification: K00, K10, K19, K20, K29, K30, K39