Judging the Public Interest: The Rule of Law vs. The Rule of Courts

27 Pages Posted: 1 Oct 2016

See all articles by Richard Ekins

Richard Ekins

University of Oxford - Faculty of Law

Christopher F. Forsyth

University of Cambridge

Date Written: November 19, 2015


Six days after the general election in May this year, the Cabinet Office released the Prince of Wales’s correspondence with ministers, a course of action which was required by the Supreme Court judgment in Evans v Attorney General. The content of the letters has attracted much public attention. But what has largely escaped notice is the remarkable nature of the judgment itself, which is a striking instance of judicial overreach. This paper shows how the judgment compromises the rule of law by undercutting the Freedom of Information Act 2000 (FOIA) and recommends that Parliament act swiftly to overturn the judgment.

The dispute in Evans v Attorney General did not concern the content of the Prince of Wales’s letters. Instead, the question for the Supreme Court was whether it was lawful for the Attorney General to block their disclosure. Ten years ago, Rob Evans of The Guardian requested release of the Prince’s letters under the FOIA. The departments who held the letters refused on the grounds that it would not be in the public interest to release them. The Information Commissioner agreed but on appeal the Upper Tribunal disagreed and ordered their disclosure. The then Attorney General, Dominic Grieve QC, exercised his statutory power – sometimes called the ministerial veto – to override the Tribunal and block disclosure. His exercise of this power was challenged in the courts and eventually quashed by the Supreme Court.

The Attorney General took a different view of the public interest to that of the Tribunal. Section 53 of the FOIA clearly authorises the Attorney General (or a Cabinet Minister) to override a decision of the Information Commissioner or Tribunal ordering disclosure; in effect, it provides that the Attorney General’s view of the public interest is to prevail. How then could a majority of the unelected Supreme Court (five of seven judges) quash the Attorney General’s exercise of a power granted by our sovereign, representative Parliament, a Parliament to whom the Attorney General was accountable for the exercise of the power?

Lords Neuberger, Kerr and Reed imposed a strained and implausible interpretation on section 53, ruling that it did not authorise the Attorney General to override the Tribunal. This interpretation would effectively have excised the section from the statute book. The other four judges rejected this misinterpretation. But, Lord Mance and Lady Hale nonetheless joined Lords Neuberger, Kerr and Reed in quashing the Attorney General’s action, holding that it was unreasonable and hence unlawful for him to depart from the Tribunal’s findings, including findings about the scope and relevance of constitutional conventions and about the risks of public misperception. This line of reasoning also sharply limited the scope of the section 53 power and was not consistent with – indeed, it frustrated – the scheme that Parliament chose in enacting the FOIA.

The two majority judgments illustrate the two main ways in which some judges – but certainly not all – undercut the decisions of the executive and Parliament, privileging their own views about what should be done. The first is the misinterpretation of legislation, in which courts impose on a statute an artificial reading that departs from Parliament’s intention, misunderstanding the statute or even in some cases rewriting it. The second is excessively intrusive judicial review, in which the courts override the executive’s decision about how best to exercise the powers that Parliament chose to vest in it. These modes of action are judicial overreach and they compromise the fundamentals of our constitution.

The problematic nature of the majority judgments is made clear by Lord Hughes and Lord Wilson in dissent. They each rejected flatly any interpretation of section 53 that was inconsistent with Parliament’s intention and rejected also an approach to judicial review that in effect undermined the Attorney General’s statutory power and responsibility.

This paper explains the changes in legal culture that made quashing the Attorney General’s exercise of the power, and so maintaining the supremacy of the Tribunal, seem an open judicial option, rather than a temptation to be resisted, as Lord Wilson put it. The basic problem with the majority judgments is that they confuse the rule of law with the rule of courts and discount the constitutional importance of political accountability. It is not contrary to the rule of law to authorise a minister to overrule a tribunal’s decision about the public interest in disclosing official information, for which view the minister is responsible to Parliament. In any case, suppressing the minister’s statutory power and undercutting the scheme Parliament enacted is itself forbidden by the rule of law.

Neither the Human Rights Act 1998 nor the European Convention on Human Rights require or permit the judicial overreach one sees in Evans v Attorney General. So even if Parliament were to repeal the Human Rights Act and the UK were to withdraw from the Convention this kind of judicial overreach would remain a problem. Indeed, whatever the merits or demerits of the Human Rights Act, it was enacted by Parliament and not adopted by judicial fiat. By contrast, the expansion of judicial power that this paper considers has never been chosen by Parliament and is inconsistent with the authority of Parliament in our constitution.

This wayward judgment should be answered. If the general election had not made the timing impossible, it would have been entirely proper for Parliament to have reinstated the Attorney General’s decision to block disclosure or at least to have authorised a new Attorney General to reconsider the matter. Legislation to this effect would have warranted support no matter what one thinks about the Prince of Wales’s correspondence. For, to be clear, this paper takes no view on (a) the content or propriety of the Prince’s letters or (b) whether the public interest did or did not warrant disclosure of the letters. Likewise, the paper’s concern is not with the merits of the Freedom of Information Act 2000. Whatever one thinks of the Act’s merits, it should have been – but was not – faithfully applied by the Supreme Court.

After Evans v Attorney General, the ministerial exercise of the power to block disclosure remains vulnerable to legal challenge. This state of affairs is inconsistent with the lawmaking choice that Parliament made in enacting the FOIA, a choice that in our constitution should not be undermined by judicial action. For this reason, we recommend that Parliament enact legislation to restore the legal rule that was enacted fifteen years ago. We propose a bill to this effect, which is attached to this paper as an appendix. In enacting legislation of this kind, and in standing ready to reverse other judgments that overstep the mark, Parliament affirms both the rule of law and its continuing authority to legislate.

Suggested Citation

Ekins, Richard and Forsyth, Christopher F., Judging the Public Interest: The Rule of Law vs. The Rule of Courts (November 19, 2015). University of Cambridge Faculty of Law Research Paper No. 49/2016. Available at SSRN: https://ssrn.com/abstract=2845448 or http://dx.doi.org/10.2139/ssrn.2845448

Richard Ekins

University of Oxford - Faculty of Law ( email )

St Giles
Oxford, Oxfordshire OX1 3JP
United Kingdom

HOME PAGE: http://www.law.ox.ac.uk/profile/richard.ekins

Christopher F. Forsyth (Contact Author)

University of Cambridge ( email )

Trinity Ln
Cambridge, CB2 1TN
United Kingdom

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