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Notes:
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Decision and Annex 1 reported as [2015] AACR 38.
Freedom of information – public interest test – constitutional conventions – environmental information
In 2005 Mr Evans, a journalist, asked seven separate government departments to disclose details of their correspondence with Prince Charles under the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIR). After initially refusing to state whether or not they had any of the letters, the departments in due course admitted that they did, but refused to disclose them. The departments said, among other things, that the letters fell within the constitutional convention that the heir to the throne is entitled and bound to be instructed in and about the business of government (“the education convention”). Mr Evans complained to the Information Commissioner who held that in each case the relevant department had been entitled to maintain its refusal. Mr Evans appealed to the Information Tribunal, whose functions were subsequently transferred to the First-tier Tribunal, and his case was transferred to the Upper Tribunal (UT). Mr Evans argued that disclosure was in the public interest to the extent that it involved “advocacy” on the part of Prince Charles. The UT’s task therefore was to determine whether the law required the departments to provide Mr Evans with the “advocacy correspondence” falling within his requests.
Held, allowing the appeal, that:
1. under relevant legislative provisions Mr Evans would, in the circumstances of the present case, generally be entitled to disclosure of “advocacy correspondence” falling within his requests. The essential reason is that it will generally be in the overall public interest for there to be transparency as to how and when Prince Charles seeks to influence government. Although there were cogent arguments for non-disclosure, the public interest benefits of disclosure of “advocacy correspondence” generally outweighed the public interest benefits of non-disclosure (paragraph 4);
2. two features of Prince Charles’s activities provided a touchstone for identifying “advocacy correspondence”, namely that he has been “identifying charitable need and setting up and driving forward charities to meet it”, and has also been promoting views of various kinds. It would not usually be difficult to identify whether correspondence, or parts of correspondence, involved either or both of these features. When it did, then it would generally be right to characterise this material as “advocacy correspondence” (paragraphs 7 and 108 to 109);
3. constitutional conventions are not law and are not enforced by the courts. Two were of fundamental importance: the cardinal convention requiring the monarch to act on ministerial advice, and the tripartite convention entitling the monarch to be consulted, to encourage and to warn. The education convention was limited in scope. It had not been extended so as to include advocacy correspondence by Prince Charles. While Prince Charles’s “advocacy correspondence” was not unconstitutional, it would be inconsistent with the tripartite convention to afford constitutional status to the communication by Prince Charles, rather than the Queen, of encouragement or warning which ministers might then take account of (paragraphs 64 to 112);
4. the public had a legitimate interest in knowing what those seeking to influence government policy had been doing and what government had done in response, and thus be in a position to hold government to account. That public interest was a very strong one, and in relation to the activities of charities established or supported by Prince Charles it was particularly strong. Recognition that “advocacy correspondence” was generally disclosable would benefit the operation of the education convention by focusing the minds of the parties on the important principle that the education convention did not give constitutional status to “advocacy correspondence” (paragraph 160);
5. whether Mr Evans’s requests should be taken to include correspondence written by and sent in the name of a Private Secretary (or Assistant Private Secretary), and correspondence sent to a Private Secretary (or Assistant), depended upon their substance and the UT provided detailed guidance on the proper approach (paragraphs 244 to 249);
6. the ruling did not entitle an applicant to disclosure of purely social or personal correspondence or correspondence within the established education convention. Nor did it involve ruling on matters which did not arise in the present case. Moreover, since Mr Evans’s request, legislative changes had placed severe limitations on obtaining information from public authorities relating to communications with the heir to the throne for any request received on and after 19 January 2011 (paragraphs 3 and 8).
Editor’s note: following the decision, the Attorney General issued a certificate, under section 53(2) FOIA 2000 and regulation 18(6) EIR 2004, stating that he had formed the opinion that the departments had been entitled to refuse disclosure of the correspondence. This certificate was later held to be invalid by the Supreme Court in R (on the application of Evans) and another (Respondents) v Attorney General (Appellant) [2015] UKSC 21.
Notes to the June 2015 Annex and Appendix to June 2015 Annex:
In the September 2012 decision, the Upper Tribunal explained the reasons for reaching its conclusions on each topic in turn by reference to “open” evidence and submissions heard in public. Those conclusions were, however, only reached after consideration not only open material but also of closed evidence and submissions. The tribunal is now able, because of the publication which took place on 13 May 2015, to refer publicly to parts of the closed evidence and submissions which could not be referred to prior to that publication. The purpose of the Annex is to set out, on this basis, the main points made in closed evidence and submissions in relation to relevant sections of the September 2012 judgment, and where appropriate to set out the Upper Tribunal’s analysis of them. In doing so the Upper Tribunal cross-refers to the Appendix to the present annex which, on the same basis, contains supplementary material summarising the main features of closed evidence and argument.
Accordingly, on this basis, in section [June 2015] M of the Annex the Upper Tribunal explains its conclusions as to why particular documents are disclosable in whole or in part, subject only to the provisional redactions. In addition, to the extent that it can do so without revealing closed evidence concerning documents which are to remain closed, the Upper Tribunal explains why it concluded that certain documents, in whole or in part, were not disclosable.
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