[2015] UKSC 21 — Anonymized Structured Summary
Factual and Procedural Background
The case concerned a request (made in April 2005) by Respondent 1 (a journalist) for disclosure of communications exchanged between a Member of the Royal Family and Ministers in various government departments (the “Departments”) between September 2004 and March 2005 (the “letters”). The Departments ultimately confirmed they held the letters but refused disclosure, relying on exemptions in the Freedom of Information Act 2000 (“FOIA”) (including sections 37, 40 and/or 41) and equivalent provisions in the Environmental Information Regulations 2004 (“EIR”).
Respondent 2 (the Information Commissioner) upheld the refusals in reasoned determinations issued in December 2009. Respondent 1 appealed; the appeal was transferred to the Upper Tribunal (“UT”), which conducted a full hearing (including evidence and argument over six days). On 18 September 2012 the UT determined that many of the letters—described as “advocacy correspondence”—should be disclosed.
The Departments did not appeal the UT determination. Instead, on 16 October 2012 the Appellant (the Attorney General, acting as the “accountable person”) issued a certificate under section 53(2) FOIA and regulation 18(6) EIR stating that, on reasonable grounds, the Departments had been entitled to refuse disclosure; the certificate’s effect (if valid) was to override the UT outcome and prevent disclosure.
Respondent 1 sought judicial review to quash the certificate. The Divisional Court dismissed the claim, but the Court of Appeal allowed an appeal on both domestic-law and EU-law grounds and quashed the certificate. The Appellant appealed to the Supreme Court, which dismissed the appeal (with dissenting judgments).
Legal Issues Presented
- Whether, under section 53(2) FOIA, the Appellant could lawfully certify “on reasonable grounds” so as to override a UT determination ordering disclosure, where the certification was based on a different assessment of the same material.
- Whether, so far as the certificate applied to “environmental information”, regulation 18(6) EIR (applying section 53 FOIA) was incompatible with article 6 of Council Directive 2003/4/EC (and/or article 47 of the EU Charter), such that executive override of the UT determination was impermissible.
- If the certificate were unlawful only in relation to environmental information, whether it could nonetheless stand in relation to non-environmental information (a point discussed hypothetically).
Arguments of the Parties
Appellant’s Arguments
- Section 53 FOIA expressly permits an “accountable person” (including the Attorney General) to override a disclosure decision, including after an appeal has been determined, and therefore after a tribunal/court decision.
- “Reasonable grounds” should be understood as requiring cogent reasons; it was said to be enough that the Appellant reasonably disagreed with the UT’s public-interest assessment, particularly where the Information Commissioner’s earlier position supported non-disclosure and the UT acknowledged cogent arguments against disclosure.
- For environmental information, the requirements of article 6 of Directive 2003/4/EC were said to be met because the certificate could be challenged by judicial review, which (it was argued) provided the necessary court oversight.
Respondent 1’s Arguments
- As a matter of constitutional principle and statutory interpretation, section 53 should be read restrictively: an executive actor should not be able to override a judicial decision merely because the executive disagrees with it on the same facts and arguments.
- In relation to environmental information, article 6 of Directive 2003/4/EC (supported by EU Charter article 47) was said to require that final decisions of an independent tribunal be binding on the authority holding the information, precluding executive override after the UT determination.
Respondent 2’s Position (as reflected in the opinion)
- Respondent 2 was described as no longer resisting disclosure in the Supreme Court proceedings.
- On the EU-law issue, submissions were made supporting the view that article 6 of Directive 2003/4/EC required binding finality of the tribunal route and left no room for executive override after the UT decision.
Intervener’s Position (as reflected in the opinion)
- The co-existence of the section 53 “veto” and the section 57 appeal route was said to raise difficulties, including questions about when the executive should appeal rather than certify.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| M v Home Office [1994] 1 AC 377 |
Executive obedience to law is a necessity, not a matter of grace. |
Used to underline the constitutional impropriety of the executive overriding judicial decisions simply by disagreement. |
| Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 |
Ouster clauses are construed so courts can review whether a purported decision is a nullity; strong presumption for judicial supervision. |
Supported restrictive interpretation where executive action would undermine court supervision and the rule of law. |
| In re Racal Communications Ltd [1981] AC 374 |
Presumption that Parliament does not intend an administrative body to be final arbiter on questions of law. |
Reinforced legality-based approach to interpreting section 53 in a way consistent with judicial authority. |
| R v Cheltenham Commissioners (1841) 1 QB 467 |
Even “final and conclusive” language may not oust the court’s supervisory role to ensure statutory compliance and justice. |
Used as historical support for robust judicial superintendence over executive/administrative action. |
| Jackson v Her Majesty's Attorney General [2005] UKHL 56, [2006] 1 AC 262 |
Courts will not hold Parliament interfered with fundamental rights unless intention is “crystal clear”. |
Informed the requirement of clear statutory language before allowing executive override of judicial determinations. |
| R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115 |
Principle of legality: fundamental rights not overridden by general or ambiguous words. |
Supported reading “reasonable grounds” contextually to avoid undermining fundamental constitutional principles. |
| AXA General Insurance Ltd v HM Advocate [2011] UKSC 46, [2012] 1 AC 868 |
Legality principle also prevents conferring (by general/ambiguous words) power on another body to override rule of law/fundamental rights. |
Used to resist construing section 53 as an open-ended executive power to overturn judicial outcomes. |
| R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539 |
General statutory powers are not taken to authorise acts undermining legal rights/basic constitutional principles absent clear intention. |
Cited (via AXA) to reinforce restrictive construction in the face of constitutional fundamentals. |
| R v Warwickshire County Council, Ex p Powergen plc (1997) 96 LGR 617 |
Where an independent process has determined an issue after proper procedure, a later decision-maker may be precluded from contradicting it on the same basis. |
Treated as illustrative (not determinative) of constraints on later executive/administrative re-litigation of decided matters. |
| R v Secretary of State for the Home Department, Ex p Danaei [1998] INLR 124 |
Later executive decisions should accept earlier adjudicative findings unless demonstrably flawed or fresh material emerges. |
Used as an analogy for when departure from an earlier adjudicative conclusion may be legitimate. |
| R (Bradley) v Secretary of State for Work and Pensions (Attorney General intervening) [2009] QB 114 |
Not enough to reach a rational different view; must have a reason beyond preferring one’s own view, viewed against legislative intention. |
Used as guidance for assessing when a later executive decision may lawfully reject an earlier statutory decision-maker’s conclusion. |
| Department for The Environment, Food and Rural Affairs v Information Comr (Birkett) [2011] EWCA Civ 1606, [2012] PTSR 1299 |
Timing/reference-date principles in EIR/Directive context; later matters may be relevant if they cast light on circumstances at the reference date. |
Relied upon to explain admissibility of evidence/matters and the “reference date” approach in FOIA/EIR decision-making and certification context. |
| Case C- 286/06 Impact v Minister for Agriculture and Food [2008] ECR I-2483 |
Member States choose form/methods and procedural rules to safeguard EU rights (subject to principle/requirements of EU law). |
Distinguished: the issue was said to be one of principle (final/binding effect under article 6), not mere procedural detail. |
| Prohibitions del Roy [1607] EWHC KB J23, 77 ER 1342 |
Classic separation of powers point: executive/monarch cannot determine issues of law. |
Used (in dissent) to distinguish impermissible override on law from permissible executive judgment on public-interest evaluation. |
| R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295 |
In a democratic country, decisions as to general interest are for democratically accountable decision-makers; judicial review provides legality supervision. |
Used (in dissent) to justify executive override confined to public-interest evaluation and controlled by judicial review. |
| Al Rawi v Security Service (JUSTICE intervening) [2011] UKSC 34, [2012] 1 AC 531 |
Relevance to whether the High Court has inherent power to use closed material procedures without statutory authority. |
Referenced in dissent as an unresolved issue because no application was made for the High Court to view the letters in closed session in the judicial review. |
| T-Mobile (UK) Ltd v Office of Communications [2008] EWCA Civ 1373, [2009] 1 WLR 1565 |
Judicial review jurisdiction may be flexible enough to meet EU requirements for an effective appeal mechanism taking merits duly into account. |
Used (in dissent) in considering whether judicial review could satisfy the Directive’s “review before a court” requirement. |
Court's Reasoning and Analysis
Domestic-law issue (section 53 FOIA): A majority held that interpreting section 53(2) as permitting a member of the executive to override a judicial determination merely because the executive disagreed would conflict with fundamental constitutional principles: (i) that judicial decisions are binding between the parties unless overturned by a higher court or statute, and (ii) that executive action is ordinarily subject to judicial review rather than vice versa. Applying the principle of legality (requiring “crystal clear” statutory language before fundamental principles are displaced), the majority concluded that section 53 was not sufficiently explicit to authorise such an override on the same material.
The majority therefore construed “reasonable grounds” contextually: it was not reasonable (within section 53) to issue a certificate simply because the accountable person reached a different public-interest balance on the same facts and arguments already assessed by a judicial tribunal after a full public adversarial hearing. The majority accepted that section 53 must retain some post-tribunal function, but identified narrow categories such as material change or demonstrable flaw (or other limited circumstances) as examples of when certification might be possible.
Application to this certificate: On the majority view, the certificate was invalid because it amounted to an executive re-evaluation contrary to the UT’s determination on the same material, rather than being justified by the limited kinds of grounds that could permissibly support a post-UT certificate.
EU-law issue (Directive 2003/4/EC and environmental information): The majority also held that, insofar as the letters contained environmental information, article 6 of Directive 2003/4/EC required that once an applicant has access to a review before a court or independent and impartial body whose decision may become final, final decisions must be binding on the public authority. After the UT determination ordering disclosure, an executive “veto” under section 53/regulation 18(6) was held inconsistent with the structure and wording of article 6. Judicial review of the certificate was not treated as curing the problem, particularly because article 6(2) was understood to require a full merits review, and because the Directive envisaged final, binding outcomes of the independent review route.
The Court considered it unnecessary to decide whether EU Charter article 47 provided an additional or reinforcing basis, preferring to leave that question open. The judgment also addressed (hypothetically) whether incompatibility as to environmental information would taint the certificate generally; one majority judge would have treated the certificate as severable, invalidating it only as to environmental information if it were otherwise valid.
Concurring and dissenting approaches: Another member of the majority agreed that “reasonable grounds” required more than mere rationality and concluded that the certificate improperly departed from the UT’s detailed findings (including as to constitutional conventions and asserted consequences of disclosure) without adequate justification. Dissenting judges considered that section 53’s plain words authorised executive override (in exceptional circumstances and subject to judicial review), including disagreement with the UT’s public-interest assessment; one would have allowed the appeal save as to environmental information, and another would have allowed the appeal and rejected the EU-law objection.
Holding and Implications
DISMISSED: The Supreme Court dismissed the Appellant’s appeal. The effect was that the certificate was set aside, with the consequence (as described in the opinion) that the UT determination permitting disclosure of the “advocacy correspondence” would stand.
Implications: The decision construed section 53(2) FOIA restrictively in the context of overriding judicial/tribunal determinations: the executive cannot lawfully nullify such a determination merely by reaching a different view on the same material. The Court also held that an executive override mechanism (as applied through regulation 18(6) EIR) was irreconcilable with the binding-finality requirements in article 6 of Directive 2003/4/EC in relation to environmental information. The judgment records dissenting views, indicating that the Court was divided on the domestic-law construction of section 53 and (in one dissent) on the EU-law analysis.