Who judges the public interest? The future of the rule of law
The case, Evans v Attorney General  UKSC 21, concerned the Attorney General’s exercise of the so-called ministerial veto – the power under section 53 of the Freedom of Information Act 2000 (FOIA) – to block release of the Prince of Wales’s letters to departments. The Information Commissioner had said disclosure of the letters was not in the public interest. The Upper Tribunal disagreed. Finally, the Attorney General, agreeing with the Commissioner, exercised his power to override the Tribunal.
Astonishingly, a majority of the Supreme Court (five of seven judges) quashed the Attorney General’s exercise of his power to overrule a decision of the Tribunal – a decision about whether disclosure was in the public interest. As the dissenting judges, Lord Hughes and Lord Wilson, made clear, the two majority judgments in the Supreme Court do not respect the choice Parliament made in enacting the FOIA. And after Evans, any future exercise of the ministerial veto risks legal challenge.
Welcomed by some as a victory for the separation of powers, we contend that the judgment in fact flouts the separation of powers and the rule of law. The Supreme Court undermined Parliament’s democratic choice to entrust senior ministers with the final responsibility to judge what the public interest requires – ministers who are, after all, accountable to Parliament.
The paper explains how the first majority judgment, by Lord Neuberger (joined by Lord Reed and Lord Kerr), misinterprets section 53, imposing an extremely implausible meaning which effectively removes the section from the statute book. The misinterpretation was grounded, we say, on a dubious theory about the entitlement of judges to protect constitutional principle by disregarding Parliament’s clearly expressed will. We also argue that the court is quite simply wrong about the relevant constitutional principles in the case: questions of the public interest are quite properly entrusted to the executive, accountable to Parliament.
The second majority judgment, by Lord Mance (joined by Lady Hale), is less glaringly wrong but is nonetheless also highly problematic. While nominally resisting Lord Neuberger’s misinterpretation, Lord Mance effectively achieves the same outcome by concluding that the Attorney General was not entitled to take a different view to the Tribunal about the existence and significance of constitutional conventions and about possible public reaction to the release of the letters. These were questions, we maintain, that were rightly for the Attorney General himself to decide, for which he was accountable to Parliament, in the way the scheme of the FOIA contemplates and encourages.
The Supreme Court in Evans brings together two very troubling trends in our public law: (a) the judicial temptation (as Lord Wilson put it, in dissent) to rewrite statutes of which the courts disapprove, and (b) the overly intrusive review of statutory powers, which wrongly privileges judicial views about the public interest over executive views, ignoring the constitutional importance of political accountability. (This second trend, of which Evans is but one example, will be explored further in a forthcoming paper for the Judicial Power Project by Jason Varuhas of Cambridge University and UNSW.)
The central significance of Evans is not in its consequences for the monarchy (the Prince of Wales’s correspondence is now subject to an absolute exemption under the FOIA) or even in its implications for the workability of the FOIA and the efficient carrying on of cabinet government (although that is obviously very important). Rather, the case demonstrates the willingness of some – but certainly not all – senior judges to undermine clear statute and to overturn lawful executive action. It is not much comfort that the judges in question, no doubt sincerely, think and say that they are acting to secure the constitution. As Lord Hughes says in dissent, the rule of law is not the rule of courts whatever the statute may say. In our constitution, Acts of Parliament are changed only by Parliament itself, not by judicial fiat, whether in the form of misinterpretation or intrusive judicial review.
Any future exercise of the ministerial veto is vulnerable to legal challenge. And this means that the authoritative choice Parliament made some fifteen years ago – a choice to enact freedom of information legislation that includes a ministerial veto – has been undone by judicial action. Our constitution forbids just such judicial action. Whatever one thinks about the merits of the FOIA, it follows that there are very good reasons for Parliament now to act to reverse Evans. The point would not be to protect the Prince of Wales’s correspondence – that horse has bolted. Instead, Parliament now should act to restore and to defend the choice it made in enacting the FOIA in the first place. Our paper proposes a draft bill which would meet this end.
The courts have a vital constitutional role to play in maintaining the rule of law. But they subvert the rule of law and parliamentary democracy when they fail to obey the will of Parliament expressed in statute and when they override the executive’s exercise of its statutory powers. The judicial action in Evans is remarkable and unconstitutional. If the rule of law is not in future to be reduced to the rule of courts then Parliament should act now to answer the Supreme Court and to affirm its authority.
Professor Richard Ekins is a Fellow of St John’s College and an Associate Professor in the University of Oxford. He leads Policy Exchange’s Judicial Power Project.