R (on the application of Evans) and another v Attorney General

[2015] UKSC 21
UKSC 2014/0137
R (on the application of Evans) and another (Respondents) v Attorney General (Appellant)
On appeal from the Court of Appeal (Civil Division) (England and Wales)
This appeal related to whether written communications passing between the Prince of Wales and various government departments should be opened to the public under the Freedom of Information Act 2000 - or if the information should be exempt from disclosure.
Mr Evans is a journalist employed by Guardian News and Media Ltd. In April 2005 he sought disclosure under the FOIA of written communications passing between the Prince of Wales and various government departments. The departments refused the request; Mr Evans complained to the Information Commissioner, and subsequently appealed to the First-Tier Tribunal. Proceedings were transferred to the Upper Tribunal. The Upper Tribunal ordered that a category of information described as “advocacy correspondence” should be disclosed. The Attorney General made a decision to issue a certificate under s.53(2) FOIA overriding the decision of the Upper Tribunal. Mr Evans sought judicial review of the decision of the Attorney General on the grounds that it was unlawful because it was not based “on reasonable grounds” and was incompatible with the Environmental Information Directive and Article 47 of the EU Charter of Fundamental Rights. The issue before the Supreme Court was whether the certificate was valid, and in particular (i) whether the Attorney General was entitled to issue a certificate under section 53 FOIA 2000 that he had “on reasonable grounds” formed the opinion that the Departments had been entitled to refuse disclosure; (ii)(a) whether, in any event, regulation 18(6) EIR 2004 complies with the relevant provisions of EU law; and (b) if it does not, whether the certificate can stand even in relation to the non-environmental information.
The Supreme Court dismisses the Attorney General’s appeal. By a majority of 5:2 the Court considers that the Attorney General was not entitled to issue a certificate under section 53 FOIA 2000 in the manner that he did and therefore that the Certificate was invalid. By a majority of 6:1 the Court holds that reg.18(6) is incompatible with the 2003 Directive and must be treated as invalid, and therefore that the Certificate would in any event have been invalid insofar as it related to environmental information.