UK Court Blunts Government Veto of Releasing Royal Mail

26 March 2015

A British journalist has won a case to get access to letters sent by Prince Charles to government agencies, a decision has ignited debate about when the government should be able to “veto” disclosures under the Freedom of Information Act.

The Supreme Court ruling prompted Prime Minister David Cameron to issue a statement saying that the law will need to be amended to reinforce the veto and make its future use clear and unassailable.

The impending disclosure of the Prince’s so-called “black spider” letters will provide an unusual look at royal correspondence, unlikely to be repeated. In 2010, a FOIA exemption was passed that will prevent any such glimpses in the future.

The 27 letters, sought 10 years ago by journalist Rob Evans and the Guardian, were sent to government departments. See Guardian coverage.

The Supreme Court ruled, 5-2, that ministers can’t veto decisions of the Upper Tribunal, which had ordered disclosure, without justification.

The Court’s majority judgment states it is a fundamental principle that “a decision of a judicial body should be final and binding and should not be capable of being overturned by a member of the executive.”

UK Deputy Information Commissioner Graham Smith wrote a blog post March 26 addressing the ramifications of the decision, noting that the Upper Tribunal may need to “finalize” their disclosure order. With regard to the veto, Smith’s reading of the court split ends with his observation,  “The picture isn’t quite so clear with the Freedom of Information Act.”

Commentary Focuses on Veto

“This ruling is important – and for me, pleasantly surprising,” FOIMan Blogger Paul Gibbons wrote, continuing:

But in many ways, the most important implication of this ruling has nothing to do with the Royal Family. The point of this appeal was to consider whether the Attorney General was entitled to exercise the controversial veto at section 53 of FOI. And the judgment says some pretty important things about the veto.

 He called it a “huge defeat for the government.” He warned:

Today’s ruling will lead to another period of reevaluation of FOI by government, and may well provoke attempts to provide more protection for government information. FOI campaigners and others will need to be vigilant.

The Campaign for Freedom of Information welcomed the decision, pointing out that three of the five Supreme Court judges “held that the veto can only be used if ministers can show that the facts or circumstances have changed substantially since the Tribunal’s decision.” The statement continued: “The other two of the five held that the veto could be used but only where there was the ‘clearest possible justification’ which did not exist in this case.”

The Supreme Court also ruled that decisions under the Environmental Information Regulation can’t be vetoed at all, the Campaign statement also said, because the veto is not permitted by the underlying European legislation.

Campaign director Maurice Frankel said:

This is a critical decision which strengthens the FOI Act. It says the courts not ministers normally have the last word.  If the government disagrees with a ruling on good grounds it should appeal. The veto is not a trump card to be slipped out of a minister’s sleeve to block any embarrassing disclosure.  Minister will now have to argue their case not impose it.

BBC FOIA expert Martin Rosenbaum observed that the Supreme Court’s judgment, “which implies that `advocacy correspondence’ from Prince Charles to ministers should be made public, will allow us all greater insight to make up our own minds on this question.”

The case “has wider implications for freedom of information,” he wrote, continuing:

The outcome represents a fundamental challenge to the use of the ministerial veto to block release of material which the government particularly feels the need to keep secret, after either the information commissioner or the Tribunal has ruled it should be published.

Ministers have also used this veto, which government regards as a vital backstop, in several other cases, including requests for legal advice on the Iraq war, cabinet minutes on devolution policy, an NHS risk register and a review of the proposed HS2 railway by the government’s Major Projects Authority.

The implication of the judgment is to curb dramatically the way in which the ministerial veto can be exercised, compared to how it has functioned so far in practice.

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