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The ‘Black Spider Memos’ case: An Introduction to Constitutional Law
Professor Mark Elliott
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Some background
• The ‘black spider memos’• Freedom of information request• Government refusal• Information Commissioner• Tribunal orders release• Government uses veto power• Judicial review sought
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Judicial review
CourtHigh Court
ExecutiveUK Government
LegislatureUK Parliament
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The legal issue in Evans
CourtHigh Court
ExecutiveUK Government
By overruling the tribunal, had the
Government unlawfully exercised its power
under section 53 of the Freedom of Information
Act 2000?
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Freedom of Information Act 2000, s 53(2)
‘A decision notice or enforcement notice to which this section applies shall cease to have effect if, not later than the twentieth working day following the effective date, the accountable person in relation to that authority gives the Commissioner a certificate
signed by him stating that he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned,
there was no failure falling within subsection (1)(b).’
Were there reasonable grounds for believing that the public interest favoured non-disclosure?
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The judgments in Evans
Majority Minority
The Government had acted unlawfully by
attempting to override the tribunal
The Government was lawfully entitled to override the tribunal
Lord Neuberger, Lady Hale, Lord Kerr, Lord Reed,
Lord Mance
Lord Hughes, Lord Wilson
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Lord Neuberger
A statutory provision which entitles a member of the executive … to overrule a decision of the judiciary
merely because he does not agree with it would not merely be unique in the laws of the United
Kingdom. It would cut across … constitutional principles which are … fundamental components of
the rule of law.
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Lord Neuberger
[I]t is a basic principle that a decision of a court is binding as between the parties, and cannot be
ignored or set aside by anyone, including (indeed … least of all) the executive.
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Lord Neuberger
[D]ecisions and actions of the executive are … reviewable by the court at the suit of an interested citizen … [A broadly construed veto power] stands
[this principle] on its head.
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Lord Neuberger
[I]f section 53 is to have the remarkable effect argued for by … the Attorney General, it must be crystal clear from the wording of the FOIA 2000,
and cannot be justified merely by general or ambiguous words.
In my view, section 53 falls far short of being ‘crystal clear’ in saying that a member of the
executive can override the decision of a court because he disagrees with it.
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Lord Neuberger
Veto power only exercisable if
• ‘a material change of circumstances since the tribunal decision’; or
• ‘the decision of the tribunal was demonstrably flawed in fact or in law’
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Parliamentary sovereignty
The principle of Parliamentary sovereignty means neither more nor less than this, namely that Parliament … has … the right to make or
unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set
aside the legislation of Parliament.
Professor AV DiceyAn Introduction to the Study of the Law of the Constitution (1885)
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Lord Wilson
How tempting it must have been … to seek to maintain the supremacy of the … decision of the Upper Tribunal in favour of disclosure of the Prince’s correspondence! But
the Court of Appeal [and the majority in the Supreme Court] ought … to have resisted the temptation.
For, in reaching its decision, the Court … did not in my view interpret section 53 … It re-wrote it. It invoked
precious constitutional principles but among the most precious is that of parliamentary sovereignty, emblematic
of our democracy.
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Competing principles
Rule of law
Parliamentary sovereignty
• Government subject to law
• Government bound by courts’ and tribunals’
decisions
• Giving effect to Parliament’s will
• Parliament, because sovereign, can override
rule of law
Majority Minority
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Disagreement and uncertainty
Surface level
Deeper level
• What does the statute mean? • What powers does Government have?• Have powers been unlawfully used?
• What do fundamental principles mean?• How do they relate to each other?• Is Parliament really sovereign?
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The Jackson case
[T]he supremacy of Parliament is still the general principle of our constitution … [But] [i]n exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the
courts, the … Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament … cannot abolish.
Lord Steyn
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Constitutional Law
The State The State
The Individual
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www.publiclawforeveryone.com@ProfMarkElliott