The ‘Black Spider Memos’ case: An Introduction to Constitutional Law

Professor Mark Elliott

Some background

• The ‘black spider memos’• Freedom of information request• Government refusal• Information Commissioner• Tribunal orders release• Government uses veto power• Judicial review sought

Judicial review

CourtHigh Court

ExecutiveUK Government

LegislatureUK Parliament

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?

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?

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

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.

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.

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.

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.

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’

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)

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.

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

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?

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

Constitutional Law

The State The State

The Individual

www.publiclawforeveryone.com@ProfMarkElliott