Sunday, 29 March 2015

Constitutional vandalism

The Supreme Court has no right to unilaterally ignore the plain meaning of legislation in order to send whatever political message it wants to send. But that is exactly what it has done, to varying degrees, in the case of Evans.

As is well known, in Evans the Guardian was trying to get letters sent by Prince Charles to government departments published, so they made a Freedom of Information request. The Upper Tribunal, which is according to statute a 'court of record', in a very full judgement, decided to allow the request to have the letters published.

However, the Attorney General used his power under s. 53 of the Freedom of Information Act to issue a certificate stopping the publication, despite the Upper Tribunal's decision. Under s. 53 the certificate must state that the Attorney General has made his decision "on reasonable grounds."

The case would appear to be very simple then. Provided the Attorney General's decision was on reasonable grounds, it was within his powers to issue a certificate stating that. If he followed the statutory requirements, s. 53 annulled the effect of any previous decision, including the decision of the Upper Tribunal.

In my opinion, the Attorney General's grounds were ridiculous. Among them was one arguing that if the letters were published, we would find out that Prince Charles had political views, and that this would compromise his position as a neutral head of state. Quite frankly, it is Prince Charles himself who has compromised his position by refusing to stay out of politics, and not the publication of the letters.

But that is just my opinion.

The Upper Tribunal, as well as the Supreme Court, accepted that some of the Attorney General's grounds were reasonable. The Upper Tribunal merely thought that the opposing grounds outweighed them.

Nevertheless, if we accept that the Attorney General's grounds were reasonable, there is, again, no issue to try.

In order to make there be an issue, the Supreme Court committed the most horrific act of constitutional vandalism. Lord Neuberger said that it didn't matter if the grounds were reasonable as such. Instead, under "constitutional principle", the grounds had to be reasonable in the context of the Upper Tribunal decision to allow the release of the letters: 

"It is not reasonable for an accountable person to issue a section 53 certificate simply because, on the same facts and admittedly reasonably, he takes a different view from that adopted by a court of record." (para. 88)

So he essentially rewrote s. 53. Instead of saying "on reasonable grounds", the new interpretation apparently supported by the Supreme Court is "on reasonable grounds in the context of a contrary decision by the Upper Tribunal." Which, as goes without saying, is adding words to the statute that aren't there.

The conclusion reached by Lord Neuberger is that where the executive is disagreeing with the Upper Tribunal, it may only do so if there has been "a material change of circumstances since the tribunal decision or...the decision of the tribunal was demonstrably flawed in fact or in law." (para. 71). 

Quite clearly, this takes the threshold the executive has to meet beyond "reasonable grounds". This is contrary to the clear wording of the statute. It therefore has to be said that the Supreme Court has ignored the rule of law, that is, the rule of the statute passed by Parliament, to reach the result it wanted.

Lord Neuberger's position was that there was a constitutional principle that a member of the executive could not overturn a decision of the judiciary, and that s.53, exercised in the way it was in this case, could only permit that if it was "crystal clear" that this was the intention of Parliament. But s.53 is not at all ambiguous. The Supreme Court should not be creating obstacles to reading the words "reasonable grounds" as any normal speaker of English would understand them.

It is true that the question at hand was whether the Attorney General exercised his power under s. 53 reasonably, rather than whether he complied with the strict wording of s.53. In that context, if no reasonable decision-maker could have disagreed with the Upper Tribunal, then, under the common law principles of judicial review, the decision was unlawful. 

A fuller analysis on this basis was carried out by Lord Mance in a concurring judgement. Lord Mance actually looked at the Upper Tribunal decision, looked at the Attorney General's certificate, and concluded that the Attorney General did not have reasonable grounds: "without real or adequate explanation" (para. 145).

As I said before, there is nothing wrong with saying that the Attorney General was unreasonable. If he was unreasonable, he breached s.53. Lord Hughes, who dissented, stated clearly that he believed the Attorney General had been reasonable. 

This was the appropriate way of dealing with the case. The question at hand, to repeat, was whether s.53 was complied with. Since the majority of the Supreme Court accepted that the grounds were reasonable, the Attorney General should have won.

Instead, we have the Supreme Court rewriting a statute in pursuance of vague constitutional principles. In a country with a written constitution this would be fine. Indeed, under s.3 of the Human Rights Act, it would be fine. But due to "common law"? Do they not see how uncertain and undemocratic that is? I understand that they want to defend the Human Rights Act against possible Tory repeal, but in that case they should make the case for the Human Rights Act (or the Labour Party), and not ignore the law.

If democracy means anything, it means that the decisions of a democratically elected parliament matter. In Evans, the Supreme Court has indicated its willingness to override democracy in favour of its whims and fancies. I hope it doesn't do so in a more important case than this.

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