The Guardian’s victory in the Prince of Wales letters case has reinforced a profound constitutional principle. As explained by Lord Neuberger, president of the supreme court, it is 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” – in this case, the attorney general.
But that was not a unanimous view. Lord Wilson, dissenting, accused his fellow justices of rewriting the Freedom of Information Act 2000, under which the Guardian’s Rob Evans had sought disclosure 10 years ago of the prince’s letters to ministers. Wilson argued that the majority view undermined parliamentary sovereignty.
At issue was section 53 of the 2000 act, which allows a minister to certify that he has formed the opinion, “on reasonable grounds”, that a government department is entitled to refuse a request for disclosure. The question for the supreme court was whether the attorney general’s certificate could override the decision in Evans’s favour from the upper tribunal, a court of equal status to the high court.
Neuberger, for the majority, got round the attorney’s veto by saying that the common law imposes limits on the definition of “reasonable grounds” so as not to undermine the principle that the decisions of the courts are binding. EU law, which also applied, was even more clear-cut, he added.
Wilson, by contrast, said his colleagues should have resisted the temptation to uphold the decision of the upper tribunal against the attorney’s veto, even though the government had never appealed against the tribunal’s decision.
And that was the crucial message from the supreme court. If the government did not like the decision of the upper tribunal, it should have appealed against it and taken its chances in the normal way. As Neuberger said, it was a remarkable thing for the government to argue that a member of the executive could overrule a decision of the judiciary because he did not agree with that decision, even though the ministerial veto was subject to judicial review.
It is a little more than five years since the UK’s highest court of appeal moved out of parliament and was given its own building overlooking the House of Commons. Might this be seen as the case in which the supreme court asserts its authority and comes of age? Ministers are entitled to wonder what they need to do to make legislation judge-proof.
That said, the courts have been asserting their authority over parliament in recent decades. Neuberger quoted Lord Hoffmann, a former law lord, who said in 2000 that “fundamental rights cannot be overridden by general or ambiguous words … because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process”. He also quoted Lord Steyn as saying two years earlier that “parliament must be presumed not to legislate contrary to the rule of law”.
In theory, parliament could now reverse the effect of the supreme court’s judgment. However, the four months that the supreme court justices have spent arguing over their decision means there is no time left in this parliament. It would also take a bold government to propose doing so.
So the the prime minister is left with no option. “We will now consider how to release these letters,” David Cameron said.
How much consideration does he need? The government should release the letters, without delay, to the reporter who requested them and to the newspaper that risked paying huge legal costs if its attempt to back Evans’s request had proved unsuccessful.
And the incoming government should think again before trying to give ministers any more powers to veto the courts. As we can now see, the judges are confident enough to take parliament on – and win.
