Media Freedom 1, Government Secrecy 0 (Government win on aggregrate)

摘要

Whether the journalist Rob Evans and the Guardian envisaged the constitutional import of the decision that their FOI request set in motion is of course moot but the role of the media, specifically and more generally, in constitutional matters is ever thus important. Whether as 'agents' of the public and the public interest and/ or as responding to a duty to inform, such activities are on a par with the better traditions of the fourth estate. Indirectly the Guardian's attempts to obtain the long awaited letters and shed light upon the relationship between government and the heir to the throne has allowed the Supreme Court to make important pronouncements in respect of the relationship between the execu- tive, the courts and the rule of law. In extremis, Lord Neuberger, like the Court of Appeal, has rendered the ability of the executive to veto tribunal determinations on FOI matters more illusory than real on the current statutory wording of the power. What then is the executive to do short of amendment to the legislation? In terms of the exercise or the veto power, Lord Neuberger suggests that any validity envisaged, like that in the Court of Appeal might, arise where facts, matters or grounds of exemption may have existed at the time of the original refusal but were not in the mind so to speak of the relevant person (for example the A-C) or if they did not exist at the time are admissible to the extent that they throw light on the grounds of refusal (citing Coppel on Information Rights, 4th ed, 2014). Nevertheless, the opportunity for executive action on this ground in the case of an appeal to the Upper Tribunal or Court of Appeal is exceptional and more than likely to be illusory. The second basis referred to by Lord Dyson in the Court of Appeal would involve new material or matters which indicate serious flaws in the First Tier Tribunal or Upper Tribunal which would not be the subject matter of appeal; again such situations are likely to be highly exceptional. Even for Lord Mance, such situations were 'unusual'. Whether the executive could issue a section 53 certificate after a determination of the Information Commissioner, which is not acting as a judicial tribunal or making such findings, was a possibility on the basis of the suggestion by counsel for Evans that the 'constraint on the issue of a section 53 certificate after a decision of the Commissioner is less', but though it was not necessary to determine the point, Lord Neuberger was of the view that the executive would be expected to appeal the decision under section 57 (to the Upper Tribunal). The avenue then to use the executive veto in FOI matters, noting of course that its use is exceptionally rare in any event, becomes exceedingly narrow indeed.