Thursday, 11 February 2016

The Public Interest ~ who should decide?

In democratic societies there is a public interest in being to able to know what our elected representatives are doing even though officials might prefer to keep things to themselves.  Also, there are undeniably some matters where a clear public interest in non-disclosure to the general public exists - e.g. if disclosure would run a serious risk of danger to lives. The difficulty lies in drawing a line between these interests.  Should the "public interest" line be decided by a Minister or by a Judge?

On 8th February, the Attorney-General (Mr Jeremy Wright QC MP) delivered a speech at University College London (UCL) on his role as "guardian of the public interest"   The Attorney looked at various aspects of his role and then said: 

"A question I want to raise today is
one which occurs in many areas of my role, but has particular resonance given my public interest functions: within our constitutional and legal arrangements, who should decide what constitutes the public interest?  This is a topical question.  It goes to issues such as, “who should have the final say on whether information should be released under the Freedom of Information Act?”, or “who should approve warrants to authorise intrusive surveillance?”   Mr Wright went on to assert that - "... in some of those areas, I believe the Attorney is better-placed than the Courts, or indeed other ministers, to decide what the public interest is."

On Freedom of Information, he pointed out that - "An Independent Commission on Freedom of Information (FOI) is considering whether the current legislation strikes the right balance between the public interest in transparency and accountability on the one hand, and the need for sensitive information to be robustly protected on the other."  He then went on to deliver a strong hint to the independent commission that the exercise of section 53 of the FOI ought to be solely a matter for Ministers who would decide whether there should be a final veto on publication.  Section 53 gives Ministers power to veto publication of information.

Section 53 came to prominence in R (Evans) v Attorney-General [2015] UKSC 21 which concerned various correspondence (written in 2004, 2005) between HRH The Prince of Wales and Ministers - sometimes referred to as the "Black Spider memos."  After 6 days of full argument, the Upper Tribunal ruled in favour of publication.  The Attorney-General's certificate was then issued and this was contested through the High Court and Court of Appeal to the Supreme Court where it was decided (majority 5:2) that the Attorney was not entitled to issue a certificate overruling the decision of a tribunal or court in the manner he did and that the certificate was invalid.

The correspondence was revealed (with some redactions) following the Supreme Court's judgment and it was hardly earth-shattering material!

The Attorney-General did not mention that the Freedom of Information Act was amended in 2010 to provide for more protection over communications with the monarch, the heir to the throne and second in line to the throne.   They are (since 19th January 2011) subject to an absolute exemption for twenty years or five years after the death of the individual, whichever occurs later.  On this see the House of Commons Library Briefing Paper 05377 (13th May 2015).  The amendments are tucked away in the Constitutional Reform and Governance Act 2010 s.47 and Schedule 7.  This Act was one of those enacted as part of the "wash up" process just prior to the 2010 Dissolution of Parliament.  As a Parliament draws to a close, this process enables some Bills to go for Royal Assent even though they have not completed all the usual stages in Parliament.

Reform of the Attorney-General role:

Much has been written in recent years about the role of the Attorney-General but the functions of the office have largely avoided reform.  For example, see Joshua Rozenberg - The Guardian 27th May 2010 - Queen's Speech: reforming the role of the Attorney General.  In 2007, there was a consultation on the  role of the Attorney-General - HERE - and the Select Committee on the Constitution reported on reform - 7th report of 2007-8.

Other links:

Jack of Kent blog 10th February: Law and Policy Round-up: Do Ministers know best?  "A couple of days ago the Attorney-General – whose office is still narked at losing the Evans and Prince of Wales letter case [2015] UKSC 21 – gave a speech where he explained why ministers were better guardians of the public interest than judges."

The Independent 25th January looked at evidence given to the FOI Commission (Freedom of Information: It is more vital than ever that public bodies face independent scrutiny) and commented that " ..... it is more vital that the power wielded by public bodies is open to proper scrutiny – or we may come to see a horrifyingly inverted scenario in which the only agency with free access to information is the government itself and the information it wants is ours."

Previous posts - July 2014 (Law Officers of the Crown), May 2014 (Prosecutions: when are they in the public interest); May 2012 (Unduly lenient sentences).

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