The Lord Chief Justice has expressed concern at the “constitutional aberration” which allows ministers to reject court orders demanding that documents are made public under the Freedom of Information Act.
Lord Judge raised his concerns as a panel of three High Court judges ruled on the legality of the Attorney General Dominic Grieve’s decision to block the publication of letters from the Prince of Wales to ministers.
The Guardian is attempting to obtain the correspondence after a Freedom of Information tribunal last September ruled the papers should be made available. While the judges upheld Mr Grieve’s use of the veto as “reasonable”, Lord Judge, sitting with Lord Justice Davis and Mr Justice Globe, expressed his own concern over “what appears to be a constitutional aberration”.
The judge said that section 53 of the Freedom of Information Act gave ministers the power “to over-ride the decision of a court without further recourse to the legislature”. He added: “It is an understatement to describe the situation as unusual. Indeed the researches of counsel suggest that it is a unique situation and that similar statutory arrangements cannot be found elsewhere in this jurisdiction.”
The ruling was a setback for The Guardian in its eight-year battle to make public the correspondence between Prince Charles and seven government departments. The journalist Rob Evans accused Mr Grieve of “overriding an independent and impartial tribunal” in his refusal to make the letters available.
In a statement this evening a spokesperson for Guardian News & Media said: “We are obviously disappointed that the judges have ruled that Dominic Grieve acted properly when he employed a veto to block the disclosure of letters sent by Prince Charles to ministers. We consider the publication of these letters to be squarely in the public interest. We are now intending to appeal.”
The Guardian won a Freedom of Information tribunal last September, with the Government ordered to disclose letters sent by Prince Charles to a number of ministers during a seven-month period between 2004 and 2005. The correspondence had been with the departments of Business, Innovation and Skills; Health; Children, Schools and Families; Environment, Food and Rural Affairs; Culture, Media and Sport; the Northern Ireland Office and the Cabinet Office.
But just weeks later the Attorney General decided to veto the decision. Mr Grieve argued the correspondence was part of the Prince’s “preparation for becoming king” and making it public could potentially harm the principle of the heir to the throne being politically neutral.
Responding to the ruling, Maurice Frankel, director of the Campaign for Freedom of Information, said: “As this case shows, the veto will be upheld at judicial review even if the disclosure decision is thoroughly and well-argued and contains no error.”
He added: “Ministers don’t have to show they are right and the tribunal or court is wrong, only that they have reasonable grounds for taking a different view about the public interest.”