For a while I’ve wondered if it might be helpful to summarise key Supreme Court and other major judgments in a few sentences. So I thought I’d have a go at it as an experiment, while I’m gathering my fuller thoughts on today’s Supreme Court judgment.
Here, then, is my effort at a bite-sized summary of the legal reasoning behind today’s judgment. The first paragraph contains the key reasoning explaining why disclosure was ordered (which as you can see, was not consistent even among the majority on the court). The second paragraph is an important secondary piece of reasoning which helps you understand the case fully. On that, a bigger majority’s reasoning is consistent.
Vetoing release of the letters was unlawful [5-2 against the government], either because the veto power in the Act is very restricted, not spelling out as clearly as the constitutional principle of legality requires that ministers can veto just because they disagree reasonably with the Upper Tribunal about the public interest (Lords Neuberger, Kerr and Reed); or because it requires more detailed explanation than the Attorney General gave of why he says the Upper Tribunal was wrong to order disclosure (Lord Mance and Lady Hale).
Anyway, the veto power can’t be used to block release of letters about the environment because it negates the binding judicial decision on disclosure which the EU Environmental Directive requires (all 5 of those Justices, plus Lord Hughes) [6-1 against the government].
For law students and others interested in the technicalities, the ratio of this case is hard to identify because the majority doesn’t share common reasoning. The best I can say to identify the ratio is that the veto power is much more limited than it appears to be on its face, either in terms of when or how it can be used.
Because it’s a back-up, the point about the EU Directive is obiter: it doesn’t create binding precedent. But it’s pretty hard to argue with. I’m quite surprised there was any dissent about it.
You want the dissent? You want to see the dissent in a sentence or two? Okay.
It’s perfectly clear from the Act that Parliament intended the veto to be available where ministers reasonably disagree with the Upper Tribunal about the public interest in disclosure. The veto was reasonable, so that’s that. It was lawful. (Lords Hughes and Wilson).
The veto power doesn’t breach the EU Directive either, because judicial review of the reasonableness of the veto is enough to amount to the required judicial decision on disclosure. (Lord Wilson).
If this is useful, I’ll do it again in future.
This is excellent. I particularly approve of the attempt to expressly distinguish ratio from obiter. Law students are taught that this is all important but law reports always avoid the issue of which is which.
I agree it is a neat encapsulation of a difficult case and applaud the endeavour. However I disagree with James Medhurst on the idea that “law reports always avoid the issue” of which is ratio and which is obiter. On the contrary, those published by the Incorporated Council of Law Reporting for England and Wales (ICLR) make a point of including only ratio in the holdings of the headnote (after “held”), and indicating obiter dicta by the word “per”, either per curiam (the court) or per a particular judge or judges. In some cases which is which is a close call, which not even judges get right, or else approach on a creative basis. However, ICLR cannot be answerable for the less stringent approach of other publishers.
[…] Carl Gardner on his Head of Legal blog: The Prince Charles letters judgment – in a few sentences […]
Extremely useful for non-legal laypersons like me. More, more, please!