Slides to accompany a lecture given at the Cambridge Sixth Form Law Conference in March 2017. The lecture offers a brief introduction to UK Constitutional Law, using the 'Black Spider Memos' case — concerning freedom of information requests in relation to correspondence between Prince Charles and Government Ministers — to illustrate some fundamental points about the UK constitution and about Constitutional Law as a subject. The lecture focusses on the UK Supreme Court's decision in the case, and on the reliance placed by the Justices on two fundamental constitutional principles: the rule of law and the sovereignty of Parliament.

1. The ‘Black Spider Memos’ case:
An Introduction to Constitutional Law
Professor Mark Elliott

2. Some background
• The ‘black spider memos’
• Freedom of information request
• Government refusal
• Information Commissioner
• Tribunal orders release
• Government uses veto power
• Judicial review sought

3. Judicial review
Court
High Court
Executive
UK Government
Legislature
UK Parliament

4. The legal issue in Evans
Court
High Court
Executive
UK Government
By overruling the
tribunal, had the
Government unlawfully
exercised its power
under section 53 of the
Freedom of Information
Act 2000?

5. Freedom of Information Act 2000, s 53(2)
‘A decision notice or enforcement notice to which this section
applies shall cease to have effect if, not later than the twentieth
working day following the effective date, the accountable person
in relation to that authority gives the Commissioner a certificate
signed by him stating that he has on reasonable grounds formed
the opinion that, in respect of the request or requests concerned,
there was no failure falling within subsection (1)(b).’
Were there reasonable grounds for believing that
the public interest favoured non-disclosure?

6. The judgments in Evans
Majority Minority
The Government had
acted unlawfully by
attempting to override
the tribunal
The Government was
lawfully entitled to
override the tribunal
Lord Neuberger, Lady Hale,
Lord Kerr, Lord Reed,
Lord Mance
Lord Hughes,
Lord Wilson

7. Lord Neuberger
A statutory provision which entitles a member of the
executive … to overrule a decision of the judiciary
merely because he does not agree with it would not
merely be unique in the laws of the United
Kingdom. It would cut across … constitutional
principles which are … fundamental components of
the rule of law.

8. Lord Neuberger
[I]t is a basic principle that a decision of a court is
binding as between the parties, and cannot be
ignored or set aside by anyone, including (indeed
… least of all) the executive.

9. Lord Neuberger
[D]ecisions and actions of the executive are …
reviewable by the court at the suit of an interested
citizen … [A broadly construed veto power] stands
[this principle] on its head.

10. Lord Neuberger
[I]f section 53 is to have the remarkable effect
argued for by … the Attorney General, it must be
crystal clear from the wording of the FOIA 2000,
and cannot be justified merely by general or
ambiguous words.
In my view, section 53 falls far short of being
‘crystal clear’ in saying that a member of the
executive can override the decision of a court
because he disagrees with it.

11. Lord Neuberger
Veto power only exercisable if
• ‘a material change of circumstances
since the tribunal decision’; or
• ‘the decision of the tribunal was
demonstrably flawed in fact or in law’

12. Parliamentary sovereignty
The principle of Parliamentary sovereignty
means neither more nor less than this, namely
that Parliament … has … the right to make or
unmake any law whatever: and, further, that no
person or body is recognised by the law of
England as having a right to override or set
aside the legislation of Parliament.
Professor AV Dicey
An Introduction to the Study of the Law of the Constitution (1885)

13. Lord Wilson
How tempting it must have been … to seek to maintain
the supremacy of the … decision of the Upper Tribunal in
favour of disclosure of the Prince’s correspondence! But
the Court of Appeal [and the majority in the Supreme
Court] ought … to have resisted the temptation.
For, in reaching its decision, the Court … did not in my
view interpret section 53 … It re-wrote it. It invoked
precious constitutional principles but among the most
precious is that of parliamentary sovereignty, emblematic
of our democracy.

14. Competing principles
Rule
of law
Parliamentary
sovereignty
• Government subject to
law
• Government bound by
courts’ and tribunals’
decisions
• Giving effect to
Parliament’s will
• Parliament, because
sovereign, can override
rule of law
Majority Minority

15. Disagreement and uncertainty
Surface
level
Deeper
level
• What does the statute mean?
• What powers does Government have?
• Have powers been unlawfully used?
• What do fundamental principles mean?
• How do they relate to each other?
• Is Parliament really sovereign?

16. The Jackson case
[T]he supremacy of Parliament is still
the general principle of our constitution … [But] [i]n
exceptional circumstances involving an attempt to
abolish judicial review or the ordinary role of the
courts, the … Supreme Court may have to consider
whether this is a constitutional fundamental which
even a sovereign Parliament … cannot abolish.
Lord Steyn

17. Constitutional Law
The State The State
The Individual

18. www.publiclawforeveryone.com
@ProfMarkElliott