Judges ‘not always best placed’ to decide public interest
Politicians are sometimes better placed than judges to decide what is in the public interest in disputes over freedom of information, the government’s most senior lawyer has said.
Attorney general Jeremy Wright QC MP (pictured) said there were ‘constitutional’ and ‘practical’ reasons why courts were not necessarily best placed to take decisions involving matters of public interest.
Rather, the attorney general ‘is better placed than the courts, or indeed other ministers, to decide what the public interest is’.
In a speech circulated by the government today, Wright told University College London’s law faculty yesterday that when it came to matters of public interest, ‘there is a tone to the debate sometimes that government is partisan, making decisions for its own benefit. It is sometimes said that only judges are sufficiently detached to be able to take decisions which truly balance competing interests.
‘In my view there are circumstances where it is clearly right that decisions on matters of public interest should be taken by an elected, accountable politician, rather than by a court.’
Such circumstances currently include those relating to conducting foreign relations and national security strategy, Wright said. He suggested these circumstances could be extended to include decisions in relation to requests made under the Freedom of Information Act 2000.
In 2015, the Supreme Court dismissed an appeal by the attorney general in relation to the disclosure of letters between government departments and the Prince of Wales.
The attorney general had issued a certificate under section 53 of the Freedom of Information Act stating that he had, on ‘reasonable grounds’, formed the opinion that the departments had been entitled to refuse disclosure of the letters.
Wright said that parliament had intended that the exercise of the government veto ‘should be an executive function with democratic accountability for its use through parliament.
‘It constitutes a rare, but as I have set out far from unprecedented, recognition that the courts cannot constitutionally be the sole guardians of the public interest, and that there are more important exceptions to the principle that courts’ views are final.’
Wright said the veto would always be subject to the ‘checks and balances’ of judicial review, ‘but a proposition that complex balances of the public interest - which are after all the daily business of modern government - can only be done by courts is plainly wrong’.
A forthcoming bill to regulate interception of communications however, was a good example where ‘ministers and the court can have different but complementary roles’, he said.
The draft investigatory powers bill, published last year, includes an authorisation model requiring a judicial commissioner to approve a warrant authorised by a secretary of state, almost always in advance.