Tag Archives: Freedom of Information Act 2000

Mike Gordon: Prince Charles’ Correspondence Back in Court – Reflections on R. (Evans) v. Attorney General

mike-gordon-pictureThe Administrative Court is the latest body to become involved in the on-going saga related to disclosure of the Prince of Wales’ correspondence with government departments.  In the recent case of R. (Evans) v. Attorney General [2013] EWHC 1960 (Admin), the Guardian journalist Rob Evans challenged the legality of the government’s decision to veto disclosure of the relevant correspondence between Prince Charles and a range of government ministers.  Disclosure of most of this material had been ordered under the Freedom of Information Act 2000 (FOIA) by the Upper Tribunal, allowing an appeal from Evans against the earlier decision of the Information Commissioner that the correspondence sought could be withheld.

In particular, the Upper Tribunal ruled that what it called ‘advocacy correspondence’ – communication with government departments in which the Prince of Wales sought to advance a specific view or promote a particular cause – ought to be disclosed because ‘it will generally be in the overall public interest for there to be transparency as to how and when Prince Charles seeks to influence the government’, [2012] UKUT 313 (AAC), [4].  Such advocacy correspondence was not, in the view of the Upper Tribunal, covered by the constitutional convention that the heir to the throne can be (confidentially) instructed in the business of government in preparation for rule.  Nor was the general public interest in transparency outweighed by other factors advanced as cautioning against disclosure, which included a general desire to maintain confidentiality between correspondents, the protection of the Prince of Wales’ political neutrality, or the potential for a ‘chilling effect’ on the frequency or frankness of communication between the government and the heir to the throne.

After the appeal of Evans was allowed by the Upper Tribunal, the government moved to exercise its power under s.53(2) of FOIA to veto the disclosure of Prince Charles’ advocacy correspondence.  The Attorney General, on 16th October 2012, issued a certificate that he had, as required by the FOIA, on ‘reasonable grounds’ formed the opinion that there has been no failure to comply with the government’s general duty to provide access to information on request (set out in s.1(1)(b) FOIA).  The certificate was also laid before both Houses of Parliament, and set out the reasons for the decision, as explicitly required by s.53(3)(a) and s.53(6) FOIA respectively.  The government’s published policy on the use of the s.53 veto, carried over from previous Labour administrations, was also said to have been complied with, the Attorney General confirming that this was considered to be an ‘exceptional’ case.

In the most recent case, Evans sought to challenge the legality of the Attorney General’s certificate by judicial review.  The Administrative Court rejected his arguments that (i) the decision to exercise the veto was generally unreasonable; and (ii) the very availability of the veto in relation to the ‘significant’ elements of the correspondence classed as ‘environmental information’, and therefore subject to the Environmental Information Regulations 2004, was unlawful, due to its incompatibility with the EU Directive (2003/4/EC) the 2004 Regulations sought to implement, and Article 47 of the EU Charter of Fundamental Rights.  Leaving aside discussion of argument (ii) – a narrower issue which related only to part of the advocacy correspondence ordered to be disclosed by the Upper Tribunal – three points seem especially worthy of consideration in this post.

First, the Administrative Court sought to make it explicitly clear that the exercise of the veto was to be subject to ‘close judicial scrutiny’ because of the very nature of the power in question.  Davis LJ, giving the main judgment of the court, noted that the veto was ‘a remarkable provision’, in so far as it enabled an executive override of judicial decisions, [79].  Judge LCJ was perhaps even more strident, describing s.53 as a ‘constitutional aberration’, [2].   Both judges rejected the government’s attempt to invoke the classic notion of Wednesbury unreasonableness ‘so as to introduce some lesser… requirement’ of review (Davis LJ at [89], Judge LCJ at [14]).  Yet the standard of review ultimately employed did not seem as intrusive as might have been expected from the way it was advertised by the judges.

The substantive quality and coherence of the reasons advanced by the government were not interrogated in significant detail, with much argument dedicated instead to the question of whether a minister could exercise the veto simply because they disagreed with a previous decision.  Davis LJ rejected this argument, holding that it would ‘greatly narrow the ostensible ambit of s.53’ if it were accepted that the veto could only be used where a previous decision had been based on an error of fact or law, [110].  Indeed, Davis LJ held that ‘disagreement with the prior decision (be it of Information Commissioner, tribunal or court) is precisely what s.53 contemplates, without any explicit or implicit requirement for the existence of fresh evidence or irrationality etc. in the original decision which the certificate is designed to override’, [111].  Evidently influenced by the fact that the Information Commissioner and the Upper Tribunal had both previously, albeit to varying degrees, accepted the cogency of the arguments for non-disclosure (see e.g. [113]), and the fact that the Attorney General’s reasoning ‘had regard to and has engaged with the decision of the Upper Tribunal’, [73], Davis LJ held that the government had demonstrated reasonable grounds for its decision to veto.  The reasons expressed were ‘proper and rational’; indeed, in basic terms ‘[t]hey make sense’, [113].

This decision is likely to be disappointing for many, especially those who believe that transparency as to royal influence over government business is a matter of the utmost democratic importance.  Indeed, the Court of Appeal’s decision was (unsurprisingly) the subject of critical comment in an editorial in The Guardian: ‘having painted the veto as indefensible, the judges then elected to uphold it’.  Yet while political dissatisfaction with the government’s decision to exercise the veto is very well founded – to conceal the contents of letters which are not politically neutral to protect the perceived political neutrality of the Prince of Wales seems circular at best – the Court of Appeal’s judgment that the government’s action was legally reasonable seems sound.

To ask courts to go further and overturn a decision which we may find politically unreasonable would be to distort the legislative scheme created by Parliament.  While the Court of Appeal felt that the power of veto granted to the government was a profound one, Davis LJ also noted that this ‘seems to have been appreciated by Parliament in enacting s.53’, with a number of conditions therefore placed upon its exercise, [81].  Indeed, noting that ‘part of the scheme of the FOIA is to construct a series of available exemptions – whether absolute or qualified – to modify the general requirement of disclosure’, Davis LJ recognised that s.53 itself, understood with respect to the broader purpose of this legislative regime, could be conceived as one of the ‘checks and balances which Parliament has thought necessary to provide’, [83].  We may agree or disagree about whether the FOIA creates the best balance between disclosure and exemption of official information, yet to encourage courts to depart freely from this framework is hardly a democratic solution to what is, undoubtedly, a democratic problem.

Secondly, with particular respect to the judgment of the Lord Chief Justice, the invocation of the ‘constitutionality principle’ in this context is striking, [11].  What precisely this means is unclear, but Judge LCJ argued that only judicial oversight of the exercise of this veto power – a power effectively for a government minister to override a judicial decision – could offer ‘the necessary safeguard for the constitutionality of the process’, [14].  What precisely the notion of ‘constitutionality’ adds to the discussion in this context is also unclear, and Davies LJ’s leading judgment does not seek to rely on this principle, opting more straightforwardly to seek to interpret the meaning of s.53 both literally, and as part of the broader legislative scheme.

What is clear is that some judges are becoming much more comfortable in making appeals to such abstract public law principles when deciding specific cases, whether calling upon those principles is strictly necessary to resolve the case before them or not.  And, with this ‘principle of constitutionality’ a prime example, these principles are often utilised without their contestable nature being recognised.  In Evans, the notion of constitutionality seems to be employed to demonstrate that government activity must be inherently limited and strictly controlled by law.  Yet the limitation of government is not the predetermined purpose of constitutional law and practice (as Martin Loughlin, to offer just one leading example, has persuasively argued).  Judicial appeals to the notion of constitutionality which are based on this background assumption are therefore liable to continue to be greeted sceptically – especially when unnecessary to dispose of the case before them – by those concerned about the rhetoric and reality of judicial supremacism.

Thirdly, although the outcome of Evans is that Prince Charles’ advocacy correspondence is not to be disclosed (The Guardian has, however, confirmed it will appeal the decision), the FOIA has still produce some limited degree of transparency.  In having to explain and justify its exercise of the veto to a legally reasonable standard, as the FOIA explicitly requires, the government was forced to reveal a number of compelling facts about the nature of the Prince of Wales’ correspondence with government departments.  The letters reflected Prince Charles’ ‘most deeply held views and beliefs’, were ‘in many cases particularly frank’, and ‘contain remarks about public affairs which would… potentially have undermined his position of political neutrality’ (see [12] of the Statement of Reasons, appended to the Court of Appeal’s judgment as Annex A).

As the FOIA was amended in the final days of the previous government to make such future correspondence absolutely exempt from disclosure (by s.46 and Schedule 7 of the Constitutional Reform and Governance Act 2010), these somewhat cryptic insights into the nature of the relationship between the heir to the throne and the government may be the last made public for some time.  Yet while the details of how the Prince of Wales sought to influence government policy may remain concealed, as do whatever consequences may have been the result, the government itself has conceded, in exercising and justifying the veto, that such attempts have been made.  Having this established officially and beyond doubt, in such intriguing terms, is no small achievement.  Those who find the level of continued support for the (‘constitutional’) monarchy difficult to understand may simply have to draw on this to console themselves that the political neutrality of the heir to the throne has been exposed as a fiction, and hope that constitutional practice can evolve in such a way as to minimise future royal influence over the government.

Dr Mike Gordon is a Lecturer in Public Law at Liverpool Law School, University of Liverpool.

 Suggested citation: M. Gordon, ‘Prince Charles’ Correspondence Back in Court – Reflections on R. (Evans) v. Attorney General’   UK Const. L. Blog (22nd July 2013) (available at http://ukconstitutionallaw.org)

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Tom Adams: Royal Consent and Hidden Power

tom-10The requirement of Royal Assent for bills which have passed through our democratic institutions is well known. Those amongst us who favour the constitutional monarch remind others that it is a power only in the symbolic sense: assent has not been refused since the reign of Queen Anne. And those amongst us who prefer our politics not to be confused with genetics comfort ourselves – although sometimes this comfort is not enough – with the reminder that it is a power only in the symbolic sense: assent has not been refused since the reign of Queen Anne.

One point upon which republicans and monarchists might agree is that it is right that both the existence and occasions of exercise of this power are publically known. They might also agree that this is an instance of an important general principle. For, if we are even to begin to engage in sensible debate about the relation between monarchy and constitutional democracy in the 21st Century we must have a good understanding of the extent of the Monarch’s powers – symbolic and real – over the content of our politics. A discussion which takes place in the dark is unlikely to shed much light.

It is with this principle in mind that we should consider the details which have emerged in the past two weeks concerning a quite different political power vested in the Monarch. It is, according to documents recently made public, an established convention in relation to those bills which affect the ‘personal interests’ of the Queen, or the Prince of Wales that the consent of the relevant party  is required before such bills are introduced to Parliament. This is the requirement of Royal Consent, as distinct from the requirement of Royal Assent.

The scope of the requirement is broad and includes, in the case of the Monarch, all bills which affect the prerogative, hereditary revenues, personal property as well as other personal interests of the Queen. The jurisdiction of the Prince is associated with the Duchy of Cornwall. It is narrower in certain respects than that of the Queen, but is considerable nonetheless. The Prince’s approval has been requested in relation to draft bills on matters as diverse as gambling and the Olympics. He has been asked to consent to at least 12 bills in the last two sessions of Parliament. Quite apart from its scope it is worth emphasising that the content of the power is absolutely damning: it is not simply that the relevant bill fails to become law if consent is not given, although this is implied. It is that the bill cannot even be properly debated by our elected politicians.

Royal Consent has not been given to bills on at least three occasions since 1990. The most notable refusal was in relation to the Military Action Against Iraq (Parliamentary Approval) Bill which sought, four years before war was eventually declared, to transfer the power to authorize military strikes in Iraq from the Monarch to Parliament. Debate stalled after the first hearing and, because Royal Consent was not given, the bill was dropped before its second hearing. It is worth noting that aspects of the media mis-described the situation as one in which the bill was not granted Royal Assent.

Indeed, one of the most extraordinary aspects of the whole scenario is that the government has done its best to keep the details hidden: it has aggressively fought a freedom of information request filed by John Kirkhope, a legal scholar, concerning the requirement.  First ordered by the Information Commissioner to reveal the details of the 30 page internal guidance concerning Royal Consent, the Cabinet Office appealed to the information tribunal and lost there too.  This, then, is an aspect of our political landscape the knowledge of which it is thought better that we do not have.

Is there anything to be said in favour of the constitutional situation? Buckingham Palace has made clear that on all occasions where consent has been refused by the Queen that this has been on the advice of the government. The Prince’s spokesperson, by way of contrast, has refused to comment on whether he has ever declined to consent and if so under what conditions.  But even if we are to assume that he too has never refused to consent absent government advice there remain two very good reasons why this knowledge should not placate us.

First, the fact that actual exercises of refusal to consent have taken place on the advice of government does not entail that the requirement has not conferred considerable power on the Royal Family. The extent of the influence which is granted by a political power should be measured not just in terms of its actual use, but also in terms of its potentiality. Even if consent has not actually been refused with regard to a particular bill, the fact that the relevant parties have the capacity to refuse bestows on them significant political influence. Daniel Greenberg, a former Parliamentary Counsel, said the following: “It is something of a nuclear-button option that everybody knows [The Prince of Wales] is not likely to push. But like the nuclear deterrent, the fact that it is there influences negotiations.”

The second point is this: even if we are to assume that the power associated with the consent requirement lies de-facto with the government it remains objectionable, for it amounts to a selective veto over Private Members’ Bills. Consider again the situation surrounding the Military Action Against Iraq (Parliamentary Approval) Bill, a private bill introduced by Tam Dalyell. Here the requirement of consent in relation to the prerogative was used by Tony Blair’s administration so as to ensure that Parliament did not debate the propriety of war power remaining with government. This constitutional anomaly merely cements the already considerable power of government within our constitutional system.

There are times at which debates between monarchists and republicans have been accused of generating too much heat and too little light. This case is different. We are just starting to get light on the situation. We would do well to accompany it with some heat.

Tom Adams is a Hauser Global Fellow at New York University. 

Suggested citation: T. Adams ‘Royal Consent and Hidden Power’ UK Const. L. Blog (26th January 2013) (available at http://ukconstitutionallaw.org)

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Roger Masterman: The Prince, the Attorney-General, the Section 53 Certificate and the pretence of political neutrality

The Freedom of Information Act, which came into force on 1 January 2005, provides under s.53 for a power of ministerial veto.  Section 53(2) provides that:

‘[a] decision notice or enforcement notice … 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 [to satisfy the statutory ‘right to know’].’  

Ministers are under s.53, effectively given a power to determine that the requirements of the Freedom of Information Act should, in certain instances, not apply.  The inclusion of the Ministerial veto in the Freedom of Information Act was, perhaps unsurprisingly, the most controversial of the changes to the access to information regime introduced between publication of Your Right to Know in 1997 and the enactment of the statute in 2000; in a damning critique in the 5th edition of The Changing Constitution, Austin concluded that the veto power ‘undermines any credibility to the claim that the Act creates a legally enforceable individual right of access’ and amounted to ‘a fraud on democratic accountability.’  The saving grace – as Hazell and Busfield-Birch have recorded – has been that the veto power has, compared with similar measures overseas, been used relatively infrequently (‘Opening the Cabinet Door: Freedom of Information and Government Policy Making’ [2011] PL 260, 283).  To date, Ministers have overridden disclosure orders relating to Cabinet minutes concerning the 2003 invasion of Iraq, relating to Cabinet Sub-Committee meetings on devolution (twice) and relating to a risk assessment of proposed NHS reforms.

On 16 October 2012 the Attorney-General issued a further certificate under s.53, overriding (predictably in the light of amendments to the Freedom of Information Act made in the Constitutional Reform and Governance Act 2010) the decision of the Upper Tribunal in Evans v Information Commissioner [2012] UKUT 313 (AAC).  Evans – a decision covered in Hayley Hooper’s earlier post on this blog – concerned a request made under the Freedom of Information Act by journalists to a number of government departments seeking disclosure of ‘advocacy correspondence’ between the Prince of Wales and those departments.  The Upper Tribunal found that the correspondence should be disclosed on the basis that it would be ‘in the overall public interest for there to be to be transparency as to how and when Prince Charles seeks to influence government’ [4].  This post makes some observations relating to the reasons provided by the Attorney-General for deployment of the Ministerial veto in this instance.

In his statement of reasons explaining the use of s.53, the Attorney-General began by sketching the principles governing the relationship between the Monarch, governments and Ministers.  It is, he outlined:

‘a vital feature of the constitutional settlement that the Sovereign cannot be seen to favour one political party above another, or to engage in political controversy.  Without that preservation of political neutrality, the constitutional balance that allows for governments to be elected within the framework of inherited monarchy could be preserved.  Nor would it be possible for the Sovereign to fulfil his or her symbolic function as representative of the State.’ ([6])

This balance, as the Attorney-General continued, was by convention regulated by the constitutional trade-off that the Monarch utilises prerogative powers on Ministerial advice and, in turn, enjoys the right to ‘be consulted, to encourage, and to warn the government ([6]).’  A further convention – the education convention – extends to the right of the heir to the throne to be ‘instructed in the business of government’ ([8]).  The Attorney-General’s issue of the certificate relies on an interpretation of this particular convention that was rejected by the Upper Tribunal.

The Upper Tribunal found that ‘advocacy correspondence’ fell outside of the scope of the so-called education convention ([163]).  The Attorney-General disagreed, suggesting that such correspondence ‘enables the Prince of Wales better to understand the business of government; strengthens his relations with Ministers; and enables him to make points which he would have a right (and indeed arguably a duty) to make as Monarch’ ([9]).  Correspondence falling within the scope of the education convention should, the Attorney-General concluded, be protected by confidentiality ([10]).

In stressing the need for confidentiality, the Attorney-General highlighted the risk that, through disclosure, the Prince of Wales came to be viewed ‘as disagreeing with government policy’, adding that ‘any such perception would be seriously damaging to his role as future monarch, because he forfeits his position of political neutrality as heir to the throne, he cannot easily recover it when he is King.  Thus in this context, confidentiality serves and promotes important public interests ([10]).’

This account does not provide a convincing justification for the exercise of the ministerial override.  The public interest in non-disclosure seems to have been interpreted by the Attorney-General as a public interest in maintaining the appearance of the political neutrality of the Prince of Wales.  Perhaps maintenance of this appearance might have been of some value, had the Prince of Wales’ cause advocacy not been so widely commented upon, and had the Prince not been recorded as seeing his constitutional role as ‘seeking to make a difference’ of some undefined sort ([6]).  It is not the willingness of the Attorney-General to seek to uphold the confidentiality of personal correspondence merely relating to the Prince’s ‘deeply held personal views and beliefs’ ([12]) that is problematic here.  Rather, it is the fact that it is seemingly conceded on all fronts that those ‘deeply held personal beliefs ‘ were deployed in an attempt, or attempts, to influence governmental decision-making.  As a result of this ministerial veto, we will perhaps never know whether or not those interventions have had, or will have, any material effects in practice.

The reasons for issuing the veto seek to defend these interventions on educative grounds.  The assertion of the Attorney-General that the correspondence comprises ‘part of the [Prince’s] preparation for kingship’ ([15]) however clearly sits uneasily with the ‘advocacy’ objectives underpinning the correspondence.  It seems highly disingenuous to claim that letters from the Prince ‘urging a particular view upon Ministers’ ([5]) should be portrayed as a necessary component of the right of the heir to the Throne ‘to be instructed in the business of government’ ([8]) – all the more so when it is recalled that such instruction is defended as preparation for holding an office which ‘cannot be seen to favour one political party above another, or to engage in political controversy’ ([6]).  On this latter point, it should be noted that the Upper Tribunal found the contention that the ‘advocacy correspondence’ to be in the public interest as ‘good preparation’ for ascending to the throne to be ‘divorced from reality’ ([170]).

Having stressed the right of the Prince of Wales to ‘urge’ his ‘personal and deeply held views and convictions’ upon Ministers under the protection of confidentiality, the Attorney-General makes the following, matter-of-fact (and slightly surprising), assertion: ‘the Prince of Wales is party-political neutral ([10] emphasis added).’  The Attorney-General continues, ‘it is highly important that he is not considered by the public to favour one political party or another’ ([10]).  I suspect I am not alone in thinking that there would be better ways to maintain an appearance of political neutrality than preserving as apparent constitutional right the unfettered ability of the heir to the throne to confidentially lobby the government.  Regardless, while the technical point regarding party-political bias might be sustained – or at least, cannot now be disproven – it is far less clear that there has been no ‘engagement in political controversy’ whatsoever on the part of the Prince.  Why otherwise would the Attorney-General feel the need to concede that disclosure of the ‘advocacy correspondence’ ‘would potentially have undermined [the Prince’s] position of political neutrality’ ([12])?

In short, the Attorney-General asks us to buy into the idea of political neutrality while at the same time turning a blind eye to potentially political (and/or controversial) interventions made under protection of confidentiality and defended as serving (debatable) educative function.  All things told, this episode, while offering a tantalising glimpse into an area now covered by an absolute exemption, otherwise only casts light on a central weakness of our Freedom of Information regime, and a government co-opted into perpetuating continued (and intolerable) uncertainty over the political influence of the monarchy.

Roger Masterman is Reader in Law at Durham University.

Suggested citation: R. Masterman, ‘The Prince, the Attorney-General, the Section 53 Certificate and the pretence of political neutrality’  UK Const. L. Blog (22th October 2012) (available at http://ukconstitutionallaw.org)

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Hayley J. Hooper: Keep Calm and Carry On?

ON SEPTEMBER 18, 2012 the Upper Tribunal allowed an appeal, reversing decisions of the Information Commissioner relating to the release of “advocacy correspondence” between Prince Charles in his capacity as Heir to the Throne, and seven government departments. The information was originally requested by Guardian journalist Rob Evans and related to a time period between 2004 and 2005. In a piece written by Evans on October 12, 2012 in the Guardian it was reported that the “advocacy correspondence” where Prince Charles allegedly argued for changes in government policy in line with his personal viewpoint had become known as the “black spider memos” in reference to the Prince’s style of handwriting. The information requests have occupied the tribunals’ service for close to four years.

The decision in Evans v Information Commissioner [2012] UKUT 313 (AAC) is something of a novelty in several respects. First, this is likely to be one of the last decisions of its kind because as of January 19, 2011 communications between public authorities and the Heir to the Throne are now the subject of an absolute exemption under the Freedom of Information Act 2000 due to an amendment made by the Constitutional Reform and Governance Act 2010. Secondly, the decision of the Upper Tribunal created the unusual situation whereby a judicial body had to adjudicate on the scope of several constitutional conventions as they related to the Heir to the Throne.  Thirdly, it presents an opportunity to begin debating the proper conception of the public interest in knowing information about the activities of the Heir to the Throne in relation to his preparation for Kingship, and his role in public life generally.

This decision is not to be confused with other the recent FOI decision concerning Prince Charles in his capacity as head of the Duchy of Cornwall. On August 21, 2012 The Information Commissioner decided that information relating to Prince Charles’ legislative veto in relation to the Duchy of Cornwall was not exempt from disclosure under section 42(1) of the Freedom of Information Act 2000, which relates to “legal professional privilege”.

In view of this, this blog post has several aims. I begin by explaining the use of freedom of information law in the context of the case. In the next section I discuss the constitutional position of the Prince of Wales as the Heir to the Throne. Thereafter, I will consider the Upper Tribunal’s discussion of the scope of the relevant constitutional conventions. Finally, I will scrutinise the different consideration given to the concept of the “public interest” by the Upper Tribunal and Parliament in the 2010 Act.

 Exemptions under the Freedom of Information Act 2000

There are two types of exemption from the general right of access to information held by public authorities in the Freedom of Information Act 2000. The first is the “absolute exemption” which prevents to the disclosure of the information under any circumstances. Absolute exemptions historically included communications with the Sovereign, and since January 19, 2011 such an absolute exemption has also applied communications with the Heir to the Throne by virtue of section 37(1). The second type of exemption is a “qualified exemption”. Such an exemption refers to information ordinarily immune from disclosure unless it can be overridden by a public interest test. The public interest test in section 2(1)(b) places a duty on a public authority to decide whether “in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information”. Exemptions of this type apply for example to information relating to law enforcement (section 31), legal professional privilege (section 42), prejudice to the effective conduct of public affairs (section 36), environmental information (section 39), and commercial interests (section 43).

The relevant contested provisions before the Upper Tribunal in the Freedom of Information Act 2000 were section 37 and section 40, and section 41. Prior to being amended by the 2010 Act, section 37 imposed an absolute exemption from disclosure upon communications with the Sovereign entitled “Communications with Her Majesty, etc. and honours”. The 2010 Act extended this protection to similar communications with the Heir to the Throne. Section 40 is also an absolute exemption relating to personal information as defined by the Data Protection Act 1998. Section 41 also exempts absolutely information provided in confidence.   In respect of the Environmental Information Regulations 2004, the Department for the Environment, Food, and Rural Affairs DEFRA relied upon Regulation 12(5)(f) and Regulation 13 which related to  the interests of the person supplying the information and personal data, respectively. The Upper Tribunal did not decided whether Prince Charles’ communications amounted to personal data, and concluded that the environmental regulations contained a presumption in favour of disclosure that the Tribunal found no reason to depart from.

 The Constitutional Position of the Prince of Wales as Heir to the Throne

It should be noted that none of the parties to the litigation contended that Prince Charles’ activities of “advocacy” to government ministers was at any time or would be unconstitutional. The tribunal decided that there was no established constitutional position for the Heir to the Throne. However, it was noted by Counsel for Mr Evans that Prince Charles’s self-perceived role has been described on his behalf as representational, “drawing attention to issues on behalf of us all” and “representing views in danger of not being heard”. For an account of the Prince of Wales’ activities vis-à-vis his role as Heir to the Throne, the Tribunal drew heavily upon a 1995 article in Public Law by the expert witness for the seven government departments, Rodney Brazier, entitled “The Constitutional Position of the Prince of Wales”. In the 1995 article, Brazier pointed to several features of the Prince of Wales’ activity which were, in his view, “novel” or “surprising”. These included the fact that Prince Charles had arrogated for himself the right to communicate directly with Ministers on affairs of government. Also, Professor Brazier’s 1995 piece pointed out that the Prince was insisting upon enjoying the same rights as the incumbent Monarch in respect of the “tripartite convention”.

 Relevant Constitutional Conventions

Writing in 1984, Marshall wrote that the “major purpose of the domestic conventions is to give effect to the principles of governmental accountability that constitute the structure of responsible government.” All parties to the action agreed that there were three conventions which the case engaged. Both sides agreed upon Sir Ivor Jennings’ tripartite test for the existence of a constitutional convention. In The Law and the Constitution (5th ed., 1959) Jennings suggested that a constitutional convention exists if (i) there are precedents underpinning it, (ii) the parties to the relevant practice consider themselves to be bound by it, and (iii) there is a reason for the existence of the convention. Three constitutional conventions were deemed relevant to the dispute. These were the “Cardinal Convention”, which mandates that the Monarch acts on the advice of Ministers. The second was the “Tripartite Convention” which Bagehot famously described  in The English Constitution as being the Sovereign’s right to “…be consulted, the right to encourage, [and] the right to warn”. However, neither side advanced the proposition that either of these conventions applied to Prince Charles at the stage in question – when he was neither King nor Regent.

The tribunal remarked that the third convention, “the education convention”, had been regarded until now “as little more than a footnote.” This convention stated that the Heir to the Throne is entitled to be educated in the business of government. The seven government departments representing Prince Charles’ interests also argued that the scope of the education convention covered “advocacy correspondence” and required absolute confidentiality to ensure its proper operation. The Upper Tribunal ruled that the confidentiality of the education convention did not extend to advocacy correspondence. In so ruling, the Tribunal also rejected the seven departments’ contention that the advocacy correspondence merited additional protection over and above “routine” confidential correspondence because it fell within the scope of a constitutional convention.

Argument about the education convention revolved around the “admittedly new contention” advanced by the seven departments “that the education convention has been extended so that it covers all correspondence between government and the heir to the throne.” The Upper Tribunal rejected this contention, stating that “in the public examples that we have seen, the plain facts are that what Prince Charles is doing is not prompted by a desire to become more familiar with the business of government, and simply is not addressing what his role would be as king.” The conclusion of the Tribunal was that inclusion of “advocacy correspondence” within the education convention would involve “a massive extension” of that convention for which no good reason had been advanced. Moreover, the disclosure of advocacy communication would be a general benefit to the operation of the education convention because “[it] will focus the minds of the parties on the important principle that the education convention does not give constitutional status to advocacy communications.” So, because the “advocacy correspondence” fell outside of the scope of the education convention, the interest in maintaining confidentiality under that convention was not engaged.

 Differing approaches to the Public Interest of The Upper Tribunal and Parliament

The Upper Tribunal was rightly conscious of the politically charged subject matter of the case, noting in its introductory remarks that:

 “[some] will be horrified at any suggestion that correspondence between government and the heir to the throne should be published. They fear, among other things, that disclosure would damage our constitutional structures. Others may welcome such disclosure, fearing among other things that without it there will be no real ability to understand the role played by Prince Charles in government decision-making.”

 Therefore, it was common ground that the legal questions in the case revolved around one issue – the issue of disclosure – and whether or not any breach of confidence or privacy that disclosure involved would be in the public interest. The Tribunal, I think quite properly, made clear that it was not seeking “to weigh the benefits of a constitutional monarchy over those of a republic.” In this respect it successfully approached the issue in their intended manner – “dispassionately”.

The Tribunal is also to be commended for its extensive treatment of the question of public interest, which ran to twenty-one pages and covered eight separate aspects. Reference was also made to the Nolan Principles on Public Life for the purposes of general guidance. The aspects of the public interest identified were: (1) the promotion of good governance, (2) Royalty, government, and constitutional debate, (3) understanding Prince Charles’ influence, (4) the education convention and preparation for Kingship, (5) the public perception of Prince Charles, (6) chilling effects on frankness in communication between Prince Charles and Ministers, (7) maintaining confidences and preserving privacy, (8) and finally an attempt was made to take a general perspective on the overall balance. The Tribunal concluded that all eight aspects contained facets which, on balance, pointed towards disclosure in the public interest.

In the course of its evaluation of the public interest in maintaining confidences the Tribunal noted that there was a strong interest in maintaining confidentiality, following the test laid down in Prince of Wales v Associated Newspapers [2006] EWCA Civ 1776, but in view of their detailed consideration of the seven factors, that the “inherent weighty public interest in the maintenance of confidences” cited by the Information Commissioner was vital, it was outweighed by the public interest in disclosure. In respect of the overall balance the Tribunal made clear that it was not persuaded that correspondence between ministers and Prince Charles warranted “greater protection from disclosure than would be afforded to correspondence with others who have dealings with government in a context where those others are seeking to advance the work of charities or to promote views.”

Whilst the Upper Tribunal should be commended for its diligent evaluation of the public interest in respect of the areas it covered, the outgoing New Labour government, supported by Parliament were of the view that the public should simply “Keep Calm and Carry On”. Jack Straw, the Minister sponsoring the Bill during a Commons debate on March 2, 2010, claimed that there was a “lacunae” in the original Freedom of Information Act and that:

“We are blessed in this country by a constitutional monarchy of the highest standards. Whatever turmoil there might have been in our body politic, above it all, and held in continuing high respect, is the position of the sovereign… it is of great importance that we protect the political impartiality of the monarchy, the sovereign’s right and duty to counsel, to encourage and to warn the Government and the right of the heir to the throne to be instructed on the business of government in preparation for the time when they assume the monarchy.”

The former Government Minister’s position reminds the reader of Bagehot’s description of the “dignified” portion of the constitution. Bagehot, writing in the Victorian-era, opined:

“The use of the Queen, in a dignified capacity, is incalculable. [The] best reason why Monarchy is a strong government is, that it is an intelligible government. The mass of mankind understand it, and they hardly anywhere in the world understand any other.”

During the same debate Tony Wright MP (Lab) expressed the opinion that: “The question is whether such communications-after all, the amendment that we are being asked to consider is, in a sense, the Prince Charles amendment…”, and furthermore that government should have to make the case for “giving away a public interest test virtually in perpetuity”. Wright developed his case with reference to the example of homeopathic medicine:

“Let us consider homeopathy, which most sensible people think is not entirely supported by evidence. Suppose that Prince Charles, the heir to the throne, were to weigh in to the debate, giving heavy support to the idea that resources should be devoted to homeopathy. If a Government then decided to start allocating resources to homeopathy, people would be entitled to know that that act of lobbying had been extremely successful. We would want to know about it if it had come from any other source.”

However, since January 2011 Parliament has enacted a legal prohibition upon access to such information, and the only explicit justification offered by the sponsoring Minister was that this was the original intention of the Freedom of Information legislation, and protection of the Heir to the Throne had simply been overlooked by the draftsman. Despite this, there are many hypothetical examples above and beyond support for alternative medicine that would legitimately give rise to a public interest in disclosure. The overall conclusion of the Upper Tribunal is instructive:

“The media interest in Prince Charles’s interaction with ministers is substantial. It seems to us that this is not a factor which in itself necessarily favours disclosure. What is relevant is that there is a real debate, generating widespread public interest, on a matter which goes to the heart of our constitution. Sensationalism merely for the sake of it will not generally be in the public interest.”

The Tribunal noted that the 2010 Act represented “a change in legislative policy”. Such a change in policy is something parliament is constitutionally absolutely entitled to carry out. However, it is regrettable that such a fundamental change occurred in the course of a Bill which contained a laundry list of constitutional amendments, resulting in only a fleeting consideration of its potentially wide-ranging impact upon the operation of government. Bagehot’s seminal work first appeared in 1867. It now seems decidedly at odds with our information society that parliament should expect the people to remain ignorant of the persons and factors which might influence government policy.

Hayley J. Hooper is Lecturer in Law at Trinity College, Oxford.

Suggested citation: H. J. Hooper, ‘Keep Calm and Carry On?’   UK Const. L. Blog (16th October 2012) (available at http://ukconstitutionallaw.org)

Editor’s note: this post was revised on 25th October 2012.

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