Tag Archives: Monarchy

Luke Beck: Scottish Independence and Australia

LukeWhat effect might Scottish independence might have on Australia’s constitutional arrangements? This might seem like an odd question but there has been a suggestion in Australia that there might be a profound effect.

Macquarie University’s Iain Stewart is reported by the Australian Broadcasting Corporation as recently saying that Scottish independence ‘could remove [Australia’s] head of state, the monarch, and thus, at least legally, make government in Australia impossible.’ Stewart wrote a piece on The Conversation to similar effect in 2011. A similar suggestion was made by a senior member of the Victorian Bar, David Denton SC, in 2012.

The Australian Constitution relies heavily on the role of the Queen. Among the most important references to the Queen in the Australian Constitution are section 1 establishing the Queen as formally a part of the Australian Parliament and section 61 vesting the executive power of Australia in the Queen. Of course, in practice, the conventions of responsible government operate. Stewart’s concern relates to how we identify who the Australia monarch is.

The starting point for identifying the Australian monarch is covering clause 2 of Australian Constitution. Covering clause 2 provides: ‘The provisions of this Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.’ The Act referred to in covering clause 2 is the Commonwealth of Australia Constitution Act 1900 (Imp), s 9 of which contains the Australian Constitution. The sections of that Act are usually referred to in Australia as ‘covering clauses’ to emphasise they are not actually part of the Australian Constitution.

Stewart’s essential concern is that should Scottish independence occur as a result of the 18 September referendum there would no longer be any United Kingdom by reference to which Australia determines who its monarch is.

I say that Stewart’s concern is unfounded.

In the first place, we’ve been here before. Covering clause 2 simply refers to ‘the United Kingdom’. That is in fact a short hand reference to ‘the United Kingdom of Great Britain and Ireland’. That was the entity existing in 1900. That is the entity referred to in the oaths schedule to the Australian Constitution. The schedule says regarding the oath of office that ‘The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being is to be substituted from time to time’. The constitutional preamble likewise refers to the Australian people agreeing to unite in a federal Commonwealth under the Crown of ‘the United Kingdom of Great Britain and Ireland’.

But, of course, the United Kingdom of Great Britain and Ireland no longer exists. With the independence of the Republic of Ireland, the country became the United Kingdom of Great Britain and Northern Ireland. Scottish independence would, from the point of view of Australia’s constitutional situation, be no different to Irish independence. A chunk of the UK has broken away and become its own independent nation.

The reference to the United Kingdom in covering clause 2 must be read as a reference to the United Kingdom of Great Britain and Ireland and it successor state/s, to adopt the international law terminology. Following Irish independence the successor state was the United Kingdom of Great Britain and Northern Ireland. Australia experienced no constitutional problems as a result of Irish independence and there was no doubt about who Australia’s monarch was. If Scotland becomes independent, the successor state will be what is left of the United Kingdom by whatever name it chooses to go by.

There is another reason why Stewart’s concern is unfounded. That reason is that it is based on an assumption that the legal effect of covering clause 2 is to mandate that whoever is the UK monarch is also by virtue of that fact the Australian monarch. This is certainly one view of the effect of covering clause 2 (which for the reasons given above poses no problems for Australia should Scotland become an independent country). But there are other views of the legal effect of covering clause 2.

As Anne Twomey explained in ‘Changing the Rules of Succession to the Throne’ [2011] Public Law 378, 391 and on the Constitutional Critique Blog in 2012 there are two other possible interpretations:

  • “covering clause 2 is merely an interpretative provision which simply assumes, but does not enact, the existence of a succession law that is operative in Australia. According to this view, covering clause 2 operates to ensure that references to the sovereign are not taken to be confined to the sovereign at the time of the enactment, but extend to whoever happens to be the sovereign from time to time in accordance with the applicable law. As the United Kingdom can no longer legislate for Australia, the applicable law would be the pre-existing law of succession as altered by Australian law.”
  • “covering clause 2 incorporated by reference into the Commonwealth of Australia Constitution Act the British laws of succession to the throne. Under s 4 of the Statute of Westminster, those laws could be amended or repealed by United Kingdom legislation to which Australia had given its request and consent. That is no longer the case. Section 1 of the Australia Acts 1986 provides that no Act of the United Kingdom Parliament may now extend to Australia as part of Australian law. In Sue v Hill [(1999) 199 CLR 462, [93]] three Justices of the High Court of Australia noted that covering clause 2 identifies the Queen ‘as the person occupying the hereditary office of Sovereign of the United Kingdom under rules of succession established in the United Kingdom.’ Their Honours went on to state:

The law of the United Kingdom in that respect might be changed by statute. But without Australian legislation, the effect of s 1 of the Australia Act would be to deny the extension of the United Kingdom law to the Commonwealth, the States and the Territories.

The argument here is that the rules of succession have been effectively patriated with the Australian Crown and while they continue to exist in their current British form, they may only be amended or repealed by Australian action.”

On both of these alternative views of covering clause 2, no change in British law can affect the way in which Australia’s monarch is identified. This is why Australia needed to pass legislation to give effect to the Succession to the Crown Act 2013 in Australia. On the same basis, any changes brought about to the British laws of royal succession as a consequence of Scottish independence would be of no effect regarding the Australian monarch.

In conclusion, it seems pretty clear that Scottish independence will have no direct impact on Australia’s constitutional arrangements.

 

Luke Beck is a PhD Candidate, Postgraduate Fellow (Research and Teaching) and Associate, Constitutional Reform Unit at Sydney Law School, The University of Sydney.

Suggested citation: L. Beck, ‘Scottish Independence and Australia’ UK Const. L. Blog (12th September 2014) (available at http://ukconstitutionallaw.org)

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Nick Barber: Can Royal Assent Be Refused on the Advice of the Prime Minister?

Nick1There is a very good article in the most recent edition of the Law Quarterly Review.  It is by Rodney Brazier, and is concerned with the nature and mechanics of royal assent.  It is a fascinating read, and, as with all Brazier’s work, characterised by a dry wit.  There is, however, one claim, made almost in passing, that I think is mistaken.  Brazier addresses the question of when, if ever, a monarch could properly refuse to give assent to legislation.  He rightly concludes that it is almost impossible to imagine situations in which assent should be refused, but leaves open the possibility that it might be appropriate for the Monarch to refuse assent if advised to do so by her Ministers.  In suggesting that royal assent could be refused on ministerial advice Brazier is not alone.  The assertion has also been made by Geoffrey Marshall in Constitutional Conventions, and Adam Tomkins in Public Law – and may, for all I know, have been made by others, too.   On the other hand, Anne Twomey (in an article in Public Law in 2006) argued that the issue remains open, and gives a number of examples, mostly from Australia, which suggest the Monarch need not accept the advice of her Ministers to refuse assent.  So which position is correct?  If the Prime Minister (or the Cabinet, collectively) advised the Queen to refuse to give her assent to legislation, what, constitutionally, should she do?

Before I set about answering this question it might be worth explaining why I think it is important.  It sounds like a piece of constitutional arcana: the chances of the issue arising seem remote, given that the Prime Minister is Prime Minister because he or she normally has the support of the Commons.  But it could become very important very quickly.  The days when one party dominated the Commons seem, for now, to be over.  It is easy to imagine a minority government facing legislation they disliked, or to imagine MPs stuck in an unwanted coalition becoming increasingly willing to defy the party whips.  The Fixed-term Parliaments Act makes it less likely that such a vote would trigger the resignation of the government, but the Prime Minister might still seek to use the royal veto to stop the bill becoming law.  The issue might also become important if there was an attempt to codify the constitution.  If the convention was included in our new, written Constitution, how should it be expressed?  Would the Constitution effectively give the power to the Prime Minister to veto legislation?     But finally, as well as potentially important, the question is also interesting: it turns on the interpretation of a convention, and forces us to consider what criteria a successful interpretation would meet.

Interpreting conventions is a tricky business. Sir Ivor Jennings famously asserted that there were three elements to a convention: there were precedents, the actors involved must believe themselves to be bound by a rule, and there must be good reasons for the rule.  Geoffrey Marshall advanced a similar understanding of conventions, but did so more pithily: conventions are, wrote Marshall  ‘…the rules that the political actors ought to feel obligated by, if they have considered the precedents and reasons correctly’ (at p. 12, and also here at p. 39).

I have explored the nature of conventions at great length in The Constitutional State.  For our present purposes, though, the question turns on the role that a reason plays in our understanding of a convention.  It is only once we have identified a reason for the convention that we can start to interpret it.

Now, some hard-nosed political scientists would argue that interpretation is impossible, partly because they would reject the inclusion of a requirement of a ‘reason’ within the definition of a convention.  All we – we as academics – can do is describe the actions and beliefs of those within the political community.  It is not for us to seek to resolve uncertainties around the rule by trying to interpret it.  There is certainly some merit to this position.  After all, one of the core features of a rule is that it has an existence separate from the reasons that may underpin it.  A rule can exist, and continue to shape behaviour, even if the reasons for it have disappeared or, indeed, never existed in the first place.  It would seem unnecessarily confusing if, when providing an account of the British constitution, we refused to recognise a convention that those acting within the system followed just because we could not see a reason for their adherence to the rule.

Does this mean that consideration of the reasons for a convention fall beyond the capacities of those seeking to understand the constitution?  First, the line between the descriptive and the evaluative is notoriously hard to draw.  Even the driest account of a constitution needs to pick and choose to a certain extent.  A description of the British constitution that resolutely refused to select between competing interpretations of its rules would be worthless – radically undermined by the inclusion of crazy understandings of the constitution.  And it would also be incomplete.  A good description of a convention should try to identify why the rule is valuable.  Part of this can be done by looking at why those following the convention think it is valuable – if they have given any thought to the matter – but the further question of whether they were correct in their beliefs would remain open.  A good account of a convention would also address this issue.

A second explanation for why we – that is, those who read a blog of this type – should try to identify a good reason for a convention is that we are part of the constitutional community that contains the rule.  The political pressure that secures obedience to convention comes from our community. Our understanding of the convention may, then, affect how those in power understand the rule.  It would be hubristic to suppose Her Majesty is an avid reader of this blog, but we can be fairly certain that her office will have filed a copy of Professor Brazier’s article in some drawer, waiting for the day when there is a dispute over the exercise of royal assent.  Whilst the conclusions of an anthropologist, studying the rain-dance of an Amazon tribe, will not affect the practice she studies, the conclusions of a constitutional lawyer on the meaning of a convention may well help shape how those following a convention understand the rule.  This influence brings responsibility: we have an obligation to our community to identify bad or pointless conventions and, also, to explain why good conventions are worth having.

The correct understanding of the convention of royal assent requires us, as Ronald Dworkin would say, to put the rule in its best light.  If we are able to identify a good reason for the rule we can – sometimes – then resolve ambiguities or uncertainties around the rule by reference to this reason.  What, then, is the reason for the convention on royal assent?

Those who argue that the Queen should accept the advice of her Ministers do not explain at any length why they adopt this interpretation of the convention.  Perhaps the best explanation of their understanding is that they group the convention on royal assent along with the rest of the conventions surrounding the prerogative powers.  Practically all of the Queen’s prerogative powers are now exercised on the advice of Ministers, normally the Prime Minister.  The prerogative can be used to appoint ministers, declare war, annex territory, sign treaties, and many other things besides.  That the Queen no longer has any discretion about the exercise of these powers is important because it upholds democratic government.  Ministers are accountable to Parliament and, ultimately, to the electorate, for the ways they use these powers.  In the words of Walter Bagehot , a republic has insinuated itself beneath the folds of a monarchy.

But does this reason justify the inclusion of royal assent within the group of prerogative powers that are exercised on ministerial advice?  It is hard to see that it does.  Now the convention is operating against democratic values, rather than upholding them.  Rather than supporting parliamentary government, it would undermine it.  The point of the convention on royal assent is to uphold the primacy of the democratic element of the constitution in the making of law.  But just as it would be undemocratic to allow one person – the Monarch – to veto legislation, so too it would be undemocratic to give this power to the Prime Minister.  In short, when presented with a bill that has passed through Parliament in a proper manner, the duty of the Monarch is to give assent – irrespective of the advice of her Ministers.  There is no room for discretion.   On its best interpretation, this is what the convention requires: if the Monarch were to accept the advice of her Prime Minister on this issue, she would be acting unconstitutionally.

Nick Barber is a Fellow of Trinity College, Oxford, and University Lecturer in Constitutional Law. 

Suggested citation: N. W. Barber, ‘ Can Royal Assent Be Refused on the Advice of the Prime Minister?’   UK Const. L. Blog (25th September 2013) (available at http://ukconstitutionallaw.org).

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Nick Barber: The Constitutional Inheritance of the Royal Baby: A Speculation.

Nick1It might be thought that there would be little need for a post on this blog about the arrival of the royal baby.  The new Prince of Cambridge – Your Highness, to his friends – is unlikely to play a significant constitutional role for sometime to come.  I found myself wondering, though, what the constitutional situation will be when, and if, he finally comes to the throne.  So, here is the post I plan to write in 2075 – and the way academic pensions are going, I will probably still be working then.

To some, it may come as a surprise that Britain continues to be a monarchy.  We escaped, or missed, the tide of republican constitutional reform that followed the death of Queen Elizabeth in the middle third of the century.  Australia and Jamaica were the first to go, followed, like a line of falling dominos, by Canada, and then by New Zealand.  Other territories followed suit, with most adopting an elected head of state or – more simply still – combining the role of head of state with that of prime minister.  However, it is still the case that the sun never fully sets on our new King’s realms: some small territories decided, for economic and foreign policy reasons, to retain the royal connection.  And the Privy Council, acting as their highest court, still provides a useful guarantee of legal certainty to the owners of the many corporations nominally residing on these islands.  Like these micro-realms, we in the United Kingdom have retained our monarchy.  This is only partly through choice: the moment has never seemed quite right for a public discussion of the wider issues raised by an hereditary head of state, there always seems to have been more important matters to worry about.  It could well be said that it is apathy, rather than a commitment to royalism, than has allowed the institution to last this long.

Within the United Kingdom, the King inherits a fractious and diverse realm.  Scotland will undertake its 10th vote on independence from the Union this coming autumn, and the low-levels of likely voter turn out make it hard to predict the outcome.  For many years, the royal family has worked hard to maintain the Union – without, of course, ever stating this position publically – and conferral of the title of ‘Duke of Edinburgh’ on the heir apparent reflects this commitment.  A popular argument in favour of the monarchy is that it serves this unifying function, bringing the United Kingdom together.  However, it has been hard to avoid the impression in the last fifty years or so that the royal family is tied to England, and based in London.  The former monarch regularly attended the openings of the English Parliament and, of course, of our federal, British, Parliament, but was less commonly seen in the Scottish and Welsh Parliaments.  Whilst the nationalist movement in Scotland remains formally committed to the monarchy, it is hard to believe this commitment is very deep.  If – or, perhaps, when – Scotland finally votes for independence, it is likely to reassess its connection with royalty.

The King takes the throne following the abdication of his father.  It might reasonably be asked if we now have enough evidence to talk of a ‘convention’ of abdication.  Queen Elizabeth was the last monarch to reign until her death – though for the last ten years or so of her life Prince Charles acted as regent in all but name.  He abdicated shortly afterwards, having reigned for only a year, citing old age and a passionate desire to express his opinions about a wide range of matters more openly.  The new King’s father, the former Prince William, has just stepped down at the ripe old age of 91, having served for about 40 years.  Abdication seems to have become the standard way for the Crown to pass between generations.

The need for abdication as a regular feature of constitutional monarchies became apparent in the first half of this century.  The monarchies of the Netherlands and Belgium began this trend.  The ever-improving standards of healthcare – and the healthy lives led by the privileged sections of society from which monarchs are drawn – necessitated abdication as a standard constitutional device.  It became evident that without abdication states risked a succession of extremely elderly kings and queens, as the crown was passed from centenarian to octogenarian.  Can we now say that there is a convention in the United Kingdom that the Monarch will step down on reaching old age?  If this is a convention, there is a substantial amount of uncertainty involved in it.  It does seems that the Monarch will step aside when he or she feels that age is inhibiting her work, but whether that is 85 – as with Charles – or 91 – as with William – depends on the holder of the office and the pressure they are subjected to by the wider political community.  Perhaps a better – and more humane – approach would be to set a statutory retirement age for the monarch.  He or she would be compelled to stand aside, even if still capable of undertaking the duties of the office.

It might be objected, though, that the capacity to choose the date of their retirement is pretty much the last constitutional power that the Monarch possesses.  Removing this choice would leave the Monarch completely powerless, little more than a national mascot.  A clear trend of the twenty-first century has been the steady reduction in the political power and influence of the Monarch.  Most of the Monarch’s legal powers were lost by the start of the century – the prerogatives of the Crown were and still are exercised by those accountable to the Parliaments of the United Kingdom – but the Monarch’s political influence has also declined.  This is partly due to the holders of the office.  Queen Elizabeth – it subsequently transpired – had been able to exercise a small, but significant, influence on government policy.  Her weekly meetings with the Prime Minister combined with her understanding of politics and wide public popularity enabled her to shape some aspects of public policy under some prime ministers.  Her successors had far less clout.  The emergence of Prince Charles’ letters to Ministers – after many court battles – did not present him in an attractive light.  His views on farming, hunting, and – most damningly – homoeopathy did not enhance his public position.  For the short period he was monarch, he had little influence; ministers were keen to distance themselves from his views.  And when Prince William then took the throne it seems he had little interest in the detail of public affairs, content to leave matters entirely to the elected part of the constitution.  Perhaps wisely, he may have concluded that to exercise influence, or even to seek to exercise influence, was – first – likely to be leaked to the public, and – second – likely to harm the institution of the monarchy.

A further reason for the decline in royal power, and one that was not predicted at the time, was the shift of the United Kingdom to a formal federal structure in the middle part of the century.  The Prime Minister of the United Kingdom still has regular meetings with the Monarch, but many of the important day-to-day decisions are made by the first ministers of England, Scotland, Wales, and Northern Ireland.  It could easily be argued that the Prime Minister exercises substantially less power that any of these other four.  Indeed, the United Kingdom Parliament, and government at the United Kingdom level, is often very weak.  When the first ministers collectively decide on a policy, the United Kingdom Prime Minister is almost always compelled to accept their decision.  Even in matters of foreign policy, England and Scotland have – through offices overseas that are embassies in all but name – often as much influence as the formal representatives of the United Kingdom.

A possible corollary of this decline in power has been a decline in the heir apparent’s willingness to avoid making politically controversial statements.  Whilst his father was noted for his public restraint, our new King has spoken out on many issues – feeling, perhaps, that if he will be denied influence whilst in office, he should at least be allowed to express his views like any other citizen.  It has even been argued that along with the decline in royal power should come the right to vote: if our new King lacks special constitutional powers, why shouldn’t he at least enjoy the ordinary constitutional power the rest of us exercise?

In conclusion, as we start to look forward to the invigorating spectacle of the coming coronation – and turn our eyes away from the un-inspiring stories of the scandals surrounding the next generation of royalty – it might now be time to ask whether monarchy is really a fit institution for the coming twenty-second century.  True, some of the oddities have ended.  The Monarch is no longer the head of the Church of England – a divorce that brought great relief to each party – and no longer has any real political power.  But we might still worry about the symbolism of having a head of state who is always drawn from the most privileged part of our society.  More pressingly, perhaps, we might also worry about the unfair and unhealthy pressure that this puts on holders of this office.  Our new King has had to put up with 62 years of relentless scrutiny, and his capacity to choose his own path in life has been radically constrained.  Maybe, in 2075, it is time to think – cautiously – about change.

Nick Barber is a Fellow of Trinity College, Oxford, and University Lecturer in Constitutional Law. 

Suggested citation: N. W. Barber, ‘The Constitutional Inheritance of the Royal Baby: A Speculation’ UK Const. L. Blog (24th July 2013) (available at http://ukconstitutionallaw.org).

Readers are invited to submit, through the comments section, their own predictions for the state of the constitution when the royal baby takes the throne.  A prize will be awarded – in 2075 – for the most accurate.

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Robert Hazell: The Royal baby, the Rules of Succession, and the Realms

robert_hazell1In anticipation of the birth of the Royal baby, Parliament passed the Succession to the Crown Act in April 2013.  It provides that in future the eldest child will be next in line of succession, whether it is a girl or a boy.  The law will not come into force in time for the Royal birth, but the new baby when born will be next in line.  This Blog post explains the background, and the difficulties involved in changing the rules of succession.

Why have the rules of succession been changed?

Over the last 20 years a series of Private Member’s bills have been introduced into both Houses of Parliament to provide for gender equality in the rules of succession to the Crown.  The Labour government did not resist the principle of the change; but it explained that such a change could be initiated only by the government, because of the need to engage with the 15 other countries of which the Queen is head of state (the Realms).  The government supported the change because of the equalities legislation it had itself introduced.  Another motivating factor was that the other European monarchies were all amending their laws to introduce equal primogeniture.  Sweden was the first to change, in 1980, followed by the Netherlands in 1983, Norway in 1990, Belgium in 1991, Denmark in 2009, and Luxembourg in 2011.  Spain has said it will switch to equal primogeniture, but the Spanish constitution has not yet been amended.

Although supportive of the change, the Labour government ultimately failed to act because it was daunted by the size of the task involved in engaging with the Realms; by further complications, such as whether to address the discrimination against Catholics which is also built into the rules of succession; and because there was no immediate reason to do so.

Why now?

The marriage of Prince William and Kate Middleton in April 2011 provided a spur to action.  What had been a hypothetical problem became a real possibility.  Having written to them beforehand, in October 2011 David Cameron used the Commonwealth Heads of Government meeting in Perth, Australia, to engage with those Commonwealth countries that are also Realms and seek their agreement to change their own laws.  The UK government has said that it will not bring the new law into force until all the Realms have made the change.  When the change is made, it will be backdated to 28 October 2011, the date of the agreement announced in Perth.

Why has changing the law taken so long?  The Realms

Changing the rules of succession for the UK is complicated because the British monarch is head of state of 15 other countries, known as the Realms.  These include large countries such as Australia, Canada, Jamaica, New Zealand; and small countries such as St Vincent, Tuvalu and the Solomon Islands.  (The full list is Australia, New Zealand, Canada, Jamaica, Antigua and Barbuda, Belize, Papua New Guinea, St Christopher and Nevis, St Vincent and the Grenadines, Tuvalu, Barbados, Grenada, Solomon Islands, St Lucia and The Bahamas).

The UK government and Buckingham Palace want any change in the rules of succession to be introduced throughout the Realms (if there were different rules, that could lead in time to different members of the Royal family succeeding in different countries).  Under the Perth agreement all the Realms agreed to make the necessary changes to their own laws.  The nature of the change required varies roughly in proportion to the size of the country: the smallest countries may simply pass a Cabinet resolution, others will legislate in parliament, while the largest countries may need to amend their constitutions.

Australia and Canada face particular difficulties because they are federations, where the consent of the states (in Australia) or the provinces (in Canada) is required for any constitutional amendment.  In Australia a compromise has been agreed that the State Parliaments will request the federal Parliament to change the law.  In Canada a minimalist law passed by the federal Parliament has since been challenged on the ground that changing the office of the Crown properly requires amendment of the Canadian constitution.

Will the Royal baby be next in line?

As the eldest child, the Royal baby will be next in line of succession after Prince William, whether it is a girl or a boy.  It does not matter that the new law has not been brought into force providing for equal primogeniture: so long as there is only one child, it is next in line.  The new law would only be needed if the eldest child is a girl, and a second child is subsequently born which is a boy.  The UK government hopes and expects that all the Realms will have come into line in the next 6-12 months, so the new law should have come into force by the time of the birth of any second child.

What other changes were made to the rules of succession?

Two other changes were made.  The Royal Marriages Act 1772 was repealed, and in future only the first six persons in line to the throne will require the Sovereign’s approval to marry.  Second, marrying a Roman Catholic will no longer disqualify a person from being in the line of succession.  But the prohibitions on the Monarch being a Roman Catholic remain: the Sovereign continues to be Supreme Governor of the Church of England, and must be in communion with the Church of England.

What does this change tell us about the British constitution?

Being unwritten, the British constitution is very easy to amend. Big changes, such as devolution to Scotland and Wales, reforming the House of Lords, or the Human Rights Act can be introduced by simple Act of Parliament.  What this episode shows is that changes to the succession to the Crown are much more difficult, because the change needs to involve not just the UK but the 15 other Realms.

It will have taken two to three years to effect this small change.  The difficulties in the Realms are multiple and varied.  Some saw this as a project of the UK government, and little to do with them.  Some struggled to realise what was required.  Some did not wish to provoke a wider debate about the monarchy.  At the other end of the scale, the two largest countries, Australia and Canada, have constitutions which are notoriously difficult to change.  So if any future change requires a constitutional amendment in either of those countries, the difficulties are further compounded.

It is too early to tell whether this small change has further consequences for the Realms themselves.  They are a widely scattered group of countries, most of whom have little in common.  It is possible that this exercise will have brought them a little closer together; it is also possible that it prompts some to question the link with the monarchy of a country so far away.

 

Robert Hazell is Professor of British Politics and Government at UCL, and Director of the Constitution Unit.

This post originally appeared on The Constitution Unit’s Blog. (http://constitution-unit.com/)

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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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