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 5^th 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)