Litigation relating to information rights can sometimes seem very dry and obscure, entailing lengthy analysis of the merits of public authorities disclosing or withholding information which is highly specialised or obtuse, and of little real interest to the general population. But this case – the case of the “Black Spider Letters” – really is a fascinating one, involving an examination not just of the legislative provisions relating to the disclosure of information, but also a consideration of the existence and extent of constitutional conventions pertaining to the role of the monarchy in government. At the same time, it has the potential to generate such controversy as to make for perfect tabloid fodder. It has been the subject of international news coverage. And it’s not over yet.
It all stems from a request for information made under the Freedom of Information Act 2000 (“the Act”) and the Environmental Information Regulations 2004 (“the Regulations”) by a Guardian journalist, Mr Rob Evans. In April 2005 he wrote to seven Government Departments, and asked for a list of correspondence between Prince Charles and the ministers for those Departments between 1 September 2004 and 1 April 2005, as well as copies of each piece of correspondence. Many of the Departments initially relied on exemptions contained in the Act in order to refuse to confirm or deny whether or not they held such information. Ultimately however, all the Departments admitted that such correspondence did exist, but they refused to disclose it.
Step number one for Mr Evans was to complain about the response of the Departments to the Information Commissioner in accordance with section 50 of the Act (which also applies to the information sought under the Regulations). After approximately 34 months of investigation and consideration, the Information Commissioner agreed that the Departments were entitled to refuse to disclose the information. Step number two was for Mr Evans to appeal that decision to the First-Tier Tribunal pursuant to section 57 of the Act. He did that in 2010. In normal circumstances the First-Tier Tribunal would make a decision, with an appeal then lying to the Upper Tribunal. However, in this case that step was skipped. As it was empowered to do under the Tribunal Procedure (First-Tier Tribunal Regulatory Chamber) Rules 2009, the First-Tier Tribunal transferred the matter for determination by the Upper Tribunal in the first instance, no doubt due to its constitutional complexity and significance.
The Upper Tribunal handed down its decision on 18 September 2012. The panel, led by Mr Justice Walker, was clearly wary of the potential sensitivity of the case. As well as articulating the limits of its decision, it is striking that at the beginning of its judgment it explicitly affirmed what normally goes without saying: its impartiality and objectivity.
We stress at the outset what we are not concerned with. We do not define what Prince Charles is entitled to say to government. We neither criticise nor praise what he has said or may have said. We do not seek to weigh the benefits of a constitutional monarchy over those of a republic. Our task is simply to determine whether the law requires the Departments to provide Mr Evans with the “advocacy correspondence” falling within his requests. In the United Kingdom strong views are held by many people for and against the monarchy and for and against the approach which Prince Charles has taken to his role. 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. We approach the matter with no pre-conception. Our law requires us to weigh the public interest in disclosure and in refusing disclosure. We seek to do so dispassionately – in the words of the judicial oath, “without fear or favour, affection or ill-will.
251 paragraphs, and then some
The basic structure of the Freedom of Information Act is that there is a general right for members of the public to access information held by public authorities (section 1). This applies in respect of all information held by public authorities unless the information can be classified as “exempt information” under one of the other provisions of the Act (section 2). Most of those exemptions are qualified exemptions, which means that where they apply, the information need not be disclosed, provided the public authority can show that the public interest in withholding the information outweighs the public interest in disclosure.
The judgment of the Upper Tribunal is extremely lengthy and detailed. The main judgment comprises 251 paragraphs, and if that doesn’t appease you, you can dig into three voluminous open annexes containing further analysis and reasoning. This post does not attempt to do judgment to the rigour of the Upper Tribunal; excellent summaries are already available here and here. In essence, as the panel worked its way through the different legislative provisions that applied in this case and the interaction between them, the fundamental question it had to answer was that basic public interest question: did the public interest favour disclosure or the withholding of the information? In answering that question, it confined its consideration to “advocacy” correspondence i.e. correspondence in which Prince Charles could be seen to be attempting to influence the Government by advocating for particular charities or views.
It was the public interest issue which led the Upper Tribunal to examine the constitutional conventions surrounding communications between government and the Royal Family. In particular, it examined the “Cardinal Convention”, which holds that the Monarch will act upon the advice of his/her Ministers, and the “Tripartite Convention”, which provides that vis-a-vis the government, the Monarch has the right, in the famous words of Walter Bagehot, “to be consulted, the right to encourage and the right to warn”. It acknowledged that the information exchange that occurs pursuant to those conventions takes place in complete confidence which should not be disturbed. However, those conventions apply to the Monarch alone; they do not encompass the heir to the throne.
In respect of the heir to the throne, there exists a convention which the Upper Tribunal called the “Education Convention”, which provides that the heir to the throne should be educated in the workings of government (who knew?). The Departments argued that this convention had been extended to cover all correspondence between Prince Charles and government ministers.
They went on to argue that the fact that the correspondence fell within the scope of a constitutional convention was an important reason in favour of withholding the information, beyond the normal confidentiality that would attach to such correspondence if it was between the government and another private lobbyist. However, the panel rejected the contention that the Education Convention had been extended in this way. It was the role of the Monarch, and not the heir to the throne, to “encourage and warn” the Government.
Therefore, correspondence which did not amount to requests for or provision of information about government activities, but rather constituted advocacy or incidental correspondence, did not fall within the scope of the constitutional convention and had no special status. The upshot was that the advocacy correspondence of Prince Charles had no special status by virtue of its author which militated in favour of withholding the information.
The panel helpfully listed the factors it took into account when carrying out the public interest balancing exercise:
A. Factors in favour of disclosure
- Governmental accountability and transparency;
- The increased understanding of the interaction between government and monarchy;
- A public understanding of the influence, if any, of Prince Charles on matters of public policy;
- A particular significance in the light of media stories focusing on Prince Charles’s alleged inappropriate interference/lobbying;
- Furthering the public debate regarding the constitutional role of the monarchy and, in particular, the heir to the throne; and
- Informing the broader debate surrounding constitutional reform.
B. Factors against Disclosure
- The potential to undermine the operation of the education convention;
- An inherent and weighty public interest in the maintenance of confidences;
- The potential to undermine Prince Charles’s perceived political neutrality;
- Interference with Prince Charles’s right to respect for private life under article 8; and
- A resultant chilling effect on the frankness of communication between Prince Charles and government ministers.
To cut a very long story short, the Upper Tribunal panel considered the evidence and arguments relating to these factors and concluded that the public interest in withholding the information did not outweigh the public interest in disclosure, and the majority of the information requested by Mr Evans – 27 pieces of correspondence between Prince Charles and the seven Government Departments – should be disclosed. It was ultimately persuaded by the argument that the subject matter of the information related to important issues of public interest, and that in addition disclosure would facilitate debate on important overarching issues relating to the transparency of Government and the role of the monarchy.
This was to be distinguished from interest merely because it was Prince Charles:
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.
What it means
The practical impact of the judgment is not as great as it might have been. One of the exemptions relied upon by the Departments was that contained in section 37(1) of the Act. At the time Mr Evans made his request, it provided for a qualified exemption for communications with the monarch and members of the Royal Family or Royal Houshold. By virtue of the Constitutional Reform and Governance Act 2010, that exemption has now become absolute, and it explicitly covers communications with the heir to the throne. This means that if Mr Evans made the same request today, his request could be denied forthwith.
Nevertheless, the Tribunal’s decision is an important one. Not only does it contain various amplifications and clarifications of the law relating to information rights, but it was reached after consideration of a daunting amount of evidence, the presentation of wide-ranging legal arguments, and exhaustive reasoning.
And then came the Attorney General
Yet, on 16 October, the decision was effectively overturned by the Attorney General under a little-known provision of the Freedom of Information Act.
Utilising a power contained in section 53(2) of the Act (which also applies to environmental information by virtue of Regulation 18(6) of the Regulations), Dominic Grieve QC essentially vetoed the release of the information. The section provides that:
A decision notice or enforcement notice to which this section applies shall cease to have effect if, not later than the twentieth working day following the effective date, the accountable person in relation to that authority gives the Commissioner a certificate signed by him stating that he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure falling within subsection (1)(b).
The effect of that provision is that if the “accountable person” (in this case the Attorney General) has reasonable grounds for disagreeing with the decision of the Information Commissioner or Tribunal that certain information should be released, he or she can prevent the decision from being put into effect.
Section 53(6) provides that the accountable person is to provide reasons for the decision. The Attorney General’s Statement of Reasons can be found here. In summary, he concludes that whether or not the Upper Tribunal was right about the scope of the “Education Convention”, it was wrong that the correspondence did not constitute preparation for Kingship, in that Prince Charles was essentially practicing the skills employed by the Monarch under the Tripartite Convention. This underpinned a very strong interest in withholding the information, with the Attorney General observing that “[i]f such correspondence is to take place at all, it must be under conditions of confidentiality”. He also gave greater weight than did the Tribunal to the risk that disclosure of the correspondence could undermine the official neutrality of Prince Charles, and thereby undermine his future position as Sovereign.
Whether the Attorney General or the Upper Tribunal struck the right balance is a question that will undoubtedly be the subject of much debate. What I find interesting is that, with so much reasoning and argument canvassed at such great length, there is arguably one aspect underpinning much of the debate which has not been directly addressed: that being that the Prince of Wales has been in his role for many decades, and he might well be in that role for many years to come, even as his mother will inevitably become less able to assume all the burdens of the sovereign. In such circumstances, one might take the view that it is understandable that he should take it upon himself to engage with government in a way that is conventionally the preserve of the monarch.
The exercise of the “veto power” under section 53(2) by the Attorney General has been lambasted by republican groups. However, it should also not be overlooked that the very existence of this power in the Act is cause for controversy and debate. When the Act was first introduced, it received significant criticism due to the number of absolute and qualified exemptions, with some commentators viewing the presumptive right to information as being subject to death by a thousand cuts. Section 53(2) acts as an executive guillotine.
In any event, this intriguing story is not over. As well as responding to the Attorney General’s decision with a blistering editorial, the Guardian has indicated that it may seek to have the decision judicially reviewed in the High Court; the judiciary may yet have the last word.
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