Hidden influence, Prince Charles and freedom of information

You may or may not think that having an unelected monarch as head of state is an outrageous anachronism. But, either way, it is hard to dispute that the Queen discharges her functions in a way that acknowledges the limited role of a monarch in a constitutional democracy. That is why, quite rightly, we know essentially nothing about the Queen’s views on political or other remotely controversial matters. In contrast, Prince Charles appears to be perfectly happy to use his public role in order to advance his opinions. He is, for instance, a well-known advocate of “traditional” architectural styles – intervening in a highly controversial way in relation to the development of Chelsea Barracks – and a supporter of homeopathic “medicine”. As a senior figure in the royal family, he is unusually well-placed to attract attention to his views, however eccentric they might be.

Of course, Prince Charles is not the monarch. It may therefore be argued that he is not, and should not be, bound by the same requirements of neutrality as those which apply to the Queen. But such an argument cuts both ways. If the role of the heir to the throne is not as constrained as that of the monarch, then Charles should not expect the same privileges either. The constitutional role of the heir to the throne – and the reciprocal rights and privilieges that it entails – was at the heart of the judgment, delivered earlier this week by the Administrative Appeals Chamber of the Upper Tribunal, in the case of Evans v Information Commissioner.

A journalist had sought (under the Freedom of Information Act 2000 and other relevant legislation) the disclosure of “advocacy correspondence” between Prince Charles and several Government Departments. For this purpose, “advocacy correspondence” is correspondence (with Government Departments) that promotes particular points of views, including in relation to Charles’s charitable activities. The Government Departments resisted disclosing the correspondence, seeking legally to justify this position by asserting a public interest in non-disclosure. The Information Commissioner upheld the Government’s position, but the Upper Tribunal has now ruled against the Government (and, implicitly, Prince Charles).

The judgment is lengthy and complex, and I will make no attempt to summarise it. (If you want to read the whole thing, you can find it here – but this summary makes for easier (and quicker) reading, and gives a good overview of the issues.) Instead, I will just make three brief points for the time being.

First, the Upper Tribunal’s decision is surely correct. The so-called public interest in keeping this correspondence under wraps was said to consist in a constitutional need for free and frank exchanges between the heir to the throne and Government Ministers. This need, it was said, arose because the heir had to be “educated” about the workings of what would one day become his Government. While the Upper Tribunal accepted that there was an accepted need for the heir to the throne to be educated in such a way, it rightly concluded that no such educative purpose was necessarily advanced by engaging in advocacy correspondence. The balance of public interest lay in the opposite direction. If the heir to the throne is using his privileged position to push his views with Government Ministers, then there is a powerful argument that the use of such privileged access should be transparent. Quite so. If Government Ministers were to cave in to pressure from the Prince of Wales, the paper trail demonstrating that they had done so ought to be publicly available.

Second, very unusually for a judicial body, the Upper Tribunal had to consider “constitutional conventions”. Such conventions amount to the non-legal, or political, rules and practices of the constitution. They cannot (at least on a traditional view) be enforced directly by courts of law or tribunals, but they may influence the way in which the law is applied. Here, for instance, the scope of any convention concerning the education of the heir to the throne might be relevant to the establishment – or even be evidence – of a public interest in facilitating that process, not least because in order to be recognized as a constitutional convention, the practice or rule must be underpinned by a good constitutional reason.

The Government argued that the “education convention” extended to all correspondence between Government Departments and the heir to the throne. The Upper Tribunal rightly rejected this contention. It is accepted – indeed, it is a convention – that the monarch has the constitutional right to be consulted by, to encourage and to warn her Government. But that is not part of the constitutional role of the heir to the throne – and so his “advocacy correspondence” (which presumably might “encourage” or, more likely, “warn”) should not enjoy a privileged status.

Third, however, the law in this area has now been changed in a quite astonishing way. This case was decided under the old law. But the Freedom of Information Act has been amended. Section 37, which protects from disclosure communications between public bodies and the royal family, has been extended. It used to be the case that such communications were protected only in a limited way: they still had to be disclosed if the public interest in disclosure was judged to outweigh the public interest in non-disclosure. But certain categories of communications with the royal family – including communications with the heir to the throne – now enjoy absolute protection against disclosure. That means they do not have to be disclosed, however strong the public interest in disclosure might be. So if a similar issue arose today, there would be no need – indeed, no opportunity – for the Tribunal to weigh the public interests for and against disclosure: the information would be immune from release under the Freedom of Information Act, and that would be that.

The latter point is a reminder that in the British constitutional system, no values (such as transparency) are sacrosanct as a matter of law. If Parliament can be persuaded to change the law, then no system of higher constitutional law prevents it from trampling over such values. And, thanks to this amendment to the Freedom of Information Act, we are now less likely to discover whether Parliament is wielding this limitless legislative power at the behest of Ministers who have buckled under pressure from an unelected, unaccountable member of the royal family.

Image above reproduced under Creative Commons Licence.