A few weeks ago, I posted about the judgment in Evans v Information Commissioner, in which the Upper Tribunal ruled that correspondence between Prince Charles and several Government Departments had to be released under the Freedom of Information Act 2000. The letters in question have been referred to as “advocacy correspondence”, in which Charles urged his own views upon Ministers — presumably in the hope or expectation that those views would be taken account of, and perhaps adopted, in the formulation of policy.
The Government Departments resisted disclosing the correspondence, seeking legally to justify this position by asserting a public interest in non-disclosure. The Upper Tribunal disagreed, ruling that there was a public interest in releasing the letters: if the heir to the throne was using his privileged position to urge his views upon Government Ministers, then there was a powerful case for making the use such privileged access should be transparent. The public surely has a right to know if the elected Government is being lobbied by a powerful individual, whether or not he is the Prince of Wales.
The Attorney-General, however, disagrees. Using his power under section 53 of the Freedom of Information Act, he yesterday overruled the Upper Tribunal by vetoing the release of the correspondence. The Attorney-General (or indeed any other Government Minister) is legally entitled to override the Upper Tribunal in this way if he is in a position to sign a certificate stating that “he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure” to comply with a relevant provision of the Freedom of Information Act.
What this means in practice is that where the Upper Tribunal and the Government disagree on whether (for example) it is in the public interest for information to be released, the Government can have the final word provided that it can demonstrate “reasonable grounds” for its view. The Guardian newspaper has now indicated that it intends to seek judicial review of the Attorney-General’s decision, presumably on the basis that “reasonable grounds” do not in fact exist. Against this background, I want to make two points about the Attorney-General’s decision, each of which reveals (what is, to me at least) an uncomfortable truth about the British constitution.
The first point concerns the decision itself. In the statement of reasons provided by the Attorney-General, he points out that the Monarch has a constitutional right —indeed duty — to be consulted by, to encourage and to warn the Government. And, as the Upper Tribunal itself accepted in Evans, a further constitutional convention — the “education convention” — acknowledges that the heir to the throne has the right to be instructed in the business of government in preparation for the time when he or she becomes Monarch. Where the Attorney-General makes a wrong-turning, however, is in his conclusion that it is within the scope of the education convention for the heir to the throne to urge his views upon Ministers.
But even if the Attorney-General were right about this, his reasoning is flawed in a further respect. Accepting that “advocacy correspondence” potentially falls within the education convention is not determinative of whether particular correspondence should be released. In relation to the specific letters in question, the Attorney-General said:
The letters in this case are particularly frank. They also contain remarks about public affairs which would in my view, if revealed, have had a material effect upon the willingness of the government to engage in correspondence with the Prince of Wales, and would potentially have undermined his position of neutrality … [and] his future role as Sovereign.
What this reduces to (in part) is the argument people should not know how Charles sought to influence the elected Government in case that knowledge undermines public confidence in him as a person capable of discharging the duties of King in a politically neutral way. What a profoundly undemocratic argument. Of course, monarchy is itself a profoundly undemocratic institution — and on one level it therefore does not matter what people think of a serving or future Monarch: public opinion (technically) counts for nothing in these matters.
But this is not just about Charles and public confidence in him. It is also about the Government. One reason for wanting to letters to be disclosed is to allow an assessment to be made of whether — and if so to what extent — the Government caved into the pressure that Charles applied. At issue, therefore, is the integrity of the democratic process — and, in particular, whether that process was infected by misplaced ministerial deference to the archaic institution of monarchy. And in that, surely, there is a compelling public interest.
The integrity of the judicial process
The second objection to this sorry episode is a general, not a specific, one. It concerns not the decision taken by the Attorney-General in this case, but rather the fact that, in the first place, the Government is in a position to interfere in relation to such matters. In one sense, there is nothing whatever wrong with the Government having such a power: after all, it was given to the Government by Parliament when it enacted section 53 of the Freedom of Information Act 2000. But it is not quite as simple as that.
The decision in Evans v Information Commission — that the advocacy correspondence should be released on account of the balance of public interest — was taken by the Upper Tribunal. The Upper Tribunal is, to all intents and purposes, a court. As Professor Peter Cane, a leading academic commentator, has put it, tribunals today are not (as they once were) “court substitutes”; rather, they are a “species of court”. Indeed, the Upper Tribunal is, in many senses, a judicial body that is equivalent in status to the High Court. There is, then, something deeply unsettling about a Government Minister being able to, in effect, overturn the decision of such a judicial body. When the Government is subject to judicial review by the High Court (or, in some cases, by the Upper Tribunal) it is unlawful for the Government to disregard decisions and orders made in the course of such litigation. Ministers who ignore the High Court can be held in contempt of court. The rule of law demands that the Government abides by the law as a requirement, not because (and only to the extent that) it wishes to.
In fact, the only way out for the Government when the courts make decisions to which it objects is (if appeals have failed) to get Parliament to legislate, so as to amend the law. When that happens (as it occasionally does) at least the Government is forced to go through a process whereby it invites Parliament to legislate and put forward its Bill for consideration. Of course, the Government’s majority in the House of Commons means that it can normally get its legislation through — but that does not exempt it from having to submit to a public process of scrutiny. In contrast, the Government can overturn freedom of information decisions without going through any equivalent process. On a purely technical analysis, that is fine — because Parliament has provided for this under the 2000 Act. But on a broader view, there is a real risk that this may bring the judicial process into disrepute. What is the point, people will legitimately ask, of getting a court to rule on freedom of information disputes if the Government can simply ignore judicial decisions with which it disagrees? And where does it leave fundamental constitutional values such as the separation of powers and the rule of law if, in this area, the Government is bound by judicial decisions only when it agrees with them?
It will now fall to the High Court — thanks to the judicial review claim being brought by the Guardian — to decide whether the Attorney-General exercised his veto power lawfully. If the court decides that there were no “reasonable grounds” to justify the Attorney-General’s position, then that decision will be quashed and the Upper Tribunal’s decision reinstated. It is to be hoped (but perhaps not expected) that the High Court will review the Attorney-General’s decision rigorously — and, in particular, that the “royal” dimension of the case will not cause the court to exhibit needless deference.