Don’t Mention the Convention

FOI Man dispenses with convention to discuss the Attorney General’s decision to veto the disclosure of correspondence with the Prince of Wales.

Along with many others, I find myself disappointed but not surprised that the Government has chosen to veto the disclosure of letters from Prince Charles to Government Ministers following a Tribunal ruling that they should be disclosed to Rob Evans, the Guardian journalist who requested them.

I don’t doubt that the Attorney General, Dominic Grieve MP, gave this matter serious thought. He is not – unlike some politicians – given to knee jerk dogmatic decisions. At a post-legislative scrutiny hearing earlier in the year, his evidence was considered and perhaps surprising to the casual cynic. The explanation of his decision is well argued, but as ever with the veto, the explanation hasn’t really added anything to the arguments already dismissed at earlier stages.

It is gilded with the language of the constitutional convention. Another (excellent) blog post on this subject provides a working test for whether a convention exists:

“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.” (Hayley J. Hooper referencing Sir Ivor Jennings (1959), The Law and the Constitution 5th ed.)

Whenever a decision is made not to disclose information under FOI, and a constitutional convention is used to justify it, it makes me uncomfortable. Because, in my view, FOI by its very nature challenges these conventions. It chops away at all three legs of that test. It is designed to ensure that information is made available that wasn’t before, and sets out a new process to decide what should and shouldn’t be disclosed – past precedent becomes irrelevant, or at most a useful guide. It is no longer the choice of the “parties to the relevant practice” who should decide, but (ultimately) the Information Commissioner or Tribunal – independent arbiters considering the public interest. And the reason for a convention existing is open to challenge from outside. Surely decisions as to whether to disclose information should not be based on a convention that has existed for years, but on the facts as they are at the time the information is requested. Conventions are made to be broken.

This has been my view for years. And it very much coloured how I dealt with a request for correspondence with Prince Charles.

Much to the displeasure of the Royal Household, the first time the Greater London Authority (GLA) received a request for such correspondence, I advised the Mayor’s Office that the correspondence should be disclosed. It consisted of a small number of invitations from both sides, and an equal number of apologies that the recipient could not attend such-and-such event due to a prior engagement. It was frankly dull. It was technically subject to the exemption covering correspondence with the Royal Household, but, as I argued to them, the existence of a public interest test meant that there must be circumstances in which such correspondence would be disclosed. And whilst there was nothing interesting in the correspondence, there was certainly a public interest in demonstrating how dull it actually was. So on the last day at work before Christmas, I sent the letters out to the journalist who had requested them. They were so incredibly dull (did I mention how dull they were?) that nothing was heard of this scandalous breach of constitutional convention ever again.

Not only did I not end up in the Tower (which would have been a short trip across the Thames), but the next time that we received a request I was invited for a meeting at the Palace. And yes, the tea came with Duchy Originals.

But let’s be serious. We live in a constitutional monarchy so we’re told. Most people assume that the Queen and the Royal Family have a purely symbolic role, leaving the running of the country to elected politicians, whilst they leap out of helicopters with fictional secret agents, and catch pneumonia in aquatic pageants. If Prince Charles is writing to Ministers claiming to be an “advocate”, and in terms that are “particularly frank”, then clearly my assumption – and that of millions of people across the country – is wrong. Either the Royal Family are mere figureheads for our country with no real power, or they seek to influence Government. They can’t be both. If it’s the latter, then I think there’s a public interest in at least some of their correspondence being available to us all, so that we can gain a true understanding of their role.

3 comments

  1. Phil Bradshaw says:

    In fact I thought there was nothing wrong as such in seeking to influence government, as long as remaining politically neutral (not necessarily a clear line there I accept). The royal website even admits “The Queen has an unequalled store of experience upon which successive Prime Ministers have been able to draw”. Drawing on experience suggests some influence, however minor, otherwise there would be no point in the activity.
    Subject to that minor gripe I agree wholeheartedly with the post.
    In some ways as it says the AG’s analysis is perhaps superior to the Tribunal’s – the notion that PC was to be equated with Joe Bloggs was always odd, as was the suggestion that it was not part of his ‘training’ for the monarchy. Nonetheless the arguments do not persuade. Like everything else the constitutional conventions must be subject to the democratic will now embodied in FOIA.
    I’m fairly neutral on the monarchy / republic scale, but if we do have a monarchy I would have to ask whether I wanted a King who was really so embarrassed by his expressed views that he did not want them known.
    Finally I’m not sure if the veto stands up in law relating to environmental information. Certainly seems contrary to Article 6 of the European convention on public access to environmental information which requires that the judicial process be final.

  2. Ganesh Sittampalam says:

    I hadn’t even realised the EIR had a veto until this happened. It also seems incompatible with the Aarhus convention – I wonder if a complaint to the committee on compliance would (eventually) bear fruit?

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