Tag Archive for Constitutional Conventions

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.

Read the story, then count to ten…

When you’re a public employee, even one who sees themselves as progressive and enlightened, it’s easy to reject media criticism of public sector practices as misguided and ill-informed. But maybe we need to keep an open mind.

Confession time. I sometimes get really annoyed with journalists’ stories about Freedom of Information. And their comments on Twitter.  I know that colleagues in the public sector, and even other FOI Officers, will be familiar with that feeling.

It’s the hyperbole that sometimes appals. Other times it’s the lack of understanding of how government (at all levels) works. Quite a lot of the time its just an instinctive reaction to seeing colleagues (in the loosest sense – most of the time I don’t even know the people being talked about) criticised in print, apparently just for doing their job.

Heather Brooke revels in her reputation as a thorn in the side of the public sector on FOI and transparency. She has consistently argued that more details of public employees should be made public. Like many other FOI Officers, I’m responsible for Data Protection compliance in my organisation. I’ve made the point here previously that I think there are fundamental differences in the approach to personal data and privacy taken in Heather’s native US and here in the UK. I know many colleagues in my own organisation and elsewhere who would feel very uncomfortable with their details being made public. There are plenty of employees in private sector organisations (including media corporations) that would feel similarly. I resent the characterisation of all public employees as sinister power-hungry figures intent on creating and/or maintaining a big brother state under a shroud of secrecy. All of these objections and more boil in the cauldron of my mind as I read Heather’s latest criticism, often accompanied by a thin wisp of steam rising from my scalp.

But fundamentally, she’s doing her job. If I try to see past my instinctive reactions, I can see that she’s got a point – there are circumstances where more transparency about who is doing what would be beneficial. And a lot of my discomfort is less about privacy and more about the fear of my colleagues’ reactions.

Last week I read a story (possibly apocryphal) in a blog post about a Minister having to ask a friendly MP to make an FOI request to obtain information from his own department. The argument he’d been given was that the papers belonged to the previous administration so he couldn’t see them. Whilst the journalist was making the point that this was ridiculous, the public servant in me was dying to respond. I wanted to point out that there were good reasons for this. It’s about ensuring that the civil service is seen as impartial. There’s a convention in government that you don’t let Ministers of a new government see the papers of the previous administration.

But, let’s pause a second. If the papers could be disclosed under FOI, it patently is ridiculous. And even if the full facts would have justified how the situation was handled, of course it looks stupid to the outside world. Journalists can’t be expected to understand the inner workings of Whitehall, any more than I can be expected to understand the functioning of a national news outlet. And more than that. The whole point of FOI and moves to transparency in our public sector is to challenge the status quo. Conventions that have stood for centuries in some cases absolutely should be scrutinised to see if they are consistent with the new way of working.

For instance, I have issues with the convention of collective responsibility being trotted out religiously in defence of withholding Cabinet Minutes. And for that matter with the convention that protects the impartiality of the Monarch and the Heir being given as an excuse for not disclosing correspondence with the Prince of Wales. Surely the best way to maintain the impartiality of members of the Royal Family is for them to be impartial. These conventions often seem like they put the cart before the proverbial horse – surely we should be looking at whether actual harm will be caused to good government, individuals or third parties when considering FOIs, not whether harm will be caused to a convention (which in itself was designed to protect those things in an age before FOI existed).

That’s not to say that there aren’t good reasons at times for information to be withheld. And journalists, along with other people who make requests, are never going to be happy when information is withheld. But I think it’s important that those of us trying to change the culture in the public sector pause a moment when our reaction is to reject criticism. Many of us have been working in the public sector for years. It’s easy to assume that the way things are done is the way they should be done. It ain’t necessarily so.

And when journalists and others get it wrong, or they just don’t understand why decisions have been made, maybe we need to be more open about the process and the reasoning. This blog is one reaction to that – I want people who make requests to understand why FOI works the way it does. That won’t stop critical stories about FOI handling. But it’s another dimension to the openness agenda that we’re all trying (or should be trying) to push within the wider public sector.

So I’m going to keep a fire extinguisher to hand and put out the fires of my indignation next time I react angrily to media criticism. Openness will apply to my mind as well as my job. I will count to ten before I dismiss a journalist’s latest story as “Balderdash” or something stronger. Mrs FOIMan, who knows me better than most, reading this over my shoulder, comments “Good luck with that.”