Tag Archive for Prince Charles

Charles’ Letters: Will Dominic Grieve?

FOIMan reflects on last week’s long-awaited publication of correspondence between the Prince of Wales and government ministers.

UK Supreme Court

UK Supreme Court

FOI stories are like buses. You wait ages, decide to walk, and then three or four drive past you. Last week I took a long-planned week’s holiday only for the new(ish) government to make significant appointments, the Court of Appeal to rule on vexatious requests, and of course for a 2005 series of FOI requests to finally achieve the disclosure they sought.

Consequently pretty much everything there is to say about Prince Charles’ letters to ministers in the Labour government back in 2004 has already been said. But I’m going to try and squeeze a few more drops of juice from the pith nonetheless.

Two points struck me. The first was the reaction to the letters. A panellist on Have I Got News For You? described them as “boring”. And that just about sums up everybody’s comments on them. Far from the skies falling in, or crowds storming Clarence House or Buckingham Palace calling for a republic, the letters confirmed what we already knew – Charles has strong views on certain subjects such as architecture and agriculture. He has expressed most if not all of those views publicly in the past, so all we now know is that he has said the same things to government ministers. Although, like many, I would prefer Royalty to keep its distance from government in anything other than a symbolic way, there’s no suggestion from this correspondence of anything improper.

Some people will argue that the Guardian’s campaign to procure this release was therefore a waste of time and money. It really isn’t. Evidence that there isn’t a problem is still valuable.

What was a waste of time and money was the government’s determined efforts to prevent release. Time and again we see these long battles to prevent disclosure of correspondence. And very often the offending missives are released and turn out not to be of the remotest interest.

Public bodies continue to battle to protect principles and conventions. This is despite the fact that their own FOI Officers, legal advisers, the Information Commissioner, the Tribunals and the courts constantly repeat that FOI exemptions are not designed to protect abstract traditions. To apply exemptions successfully you need to demonstrate that meaningful harm will be caused by the specific disclosure. Breaking conventions does not automatically cause meaningful harm – it may cause change, but that’s what FOI was meant to do.

All of this has been said before, and it leads me to my second point. The Supreme Court decision which led to this disclosure overturned the use of the ministerial veto by the then Attorney General Dominic Grieve. When Mr Grieve issued the veto, his explanation was that the letters were “particularly frank” and disclosure “could seriously undermine the Prince’s ability to fulfil his duties when he becomes King.” Now that we’ve had chance to read these letters, these statements – particularly the latter – appear ridiculous. How does this square with what we know about Mr Grieve?

Whatever your political persuasion, Dominic Grieve appears to be a sensible and rational man. He is a barrister, and especially since leaving office last year has not been shy to criticise government plans to replace the Human Rights Act with a Bill of Rights. When he gave evidence to the Justice Select Committee in 2012, he was invited to give his views on the introduction of an absolute exemption for cabinet minutes. He gave a reasoned explanation as to why that might not be a good change to make. Mr Grieve is not one of those politicians who opposes transparency on principle. He is thoughtful and considered on these matters.

An examination of s.53

FOIMan examines the offending section of FOIA

So why was his justification of the veto so hyperbolic? I think I know this. Perhaps it isn’t very insightful but I think that it illustrates something of the position in which FOI Officers often find themselves. My guess is that Mr Grieve did not feel very strongly about Prince Charles’ letters. I suspect he came under pressure from others – Clarence House? Fellow Cabinet members? The Prime Minister? FOI Officers sometimes find themselves in disagreement with senior colleagues, and ultimately have to do what they’re told. Mr Grieve of course was a senior Minister, but may have found himself in a similar position nonetheless. We all have our seniors, and we all have to choose our battles. In the circumstances, I can understand why Mr Grieve may have felt this was not a resignation issue. He may well not even have bothered arguing.

When I was an FOI Officer and found myself in this position, I had to come up with arguments to justify the use of exemptions – even though I didn’t think they were justified. My arguments in such situations were undoubtedly weak and often exercised hyperbole. If challenged (which they rarely were), they would have fallen apart spectacularly. Perhaps this is how Dominic Grieve came to advance some uncharacteristically poor arguments in his explanation of the veto. He may well not have believed in them wholeheartedly from the start. So perhaps Dominic will not grieve his veto being overturned after all.

Prince Charles’ letters and the Veto

FOIMan explains why the ruling of the Supreme Court in relation to Prince Charles’ “black spider memos” is so significant – and why FOI campaigners should be cautious in their celebrations.

logoshirtOn 1 January 2005, FOI came into force. Later that same year, the Guardian’s Rob Evans made Freedom of Information requests to government departments for correspondence with Prince Charles, the heir to the throne. Ten years later, the Supreme Court has finally ruled that those letters (or many of them at least) must be disclosed. The full story of those ten years – together with many of the key court decisions – can be read in Matt Burgess’s excellent piece on the FOI Directory site.

This ruling is important – and for me, pleasantly surprising. After the Court of Appeal considered this case last year, I gave my analysis on this blog, and it turns out I was wrong. Though not entirely. My prediction was that the Supreme Court would rule that the veto was legitimate in relation to information subject to FOI, but that the European law that underpins the Environmental Information Regulations (EIR) would lead to a ruling that the veto cannot apply to environmental information. As it turns out, the Court ruled that the veto was not legitimate in either case, though there was more support from the Justices for the veto not applying to EIR (6:1 as opposed to a 5:2 ruling on the use of the veto in relation to FOI).

Huge congratulations are due to Rob Evans and the Guardian. Rob and the Guardian have been persistent in pursuing the release of the letters, even when all around (or many of us) were sceptical of their success. But I now want to consider the implications of this judgment for FOI and EIR.

Firstly, what does this mean in terms of the release of correspondence between members of the Royal Family and public bodies? One of the reasons that this case is so important is that it is now pretty much the last chance any of us will get to see what is said in correspondence like this, unless it is leaked (or relates to environmental matters – see below). This is because FOI was amended in 2010 – during the wash-up of the last government – to make the exemption covering relations with the monarch and their two nearest heirs absolute. This means that the government and other public bodies will be able to refuse all future requests for correspondence with Prince Charles under FOI. This ruling will not change that. But at the time of Rob Evans’ request, the exemption was subject to a public interest test, and that is how we have reached this point. If the correspondence is released, then that will be the last FOI disclosure of Prince Charles’ letters.

That said, the ruling is significant in terms of environmental information. Given the Prince’s known interest in environmental matters, it is likely that public bodies will hold many letters from the heir that would fall under the EIR. All the exceptions (the EIR equivalent of exemptions) under EIR are subject to a public interest test, and this judgment makes clear that Ministers cannot exercise the veto in relation to any decision to disclose information falling under EIR. So we may well see future disclosures of correspondence from Prince Charles relating to environmental issues.

But in many ways, the most important implication of this ruling has nothing to do with the Royal Family. The point of this appeal was to consider whether the Attorney General was entitled to exercise the controversial veto at section 53 of FOI. And the judgment says some pretty important things about the veto.

It says that it is not enough for government ministers to disagree with Commissioner, Tribunal and Court rulings on FOI – the use of the veto has to be justified:

“…it appears to me that there is a very strong case for saying that the accountable person cannot justify issuing a section 53 certificate simply on the ground that, having considered the issue with the benefit of the same facts and arguments as the Upper Tribunal, he has reached a different conclusion from that of the Upper Tribunal on a section 57 appeal.” para. 68 of the judgment

But it also confirms the view expressed by the Lord Chief Justice in the High Court decision on this case that the veto itself is “a constitutional aberration”. The ability of the executive to overturn the decision of a court of law:

“…would be unique in the laws of the United Kingdom and would cut across two constitutional principles which are fundamental components of the rule of law, namely that a decision of a court is binding between the parties and cannot be set aside, and that decisions and actions of the executive are reviewable by the courts, and not vice versa.” Press Summary

So the effect of this ruling is to call into question almost all use of the veto, certainly up to this point, and potentially in the future. This is a huge defeat for the government.

Without wanting to pour cold water on well-deserved celebrations, that is exactly the reason why I think we need to be cautious. Governments don’t like huge defeats. And the veto has been used by both the last two governments. David Cameron has already released a statement saying that the law will need to be amended to reinforce the veto and make its future use clear and unassailable. Speaking at 11KBW’s Information Law Conference last week, barrister Tim Pitt-Payne, who has represented the Commissioner as well as government departments in FOI cases, expressed his view that if this ruling went against the government, it was likely to reopen the question of the application of the section 35 exemption for policy formulation. When the Justice Select Committee examined FOI three years ago, it decided that section 35 didn’t need to be strengthened, as the veto provided a backstop for government if it needed to protect internal discussions.

Today’s ruling will lead to another period of reevaluation of FOI by government, and may well provoke attempts to provide more protection for government information. FOI campaigners and others will need to be vigilant.

 

 

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.

Third parties and FOI

Journalist David Higgerson highlighted a case yesterday where the Department for Transport (DfT) had refused a request for detailed information about overcrowding on trains. The exemption applied was s.43 of the FOI Act, which can be used to protect information which would, or would be likely to, prejudice commercial interests.

First off, let’s give credit where its due – DfT should be congratulated on their openness in publishing all their responses to FOI requests online routinely. This probably wouldn’t have come to light if they didn’t do that. Not many public bodies (not even my own) take that approach. And I’d also say that whilst it’s not perfect in its wording, generally speaking, the response is actually pretty detailed and helpful notwithstanding the decision not to disclose all of the information.

But David draws attention to a serious issue. The key reason given by DfT was that the Train Operating Companies (TOCs) had refused permission for details of passenger numbers to be disclosed. DfT are putting together a new dataset which relies on the cooperation of the TOCs, so they were concerned that if they disclosed such data, the TOCs might not help with the new project.

This highlights a key problem for public bodies answering FOI requests. All information we hold is subject to FOI, but not all of it was created by us. In my experience, one of the most common reasons why exemptions are even considered is to avoid offending third parties. And sometimes third parties can be pretty aggressive in making clear that they don’t want the information that they supplied to be disclosed. Often, they just have no understanding of what FOI means for public bodies, even though they are usually informed in advance about the possibility of disclosure, and we try to explain the situation again when requests come in.

Public authorities need to get better at standing up to third parties. In my experience, some are too inclined to just accept the third party’s view that information should be withheld. Government departments in my experience are particularly prone to this. We have to remember that it is our decision in the end, and not the third party’s.

If the Government is serious about openness, it really needs to tackle the attitudes of the organisations that it does business with, especially amongst those private companies that provide services to the public. If they can’t be made to co-operate, they should be at least threatened with being brought under the auspices of FOI. Then they’d understand the situation much more clearly.

The most powerful third parties even attempt (and sometimes succeed) to change the law to avoid their information being disclosed. A few years ago, MPs fed up with their correspondence to local authorities being disclosed in response to FOI requests tried to enact an amendment to the legislation to specifically exempt any correspondence from MPs. Oh, and while they were at it, they tried to sneak in an exemption for both Houses of Parliament. Eventually that proposal was defeated, but only because once it had passed the Commons, their Lordships were too embarrassed to support it any further.

Yesterday, by Statutory Order (following the passing of the Constitutional Reform and Governance Act by the last Government), the FOI Act was amended to strengthen the exemption for Communications with the Royal Household (s.37). From now on, public authorities will be able to (and will no doubt be leant on to) use an absolute exemption (ie with no public interest test) to withhold correspondence between the Monarch, the Heir and the second in line to the throne and themselves. So in future nobody will be able to find out if the Prince of Wales is seeking to influence planning decisions or the design of hospitals. This only came about, I suspect, because some public bodies felt that there was a public interest in disclosing such correspondence in the past, and pointed out that in this circumstance, they had to disclose the correspondence. That won’t have been happily received.

Some third parties can be very powerful indeed.