Tag Archive for Prince of Wales

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.