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Focus on Regulation

Refusing disclosure of Prince Charles’ letters; further use of the Ministerial veto

In September, on this blog, we questioned whether use of the Ministerial veto under s.53 of the Freedom of Information Act 2000 (“FOIA“) to prevent disclosure of information subject to FOIA requests was becoming increasingly routine. A month later, we can report that the veto has been used again, this time to prevent disclosure of private correspondence  (the “Correspondence“) between Prince Charles and seven Government departments (the “Departments“) that was sent between September 2004 and April 2005.

A request was made to each of the Departments for disclosure of the Correspondence by a journalist of the Guardian in April 2005 (the “Complainant“). These requests were refused by the Departments on the basis of a number of exemptions under FOIA and the Environmental Information Regulations 2004 (the “Regulations“), and these refusals were upheld by the Information Commissioner in December 2009 in separate decision notices. However, the Complainant appealed these decisions and, on 18 September 2012, the Upper Tribunal, to whom the appeals were transferred and who addressed them as a single set of proceedings, determined that the Departments would have to disclose the Correspondence. In response, on Tuesday, Dominic Grieve QC MP, the Attorney General, vetoed this disclosure.

The primary exemptions under FOIA and the Regulations on which the Departments sought to rely, namely sections 37(1) (communications with her Majesty) and 41 (actionable breach of confidence), and regulation 12(5)(f) of the Regulations (adverse effect to the interests of the person who provided the information), were all, at the time of the request, subject to an assessment of whether or not the public interest favoured disclosure of the Correspondence.

It was agreed by the parties and the Tribunal that, in considering public interest, there were strong arguments in favour of disclosure. Disclosure would further government accountability and transparency and increase public understanding of the interaction of the Monarchy and Government and the influence of Prince Charles on Government policy, especially in the context of media stories focusing on his alleged lobbying of Government. Disclosure would also inform the wider debate about constitutional reform.

However, the Departments maintained that these arguments were more than counterbalanced by the public interest in not disclosing the Correspondence. They argued that the Correspondence fell within the constitutional “education convention”, whereby the heir to the Throne is to be instructed in the business of government, as preparation for the operation of the “tripartite convention” whereby the Monarch is entitled to be consulted, to encourage and to warn her Ministers. The maintenance of the “education convention” was in the public interest.

The Upper Tribunal, in its judgment, agreed that maintenance of the “education convention” was in the public interest, but simply found that the Correspondence did not relate to the “education convention”. The Correspondence was not prompted by the desire of Prince Charles to become familiar with Government, but rather his belief that action by the Government was needed. Confidential interaction between Government Ministers and others seeking to advance policy views was generally disclosable, and the situation was not, as a general rule, different for Prince Charles. Accordingly, the public interest case for withholding the Correspondence was much weaker than that for its disclosure.

The Attorney-General disagreed with this conclusion. In his Statement of Reasons justifying use of the veto, he argues that, whether or not the Correspondence fell within the “education convention”, the ability of Prince Charles to correspond, in confidence, with Ministers is of considerable practical benefit in enabling him to understand the business of government and is therefore an important part of his preparation for kingship. The Correspondence consequently has a constitutional function. Furthermore, it is an important feature of the constitution that the Monarch is perceived as being politically neutral, and disclosure of Prince Charles’s frankly stated personal beliefs would undermine this if he acceded to the Throne. Accordingly, the Attorney-General used the veto to prevent disclosure of the Correspondence.

Whilst we wait for the Commissioner to prepare his Report to Parliament on this use of the veto, it seems unlikely that even this will bring an end to the saga. The Guardian has stated that it will take the Government to Court to challenge its unreasonable use of the veto, the first time the use of the veto will be challenged.