The government’s decision to veto the disclosure of Prince Charles’ correspondence lobbying ministers was criticised by the Campaign for Freedom of Information.
The Campaign’s director Maurice Frankel said:
“This is the first time the government has vetoed a decision of the Upper Tribunal under the FOI Act. The previous vetoes have applied either to the Information Commissioner or the First Tier Tribunal.
The Upper Tribunal heard from constitutional experts on both sides of the argument. It set out detailed, cogent, clearly argued reasons for its decision over a 65 page ruling. If the Upper Tribunal is wrong, the government would be able to challenge and overturn its decision in the Court of Appeal. It is choosing not to go down this route but to veto the decision instead, which suggests it is not confident of its ability to win the argument in law.
The Upper Tribunal concluded that the Prince’s lobbying on behalf of various charitable causes did not fall under the constitutional convention designed to educate the heir to the throne to become monarch. He is trying to change government policy, not learn about it.
The convention is subject to a strict rule of confidentiality: neither side reveals what has taken place. The Upper Tribunal found that Prince Charles had disclosed information about his lobbying activities for use in Jonathan Dimbleby’s biography of him. It points out that if Prince Charles himself considered these exchanges to be subject to the convention, he would not have disclosed them.
The decision to exercise the veto is judicially reviewable. If the Guardian newspaper goes for judicial review, the government will still have to justify its decision in court.”
The Campaign pointed out that just before the 2010 election the government amended the FOI Act to change the way the exemption for information relating to communications with the Royal Family operated. Until that point, the exemption was subject to the Act’s public interest test. However, the amendment removes the public interest test from information relating to communications with the monarch and the next two in line to the throne. This “absolute” exemption now prevents any access to such information for 20 years or until 5 years after the death of the individual concerned, whichever is later. The public interest test continues to apply to information relating to communications with other members of the Royal Family.
The Campaign said this means that even if the government’s veto is overturned at judicial review, no future request for similar information will succeed until the correspondence is at least 20 years old.
The case relates to FOI requests made by Guardian journalist Rob Evans in April 2005 for correspondence between Prince Charles and a number of government ministers during the previous 6 months. The departments refused to provide the information. The Information Commissioner upheld their refusals on the grounds that the information was exempt under the FOI exemptions relating to communications with the Royal Family (section 37), personal data (section 40) and information whose disclosure would be a breach of confidence (section 41). Some environmental information was withheld under corresponding provisions of the Environmental Information Regulations.
The Information Commissioner’s rulings were overturned by the Upper Tribunal in a decision published on 18 September 2012. ( UKUT 313 (AAC)). The Upper Tribunal found that the correspondence between Prince Charles and the ministers was not protected by the constitutional convention protecting exchanges between the heir to the throne and ministers for the purpose of educating the heir to be monarch.
The Upper Tribunal concluded:
“Those who seek to influence government policy must understand that the public has a legitimate interest in knowing what they have been doing and what government has been doing in response, and thus being in a position to hold government to account. That public interest is, in our view, a very strong one, and in relation to the activities of charities established or supported by Prince Charles it is particularly strong.”
“…none of the Departments’ contentions persuades us that, in the absence of special circumstances, as regards advocacy correspondence it is appropriate to give correspondence between ministers and Prince Charles greater protection from disclosure than would be afforded to correspondence with others who have dealings with government in a context where those others are seeking to advance the work of charities or to promote views.”
“…They lead us to conclude that in general terms the balance is likely to be not only clearly but also strongly, and sometimes very strongly, in favour of disclosure.”
The Upper Tribunal’s judgment Evans v (1) Information Commissioner (2) Seven Government Departments  UKUT 313 (AAC) is available from – http://www.osscsc.gov.uk/Aspx/view.aspx?id=3542
The Attorney General’s certificate and statement of reasons have been published on the department’s website -http://www.attorneygeneral.gov.uk/NewsCentre/Pages/AttorneyGeneralvetoesreleaseofPrinceofWalescorrespondence.aspx