The Attorney General, The Rt. Hon. Dominic Greive QC MP, has today signed a certificate under Section 53 of the Freedom of Information Act 2000 which overturns the decision of the Upper Tribunal (Administrative Appeals Chamber) in Evans v The Information Commissioner and Seven Government Departments ([2012] UKUT 313).

Section 53

Section 53 has become known as the “ministerial veto” and has been used by the current Government the most since the Freedom of Information Act 2000 (FOIA) came into force.  The veto gives an “accountable person” the right to issue a certificate in relation to any decision of the Information Commissioner, the tribunals or courts regarding an information request made pursuant to the Freedom of Information Act 2000 which has the effect of overturning the decision of the Commissioner, tribunal or court.

In essence it places a public authority given powers to make us of s.53 as the final arbiter in a dispute over whether they were correct to withhold information requested under the FOIA.  It was a key condition placed on the legislation by Jack Straw, the Secretary of State for Justice when the FOIA went through Parliament.  The Commissioner, Tribunals and Courts are there to act as independent arbiters who can look at the case with “fresh eyes” and perhaps more objectively than the public authority or applicant can.  However, at the end of the day the Government remains the ultimate controller of what information it holds it releases.

The Evans requests

The requests in question were made by Rob Evans, a journalist at the Guardian newspaper, in 2005.  They sought the content of correspondence between HRH Prince Charles, the Prince of Wales, and the Ministers of seven departments of central government.  Those departments were:  Department for Business, Innovation and Skills; Department of Health; Department for Children, Schools and Families (now the Department for Education); Department for Environment, Food and Rural Affairs; Department for Culture, Media and Sport; Northern Ireland Office and the Cabinet Office.

There exists, by way of constitutional convention, a right for the heir to the throne to be educated in Government business in order to prepare him (or her) for becoming King (or Queen).  The convention also provides that such correspondence is confidential and its existence or content should not be disclosed.

Upper Tribunal Decision

The Information Commissioner and First-Tier Tribunal sided with the Government and held that the public interest in maintaining the exemption (ss.37, 40, 41 of the FOIA and Regulations 12(5)(f) and 13 of the Environmental Information Regulations 2004).  However, the Upper Tribunal disagreed and in a 65-page judgment outlined the reasons why it decided that most of the withheld information should be released.

It could be argued that there is no public interest in the constitutional convention which provides a right for the heir to the throne to be educated in Government business and for those  pieces of correspondence to be confidential.  That argument is a simple one of democracy given that the Monarch is unelected and in a democracy unelected officials should really not be in a position to influence the way in which a democratically elected Government conducts its business.  This is an argument that I am minded to agree with, but I won’t set out my reasons in full for this here as it really does stray beyond the aim of this post.  However, I shall return to the influencing Government point later.

The Upper Tribunal has accepted the constitutional convention and applied it in this case.  Some of the information withheld properly, it decided, fell within the scope of that constitutional convention.  However, much of the correspondence that was withheld was not, in the Upper Tribunal’s mind, covered by the convention.  That correspondence was lobbying by HRH The Prince of Wales, sometimes on behalf of others.  It was nothing more than correspondence trying to persuade the Government to take a different course.  The Government receives many such letters each year from a wide variety of people.  All those letters would more than likley be capable of being obtained by way of in FOIA information request.  The difference in this case was that the lobbying was coming from the Royal Family and potentially has the influence behind it to cause a change of Government policy.  We might never really know whether the Government changed its policy on things as a result of correspondence received from HRH The Prince of Wales.

Constitutional conventions are not, the Upper Tribunal rightly pointed out, law.  They do not have the same position as a written constitution (such as in the United States of America) and have nowhere near the same effect.  They are essentially, in a lot of cases, nothing more than Parliamentary and Governmental etiquette.  The Upper Tribunal points to the convention that says a Prime Minister must resign from office if, after a general election, he (or she) ceases to lead a party with the majority of seats.  This is a good example of a convention to look at (and indeed we can look only to a few years ago to see it in operation).  Following the 2010 General Election the Labour Party no longer had the majority of seats in the House of Commons.  No party did, by the largest party was the Conservative Party.  While they did not have a majority they arguably had a mandate to govern the United Kingdom (certainly more of a mandate than the other parties did).  However, Gordon Brown remained Prime Minister for several days following the General Election.  Even once the Conservatives and Liberal Democrats had agreed to enter a Coalition there was nothing, in law, requiring Gordon Brown to resign as Prime Minister.  It is simply etiquette that when a Prime Minister looses an election he resigns (essential in a democracy, but not legally required in the United Kingdom).

The Upper Tribunal was placed in a rather unusual position in this case.  It was being asked to consider the extent of a particular convention rather than a purely legal question.  The Upper Tribunal looked at the convention and reached a decision which, from its judgment (and common sense), appears to be a sensible one which gives effect to the convention protecting correspondence educating the heir to the throne in matters of Government policy.  Discussion of this particular convention can be found in paragraphs 89-112 of the Upper Tribunal’s judgment.

The judgment of the Upper Tribunal is lengthy and I don’t want to spend too much time on going through it.  However, the key to understanding the Upper Tribunal’s decision is quite simple, in my view, it rests on the content of the correspondence.  We know from the Tribunal’s decision that HRH The Prince of Wales has been writing to the Government to lobby them on a wide range of issues.  This is not new news to us and has been covered elsewhere, such as in a Biography of HRH by David Dimbleby.   There is, I would submit, a strong public interest in the extent of Prince Charles’ lobbying of the Government.  Someone who is unelected and has as much power and influence as the Royal Family do, particularly senior Royals, must be subject to a level of scrutiny and the public interest in that is greater by the mere fact that they are not elected (in my view).

I won’t say anymore on the Upper Tribunal’s judgment.  I have linked to it at the bottom of this blog post and will now move onto the Attorney General’s s.53 certificate.

The veto of the Upper Tribunal’s decision

The decision to veto the Upper Tribunal’s decision that a large quantity of the withheld information ought to be released is a serious blow to democracy in the United Kingdom.   The Attorney General’s reasons for vetoing the release of the information read more like reasons for releasing the information than not.

The Attorney General makes reference to these being “The Prince of Wales’ most deeply held personal views or beliefs”.  The Monarch is, by constitutional convention, supposed to be politically neutral.  Releasing the information cannot harm the Prince of Wales’ political neutrality because that was harmed the moment his views were communicated to the Government through his correspondence.  If the Prince of Wales is willing to set out his views prior to taking to becoming King then it is not unreasonable to consider that he might be willing to use his influence as Monarch (when he becomes the Monarch) in expressing his views in the future.

This decision from the Attorney General is clearly wrong and undemocratic.  It strikes at the very heart of what the Freedom of Information Act aims to do.  It is open for Mr Evans to seek a Judicial Review of the Attorney General’s decision to use Section 53 of the FOIA.  I hope that he will do so, supported by the Guardian Newspaper.  To date the use of the veto by the Government has gone unchallenged and it risks the democratic process if the Government are not properly held to account over doing so.

Links
Evans v the Information Commissioner and Seven Government Departments [pdf]
Statement of Reasons for use of veto by the Attorney General [pdf]
Criticism for government veto over release of Prince Charles’ lobbying correspondence

• FOIA
• Freedom of Information
• Politics