The longest running Freedom of Information (FOI) battle is about to come to a close.
On Thursday 26th March at 9.45am the Supreme Court will make a judgement which could pave the way for letters written by Prince Charles to be disclosed under the FOI Act. The fight for the correspondence, between the Guardian and the government, has been ongoing for 10 years.
Seven of the most senior judges in the country will decide whether Dominic Grieve, when he was the Attorney General, was lawful in issuing a ministerial veto to block the publication of 27 pieces of correspondence written by the Prince. Last year the Court of Appeal ruled that the use of the veto was unlawful – the government then appealed the case to the Supreme Court.
The overall case is a technical one that involves the FOI Act, the Environmental Information Regulations, and EU rules. It is a battle that has seen the government waste at least £250,000 on attempting to block the publication of the letters. However, the fundamental decision behind the case comes down to will be whether the government could lawfully block the court ordered publication of the letters.
It is unlikely, if the letters should eventually be disclosed, that there will be the explosive content of MP’s expenses. Damage that may occur could be to Charles’s reputation and his future position as King (depending on their content). Although, there may also be questions to be answered by former government ministers if the letters reveal decisions they made were based upon the heir to the throne’s correspondence.
Below is a run-down of the history behind the case since. All the court documents, which are referred to can be found at the bottom of this post.
The requests (2005)
Guardian journalist Rob Evans first asked for the correspondence between the Prince and seven government departments a few months after the FOI Act came into force in 2005.
The requests were intended to discover how much the Prince of Wales communicated with government ministers and thus determine the influence he may have over policies.
Evans asked for the following information for the eight months covering 1 September 2004 and 1 April 2005:
(1) A list of all correspondence sent by Prince Charles to each minister in the department, identifying the recipient, sender, and date, for each item of correspondence.
(2) A similar list of correspondence sent by each minister in the department to Prince Charles;
(3) Complete copies of each piece of correspondence listed;
(4) A schedule giving a brief description of each document relevant to the request, including the nature of the document, its date, and whether it was being released or not
Initially the departments refused to confirm or deny whether the information was held. When the requests were appealed to the regulator, the Information Commissioner, they changed tact and said it was held.
DEFRA also refused said that information which had been asked for was exempt under the Environmental Information Regulations.
A lengthy wait occurred while the Information Commissioner was deciding on whether the letters should be released. Eventually the regulator said that all of the departments could refuse to provide the information.
Leaked letters (2009)
In 2009 the first information about letters the Prince had sent to ministers was made public. Following a series of leaks The Guardian revealed that Charles had written to eight government departments after 2006, and his ministerial aides had written to a further five. These were not the letters which are concerned in the case which the Supreme Court is deciding upon.
The content of these letters from the Prince was not revealed, but it was a significant step in revealing the amount the he and his staff have tried to influence politicians.
The letters from his aides recommended that hospital trusts planning new buildings should use a design technique which was adopted by Charles’s architecture charity. Other issues included were Charles’s preferred opinion on the ecotowns scheme.
The eight departments which had received letters from the Prince after 2006 are below.
A change in the law (2011)
Amid the raising profile of the Guardian’s requests for information and the leaked letters the government decided it was time to change the FOI Act to protect the royals. Schedule 7 of the Constitutional Reform and Governance Act 2010 strengthened the royal family’s ability to avoid transparency and openness.
The right to information about the royals was shut down, just six years after it had been granted. The changes remain one of the most significant restrictions that have been placed upon the FOI Act since it came into force in 2005.
“The changes provide an absolute instead of a qualified exemption for information relating to communications with the sovereign, heir to the throne or second in line to the throne or those acting on their behalf,” Ken Clarke said when the commenced the Constitutional Reform Act in 2011.
A much-shared Independent article from 2011 sums up the changes that were made: “Letters, emails and documents relating to the monarch, her heir and the second in line to the throne will no longer be disclosed even if they are in the public interest.”
The change to the Act means that any correspondence Charles, or other senior royals, has had with government ministers since the Guardian’s request will not be disclosed until their death – at the very earliest.
Republic, who continue to campaign against the change, say: “The extraordinary measures the government has taken to stop you seeing Prince Charles’s letters shows this is not just a matter of principle.
“The royals are using their secrecy for their own personal advantage, whether that’s demanding more public money or pushing a narrow political agenda.”
Upper Tribunal (2012)
Meanwhile, back in the fight for Charles’s letters to be published, the case had reached the courts. Evans and the newspaper appealed the Information Commissioner’s decisions to the information tribunals.
Due to the complexity of the issues the case was referred directly to the Upper Tribunal – bypassing the First Tier Tribunal, which is the normal route for complaints. Each of the separate FOI requests, which, had been refused, were now banded together as one case.
It will generally be in the overall public interest for there to be transparency as to how and when Prince Charles seeks to influence government
The Upper Tribunal was the first time that the government was told it must publish the Charles’s correspondence.
“The essential reason [the correspondence should be published] is that it will generally be in the overall public interest for there to be transparency as to how and when Prince Charles seeks to influence government,” the Upper Tribunal concluded.
The Tribunal did say that it was a difficult balancing decision for them to make, but ultimately the public interest in knowing the content of the letters was stronger than the reasons for keeping them secret. It did say that the only correspondence which could be disclosed was that of an “advocacy” nature. Letters and correspondence Charles had written to ministers about his social affairs, or his personal life, could not be disclosed.
The tribunal overwhelming said that the letters should be published.
Aside: The Upper Tribunal also issued a second decision in 2013. This, according to the Panopticon blog: “decided that the government should release its “schedules and lists” of “advocacy correspondence” between Prince Charles and various government departments”.
The ministerial veto
Just a month after the Upper Tribunal ruled that Charles’s letters should be published, the government swooped in to block this from happening.
Dominic Grieve, the then Attorney General, issued a ministerial veto which stopped their publication.
It was one of seven times a government minister has used a veto to say that information should not be published. Other uses include Cabinet Minutes surrounding the Iraq War, the NHS risk register and most recently High Speed 2 documents.
Disclosure of the correspondence could damage the Prince of Wales’ ability to perform his duties when he becomes King
Grieve’s arguments for using veto mostly consisted of protecting Charles’s constitutional rights and his ability to share his opinions with ministers.
“In summary, my decision is based on my view that the correspondence was undertaken as part of the Prince of Wales’ preparation for becoming King,” Grieve said in setting out his reasons for using the veto.
“The Prince of Wales engaged in this correspondence with Ministers with the expectation that it would be confidential.
“Disclosure of the correspondence could damage the Prince of Wales’ ability to perform his duties when he becomes King. It is a matter of the highest importance within our constitutional framework that the Monarch is a politically neutral figure able to engage in confidence with the Government of the day, whatever its political colour.”
Grieve continued to say that the letters contained Charles’s “particularly frank” and “most deeply held personal views and beliefs”.
High Court (2013)
After Grieve had issued the veto the Guardian decided to pursue the letters through the remaining arms of the legal system. The newspaper took the case to the High Court.
This challenge is technically not part of the Freedom of Information Act as it is done through the costly process of judicial review.
Three high court judges rejected the arguments put forward by the Guardian’s legal team. The court found that releasing the letters could damage Charles’s role as future King.
Despite the judges decision, which meant the letters would remain secret, it was said that there were “troublesome concerns” about the power of a minister to override a judge-made decision.
At the time a spokesperson for the Guardian said: “We are obviously disappointed. We consider the publication of these letters to be squarely in the public interest.”
Court of Appeal (2014)
The ministerial veto and its application is what the entire case depends upon. Last year the Court of Appeal decided that Grieve’s application was unlawful. The ministerial veto was ordered to be quashed. The Guardian had won.
“The Attorney-General did not have reasonable grounds for forming the opinion on which the certificate [veto] was based,” the Court of Appeal judges said as they ruled Dominic Grieve unlawfully used the ministerial veto.
The damning decision against the Attorney General continued to say “he had no good reason” and “he could point to no error of law” to say the correspondence shouldn’t be released.
Despite the cutting words of the Court of Appeal judges the government appealed to the highest court in the land.
A two day hearing was conducted in November 2014 – now the time for the decision has arrived.
Supreme court to rule on Prince Charles letters – The Guardian
The defeat of the Mysterious Veto? – FOI Man
Prince Charles, the Guardian and the Unreasonable Veto – 11KBW (2014)
The Prince Charles veto: JR fails due to availability of JR – 11KBW (2013)
The FOI ministerial veto – why not? – Jon Baines
FOI and the Ministerial Veto – House of Commons Library (auto download)
Book: The Prince Charles Letters – David Stubbs
The following documents are all of the main court documents which have been issued during the battler for the letters. All of the below are referred to in the above commentary.
They range from the Upper Tribunal’s decision that the information should be disclosed, to the, currently, unlawful Ministerial veto that was issued by Dominic Grieve.
Court of Appeal (2014)
The most recent court document on the case. This is the one that the government has appealed to the Supreme Court.
High court ruling (2013)
The time when the Government won the initial Guardian appeal against the ministerial veto being used. However, the court said the use of it was “troubling”.
The Ministerial Veto (2012)
Dominic Grieve’s Ministerial veto and the reasons for him issuing it.
Upper Tier Tribunal
The original decision which said that the letter should be released due to the substantial public interest in Charles unique position to jump to the front of the queue when writing to ministers.