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A Web of Influence: Freedom of Information and the Black Spider Memos

About The Author

Amy Ling (Former Private Law Manager)

Amy graduated with a first in Philosophy from The University of Manchester in 2012. Following three years working within the social housing sector, Amy is currently studying for her LPC and will begin a training contract at a city firm in September 2016. Amy is an accomplished mooter, and was on the winning team in the 2015 JustCite International Mooting competition. Outside of the law, Amy is a keen runner.

As Head of State, The Queen must remain politically neutral…Other members of the Royal Family do not act on ministerial advice, but they also are required to preserve their political neutrality so as not to embarrass The Queen.

The Queen and Voting

Within weeks of this article being published, the notorious and much anticipated ‘black spider memos’, private letters to government departments penned by Charles, The Prince of Wales, will make their way into public domain. Not only are the contents of these documents expected to be highly damaging to the monarchy’s appearance of political neutrality, but the court battle that has led to this point raises significant constitutional issues as to the executive’s ability to overrule decisions made in the court room.

In the Beginning: Evans and the Freedom of Information Request

Section 1(1) of the Freedom of Information Act 2000 (‘FOIA’) states:

Any person making a request for information to a public authority is entitled—

(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b )if that is the case, to have that information communicated to him.

In April 2005, the Guardian journalist Rob Evans made a (in my view, perfectly reasonable) freedom of information request (‘FOI’) under FOIA and the Environmental Information Regulations 2004 (‘EIR’) to several government departments. The request concerned letters written by Prince Charles during the period September 2004 to March 2005 to seven different government departments (likely to include the department of health, business and environment). These letters are known as the ‘Black Spider Memos’ due to the prince’s handwriting, use of underlining and exclamation marks.

As outlined in the judgment of the Supreme Court (para 3), the departments initially refused to confirm or deny whether the letters existed, before refusing to disclose the information, using justifications provided by FOIA that the contents involved personal information (section 40) and it would be a breach of confidence to release the information (section 41). This decision was then upheld by the Information Commissioner, the independent body whose role is to ‘uphold information rights in the public interest’.

Evans appealed this decision at the Upper Tribunal (Administrative Appeals Chamber) ([2012] UKUT 313 (AAC)). The tribunal noted that, despite his titles, Prince Charles has ‘no established constitutional role’, which means that unless engaged directly on governmental business, he cannot claim the same exemption as permitted between elected ministers in government (covered as ‘ministerial communications’ in s 35(1)(b) FOIA, this exemption is designed to protect the principles of ministerial collective responsibility, which, as the Ministerial Code makes clear, ‘requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached’).

Finding that it would be ‘in the overall public interest for there to be transparency as to how and when Prince Charles seeks to influence government’, the tribunal ordered that any correspondence considered ‘advocacy’ rather than ‘personal’ correspondence should be disclosed. 

Executive Intervention: The Attorney General’s Certificate

Within days of the tribunals decision, the Attorney General (Dominic Grieve at that time) used his powers under s53(2) FOIA and s18(2) EIR as an ‘authorised person’ (as defined in s53(8) FOIA), to release a certificate which rendered this decision ineffective and vetoed release of the letters. The powers under s53 are largely in place to stop the revealing by officials of confidential and sensitive information: for example, the veto has been used to prevent release of documents in the lead up to the Iraq war, on the recent NHS reforms and the HS2 high speed rail link. They require that the authorised person has ‘on reasonable grounds’ formed the opinion that there was no failure to comply with the requirements governing the disclosure of information.

The grounds outlined in the certificate (as quoted in R (Evans) v Attorney General [2015] UKSC 21 at para 132) pointed to the fact that the contents of the letters were ‘particularly frank’ and contained the prince’s ‘most deeply held personal views and beliefs’, including ‘remarks about public affairs’. This in itself is unsurprising, as Prince Charles is known for having strong views on topics such as the environment, grammar schools and alternative therapies.

The certificate recognised ‘good generic reasons’ for disclosure including: public interest in governmental accountability and transparency; increased public understanding of the influence of the prince and contribution to the debate around constitutional reform. However, the certificate also argued that these public interest arguments were outweighed by the ‘importance of not undermining [Prince Charles’] future role as Sovereign’, holding that if the contents of the letters were made public this may have a material effect on the willingness of government departments to engage in correspondence with the monarchy.

Subsequent Appeals

With characteristic journalistic persistence, Evans then challenged by judicial review the legality of the certificate on two grounds:

(i) the reasons given by the Attorney General were not capable of constituting “reasonable grounds” within the meaning of section 53(2) of the FOIA 2000, and/or

(ii) because the advocacy correspondence was concerned with environmental issues, the Certificate was incompatible with Council Directive 2003/4/EC (“the 2003 Directive”) and/or article 47 of the EU Charter of Fundamental Rights (“the EU Charter”).

Article 6 of the 2003 directive provides for instances where requests for environmental information from public bodies have been refused or ignored. Article 6.2 provides that:

Member States shall ensure that an applicant has access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final. [Emphasis added]

At first instance ([2013] EWHC 1960 (Admin)), the court found it was in the public interest to refuse disclosure, and thereby uphold the certificate. However, the Court of Appeal ([2014] EWCA Civ. 254) found that the Attorney General ‘had no good reason for overriding the meticulous decision of the UT reached after six days of hearing and argument. He could point to no error of law or fact in the UT's decision for using the veto power’.

Permission was granted to appeal, and on 26 March 2015 , the Supreme Court gave its judgment in R (Evans) v Attorney General [2015] UKSC 21, which upheld the judgment of the Court of Appeal, finding:

  1. 5:2 that the certificate issued by the Attorney General was invalid; and
  2. 6:1, that in not making the decision of the tribunal final, the certificate was not compatible with Article 6 of the 2003 directive.

The judgment makes clear that in determining whether the certificate was valid, the fundamental constitutional principles of the rule of law and separation of powers are engaged. The rule of law, as articulated by Lord Bingham in the Rule of Law (2010) can be defined as the concept that ‘…all persons and authorities within the state, whether public or private should be bound by and entitled to the benefit of laws publicly made’. The principle of the separation of powers, on the other hand, is the concept that the “organs” of the state (the executive, the legislature and the judiciary) should be functionally distinct in order to avoid tyranny. With regards in particular to the relationship between the judiciary and the executive, Lord Phillips (speaking in 2011) explained:

The citizen must be able to challenge the legitimacy of executive action before an independent judiciary. Because it is the executive that exercises the power of the State and because it is the executive, in one form or another, that is the most frequent litigator in the courts, it is from executive pressure or influence that judges require particularly to be protected.

Engaging these two principles, Lord Neuberger in his leading judgment (at para 52):

First, subject to being overruled by a higher court or (given Parliamentary supremacy) a statute, it is a basic principle that a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone, including (indeed it may fairly be said, least of all) the executive. Secondly, it is also fundamental to the rule of law that decisions and actions of the executive are, subject to necessary well established exceptions (such as declarations of war), and jealously scrutinised statutory exceptions, reviewable by the court at the suit of an interested citizen.

Neuberger went on to then balance these principles with that of Parliamentary sovereignty, whereby Parliament remains the supreme law making body, in considering R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539. In Pierson, Lord Steyn stated ‘[u]nless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law’. Neuberger held that section 53 fails to be of the nature of being a ‘crystal clear’ provision by in effect permitting that a member of the executive can override the decision of a court merely because he disagrees with it. Therefore, the certificate was declared invalid with ‘no room’ given to any further attempt to prevent disclosure. 

Reaction to the Judgment

Neuberger’s approach certainly seems to be correct. In a state with an unwritten constitution, it is essential that its underpinning principles are upheld as far as possible, not only to ensure that justice is done but so that the electorate can be confident that justice is indeed done. 

This was echoed by the Guardian newspaper who were, unsurprisingly, very pleased with the result:

This is a good day for transparency in government and shows how essential it is to have a fully independent judiciary and free press

The Information Commissioner too has welcomed the decision, as it has helped to clarify the law in this area and will aid them in regulating requests in future.

However, that is not to say that the response was universally positive, and the government reaction has (again unsurprisingly) been negative. Deputy Prime Minister, Nick Clegg, argued that ‘correspondence like that, which was intended to be private, should remain private’ whilst Prime Minister David Cameron stated:

This is about the principle that senior members of the royal family are able to express their views to government confidentially. I think most people would agree this is fair enough…If the legislation does not make Parliament's intentions for the veto clear enough, then we will need to make it clearer.

Whether this should be taken to mean that the act will be amended to explicitly state that approved persons may produce a certificate purely on the basis that they disagree with the reasoning of the court remains to be seen. The next steps may depend in particular on the makeup of the government following the election in just a few short weeks.

In another response to the judgment, the CEO of Republic, a pressure group campaigning for an elected head of state, argued that:

The government must now act to end royal secrecy. Any risk to the monarchy must pale against a risk to democracy from having an activist prince acting in secret… the changes made to FOI laws in 2010 must be reversed so future requests for disclosure can be successful.

This was echoed by the Guardian in its editorial on the judgment: ‘mail that comes on his majesty’s service must no longer be kept from his majesty’s subjects’.

Clarence House (the official residence of Prince Charles) have stated that they were ‘disappointed the principle of privacy had not been upheld’. Whilst the release of the letters is likely to reveal a ‘snapshot’ of the future King, the ongoing threat to royal privacy is rather limited: the Constitutional Reform and Government Act 2010 amended section 37 FOIA so that now under 37(1)(aa), ‘communications with the heir to, or the person who is for the time being second in line of succession to, the Throne’ are now exempt from disclosure.

Conclusion

A case which began with a dispute between the right to access information and the right to privacy between two individuals has, over the course of a decade, morphed into a debate as to the extent to which the Executive should be able to overrule the judiciary.

At the Upper Tribunal, it was noted (at para 4) that ‘The Departments have urged that it is important that Prince Charles should not be inhibited in encouraging or warning government as to what to do’. It is a curious argument that disclosure relating to a departure from political neutrality should be prevented on the basis that it is in the public interest to keep up the appearance of that neutrality.

Is it not necessarily unusual for royals to express opinions, with Queen Margrethe II of Denmark this year speaking in the aftermath of the attacks in Copenhagen of the expectations that should be had of those who emigrate to the country. However, in this case, it is the way in which the views were expressed directly to the executive, and with such secrecy, that has caused such controversy.

In many ways, this is a ‘no win’ situation for the divisive heir to the throne: if the letters were not disclosed, the public would assume the contents to be far more scandalous than the reality. However, whilst it is unlikely that the ‘advocacy correspondence’ does contain any views not already well documented, the scrutiny that their publication will command could be more than simply embarrassing for the Queen. Where it is seen that members of the monarchy are attempting to use their hereditary power to covertly influence the workings of a democratic system, it is only natural that questions are raised as to whether we should continue to be ruled by a crown rather than the ballot box.  

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Tagged: Constitution, European Union, Human Rights, Privacy Law

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