By Graham Smith, Deputy Commissioner and Director of Freedom of Information.
Update, 13 May 2015: The Cabinet Office has now published Prince of Wales correspondence with government departments on its website.
The Supreme Court today issued its ruling in a 10 year battle to get letters written by Prince Charles to ministers released to the public under the Freedom of Information Act. So how did these freedom of information requests end up before the highest court in the land? And what will the decision mean in practice?
1. How did this end up at the Supreme Court?
This FOI case has been going, in some form or another, for almost as long as we’ve had the Freedom of Information Act in operation. It all stemmed from requests made by Rob Evans, a Guardian journalist, for copies of correspondence between HRH The Prince of Wales and government ministers. Since then, various answers have been given to the question ‘should the information be released?’:
Various government departments: No. Initially the requests were met with a “neither confirm nor deny” response, despite the fact there had been a number of references to such letters publicly and in an official biography of the Prince.
Various government departments (mark II): No (again). After much to-ing and fro-ing, a number of departments did confirm that they held relevant information, but a host of exemptions were applied.
Information Commissioner: No. Rob Evans pursued his complaint to the Commissioner. In a series of decision notices (one for each public authority) the ICO explained its reasons for accepting, on balance, that the public interest favoured non-disclosure.
Upper Tribunal: Yes. The First Tier Tribunal transferred the case to the higher tribunal court because of its importance. That Tribunal ordered disclosure of what it called “the advocacy correspondence”.
The Attorney General: No. The government used its veto at this stage to override the Tribunal’s decision.
The courts (various): Yes and No. At this stage the discussions shifted away from the content of the letters to the validity of the government veto. The Divisional Court backed it. The Court of Appeal didn’t. And now the Supreme Court has ruled by a 5:2 majority that the veto was invalid.
2. Why did the ICO say no?
The ICO decided, on balance, that the public interest favoured non-disclosure. The reasons varied slightly from case to case, according to the nature and content of the information, but there was an expectation the information would be treated as confidential and some of it was personal data. We particularly gave weight to the privacy of the Prince of Wales and the arguments around the convention on “preparation for Kingship”.
3. Why was it the Attorney General who vetoed the release?
Section 53 of the Freedom of Information Act gives a Cabinet Minister the power to veto the release of information when he/she considers that the decision of the Information Commissioner or relevant tribunal has reached the wrong conclusion as to the balance of the public interest. In this case, the veto was exercised by the then Attorney General, Dominic Grieve. It fell to him because of the convention that government ministers do not have access to the papers of a previous administration. The correspondence between Prince Charles and ministers dated from 2004/5, when the Labour Government was in power, with Tony Blair as Prime Minister. However, while a single minister must personally sign the certificate which operates as a veto, the government’s policy on the exercise of the veto makes it clear that the decision to exercise the veto must be a Cabinet decision, taken under collective Cabinet responsibility.
4. Does this ruling mean the information will now be released?
Not as simple a question as it seems. Firstly, there’s no further right of appeal against the Supreme Court’s decision. That is, as you’d expect, supreme. But this decision is only on the validity of the veto, rather than the information itself. That takes us back to the Upper Tribunal’s decision. The detail as to what should be released wasn’t quite settled by the Upper Tribunal when the veto was imposed, so it looks like this may well have to go back so they can finalise their disclosure order. It’s fair to say we’re in unchartered waters here.
5. What’s the relevance of some of the information being environmental?
When the ICO looked at the letters we thought that some of the content was environmental information, so those bits had to be dealt with under the Environmental Information Regulations (EIR). The regime for access to environmental information is a bit different to the Freedom of Information Act. It comes from European law, which is binding on the UK. When the current regulations were brought into UK law in 2005, they included enforcement provisions lifted wholesale from the Freedom of Information Act. These included the functions of the Information Commissioner and the Tribunal – and also the power of ministerial veto. The use of this veto in the Prince Charles letters’ case was the first time the veto had been applied to an order to disclose environmental information. . The ICO took the view that the veto shouldn’t have been copied across, as this didn’t fit with the original European Directive. The Supreme Court, by a 6:1 majority, agreed with the ICO’s view was that the veto should not have been copied across to EIR.
6. Is this the end of the veto?
In terms of EIR, yes: the Supreme Court was clear that it would be “impermissible” for the government to be able to veto these decisions. The picture isn’t quite so clear with the Freedom of Information Act. Three judges felt the government couldn’t veto tribunal decisions simply because they disagreed with them. Another two of the judges did not go that far, but did feel that there hadn’t been the necessary justification for overruling the tribunal in this case. And two judges felt the government were entitled to issue the veto. The power to veto ICO decisions wasn’t discussed in detail in this case, but the same constraints would not necessarily apply.
7. So what happens now?
Let’s deal with the easy bit first. There’s been reports that Prince Charles plans to carry on writing his letters. Will people be able to obtain these under FOI in the future? No – a new specific exemption was made in 2010 that covers of information relating to communications with the Sovereign, Heir and Second-in-line. It’s an absolute exemption, so the public interest test doesn’t apply. But the EIR ruling is significant. It demonstrates again the strength of the environmental information regime, which flows from international obligations, compared to the Freedom of Information regime, which is purely domestic law and susceptible to amendment by Parliament. That susceptibility appears particularly clear given comments from the Prime Minister today that “if the legislation does not make Parliament’s intentions for the veto clear enough, then we will need to make it clearer”. The constitutional issues at play are fundamental. The relationship between the monarchy and government, the relationship between parliament and the courts, and the impact of European law have all been closely examined in this case. Fascinating stuff – and the implications of this judgment might well prove to be far reaching indeed.
|Graham Smith One of two Deputy Commissioners, Graham has lead responsibility for promoting and enforcing Freedom of Information.|