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November 2013

CRU intern HANNAH SOLOMONS has prepared the following post about the political and judicial controversy concerning Prince Charles' "black spider letters" (named in honour of his black-ink spidery hand-writing):

In July this year, the English High Court upheld the UK Attorney-General’s decision to maintain the secrecy of the so-called “black-spider letters” between Prince Charles and government Ministers, sparking widespread outrage in some quarters, and relief in others. For decades, controversy has been growing around the Prince’s prominent and assertive role in public life. He has long been active and vocal in promoting his favourite causes and charities, often through written correspondence with Cabinet members.

The High Court decision is but the latest development in an eight-year legal battle under the United Kingdom’s Freedom of Information Act. It all began when Mr Evans, a Guardian reporter, made a request under that legislation for access to the Prince’s letters to Ministers made over a five month period in 2004-5. They included 27 letters described as “advocacy correspondence” that sought to promote certain charitable needs and views on policy matters to Ministers. The letters fell into a FOI category of qualified exemption – the Government could only refuse access if the principle of disclosure was outweighed by the public interest in withholding disclosure. The Government refused access to them and was supported by the Information Commissioner. However, the UK Act gives a court, in this case the UK Upper Tribunal, the rare power to re-evaluate the public interest in disclosure from scratch.

Arguments Before the Tribunal

Both sides’ arguments revolved around Prince Charles’ current and future constitutional roles. The roles of British royal family members are largely governed by “constitutional conventions.” These are unwritten non-legal rules that underpin the core functions of many Commonwealth governments, including Australia. Some of these are relatively well-settled and agreed upon, such as the conventions that the Queen acts on ministerial advice (except in relation to the reserve powers), maintains a level of public neutrality, and has the right and duty to participate in government by “encouraging, advising and warning.” However, these are only agreed upon in their application to the Sovereign. The conventions surrounding the Prince, as heir to the throne, are far more vague and uncertain, allowing both sides to argue for vastly different interpretations, and correspondingly differing needs for secrecy.

One of the few conventions directly relevant to the Prince is his right to be prepared for kingship. However, the Tribunal noted that it had been “little more than a footnote” before this case. In fact, this convention was so amorphous that expert witnesses could not even agree upon what to call it. Professor Brazier argued that it should be called the “apprenticeship convention,” because the heir’s training for kingship involved practical experience and participation in the business of governing. He further argued that this included engagement in debate, relationship-building and lobbying. All of these things, he argued, required secrecy in order to be effective. Alternatively, he suggested the more moderate view that such activities, whilst they might not be part of any convention themselves, were still both permissible and useful. It was therefore said to be in the public interest that fear of embarrassment should not discourage them.

The Tribunal decisively rejected all these arguments. It was far more sympathetic to the views of Professor Tomkins, Mr Evans’ witness. Professor Tomkins argued for a much narrower “education convention”, merely giving the Prince a right to inquire and be informed regarding government matters. Indeed, he even suggested that the convention might include limits on the Prince which would render his “advocacy correspondence” unconstitutional.

The Tribunal based its conclusions on consideration of a widely-accepted list of the factors relevant to determining constitutional conventions, originally propounded by Sir Ivor Jennings. Historical precedents and subjective feelings of obligation are the first two of these. Professor Brazier has long argued that the consistent participation by the Prince and Ministers in confidential written lobbying and debate provide sufficient evidence of precedent and feelings of obligation to justify its inclusion in the Prince’s conventional role. However the revelation of some letters in a biography of Prince Charles undermined that argument. The last of Jennings’ factors is the justification for the convention. In this regard, the Tribunal pointed to the illogicality of arguing for an “apprenticeship convention” where the activities of the apprentice are in direct contrast to the neutrality of the role he is preparing for, and which have the potential to damage his ability to fulfill it. In contrast, Tribunal members felt that a justification could be found in democratic values for concluding that public scrutiny of the Prince's actions is a right not easily dismissed.

The Tribunal therefore concluded that all three factors pointed towards a narrower convention. In fact, although it did not need to go as far as Professor Tomkins and directly question the constitutionality of secret advocacy correspondence, many of the Tribunal’s reasons did imply doubts. It concluded that two advantages of disclosure were the encouragement of public debate about the Prince’s place in the Constitution, and a disincentive to go beyond informative correspondence in the future. It held that the advocacy correspondence was not part of Prince Charles’ preparation for kingship and did not fall within the proper limits of any education convention. All this was enough to find that the statutory requirement for a public interest in non-disclosure had not been fulfilled.

The Attorney-General’s veto.

The Attorney-General, however, returned fire. He used a statutory veto power to prohibit disclosure by certifying his continued belief that disclosure was not in the public interest. In his reasons, he noted that the letters were “particularly frank” and reflected the Prince of Wales’ “most deeply held personal views and beliefs”. He stressed that under the UK constitution it was a matter of the highest importance that the monarch is a “politically neutral figure” and is able “to engage with the government of the day, whatever its political colour”. He concluded that disclosure of the correspondence could undermine Prince Charles’ “position of political neutrality” and that “if he forfeits his position of political neutrality as heir to the Throne he cannot easily recover it when he is King”.

The Attorney-General disagreed with the Upper Tribunal’s assessment that advocacy did not form part of the Prince’s education for kingship. He argued, controversially, that advocacy comes within the tripartite convention that allows the monarch to “advise, encourage and warn” Ministers. He said:

Discussing matters of policy with Ministers, and urging views upon them, falls within the ambit of "advising" or "warning" about the Government's actions. It thus entails actions which would (if done by the Monarch) fall squarely within the tripartite convention. I therefore respectfully disagree with the Tribunal's conclusion that "advocacy correspondence" forms no part of The Prince of Wales' preparations for kingship. I consider that such correspondence enables The Prince of Wales better to understand the business of government; strengthens his relations with Ministers; and enables him to make points which he would have a right (and indeed arguably a duty) to make as Monarch. It is inherent in such exchanges that one person may express views and urge them upon another. I therefore consider that, whether or not it falls within the strict definition of the education convention, "advocacy correspondence" is an important means whereby The Prince of Wales prepares for kingship. It serves the very same underlying and important public interests which the education convention reflects.

The High Court’s judgment

Mr Evans’ response was to go to the High Court seeking judicial review of the Minister’s decision. Their Lordships expressed concern about the constitutionality of Ministers overturning the effect of court decisions. Lord Judge described the constitutional position as follows:

It is fundamental to the constitutional separation of powers, the independence of the judiciary, and the rule of law itself that, although judicial decisions may be reversed by legislation (but very rarely with retrospective effect) ministers are bound by and cannot override judicial decisions: in our constitution that power is vested in Parliament. If ever the Government or any minister in the Cabinet could, without more, but in particular because of dissatisfaction with a judicial decision, not merely ignore it, but nullify it, the elementary entitlement of the citizen to effective recourse to independent courts would be extinguished.

He concluded, however, that the fact that the Minister was required to give reasons and that these could be subject to judicial review by the courts, leaving the ultimate decision in judicial hands, provided the “necessary safeguard for the constitutionality of the process”.

The Court accepted that the Attorney-General had been reasonable in reaching his conclusion, even though it was different from that of the Upper Tribunal. The Attorney-General had given reasons that could be regarded as cogent. It was not impossible for diametrically opposed views both to be reasonable. What was at issue was a value judgment as to where the public interest lay, and this could reasonably be decided in different manners.

The Current State of Play

Having so concluded, the Court was compelled to find in the Attorney-General’s favour. Thus, “the black spider letters” will remain confidential for the time being. The High Court’s reluctance to uphold the refusal is understandable. Whether or not the Prince’s behaviour is itself socially advantageous, it is disturbing that the judiciary has been unable to remove a double shroud of secrecy woven from constitutional arguments. That shroud has since been turned into a wall. In 2011 the law was amended so that the correspondence between the Prince of Wales and Ministers is now subject to an absolute exemption from disclosure under FOI for 20 years or five years from his death, whichever is the later. The Guardian’s litigation commenced before this change, so it continues to be litigated under the old law.

The final battle for the black spider letters still awaits. The Guardian intends to appeal the High Court’s decision. Given the dramatic twists and turns in the story so far, the outcome is anything but certain.

SUGGESTED CITATION: Hannah Solomons, 'Royal Secrets: Signed, Sealed and Delivered', Constitutional Critique, 2 November 2013, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).