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The Administrative Court has dismissed a journalist’s latest attempt to force the British government to disclose correspondence between ministers and the Prince of Wales.
A three-judge panel ruled that the Attorney General acted lawfully when he used a ministerial veto to block disclosure of Charles’ correspondence with several government departments.
Guardian journalist Rob Evans has been engaged in a long-running battle over royal correspondence. In 2005, he filed a request under the Freedom of Information Act to obtain communications between Charles and several government departments between September 1, 2004 and April 1, 2005. The government departments refused his request, as did the Information Commissioner.
Communications between the government and senior members of the Royal Family are usually exempt from disclosure under the Freedom of Information Act. However, until recently, that exemption was subject to a public-interest test. When Evans appealed the Information Commissioner’s decision to the Upper Tribunal, it overruled the commissioner and declared that the government needed to release those documents that fell into the category of ‘advocacy correspondence.’
Charles’ relations with the government have long been a matter of controversy. It is well known that he is passionate about a variety of issues, from organic farming to architecture, and he is not afraid to share his views with the government of the day. But many have questioned whether or not such forthright correspondence is appropriate for a future king, and some have even accused him of wielding disproportionate influence.
Although the monarch is usually expected to act on the advice of ministers, she has the right to be consulted, the right to encourage, and the right to warn. However, in order to preserve the neutrality of the Crown, she cannot do these things publicly, which is why her communications receive special treatment under the Freedom of Information Act. The government argued that Charles’ correspondence should be similarly privileged since it is part of his training to become king. The Upper Tribunal rejected that argument, noting that it is the sovereign, not the heir to the throne, who enjoys the right to encourage and warn the government.
Last October, the Attorney General, Dominic Grieve MP, stepped into the fray by issuing a certificate under section 53 of the Freedom of Information Act that effectively nullified the Upper Tribunal’s decision. He stressed that, while there was nothing improper about Charles’ communications with the government, it would be inappropriate to disclose the advocacy correspondence. In a statement accompanying the certificate, Grieve held that the letters were, in fact, part of Charles’ preparation for the throne.
“The ability of the Monarch to engage with the Government of the day whatever its political colour, and maintain political neutrality is a cornerstone of the UK’s constitutional framework,” he wrote.
Evans sought judicial review of the Attorney General’s certificate, claiming that Grieve did not have “reasonable grounds” for issuing it, as required by the Freedom of Information Act. But the court disagreed, noting that the Upper Tribunal itself had recognized that there were strong grounds for not disclosing the correspondence.
“[I]t is perfectly possible – indeed it is the experience of every judge – for each of two diametrically opposed arguments and conclusions in a particular case properly to be styled as cogent,” wrote Lord Justice Davis.
“That one conclusion may be proper and reasonable does not mean that the contrary conclusion is improper and unreasonable,” he continued.
However, in a concurring opinion, the Lord Chief Justice, Lord Judge, expressed concern at the idea of a government minister being able to nullify judicial decisions by an executive act. “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,” he warned.
“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.”
Photo Courtesy of Dan Marsh