Untangling the web

The decision to publish the ‘Black Spider’ memos will not herald a new era in disclosure requirements for the royal family, says Emma Sheldon

On 26 March 2015 the Supreme Court handed down a judgment that made the ‘final’ decision on whether letters sent by the Prince of Wales to seven government departments between September 2004 and March 2005 should be disclosed.

The judgment is the climax of a ten-year legal battle that has opened up debates about the constitutional role of monarchy, the judiciary, the executive, and where the balance between transparency and privacy should be struck.

Personal data

Rob Evans, a journalist for the Guardian, requested disclosure of the letters in April 2005. The relevant government departments refused, citing exemptions from the duty to disclose under sections 37 (relating to communications with the royal family), 40 (concerning personal data), and 41 (concerning breach of confidence) of the Freedom of Information Act 2000 (FOIA) and equivalent provisions under the Environment Information Regulations 2004. Evans complained to the Information Commissioner’s Office (ICO).

At the time, section 37 was a qualified exemption whereas sections 40 and 41 were not. The ICO held it was ‘common ground’ that if the letters contained Prince Charles’s personal data it would contravene the data protection principles to disclose it and therefore the exemption in section 40 applied. Further, he held it would be a breach of confidence to disclose the contents of this correspondence and it would not, on balance, be in the public interest to disclose the prince’s correspondence with government departments.

The case was appealed to the Upper Tribunal (UT) which disagreed in part, but, on 18 September 2012, ordered the departments to disclose those elements of the letters which fell outside of the convention of ‘preparation for kingship’ and constituted ‘advocacy’, i.e. the prince lobbying on behalf of his own charitable interests or ideas.

The attorney general (AG) had other ideas. On 16 October 2012, he issued a certificate under section 53(2) of FOIA stating the departments had not breached FOIA by holding the information as exempt and blocking the UT’s order to disclose elements of the letters. Evans successfully applied for judicial review of the AG’s certificate, which led, via the Court of Appeal, to the Supreme Court’s judgment. The Supreme Court considered whether section 53 granted an authorised member of the executive the right to overrule the decision of a court or tribunal and, if so, whether the grounds on which the AG based the certificate were ‘reasonable’.

Without entirely discounting the possibility that a section 53 certificate could overrule a court or tribunal, the court confirmed it ‘cannot be invoked effectively to overrule that judgment merely because a member of the executive… takes a different view’. Further, the court held it did not constitute ‘reasonable grounds’ for the AG to take a different view from the UT based on the same facts. The AG’s certificate was therefore struck out and the order for disclosure made by the UT stands.

Document preparation

The Supreme Court verdict does not mean the letters will be disclosed immediately. The relevant government departments will have to ‘prepare’ the documents for disclosure and determine what elements of the letters constitute ‘advocacy correspondence’, which may take months. Not all elements of the letters will be made public. Where the information exchanged is held to fall under the remit of ‘preparation for kingship’, this is held to be legitimately confidential under section 41 of FOIA and therefore not subject to disclosure. Is this decision going to set a new precedent in the transparency with which the royal family must operate? No. With effect from 19 January 2011, the Constitutional Reform and Governance Act 2010 amended section 2 of FOIA to make the section 37 exemption an absolute one. This removes any requirement for the ICO, the courts, or the attorney general to debate whether disclosing Prince Charles’s correspondence is in the public interest.

This case has not restricted the ICO’s wide discretion to determine whether a disclosure is in the public interest and the UT’s right to overrule this. It also imposes strict limits on the government’s power to overrule the decisions of these bodies.

The Supreme Court’s decision may go counter to the ICO’s opinion in this specific case, but it has strengthened the ICO’s independence in determining the nature and extent of the government’s duty to disclose under FOIA.

This article first appeared in Solicitors Journal on 21 April 2015.