IN THE MATTER OF AN APPEAL TO THE FIRST TIER TRIBUNAL (INFORMATION RIGHTS) UNDER SECTION 57 OF THE FREEDOM OF INFORMATION

ACT 2000

BETWEEN:

MR ROB EVANS

Appellant

-and-

THE INFORMATION COMMISSIONER

Respondent

-and-

THE GOVERNMENT DEPARTMENTS

Additional. Party

WITNESS STATEMENT ADAM TOMKINS

Introduction

1. I, Adam Tomkins of 1/23 The Stair Building, The School of Law, University of Glasgow G12 8QQ, make this statement in support of the appeal brought by Rob Evans of Guardian News & Media Limited.

2. I have held the John Millar Chair in Public Law at the University of Glasgow since 2003. Prior to taking up that Chair I was Fellow and Tutor in Law at St Catherine's College, Oxford and a University Lecturer in Law (2000-03); and before that I was Lecturer in Law (1991-99) and Senior Lecturer in Law (1999-2000) at King'S College London. My field of expertise is constitutional law and, principally, the constitutional law of the United Kingdom. I have authored or co-authored numerous books on UK constitutional

1

I?

law, including Public Law (Clarendon Law Series, Oxford University Press, 2003) and British Government and the Constitution: Text and Materials (Cambridge University Press, 6th edn 2007; 7th edn forthcoming 2011); I have served on the editorial board of Public Law, the UK's leading journal in constitutional law, since 2003; and I have been invited to lecture on aspects of UK constitutional law in countries throughout Europe and the Commonwealth, as well as in the United States and Israel.

3. Since 2009 I have additionally been legal adviser to the House of Lords Select Committee on the Constitution, although I should stress that I make this Witness Statement purely in a personal capacity. Nothing said here should be deemed as representing the view of any Member, Committee or Officer of the House of Lords.

Law, Constitutional Convention, and the Prince of Wales

4. A leading source on the contemporary constitutional law and practice as regards the Monarchy is Vernon Bogdanor, The Monarchy and the Constitution (Oxford University Press, 1995; Professor Bogdanor is Professor of Government at the University of Oxford). Chapter 3 of The Monarchy and the Constitution is entitled "The Basic Constitutional Rules:

Influence and Prerogativefl (see Exhibit 1). In this chapter Professor Bogdanor makes three important points, which are relevant to this appeal, as follows.

5. First, he writes at page 62 that \\ I t is easier for a head of state to fulfil [aJ 'dignified' function if the 'efficient' functions are located elsewhere, for any exercise of the efficient functions is almost bound to be

controversial.

Thus,

when he

or

she

exercises

the

'efficient' functions, able to represent all

the head of state will cease to be of the people i he or she will be

representing only with his or her Professor Bogdanor

the particular c.ros s+sec t i.on who agree activities." In making this remark lS relying on the famous distinction

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between the dignified and the efficient elements of the constitution which Walter Bagehot made in The English Consti tution (1867). It is axiomatic that as a matter of the contemporary constitution, the Monarchy falls on the dignified side of the line. While it continues ,to be the case that great legal and constitutional powers are vested in Crown, it has been clear since at least Bagehot' sera (and in some cases for far longer than that) that the exercise of these powers falls largely to Ministers. This is because Ministers are responsible to Parliament, whereas Her Majesty of course is n.ot. Moreover, even in respect of those few prerogative powers whose exercise remains a matter for the Queen (rather than for Ministers) it is clear that the Queen must act only and always on ministerial advice (dissolving Parliament and granting Royal Assent to legislation are good examples). In this respect, what goes for the Crown goes for the Heir to the Crown: the Monarchy belongs firmly on the dignified side of the dignified/efficient line. Persistent trespassing onto the efficient side of the line would be prima facie unconstitutional; and there must be (at the least) a very strong presumption that it is in the public interest for unconstitutional behaviour not to be covered up.

6. Secondly, writing specifically of the Monarch, Bogdanor states (at page 67) that there is a constitutional

.requirement that "any private comments are made discreetly and cautiously so that relations with Ministers are not compromised". He adds: "This applies also to other members of the royal family ... ". Professor Bogdanor cites as an example Lloyd George's view that, because of cormnents he had made as Prince of Wales, King George V "had the reputation of being very Tory in his views" [News Chronicle, 22 Jan. 1936]. While his subsequent behaviour as King was entirely correct, in Bogdanor' s judgment this did not efface the impression left by his earlier remarks as Prince of Wales. To quote from Lloyd George again: "In those days he was frank to the point of indiscretion in his talk, and his sayings were repeated in wider circles. There is no use

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concealing the fact that they gave offence to Liberals and his succession to the throne for that reason was viewed with some misgivings /I [News Chronicle, 22 Jan. 1936]. These misgivings were such that the Prime Minister (Asquith) "did not trust the King to do his constitutional duty" (Bogdanor, page 70). As King, George V evidently greatly

regretted some of the things he had said as Prince of Wales: " it was a damned stupid thing to say" his biographer records him as having said of one such remark (see Bodganor, page 70) .

7. Thirdly, Professor Bogdanor cites (at page 71) Sir William Heseltine's letter to the Times, of 28 July 1986 (when Sir William was the Queen's Private Secretary). Three propositions were contained r.n this famous and important letter: that the Queen enjoys the right, indeed the duty, to express her opinions on Government policy to the Prime Minister i that the Queen must always act on ministerial advice; and that conununications between the Queen and the Prime Minister are entirely confidential. Professor Bogdanor's analysis of this is noteworthy: "It is important to notice that the Sovereign's right to express his or her opinions on Government policy, Sir william's first proposition, entails his third proposition, that communications between the Prime Minister and the Sovereign remain confidential. The Sovereign, therefore, is not entitled to make it known that he or she holds different views on some matter of public policy from those of the Government. It is a fundamental condition of royal influence that it remains private. It follows, therefore, that the Sovereign must observe a strict neutrality in public, and great discretion in private conversation" (emphasis added).

8. Professor Bogdanor goes on to make the familiar but nonetheless extremely important point that, with regard to the present Queen, we know nothing of her relations with any of the eleven Prime Ministers who have served under her, and we know nothing of any influence which she may have had over any aspect of Government policy. The contrast with the

4

Ie.

Prince of Wales could hardly be greater. As is thoroughly documented in both the press cuttings and the extracts from Jonathan Dimbleby's biography assembled in the appellant's bundle, since as long ago as the early 1970s, _and throughout the period since then, the Prince of Wales has aired in public his opinions on a wide range of matters of public policy. And, indeed, he has often done so using forthright language. The matters of public policy on which the Prince has gone public include: the perceived merits of holistic medicine, the perceived evils of genetically modified crops, the apparent dangers of making cuts in the armed forces, his strong dislike of certain forms of modern architecture (leading him to make high profile interventions in a number of contested planning development.s), a range of issues relating to agricultural policy, as well as other matters. On numerous occasions in his biography, Mr Dimbleby quotes extensively from and sometimes even reproduces in full the Prince of Wales's correspondence with Ministers on such matters (e.g., pp. 370-1, p. 431, p. 434, pp. 520-1, as well as many other instances) (see Exhibit 2). Such quotations and reproductions were evidently sanctioned by the Prince of Wales himself: as Professor Brazier writes, "we are entitled to take the factual information given in that book as authoritative, because the Prince co-operated fully in its production and provided access to his diaries and correspondence ... , he also checked the [manuscript] for factual accuracy" (R. Brazier, "The Constitutional position of the Prince of Wales" [1995] Public Law 401, at 403, n. 12) (see Exhibit 3). It is not clear to me - and i:t was not clear to Professor Brazier {ibid, at 404, n. 1S} - whether the relevant Ministers were asked whether they obj ected to the correspondence being quoted from or reproduced.

9. It is incredibly important to note that the obligation of confidentiality pertains because of the need, and to the extent necessary, to maintain our ignorance of the Queen's political views, and not the other way around. The purpose of the confidentiality is not to create an appearance of

5

political neutrality: rather, it is to preserve the reality of political neutrality. (You cannot preserve the reality of something that does not exist.) If the Queen's political neutrality were to be voluntarily surrendered by Her Majesty, then the purpose of the confidentiality would be lost, and any constitutional obligation to maintain confidentiality would fall away. The same applies to the Prince of Wales.

10. None of this is set out in law: the relevant rules are

constitutional conventions. Unlike constitutional laws (whether deriving from statute or case law), constitutional conventions exist only where there is a good constitutional reason for the rule. Absent such a reason, even a longstanding practice that is generally accepted and followed by constitutional act.ors will not qualify as a constitutional convention. So argued Sir Ivor Jennings in his book The Law and the Consti tution (first published in 1933 i s" edn 1959) . Jennings is absolutely correct, as has been recognised by constitutional lawyers for nearly 80 years now.

11. The reason for attaching constitutional obligations of

confidence to correspondence between Ministers and me.mbers of the Royal Family is I as we have seen, to preserve the latter's political neutrality. But if that political neutrality has already been surrendered, as is clearly (if regret tably) the case with regard to the Prine e of Wales, the "good constitutional reason" for the rule disappears. In the case of Prince of Wales therefore - wholly unlike ln

the case of the Queen the.re can be no grounds in

constitutional convention for insisting that his

correspondence with Ministers must z ema i n confidential.

12 . Moreover, there 1S a good canst i tut ionaI reason that

the contrary position should be adopted. It is clear from a range of sources that the Prince of Wales's correspondence with Ministers is a form of lobbying. This is clear not only from Jonathan Dimbleby's biography of the Prince and from numerous of the press cuttings included in the appellant's

6

bundle, but also from such legal sources as the judgment of High Court in CPC Group Ltd v. Qatari Diar Real Estate Investment Co. [2010] EWHC 1535 (Ch) (see extracts from judgment at Exhibit 4). This is the case concerning the development of the Chelsea Barracks site in London; the Prince made clear to one of the parties his disapproval of the plans as to the redevelopment - he lobbied to have the plans substantially changed; the plans were changed and a substantial amount of money was lost; the judge (Vos J.) described the intervention of the Prince of Wales as "no doubt, unexpected and unwelcome" (at [124]). Wnether it was these things or not, it was clearly lobbying. By so describing it I mean no disrespect. As the House of Commons Select Committee on Public Administration ( "PASC " ) observed in its recent report on lobbying, "lobbying has become a much mal igned term" (see PASC, Lobbying: Access and Influence in Whitehall, First Report for 2008-09, HC 36, January 2009, para. 2, Exhibit S). This is unfortunate, as (again quoting from the PASC report), "lobbying should be -

and often is - a force for good" (ibid., page 3). In PASC's view, lobbying has become a maligned term in large part because of the secrecy in which it is shrouded. Reform, PASC concluded, was \\ necessary 1/. In particular, "measures are needed .,. to ensure that the process of lobbying takes place in as public a way as possible, subject to the maximum reasonable degree of transparency" (ibid., para. 144). Such a conclusion is consistent with the Principles of Public Life as first set out by the (Nolan) Committee on Standards in Public Life in 1995 (see Exhibit 6). Two of the seven principles are accountability ("holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office") and openness \\ holders of public office should be as open as possible about all the decisions and actions that they take; they should give reasons for their decisions and restrict information only when the wider public interest clearly demands~). It is the framework of analysis set out by PASC and by the Principles of Public Life which should inform determination of the

7

consti tutionally appropriate bounds of confidentiality in this appeal.

13. Sir Ivor Jennings additionally argued that the longer

the precedents the more likely it would be that a general practice may qualify as a constitutional convention. It is clear, however, that the Prince of Wales's practice of corresponding regularly with Ministers 1S an w innovation"

something he has assumed rather than inherited: see R.

Brazier, "The Constitutional Position of the Prince of Wales II [1995] Public Law 401, at 402-3 (see Exhibit 3). See, to the same effect, Jonathan Dirnbleby's biography: "the Prince was not to be diverted from using the authority of his position to speak "out across a range of public issues

to an extent that none of his predecessors had even contemplated " (page 327, emphasis added) (see Exhibit 2)"

14. In his article Professor Brazier argues that \\ it is

time to recognise as a constitutional convention the Prince of Wales's rights to obtain information from Ministers, to comment on their policies, and to urge other policies on them [and that] such communications will be carried out in strict confidence" (ibid., at 404). I respectfully but strongly disagree. Professor Brazier claims that "Jennings's test for the existence of a convention is satisfied tt (at 405) but, for the reasons set out above, this is not the case. First, as Professor Brazier himself concedes I the Prince of Wales's practice of corresponding regularly with Ministers is a new development and is not a particularly longstanding feature of British government. Secondly, the "good constitutional reason" which Jennings stated to be a necessary component of a constitutional convention is, for the reasons set out above, absent in the case of the Prince of Wales.

15. The considerations set out above lead to the following

conclusions.

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a. The constitutional corrvent.Lon that the Prince of t'Jales

should be educaeed .Ln and about; the bue i.ne s s of Govermuent in order to prepare him for the time "",hen he ", .. ill be

Sovereign mus t

be

understood

the

context

the

cons iderations set out above. In particular, it should be undez-s t.ood that his future role as Sovereign erid his current role as Heir alike are dignified roles in the United Kingdnu constit.ution, rather tha.n efficient roles, Even if one would

nor want; to go so far as to say tbat e:n.y trespassing by the Prince of Wales into the efficient doma.i n of the constitution would be ari abuse of his position, there is no eound authority for the proposition that const i t.ut.Lona I convent Lon. could be relied upon lor extendsdi to protect or justify such behaviour, The follot'Jing considerations follow:

(i) any confidentiality that act.aches to the Prince of
l'liales' 5 correspondence 'W"'ith t-iinisters is a means to an end, arid is not an erid in its own r·_:_ght. That is to se.y t

it attaches if and i:.J.scrar (and only if and =-nsoEar> as

it

is !1.ecessa.T)'

in oz de r

to preserve

dignified position i:r_ the c rs t a t.u t a on . It must be borne in mind t.ha t leLter-,,.-ricing- Ls far from L:t.e PTince's only

of access with regard to ~inisters.

Li!!!bleby" s biographYlJlElkes it clear, for examp l e , t.ha rtn.e Prince meets !-1il1isters both formally and informally

on numer oua occasions every year (e, g. r

3~)6; p . 433)

(se(:;1 Ex;,.J;..ibi t 2). There 1.8 no sh.ortage of neen;s wher'eby :r,tinisters {or officials) may confidentially educate the

Prince in t...1-J.e busin 58 of GOvernment. ruth,is sense.,

disclosure of the Prince's correspondence with :rhnisters

would

entail

no

risk

at

all

to

cor:.stitutional

convention that

the Prince have sufficient opportunity

be educated in the busLrress of Govern.,ten't. It may be

a -elect that, readi g ~!r Di:mhleby's biography, one does not

even r emct.e Ly get che sense that the Prince enters into po l i ti.ca I correspondence ;,dth Ministers because he is seeking to educate himself in (or a s seeking to -b€

2[

educated in; the business of Goverp..ment. Rather ,one is st:rongly encQuraged by the au t ho r to believe thee: che Prince enters Lnt;o such c.orre.spondence because he lS seeking to raise or pursue mat ters which concern him personally.

(ii ) given that the Prince o:fWales introduced and did not inherit his habit of corresponding ,'lith l"linisters it

'be

the

ca s e

hat;

co!!stitut.ional

convention

requires him to r.ave exchanqas with Ministers on mat.t.ez s of political controversy.

(iii) if

and insofar as

the Prince

Hales

possesses

a

right to engage in lobbying the Goverr,.,_'nent: (i "e, pressing particular v i ews on policy/advocat:i.ng particular causes),

constitutional c onv ent: ion does not requiret-iini s t.e r s to

heed

or

respond

to

such.

~, -;.~ .

lODoYlng

in

any

different from Lobby i.nq ~2!gaged in by" f·fPs or mernbe.r s of

tht'::! public,

(iv)

lobbying by the Prince of tiJales

'1.-'1 d' ....

snou.u aecor Wlt&.

the

Pr::Lnciples of Public .LLfe and w i t.h the fra...rnework for

ethical lobbying e.s set out In the 2009 report of the

ROllS 2

of

Commons

Select

C omm.i t tee

on

Public

Administration.

b. It z.s a constitutional rsqui1~erra"1t: of the first .irnport ance

that the Nonarchy be politically neutral. Her :Majesty the

Q'ueen has complied with t.h.i s requirement throughout her re.l.gri, The requirement ex~ten::::_s not. only to t.he reigning

j:.f_onarch but

also

to

those

in the

iI'mlediate

Li ne

of

succession - above a.Ll., in that regaTd, to the Heir. It is

10

absolutely clear from the press cu t t i.nq s, from the extracts from Mr Dimbleby's biography, and f r om the other materials assembled in the appellant's bund:=_e t.ha t; the P:!:ince of t'1ales has very reg~et t.ably failed to comply wi t.l the require...raent: that the ['1o:narchy be polit.ical1y neur r a.t . In my judgment it would not necessarily have De<=>-L Lncons Ls t.ent; \vit.h the z-equ.i.r emerit; of political neutrali '-y for the Prince of ~1ales

to

correspond with I!1inisters

on

~5sues

of

political

controversy but , in o.r de r to do so compatibly 1.",i th the coris t icu t.Lona.L requirement of political neutrality, he wou Ld have had to have kept his views on such .matters ent.Lr e Ly out of the public arena, Given that he has manifes~ly failed to do this end , indeed, that rte has on numaz ous occasions and !,vlth regard to a variety of policy issues gone considerably out of his way deliberately to dr aw the public I s attention

to his political v.i.ews .

there ~s no so~d reason in

constitutional

convention

as

to

his

political

correspondence IN"ith l>linisters should r eme.i,n confide..::1tial" I recall in ch i.s regard Pro'ressor Bogda!lor's observation t ha t

even

"private corrments are [to bel

tade discreetly and

cautiously

so

r.hat,

relations

with

~1.ini5te!"s

are

net

compromised" (above). Discretion and cau .... ion have evidently

not been Prince Cha.rles r s wa t chwoxds .

n the contrary, he

has been strider:t and outspoken.

c. For these reasons,

I c annot; aqz ee wi t:h the fol1ovling

C1.Yl1'mer.,t, attributed to an unnamed Palace spok'?slTlcm (Mail Online, 25 S'2ptember 2002) (see Exhibit 7) that: "It's pare of tbe Royal FE471ily's role to highlight excellence, exp:cess commi sera. t.i on, and drawl attention to issues 0_'1 behalf of us a.1_1. The Pri.:.'1ce of Wal as takes aL"1 act i. ve L'1 teres t in all aspect.s of British life and believes that a.s well as celebrating success, part of his role must be to highLight pro)D.le,ms and represent vz ews in danger of not being heard. But this x ole can only be fulfilled properly if complete

confidentiality

c an

;.l1ainta~:ned q ..

The

.I.S

altogether too sweeping and. reC['.lires to be subs.t.ant i.aj Ly

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qualified _ It may very w'ell be part or the social or cultural role of the Royal Family "to highlight excellence,

e x .. press commiseration, and draw attention to issues on

behalf of us all"

when the context of the excellence,

commiseration o.r iS$a.les is non-poli tical. But when ma t.t.ez s of public policy are in play, it is tbe consr:::itutional duty of the Monarch-y to preserve its political neutrality.

d. For t.he reasons given in this statement, it a s my clear view that disc!ost:re of the correspondence sought in this appeal

would not undermine ccnst.Lcut Lona.l

C O1:nren t ion '.

On r.he

contrari', such d.i ac Loauz-e would p,romote good gov;,;:rna::tce, c on.s t.ri tutional pr opz i et.y and a moz e fully informed debate on

constitutional matters, eac.b &-:td all of which az e strongly in the publiC interest.

Conclusions

16. This a s the cor.s c i cu t.i ona.I framework wi t.h ' n "in.ic:b.. .r

respectfully }i,pplyin-g the

submit

ch i.s

appeal

should

constitutional

analysis set

out above, it is

evident i.:hat the Inforn-~aticn Co:::rtn1ission,er made a numbe r of e.r roz s in upholding the decisions of the pub I i,c eut.hor i c i es that the correspondence subject. to the appellant:' s fraed:JJlj of .i.nf'ozme ti.on requests was eX'2-rupt from disclosure unde r the Fr~~dom of Inforrrztion A~t 2000. See, for example, the conclusion reached by the Information Cornmission'er .at para. 66 of Decision Notice FS50080233; "the Comnti s s Lone'r accepts

that the

cons t i tu t z ona 1 convention which

provides

that

the and

Heir to

the Tl:-:rone should be educated

J..n

'ways

'worki.ngs of Government mearis that both the Prince of Wales ana those he corresponded with will have had an ex-plicit {and weight),-} expectation that such comsrun.i.cat i.cns would be confidential" The Prince's O\';.'D. behaviour in san.ct,H>'TIJ.:ng the ext2ns ive quotations from and reproductions o'r his

correspondence w i.t.h r~inisi:ers

biogrephy undermines t.his

contained

finding.

in the DiInbleby

Moreove.r, the

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Commissioner overstates the ex cent; of !..he constitutional

corrverrt i.on .

He

as sumas

wi t.hho l ding

the

.i n f o rme c i.on reques·ted by the appellant: is neCessary in order to pz o t.ect; the corrverrt Lon {whereas there are in fact many other ways by which the convention could be jrr o ected even in the event of disclosure). TheCo!mnissioner also land fatally) overlooks to place the convention pertaining to the confidentiality of the Prince's correspondence L the all .impo.r t arrt; constitutional context of its purpose: namely, that it is designed to preserve the Monarc..":y'spolitical neut.z e Li.t.y. As ,Ale have seen, once that neutrality ceases to

ex.i.st;

{as has long of Wales)

since been t.}le case the constitutional

wi 1:1: regard obligation

to

the

"P . _rlnce

as

to

confidentiality falls away, Constitutional conventions are not free-standing; they are dependent on there being a good constit.utional reason justifyi..!1,,;rtherll. ;'..bsent such a reason and tb.e rule alleged t - be a canst i tutional com.rention is not a constitut.ional convent i.on .

Statement 01,: Truth

I believe that t.he facts stated x.n this Witness Statement are true _ The opinions I have expressed represent roy true and complete professior1,..al oo i n.i.on.s en the matters to which

they refer.

Professor Adam 'I'ornk i.ns

John Mill r Professor of Public Law University or Glasgo1N

23 July 2010

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