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EA/2010/0014 et al
Evans v Information Commissioner
APPELLANT’S SKELETON ARGUMENT
For hearing: 14th September 2010 (4 days). The appellant considers that 3 days will be sufficient.
There are 6 hearing bundles. References in square brackets are to Bundle/Page unless otherwise indicated. The suggested essential pre-reading for this appeal comprises (a) the skeleton arguments and (b) the Decision Notice in relation to DBIS [1/32]. References in the form (DN§1) are to the paragraphs of that DBIS Decision Notice [1/32].
PART I. INTRODUCTION
The question in these important appeals is whether correspondence between HRH the Prince of Wales (“the Prince”) and Government Departments, and lists scheduling that correspondence, have properly been regarded by the Commissioner as being exempt from disclosure under the Freedom of Information Act (“FOIA”). The central issue really comes to this. In the case of correspondence which involves the Prince’s well-known advocacy activities (see §§27-53 below), do the various public interest factors favour (i) disclosure (transparency) or (ii) non-disclosure (secrecy)? The Commissioner said (ii). But the right answer is (i), and the appeals should therefore be allowed.
These are linked appeals under FOIA section 57(1), by an awardwinning Guardian journalist (Evans §2) [3/2]. He had made requests in April 2005 to some 7 central Government authorities, for disclosure of correspondence between the Prince and departmental ministers (between 1 September 2004 and 1 April 2005), and of lists and schedules relating to that correspondence. On 15 December 2009 the Commissioner upheld the Departments’ claims to invoke exemptions
against disclosure. The 142-paragraph Decision Notice (DN§§1-142) in the case of the Department for Business, Innovation and Skills [1/32] encapsulates the essence of the Commissioner’s decision-making analysis and so is a convenient focus for the analysis in this skeleton1.
The correct approach to an appeal under FOIA s.57 is as explained in Guardian Newspapers Ltd (EA/2006/0011 & 0013) at §§14-23. The exercise is not akin to judicial review. The Tribunal’s starting-point is the Decision of the Notice of the Commissioner, but the Tribunal can review the Commissioner’s findings of fact and reach its own factual conclusions based on the whole of the material before it. The Tribunal must consider the correct application of the statutory provisions to the facts as found. When addressing the public interest (s.2(2)(b)) the Tribunal is considering a question of fact, not law or discretion, and will reach its own view as to where the balance lies.
The Tribunal has a list of 17 issues from the Respondent and Additional Parties. The Appellant had suggested that a simplified list might be of greater assistance to the Tribunal and his suggested list is annexed to this skeleton in case the Tribunal finds it a helpful reference point. What matters is to deal with the substance of the case which the Appellant will do in this skeleton argument in what is intended to be an orderly and logical sequence.
The Commissioner’s central conclusions were two-fold. First, he upheld a claimed exemption under FOIA section 41 (DN§§24-92), on the basis that disclosure would be an actionable breach of confidence, in relation to material obtained in confidence (DN§§71 & 92). That exemption was held by the Commissioner to be applicable to all letters written by the Prince (DN§27), but only to those letters written to him containing content reflecting the actual views or opinions which he had raised (DN§§32-34). There would, in the Commissioner’s view, be no public interest defence to a posited action for breach of confidence (DN§92). Secondly, as to the rest of the correspondence (DN§§93, 99), the Commissioner upheld a claimed exemption under FOIA section 37 (DN§§93-127), which
The Decision Notices in DBIS and DCSF [1/66] concerned FOIA only. The 5 other cases also involved consideration of the EIR.
applies to correspondence with members of the Royal Family. There, in the Commissioner’s view, the public interest favoured the withholding of the information from disclosure (DN§§126-127).
Public interest considerations were at the heart of the Commissioner’s analysis. In relation to section 41, the Commissioner applied the balancing exercise (DN§81) necessary to decide whether a public interest defence would arise to prevent a finding of breach of confidence. He held (DN§92) that there would be no public interest defence. In relation to section 37, he applied the section 2(2)(b) public interest test applicable in the case of a qualified exemption (DN§100). He held (DN§§126-127) that the public interest favoured maintaining the exemption. Section 40 is the subject of issues 1-7 of the Respondent’s List of Issues and section 37 is issue 8.
One difference between sections 41 and 37 concerned onus. Under section 41 (public interest defence) the public interest in disclosure had to be shown by the appellant to outweigh protection of the information (DN§80). Under section 37 (qualified exemption: public interest balance) the public interest in withholding had to be shown by the public authorities to outweigh disclosure of the information (DN§100). Unsurprisingly, the public interest considerations were closely similar under both limbs of the case and the outcome did not turn on onus. Nor is the outcome of this appeal, either way, likely to turn on onus or classification. That point holds for the third exemption now relied on by the Respondents, namely section 40 (issue 9 in the Respondent’s List of Issues). The Appellant does not object to that point being raised, the Tribunal’s jurisdiction being flexible (see King (EA/2007/0085) at §§53-56) and it being important on all sides to deal with the substance of the matter and get to the legally correct conclusion. There are additional points in the case, which arise depending on the analysis of the main issues under the main provisions. These include arguments relating to (a) environmental information (Environmental Information Regulations) and (b) lists and schedules. It seems fair to say, however, that all paths lead ultimately to the public interest and a balancing of the competing considerations. The Commissioner concluded that a blanket protection from disclosure was justified. The critical question is whether that was right.
The ‘four corners’ of the Commissioner’s public interest analysis were the following four linked, key features: (1) an ‘exceptionality’ test; based on (2) ‘truly personal’ content; and (3) public interest detriment; not outweighed by (4) public interest benefit. Each is challenged on these appeals, in what is a root-and-branch attack on the result and approach favoured by the Commissioner (see Grounds of Appeal 2-5 [1/284-290]). The position, by way of introduction, is as follows.
The first key feature was the ‘exceptionality’ test. The Commissioner’s self-direction in law was that “disclosure of such information would require an exceptional set of public interest arguments” (DN§91), the requirement being for “a very strong set of public interest arguments” (DN§86, §87), so that “the content ... [must] present an exceptional reason or reasons for the information to be disclosed” (DN§92). This approach was articulated expressly only in relation to section 41. However, it was said to be a reflection of applicable principles under ECHR Article 8 (DN§§69-70), and the Commissioner’s views as to privacy and dignity appeared to carry across into the public interest balance under section 37 (DN§108), though the ‘exceptionality’ test was not explicitly repeated.
10. This ‘exceptionality test’ approach is challenged in Ground 2 of the
grounds of appeal, that the Commissioner “applied the wrong test”. In a nutshell, “the Commissioner set the threshold too high when asking whether the public interest in disclosure was sufficient to outweigh the privacy/ confidentiality of the information” (Notice of Appeal §§17-20, especially §20) [1/284-285]. This point is framed as issue 2(i) in the Respondent’s List of Issues. Submissions are developed at §§64-67 below.
11. The second key feature (see §8 above) was the ‘truly personal’
content. This was the finding that was held to trigger the ‘exceptionality’ test (see §9 above). The Commissioner had held that disclosure “would place in the public domain details of The Prince of Wales’s views and opinions on a number of issues”, which he said “would amount to an invasion of his privacy” (DN§70). The Commissioner accepted that “in cases where the information is of a commercial nature”, he would “follow the lead of the Tribunal [in the
Derry and LRT cases] in that no exceptional case has to be made for disclosure” (DN§85). However, the factor said to justify the invocation of the ‘exceptionality’ test here was that “the information is of a private and personal nature”, meaning relating to (a) “intimate personal or family life” rather than (b) “public and professional life” (DN§86). The reason why this case was held to be on the “private” side of this line (ie. (a)), was because of the Prince’s “unique position” and the “significant overlap” between his “public role as Heir to the Throne and a senior member of the Royal Family” and his “private life”, the two being “inextricably linked” (DN§87). The Commissioner explained what he meant, namely that the Prince “only occupies such [public] positions because of the family into which he was born” (DN§87). Here, privacy and dignity carried through into the public interest balance under section 37 (DN§§108, 124).
12. This ‘truly personal’ content approach is challenged in Ground 3 of
the Grounds of Appeal, that the Commissioner “wrongly attached a constant (and excessively great) weight to the Prince of Wales’s rights under Article 8”. In a nutshell, this was not information of “truly personal content”, nor of “significant intrusion”, nor of information “more private than public” (Notice of Appeal §21) [1/285-287]. The point is repeated in respect of section 37 (see Ground 6) [1/290]. This point is framed as issues 2(ii) and (iii) in the Respondent’s List of Issues. Submissions are developed at §§68-74 below.
13. The third key feature (see §8 above) was the ‘public interest
detriment’. The Commissioner identified an intrusion into matters “of a private and personal nature” (DN§§86-87), alongside which were “additional arguments ... in favour of non-disclosure” (DN§88). Those additional matters concerned (i) harm in relation to a constitutional convention, said to be accompanied by (ii) a weighty expectation of confidentiality and (iii) a need for apparent political neutrality.
14. The constitutional convention was in respect of “information which
relates to The Prince of Wales being educated in the ways and workings of government” (DN§67). The relevant public interest was “a significant public interest in the ensuring [that] the convention that the Heir to the Throne can be instructed in the business of
government is not undermined” (DN§89). The convention was said by the Commissioner to be a weighty matter (DN§110), requiring freedom and frankness (DN§119) and in which a “chilling effect” would be detrimental (DN§126). He accepted that a “chilling effect” even outside the scope of the constitutional convention was a matter to be given some weight, albeit less weight (DN§§121-122).
15. As to a weighty expectation of confidentiality, the Commissioner held
that the recognised “constitutional convention” carried “an explicit (and weighty) expectation that such correspondence would be confidential” (DN§66). The protection of the constitutional convention was a weighty matter (DN§110). But the Commissioner also upheld a weighty expectation” which went beyond “such information”. He found that even in respect of communications which “do not fall within [the Commissioner’s] interpretation of the convention, there is still as weighty expectation that such correspondence will be kept confidential” (DN§68). The Commissioner gave two reasons for broadening the “weighty expectation” in this way, to apply beyond the reach of the convention. First, that “the established practice [was] that communications between The Prince of Wales and government ministers have not been disclosed or commented on by either party”. Secondly, that the Government’s “position” was that “all correspondence ... falls within the scope of the convention” (DN§68), albeit that this was a view which the Commissioner had rejected as wrong (DN§67): “this convention cannot be interpreted so widely”. By this reasoning, the disclosure of any correspondence was held by the Commissioner (DN§89) to be damaging to the constitutional convention (“a significant public interest in ... ensuring [that] the convention ... is not undermined”) and the accompanying (and expanded) weighty expectation of confidentiality (the “weighty public interest in maintaining confidences”). As for appearances of political neutrality, the Commissioner added that “it would clearly not be in the public interest if the Heir to [the] Throne and future Monarch appeared to be politically partisan” (DN§89). That was a reference to the Government’s arguments (DN§51) that routine disclosure of correspondence between the Prince and Ministers would mean “His Royal Highness’ political neutrality would be put at risk”.
16. This approach to public interest detriment is challenged in Ground 4
of the Grounds of Appeal, that the Commissioner “attached excessive
weight to the arguments in favour of withholding the information”. In a nutshell, the Commissioner “overestimated the extent to which disclosure would undermine the constitutional Convention ..., compromise the perception of political neutrality, and have a chilling effect on the communications between the Prince and government” (Grounds of Appeal §22, also §§23-26). The point is repeated in the context of section 37 (Ground 6). This point is framed as issue 3 in the Respondent’s List of Issues. Submissions are developed at §§7595 (also §§52-58) below.
17. The fourth key factor in the analysis (see §8 above) was the public
interest benefit. The Commissioner identified “a number of public interest arguments in favour of disclosure” (DN§90). They were repeated in the context of section 37 (DN§125). These were arguments which “touch directly on many, if not all, of the central public interest arguments underpinning the Act” (DN§90). Those FOIA-underpinning public interest arguments involved “ensuring that public authorities are accountable for and transparent in their actions; furthering public debate; improving confidence in decisions taken by public authorities”. There were also “specific arguments relevant to this case in relation to The Prince of Wales relationship with government Ministers” and which “deserve to be given particular weight” (DN§90). These public interest benefits had been summarised earlier in the determination (DN§§74-59). They were held not to satisfy the Commissioner’s ‘exceptionality’ test (DN§91), not to outweigh the interests and expectations of privacy in the context of ‘truly personal’ content (DN§§86-87) nor the additional public interest arguments (DN§89). They were later held, in the context of section 37, to be outweighed by the public interest arguments in favour of non-disclosure (DN§§107-127).
18. This approach to public interest benefit is challenged in Ground 5 of
the Grounds of Appeal, that “the Commissioner attached insufficient weight to the arguments in favour of disclosure”. In a nutshell, there was a “strong and legitimate public concern that the Prince engages in lobbying and that his views may have an inappropriate or disproportionate effect on government policy and/or government’s handling of specific issues” (Notice of Appeal §27) [1/289]. The point is repeated in the context of section 37 (Ground 6) [1/290]. This
point is framed as issue 4 in the Respondent’s List of Issues. Submissions are developed at §§96-101 below.
PART II: CONTEXT Educating the Heir to the Throne
has been seen (§§13-15 above), there is a constitutional convention which is at the heart of this case. It relates to the Heir to the Throne. It involves communications between Government and the Heir to the Throne for a particular purpose. That purpose is educating the Heir to the Throne in the ways and workings of Government (§14 above). So, this is “the convention that the Heir to the Throne is instructed in the business of government in preparation for the time when he will be King” (Allan §4 [4/2]). And that kind of communication is said to need to be “conducted in strictest confidence” (Allan §4).
20. This constitutional convention is the essential underpinning for
withholding the correspondence: see the Information Commissioner’s Response §46 [1/306]. What is invoked is a public interest in nondisclosure which is said to apply where documents are “squarely within the scope of the Constitutional Convention”: see Information Commissioner’s Response §47.1 [1/306] (referring to Scotland Office v Information Commissioner (EA/2007/0128) especially at §78).
21. The Government’s position in this case has been that this constitutional convention applies to all correspondence between the Prince and the Government. As the Commissioner recorded (DN§68):
... it is the Commissioner’s understanding that the public authority’s position is that all correspondence The Prince of Wales exchanges with government ministers falls within the scope of the convention ...
That is the position which is maintained on this appeal. Mr Allan states the view that the correspondence in its entirety “directly
concerns the constitutional convention that The Prince of Wales should be educated in and informed about the business of government” (Allan §33 [4/11]). The convention is where the suggested expectation of confidentiality and public interest protection come from: “it is important for The Prince of Wales to correspond with Ministers as part of the constitutional convention I have described” (Allan §31 [4/10]). Professor Brazier agrees (see §53 below).
22. The Commissioner, however, did not accept that the convention was
all-encompassing in its scope. As he put it (DN§109)2:
... the Commissioner believes that the scope of the constitutional convention in respect of the Heir to the Throne is relatively narrow. That is to say it will only cover correspondence in which The Prince of Wales is in fact being educated in the ways and workings of government ...
... the Commissioner wishes to clarify his position in relation to the scope of the constitutional convention provided to the Heir to the Throne. In the Commissioner’s opinion given that the purpose of this convention is to allow the Heir to the Throne to be educated in the ways and workings of government, the only information which will attract the protective confidentiality of this convention is information which relates to The Prince of Wales being educated in the ways and workings of government.
conclusion was said by the Commissioner to have consequences. Four can be found. First, it could be linked to a strong public interest which was said to need to be protected (see §110):
... where the information does fall within the Commissioner’s definition of this convention, he accepts that there is a significant and weighty public interest in preserving the operation of this convention, ie. it would not be in the public interest that the operation of the established confidential convention would be undermined.
Underlining in quotations in this skeleton connotes emphasis added.
This is particularly so given that the convention is designed to protect communications at the heart of government, ie. the Heir to the Throne and government Ministers. The significant weight which protecting the convention attracts can be ... correctly seen as akin to the strong weight applied to maintaining the exemption ... contained at section 42 as it will always be strongly in the public interest to protect legal professional privilege.
Note the express parallel there being drawn with “legal professional privilege”. Secondly, it led to the nexus between protected information covered by the constitutional convention and a need to be able to speak freely within that constitutional function. As the Commissioner had put it (DN§89):
... the Commissioner agrees that there is a significant public interest in ... ensuring [that] the convention that the Heir to the Throne can be instructed in the business of government is not undermined ...
As he later explained (DN§119):
In the Commissioner’s opinion, disclosure of information falling within the scope of [the] convention would lead The Prince of Wales, and possibly the government minister with whom he corresponds, to feel constrained or more reluctant to take part in the process of being educated about the business of government.
Thirdly, it meant that Commissioner was prepared to accept that Government could only invoke section 37(1)(a) to protect educational communications (DN§120):
... the protection afforded to communications from government ministers only extends to their contribution to educating the Heir to the Throne; it would be incorrect to argue that section 37(1)(a) provides a protection for government ministers to discuss more widely matters of policy or development ...
Fourthly, it led to the Commissioner’s distinction, between “information which falls within the scope of the Convention” (see §126) and “correspondence which does not fall within the scope of the convention” (see §121, also §127).
24. That the convention is not universal and all-embracing was illustrated
by two types of correspondence which the Commissioner said he was giving as examples. He said (DN§67):
... for example, it does not cover correspondence in which His Royal Highness may be discussing his charitable work or indeed information of a particularly personal nature ...
It is not difficult to think of correspondence which would fall within these examples. “Dear Minister, It was lovely to see you at the Palace for the drinks party”; “Dear Your Royal Highness, Thank you for dinner”; “Dear Prime Minister, I write to inform you of a delicate situation regarding my health”.
25. It is not difficult to think of correspondence which would fall within
the scope of being educated about the business of government (§§19, 22 above). The Minister might write a letter: “Dear Your Royal Highness, here is your monthly update as to the activities of my Ministry”. The Prince might write: “Dear Minister, I would be grateful for an update as to the activities of your Ministry”. Education involves a questioning mind, so there might be a letter: “Dear Minister, can you please clarify what this means?”; or “Dear Minister, what is your Ministry proposing?”; or “Dear Minister, why did your Ministry do that?”. This point about scope can also be made by taking a different constitutional arm of the State. Take Parliament. Or take the Courts. What would it mean to be educated in the ways and workings of Parliament? Or in the ways and workings of the Courts?
26. In fact, the correspondence in this case is not said (see §§30, 32 and
76 below) to be in the nature of the Prince being educated about the business of government. The correspondence does not fit within that function; rather, the constitutional convention is expanded and
modified to include it (§53 below). The correspondence is known to be about the Prince’s opinions and views being put forward to government (§30 below). This not the educational function. Perhaps that is because education about governance takes place within the “regime” of meetings receiving Ministers, as Professor Brazier suggests (Brazier §§50-51) [4/68]. Perhaps it is that education was a phase which happened “initially” and “through formal instruction and education in the business of Government”, as described by Sir Stephen Lamport (§9) [4/28-29]. Whatever the reason, this case is not about ‘educational’ correspondence. Rather, this case is all about ‘advocacy’ communications, which seek to influence or persuade.
27. The nature of such advocacy communications can be illustrated,
again, by supposing that there were a person who is constitutionally entitled to be educated in the ways and workings of the Courts (§25 above). Suppose now that this person were instead to write a letter which was designed to influence the Courts in their decision-making. That is plainly something different. In the present context of Governmental policy-making and decision-making, Professor Brazier recognises this as a distinct type of communication: he calls it “argumentative” correspondence (Brazier §97). It can relate to a Governmental policy or decision, putting forward the Prince’s view for consideration as to what policy or decision the Government should make. Could this kind of communication be undertaken by the Heir to the Throne, with his privileged access to Ministers, with a secrecy which is then sought to be justified by reference to the constitutional function of being entitled to be educated in the ways and workings of Government? That does not seem very promising. And yet that is what this case is all about.
28. The former Liberal Democrat home affairs spokesman Chris Huhne
expressed a straightforward distinction when he said (quoted in The Guardian 16 December 2009 [2/100] and the Daily Mail 17 December 2009 [2/102a]):
[The Prince] has to be very careful to respect the traditional separation between the democratically accountable parts of the constitution and the ceremonial parts. The Prince of 12
Wales is entitled to ask about what is going on but if he is urging a particular point of view, then that’s a different matter.
As was said by former Minister Lord Rooker (quoted in The Guardian 18 December 2009 [2/113]):
If it was for the education of a future King, it would have been legitimate. The letters I saw were more ‘I think you should do this, why don’t you consider the other?’ If they were from an informed member of the public, an academic or someone from a non-governmental organisation, they would be published, so why shouldn’t these be?
29. The Commissioner rightly accepted that there is an important public
interest in questioning whether the Prince seeks to use channels of communication to influence policy-making and decision-making. There is the “public interest” in ensuring that “government is accountable for and transparent in its decision making processes” (DN§74). There is the public interest in allowing the public to understand “the influence (if any) exerted by The Prince of Wales on matters of public policy” (DN§76). There is the public interest in steps “to reassure the public that no inappropriate weight ha[s] been placed on the views and preferences of The Heir to [the] Throne” (DN§77). There is the context, where there are in the public domain the “media stories which focus on The Prince of Wales’ alleged inappropriate interference in matters of government and political lobbying” (DN§78); and where there is the “public debate regarding the constitutional role of the Monarchy and particularly the Heir to the Throne” (DN§79).
30. It is known that the correspondence in this case is concerned with the
expression by the Prince of his views and convictions (leaving aside some matters of a purely private and social nature) on matters of government policy. The Additional Parties’ Notice of Appearance confirms (§10(2) [1/323]) that:
In these 7 cases, The Prince of Wales’ correspondence to Ministers either records the personal views and convictions 13
of His Royal Highness, or is (in respect of particular passages or particular isolated items) or a private and social nature. The correspondence from Ministers to The Prince of Wales either responds to personal views and convictions expressed by His Royal Highness; or is correspondence of a private and social nature.
As to the subject-matter of these “views and convictions”, the witness evidence confirms (Allan §38 [4/13]) that:
... the correspondence under review consists almost entirely of matters of potential or actual government policy, because it consists almost entirely of discussion of government business.
31. After all: “We know that Prince Charles lobbies and we know that he
does so regularly and assiduously” [2/224]. The Prince is “expressing his own views to Government”, having been “involved in public affairs for such a long time” (Lamport §38) [4/38]. Thus, the Prince was reported in 2002 as corresponding with the Prime Minister, the Home Secretary, the Education Secretary, the Environment Secretary and Defence Secretary [2/11] and to have written “more than 100 letters to ministers in recent years” [2/21]. The Prince’s private secretary Sir Michael Peat confirmed in 2006 that the Prince writes and “raises questions about matters which he regards as being of public concern”, “issues which he believes are important” [2/40].
32. It is revealing that when the Government departments come to make
their “chilling effect” arguments in this case (see DN§113), these are not about communications which educate about the business of Government. The functions which are sought to be preserved instead involve contributing to policy and decision-making itself. The Government’s position is that it is “essential to the operation of the convention that His Royal Highness should be able to express views to Ministers on important issues of government” (DN§50). As the Commissioner put it (DN§113), the concerns were that disclosure of communications could:
... affect the frankness and candour with which relevant parties will make future contributions to that policy/decision making;
... affect the frankness and candour with which relevant parties will contribute to other future, different, policy debates and decision making processes;
... affect the frankness and candour with which relevant parties will contribute to other future, different, policy debates and decision making processes.
This is important, for it accepts that the Prince engages in, and in these letters is engaging in, correspondence in order to seek to influence Government policy and decision-making. It is the Prince’s “opinions” which are said to be the “useful content” (Lamport §38) [4/37-38]. And of course it is the attempted influence in decisionand policy-making which so strongly engages the public interest.
present case has this following important public domain dimension. It is very well known, including from the Prince’s own statements and actions, that the Prince does indeed use communications with Ministers for the purposes of stating his views and seeking to contribute to policy-making and decision-making. But, according to the Government, the content is to be kept secret and is not to be seen. The public is not to know about it, whether any concerns are well-founded, or whether indeed it should be reassured. When the Prince writes to state his view on a pending policy- or decision-making process, does he urge action in accordance with his views? If not, why are they expressed? If so, in what way and to what effect? Is he met with: “Dear Your Royal Highness, we have taken your views into account and you will be pleased to hear that we have decided not to proceed with the proposal”? Or is he met with: “Dear Your Royal Highness, it is always nice to hear from you but it would not be right to allow your personal views expressed privately to influence our policy-making or the decision-making”? Absent transparency in the public interest, there is simply fertile ground for
speculation. Ironically, elsewhere in the analysis the Government’s own position is to refer to a situation where the fact of communication but not its contents are known as conducive to “damaging speculation” (DN§131).
34. The question-marks do not relate simply to what the Prince does.
They relate to how that is received by Government, and the Ministerial response to it. It is known, and will be seen (§§36-49 below), that the Prince’s advocacy interventions are legion and have frequently been successful, including as to changes in Government policy (eg. stubble-burning [2/344]); or nearly so (eg. foot-andmouth vaccination [2/42]). It is said that the Prince would be in a “uniquely disadvantaged position” if he alone could not write advocacy letters (Lamport §35) [2/37]. In fact, he does so, and from an advantaged position. There are understandable concerns as to the extent to which the Prince’s letters are “getting ... more of a response than any constituent of mine who writes to a minister” [2/7]; whether Ministers not only have “enjoyed the dialogue” but have “asked favours in return” [2/11]; whether his views are given “the same weight as any other ordinary person” [2/23]; whether recipients “listen, not because of what he thinks, but because of who he is” [2/48]. The evidence is that the Prince’s letters to Ministers are treated very differently, because of who he is: see eg. Evans §11 [3/6]; Richards §§5-6 [3/10-11]. As Dr Wright MP put it [4/50] “it is not fanciful to suggest that a Government Minister might decide to see things from the point of view of the person writing from the palace”. And as Professor Brazier has put it [2/345]: “Ministers are naturally likely to accord far more weight to the Prince’s views than to those of most other individuals; by being who he is his words and actions can have constitutional consequences”.
35. An important part of the context as to the Prince’s correspondence
with Ministers concerns his other actions in the public domain. That is significant not least because of the suggestion of damaging a constitutional convention: “If the views of the Heir to the Throne on the policies on which he or she has been briefed were to become public” (Allan §18 [4/6]). That approach suggests that the Prince is careful to ensure that his views are only ever expressed privately and are kept confidential by him (cf. §57 below). As Professor Tomkins has explained (Tomkins §§8, 12 and 16) [3/18&24]: (1) throughout the
period since the 1970s the Prince has aired in public his opinions on a wide range of matters of public policy; (2) these have included holistic medicine, genetically-modified crops, cuts in the armed forces, architecture and agricultural policy; (3) such letters have been referred to, quoted and reproduced in the Dimbleby biography, which is an authoritative work with which the Prince cooperated and whose factual accuracy he checked (Brazier §71 [4/73]; cf. Allan §23 [4/8]); (4) it is clear from a range of sources that the Prince’s correspondence with Ministers is a form of lobbying, which is an activity known to call for standards of transparency, openness and accountability; and (5) the Prince has sanctioned extensive quotations from and reproductions of his correspondence.
36. A good starting-point is the Prince’s own public domain website which
refers to his role of “Promoting and Protecting” [4/53, 58]. Under that rubric are to be found his actions “Raising issues”, “to highlight issues which are of concern to himself and to others”, such as “the environment, genetically modified crops, and the need for community planning on a human scale” [4/58]. But also under the same rubric are to be found his activities of “Correspondence and meetings” whereby he “privately corresponds with and meets with Government Ministers, business leaders and other people of influence on a variety of subjects that have been brought to his notice or which concern him” [4/53]. The same ‘political neutrality’ principle is said to govern both types of action.
37. In relation to “raising issues”, take some public domain examples
relating to healthcare. The Prince’s biographer calls this a “sustained campaign” by the Prince (Dimbleby p.573 [2/329]). He illustrates the Prince’s activities by recording how the Prince used a December 1982 speech to the British Medical Association “to attack some of the fundamental tenets” of the medical profession (Dimbleby p.306 [2/234]). That speech on the philosophy of medicine was his “most controversial” to date, which “sent a shudder through the medical establishment” including “the drugs industry” (Dimbleby p.308 [2/236]). The Prince there criticised what he called “the deeply ingrained suspicion and outright hostility ... towards anything unorthodox” [2/69]. In his May 1999 speech to the Integrated Healthcare Conference, the Prince advocated (as President of the Foundation for Integrated Medicine) improving the healthcare
available to “everyone in this country” by adding “other traditions” to “orthodox western medicine”, “reaching across the disciplines”, and promoting “self-regulation” of complementary and alternative therapies [2/147-150]. The Prince’s public domain promotion of alternative medicine included writing in NHS Magazine (December 2000) that “Alternative medicine should be available to all on the NHS” [2/35], and his 2006 World Health Organisation speech [2/52]. These actions precipitated responses which included the 2004 letter of Professor Baum to the British Medical Journal [2/25-26], with the host of consequential further responses [2/27-33]; and the 2006 joint letter by Professor Baum and 12 other eminent scientists [2/52].
38. Take public domain examples relating to education. His biographer
gives the illustration of the Prince’s 1989 speech, as patron of the Thomas Cranmer Schools Prize, when the Prince “turned the full blast of his outrage on the educational establishment” regarding modernism in education (Dimbleby p.453 [2/316B]). The Prince spoke of English language standards and “a dismal wasteland of banality, cliché and casual obscenity” [2/70]. He then “went even more vigorously on the attack against the educational establishment” in his 1991 Shakespeare Birthday lecture, criticising “fashionable trends in education” and curriculum policy failures which “get it wrong almost before we have begun” (Dimbleby pp.454-456) [2/316C-316D].
39. Take public domain examples relating to agriculture. The Prince’s
biographer illustrates his activities by referring to a 1980s speech to the national organic food production conference which “horrified the agricultural establishment with a radical assault on conventional methods of farming”, a threat “not only to established practice but to powerful vested interests – in this case the agrochemical industry” and one relating to “core questions of public policy” (Dimbleby pp.311-312) [2/239-240]. A further example is the Prince’s 2008 Sir Albert Howard Memorial Lecture, in which he advocated autonomy for small and family farmers and for traditional and organic agriculture [2/195-198]. He spoke out against GM crops, countering the argument that “GM food is now essential to feed the world”, and characterising GM crops as “a wrong turning” [2/196] with their associated “risks” [2/198]. The Prince described the fundamental beliefs which led him to “keep sticking my sixty-year-old head above
an increasingly dangerous parapet” [2/197, 2/72], recognised that some would dismiss his ideas as “romantic, idealized, ill-informed and impractical” [2/197], and described the need for “those of us who care about these issues ... to fight for many more years before we have a general acceptance” [2/198]. The Prince had spoken out in 2002 about “the most appalling problems” which he believed GM crop contamination was going to bring [2/35].
40. Take public domain examples relating to environmental protection.
The Prince’s biographer gives illustrations including the Prince’s 1970 speech about “the horrifying effects of pollution” (Dimbleby p.312 [2/240]) and advocating costly abatement technology and new regulatory standards (Dimbleby pp.421-422 [2/288-289]); that being the year after his 1969 speech about Atlantic salmon, known to have provoked the Prime Minister’s interest [2/129] and to have precipitated immediate action [2/130]; the Prince’s 1987 speech to the North Sea Conference advocating “stricter controls on dumping” (Dimbleby p.424 [2/291]) seen as “tacitly rebuking” Government and helping “shift opinion within the government” (Dimbleby p.425 [2/292]); his 1988 speech as patron of the European Year of the Environment which “again urged the government to act with greater conviction” and attacked the CEGB for inaction on acid rain (Dimbleby p.425 [2/292]); his 1989 speech to the Saving the Ozone Layer World Conference calling for a total elimination of CFC gases “to throw down the gauntlet to the government” (Dimbleby pp.427428 [2/294-295]); his Madrid speech to the EC Conference on the Urban Environment advocating a higher priority for waste recycling (Dimbleby pp.438-439 [2/305-306]). At the 2000 Reith Lectures [2/159-163] the Prince spoke of an intuitive, spiritual approach to sustainable development, placing science alongside sacred ideas of creation and stewardship and “the grain of nature”, advocating “a precautionary approach” which “still faces a degree of official opposition” [2/160]. His speech at the 2009 Nobel Laureates Symposium on Climate Change [2/177-180] praised alternative, integrated solutions and described the urgent need for “global decision-makers ... to be persuaded that strong, committed and coordinated action is needed now” [2/177]. The Prince’s controversial [2/85] 2009 Richard Dimbleby Lecture criticised “modernism” as “a dangerously short-sighted approach” and advocated a “shift” from a “reductive, mechanistic approach to one that is more balanced and integrated with Nature’s complexity” [2/185-190]. His 2009 Copenhagen speech [2/191-194; 2/96]
advocated climate change solutions by “public, private and NGO sectors” [2/192], highlighting “private sector ... corporate, social and environmental responsibility” including specifically “pension funds” [2/193] in which he took an active interest [2/83]. His 2010 Oslo speech spoke of the vindication of the “few brave souls” who had been “ringing the alarm bells” and praised various nations for their initiatives on deforestation [2/181-182].
41. Take public domain examples relating to the built environment. The
Prince’s biographer illustrates his activities with examples including the Prince’s 1984 speech to the Royal Institute of British Architects, described as a choice by the Prince “to open up on yet another front” (Dimbleby p.314 [2/242]). In that speech [2/199-200] the Prince accused “some planners and architects” of having “consistently ignored the feelings and wishes of the mass of ordinary people”. On disabled access, he welcomed as “excellent” an amendment to the Building Regulations which he was “told” the Department of the Environment was “preparing”. He criticised the Mansion House Square project, and condemned a proposed National Gallery extension in Trafalgar Square as “a monstrous carbuncle” [2/200, 70, 112, 125]. His intervention “torpedoed” both schemes (Dimbleby p.449 [2/316]), as did a later 2004 intervention regarding Smithfield [2/108]. In a 1985 speech to the Institute of Directors the Prince spoke out about the “inhuman conditions” of inner-city housing (Dimbleby p.320 [2/248]). In his 1987 Mansion House (Corporation of London) speech (Dimbleby pp.445-448 [2/312-315; 2/70]) the Prince condemned the competing projects for the development around St Paul’s [2/75, 107, 111], describing people as being “fed up with being talked down to and dictated to by the existing planning, architectural and development establishment” (Dimbleby p.446 [2/313]), and launching a “root and branch denunciation of the planning system itself” (Dimbleby p.447 [2/314]). The St Paul’s scheme was later scrapped as a result of the Prince’s intervention [2/107, 111]. In 2005 he tried again to intervene in relation to a St Paul’s development, an intervention launched “during the planning process” [2/106-107], like his now infamous Prince-to-Prince interference on Chelsea Barracks [2/74, 124]: see the judgment of Vos J [3/60]. The Prince’s planning interventions are said to have given him “such influence behind the scenes” that significant new developments came to be “presented to him for his approval” (Dimbleby p.449 [2/316]) as though he were a statutory consultee [2/108]. Meanwhile, the Prince developed his
own neo-Georgian village at Poundbury near Dorchester [2/109]. In his 2009 RIBA Trust lecture [2/151-156; 2/103] the Prince gave the latest in the line of “my inconvenient interferences” [2/152], advocating traditional, “organic architecture” respecting the ordering of Nature and with a community role in design and planning [2/152]. He condemned the “flawed” Modernistic approach [2/153] and the “brutal destruction” of the 1960s developments [2/154]. These were, yet again, controversial views involving “significant differences” [2/158].
42. Take the following further public domain examples. The Prince’s
biographer illustrates his actions by further references, for example to: the Prince’s 1970 speech at the Cambridge Union speaking out against the new Concorde supersonic aircraft (Dimbleby p.422 [2/289]); the Prince’s 1989 speech (at the Building a Better Britain Exhibition) condemning the situation in Romania, having “formed the view that the government’s attitude was dilatory and pusillanimous” and having “decided to go public” after fruitless letters to the Foreign Secretary (Dimbleby pp.431-432 [2/298-299]); the Prince’s speech at Mansion House on the armed forces (Dimbleby p.520 [2/317]); and the Prince’s 1981 full-page Observer article on intermediate technology (Dimbleby pp.312, 423 [2/240, 2/290]). Further examples would include: the Prince’s 1975 speech to the House of Lords on anti-social behaviour [2/69]; his 2004 Independent on Sunday article criticising the science of nanotechnology [2/34]; and the interpretation of his non-attendance of 1999 and 2005 State Banquets for leaders of China nor the 2008 Beijing Olympics [2/59, 2/67, 2/73]. It can be noted at this point that the rules as to Parliamentary debates would stand modified in all these contexts wherever the Prince has made a public statement on a matter of public interest and so “engages in public debate” [2/219-220, 232].
43. As the Appellant himself has explained (Evans WS [3/1-8]), in
suggesting to the Tribunal the context for the public concern which arises as to the legitimacy and content of the Prince’s correspondence with Ministers (Evans §17): (1) the Prince is known to have engaged in prolific correspondence with Ministers extending to 8 known Government departments during the period 2006-2009 (§5); (2) examples of the content include letters advocating his views on fisheries policy, Romania, stubble-burning, energy policy, the army,
the Human Rights Act, foot and mouth vaccinations, Zimbabwe, architecture, hunting and fishing (§6); (3) these are not ‘truly personal’ content nor the educating of the Heir to the Throne (§7); (4) this activity can be put alongside his other lobbying (§8), his public speeches (§§12-14) on matters including alternative medicine, architecture and urban development, the environment and climate change, GM crops, farming and education and his advocacy intervention in the Chelsea Barracks case (§§15-16); (5) it is known that the Prince’s self-perception includes acting as an influence on controversial matters, often in seeking to be a voice for the voiceless (§§9-10), while seeking to avoid “party politics” (§9); (6) it is also in the public domain that the Prince’s correspondence is understood to be treated differently by Government (§11). That last point is strongly reinforced by the evidence of Paul Richards [3/9-12], who describes examples relating to complementary medicine, primary school syllabus and eco-town design (§8), and who explains how the Prince’s letters bypass the centralised mailroom going to the top of the Ministerial pile and into the red box (Richards §5). The evidential picture is also supported by the 2006 witness statement of Mark Bolland [2/211-215], to which attention is invited.
44. The evidential picture as to the Prince’s advocacy correspondence is
a compelling one. As is explained in the Notice of Appeal (§§23-24) [1/288-289]: (1) it is a matter of public record that the Prince holds and expresses strong views on matters of public policy and corresponds with Ministers about them; (2) the Prince has repeatedly used public platforms to express his strongly held views; (3) the fact that the Prince corresponds regularly with Ministers is welldocumented and publicly admitted on the Prince’s behalf as well as by some Ministers or their advisers; (4) some of this advocacy correspondence has been published; (5) the Prince’s self-perceived role has been described on his behalf as representational, “drawing attention to issues on behalf of us all” and “representing views in danger of not being heard”; (6) the available materials indicate that the Prince has expressed strong views on matters of political controversy, including as to legislation being introduced; (7) the high degree of publicity afforded to the Prince’s dealings with government have not prevented his being educated in the ways and workings of government; (8) nor have they deterred him from corresponding frankly with ministers.
45. The Prince’s biographer has illustrated the Prince’s activities as
vividly and freely with examples of the Prince’s letters to ministers, as he did with the Prince’s speeches (§§37-42 above). There is the description of the “missives to cabinet ministers – about government policy in relation to (among other matters) the disabled, South Africa, the Gulf and Romania” (Dimbleby p.405 [2/268]). There are the Prince’s 1989 letters to Foreign Secretary Howe, advocating urgent action in relation to Romania (Dimbleby pp.431-432 [2/298-299]). There is the correspondence with Prime Ministers on the built environment, promoting a scheme so vigorously that “it became the catalyst for a fundamental shift in government thinking” (Dimbleby p.368 [2/273]) and seeking “to enlist the new Prime Minister in this cause” (Dimbleby p.380 [2/285); likewise the 1988 letter to Environment Secretary Ridley “to try to persuade the government .. to restrain the free market in favour of the environment in the Green Belt, and more generally in towns and villages” and referring to “the sort of controls I believe are necessary” (Dimbleby pp.450-451 [2/316A]). There are the environmental protection letters to Energy Minister Morrison advocating a ban on stubble-burning, in response to which the Government “shifted ground” and “retreated” and finally in a “volte-face” did announce a ban (Dimbleby pp.434-436 [2/301303]); and the letters to Environment Secretary Wakeham “reproaching [him] for the government’s grudging response to the Commons Energy Select Committee report on the ‘greenhouse effect’ and asking what proposals were in hand for developing renewable sources of energy as alternatives to coal” (Dimbleby p.436 [2/303]). There are the armed forces letters: the 1991 letter to the Prime Minister expressing anxieties about proposed cuts, in the context of a Government White Paper; the 1992 letter to Defence Secretary Rifkind reiterating those concerns, considered to be “vindicated” by 1993 announcements of increases; and the 1992 letters to Rifkind about the proposed removal of regimental bands, which were less obviously successful (Dimbleby pp.520-523 [2/317-320]).
46. The press interest in such correspondence, and the many other
reported examples, is unsurprisingly high. That can be seen from the sample of news stories provided for the Tribunal [2/1-128]. On healthcare, there were concerns in February 2010 about the Prince “secretly lobbying ministers in support of using discredited homeopathic medicines on the NHS”, and at the very time when a Commons committee was calling on the NHS to stop such funding
[2/115]. On education, it was reported in March 2006 that the Prince had raised with ministers concerns about “school standards” [2/48]. On agriculture, it was reported in September 2002 that Downing Street had reacted to the Prince’s “blunt warning about the dangers of genetically-modified crops” [2/1], the Prince having written to Prime Minister Blair [2/9] referring to the government “destroying the countryside” [2/71]; and having written to ministers about GM food [2/17]. It was reported in December 2009 that the Prince wrote letters to Agriculture Minister Nick Brown about the plight of poor farmers [2/114]. On environmental protection, the Prince is known to have written in 1969 to Prime Minister Wilson about Atlantic Salmon [2/129-137, 142-146; 69] and North Sea sea-birds [2/138-141; 114]; he was reported in September 2002 to have written to Scottish Deputy Rural Affairs Minister Allan Wilson about farmed salmon [2/23]; he was reported in March 2006 to have written to the Conservative Government about the dangers of global warming and the harsh impact of carbon fuels [2/47]. On the built environment, the Prince reportedly: wrote to the Scottish First Minister on the designs for the new Scottish Parliament [2/23]; wrote to Health Secretary Hewitt recommending a design technique for all new hospital trust buildings [2/100, 102a, 128]; is consulted by the Department of Health on the designs of all new PFI hospitals [2/48]; wrote to Communities Secretary Blears advising his preferred way of developing ecotowns [2/99, 102a, 128]; wrote to Chief Secretary to the Treasury Burnham as to approaches to sustainable housing supply [2/100, 102a, 128]; wrote to Junior Minister Howells about the Turner prize [2/71]. Reportedly, he was “at work through back channels” to influence the choice of architect for the Royal Opera House [2/75], was behind a letter to Exeter University about Professor Ernst [2/60]; and wrote urging English Heritage to lobby ministers to stop a Smithfield development [2/60, 108], subsequently writing to thank Culture Secretary Jowell when the building was listed and the plan blocked [2/108]. Such activities are of a piece with the Dimbleby biography’s illustrations of the Prince in action (see §§37-42, 45 above).
47. As to further examples of letters to ministers reportedly written by
the Prince, there are: the letter to Prime Minister Blair to urge ministers to “do more to help families fleeing Robert Mugabe’s brutal regime in Zimbabwe” [2/1, 5]; the letters to Lord Chancellor Irvine on compensation culture, red tape and political correctness [2/4, 6,
13-14, 70-71]; the letter to the Scottish First Minister about the ban on hunting with dogs [2/23]; letters to Culture Secretary Chris Smith about extra funding for the Royal Ballet [2/17] and to Lord Tebbit about cuts to the coastguard service [2/17]; letters about fire doors and volunteer dinner ladies [2/19]; letters to the Lord Chancellor about the Human Rights Act 1998 [2/20, 45, 48-48a] including its implications for the British military [2/46, 48-48a]; letters to the Prime Minister advocating an urgent vaccination programme in the foot-and-mouth crisis [2/41]; letters to the Environment Minister opposing pit closures [2/47]; letters to Ministers about House of Lords reform, devolution and to the Foreign Secretary about Tibet [2/48]. The Prince is also reported to have contemplated, but drawn back from, lobbying for a referendum on the Channel Tunnel [2/58].
48. As Professor Tomkins explains (Tomkins §§9-13 [3/17-20]), the
practice of the Heir to the Throne engaging in correspondence of this kind with Ministers is novel, an innovation by the present Heir. It does not have the imprimatur of a constitutional convention, and cannot be said to be a constitutional right or duty. As Sir Michael Peat explained (§5), “it is of course well known that the Constitution does not provide any formal role for the Heir to the Throne” [4/40]. The settled position is that whereas it is the Sovereign’s right and duty to ‘counsel, encourage and warn’, it is only the Heir to the Throne’s right to be instructed on the business of government [4/47] (§54 below). That right to be instructed in the business of government is, as is recognised by Brazier, “uncontroversial” [2/343]. But advocacy (pressing his own views) by the Heir to the Throne is something recognised as different (the “assumption of another right”); something “novel” [2/344]; and something which would be a “constitutional innovation” [2/345]. Lamport describes the Heir to the Throne’s function of being “briefed on government affairs” (Lamport §11) [4/29]. He says that the Prince’s communications were “initially ... formal instruction and education in the business of Government” (Lamport §9) [4/29]; but that they have been followed by what he calls “latterly ... continuing interaction with Ministers”. When the Prince’s biographer speaks of the Prince’s advocacy role he speaks of the Prince seeking to “redefine the role of the Prince of Wales” (Dimbleby p.313 [2/241]).
49. The implications of the Prince’s advocacy activities can be illustrated
by considering examples of those who defend the Prince’s right to speak up, and those who express concerns about aspects of his advocacy role. As to defence of his right to speak up, there is said to be a “general Westminster chorus diplomatically ‘welcoming’ his interventions” [2/59]. The Prince’s 2002 spokesperson characterised the Prince’s “role to highlight problems and represent views which are in danger of not being heard”, then suggesting that this could “only be fulfilled properly if complete confidentiality is maintained”, and denying that “it is ... about exerting undue pressure or campaigning privately” [2/4, 8, 13]. Iain Duncan Smith MP said the Prince should be “free to speak his mind on political issues” and that such correspondence should remain “personal” [2/5]. Prime Minister Blair’s spokesman said the Prince “is entitled to express his views” [2/21]. Sir Michael Peat has emphasised that the Prince is “very careful” to ensure that he is not “party political” [2/101] and that his actions would be different as Sovereign [2/62]. Environment Minister Meacher has described the Prince’s letter writing as “refreshing” [2/15] and Lord Tebbit “found his interest informed and entirely proper” [2/17]. First Secretary of Wales Rhodri Morgan has said he “saw nothing wrong in his helpful advice” [2/20]. His opinions have been described as “interesting and well informed” [2/19], “refreshing and helpful ... constructive and well thought through” [2/43]. The Prince has been hailed for exercising his “free speech” [2/80]. The question, however, is not whether the Prince is entitled to speak up in advocating his opinions and suggestions. He has been defended for that. The question, rather, is whether the public interest favours secrecy over transparency when the Prince seeks to use his privileged private access to Ministers to advocate those opinions and suggestions. Is that defensible, by some public interest imperative?
50. The Daily Telegraph has reported on the debate “on the Prince’s very
role, and on how far he can go in his private communication with government ministers without laying himself open to the charge of proper interference” [2/11]; the Sunday Times has reported on the “latent fear” that “royalty was meddling in politics” [2/19]; and the Guardian has reported on the “growing concern that the Prince is continuing to interfere in political matters” [2/99-100]. In 2007, Channel 4 broadcast a Dispatches documentary The Meddling Prince, on his “interfering in affairs of state” [2/58]; 2/tab 10]; and the Daily Mail has reported on “new speculation that when the Queen dies, the monarchy could skip a generation” [2/89]. Tony Banks MP
has articulated the dangers of the Prince becoming embroiled in party political issues [2/5], as have Dennis Skinner MP [2/14] and Ian Davidson MP [2/49-50]. Davidson has drawn attention to the democratic mechanisms for being “involved in politics” [2/7]; and Norman Baker MP has said in the planning context that the Prince “should not step in and subvert normal democratic processes” [2/78], a view echoed by Culture Secretary Bradshaw [2/111], and by leading architects including Lord Foster and Zaha Hadid [2/111]. Paul Flynn MP has said that the Prince’s views on fox-hunting and GM foods “reflected the narrow concerns of a multi-millionaire landowner” [2/16] and Tommy Sheridan too has commented that the Prince is “likely to have been pursuing the interests of the privileged establishment” [2/23-24].
51. Sir Robin Janvrin was reportedly concerned that “the Prince was
straying onto ‘dangerous ground’” [2/20]. An unnamed minister was reported as describing the Prince’s letters as “intolerable”, “extremely ill-advised and foolish” [2/21]. John McCallion MSP has described it as “quite disturbing that an unelected person should be able to interfere in this way” and has said that “undue influence [is] being exerted to put across his own particular views” [2/23]. Professor Baum has expressed concern about the Prince advocating “unproven therapies” for cancer patients [2/25]; and twelve doctors and scientists joined him in opposing use of scarce NHS resources for complementary medicine, including Professor Ernst [2/60], Sir James Black and Sir Keith Peters [2/52-53]. Dr Philip Moriarty has questioned the Prince’s qualifications to speak out against nanoscience, Professor Richard Jones expressed concerns about the Prince and apparent “political campaigning”, and Professor Stephen Wood said that “the Prince needed to be more informed” [2/34]. Former Defence Minister Kilfoyle has said the Prince “should not be immersing himself in these sorts of political controversies”, “it’s not appropriate” [2/49]; Lord Moonie has explained why “I really don’t agree with Prince Charles on this issue” [2/49]; and Former Environment Minister Raynsford has warned about the “almost feudal way” the Prince intervened over Chelsea Barracks [2/78]. Max Hastings has written about “the huge risks of attempting to be an activist” Heir to the Throne [2/65]; Sir Richard Rogers has called for a public inquiry “into the constitutional validity of Charles’s interventions” [2/75]; and RIBA President Prasad has warned that the Prince’s architecture interventions “could deter investors from developing projects in London” [2/78]. Chris Huhne MP has said that
the Prince “is entitled to ask about what is going on but if he is urging a particular point of view, then that’s a different matter” [2/100, 102a]; and Ex-Sports Minister Caborn has said: “If he is making his views known to ministers, they should be in the public domain” [2/100, 102a]. Chairman of the Justice Select Committee Sir Alan Beith agrees, saying that: “When [the Prince] takes up issues with ministers which we know he has views on, it seems sensible this should be open in the normal way” [2/113]. Dr Evan Harris MP has criticised the situation where the Prince can “seek to influence policy” both “secretly” and using special “access to the Health Secretary” [2/116]. Former Minister Baroness Quin has said the Prince’s activities “verge on the grotesque” [2/119] and are “at the very least ... unwise” [2/230].
52. Since it is not educational in nature (§§26, 30, 32 above), it has been
said that this kind of ‘advocacy’ correspondence by the Prince is a manifestation of another constitutional convention, one associated with the Sovereign. The Sovereign is said to have the function of being able to ‘counsel, encourage and warn’ (Lamport §5) [4/27]. Material is supplied to the Sovereign for her information (Brazier §26 [4/9]) and strict confidentiality is said necessarily to attach to that information. It is also said to attach to any expression by her which might ‘counsel, encourage or warn’, and that this confidentiality is a perceived duty on her part as Sovereign. It is then said that the Prince as Heir to the Throne is entitled to function as an ‘apprentice’, by preparing or learning to undertake this function to ‘counsel, encourage and warn’. This point is said to be fundamental in understanding what the Prince is doing and why confidentiality is so important.
53. The point is exposed in Professor Brazier’s reasoning. He refers to
“two reasons” which he says leave him in “no doubt” that the Prince’s “’argumentative’ correspondence” (§27 above) should be seen as falling “squarely within” the constitutional convention applicable to the Prince of Wales as Heir to the Throne (Brazier §§9798) [4/79]. Brazier accepts that his suggested confidentiality must attach to a constitutional convention, to be within its scope and so be intrinsic in it (Brazier 109) [4/81]. As to that scope, Brazier’s
published views are well known. He has accepted that educational communications are covered by an “uncontroversial” constitutional right [2/343], whereas the Prince’s advocacy (argumentative) communications with Ministers pressing his views would be “another right”, one “constitutionally much more interesting”, “novel” and a “constitutional innovation” [2/344-345]. Professor Brazier does not equate advocacy (or argumentation) with education. He says that the Ministerial response “might” be educational. This is his second reason. At best, it could relate only to particular content, and could apply only to the response depending on its nature. The possibility of an education-convention, assuming that it is a real one on the materials themselves, could not begin to justify the blanket protection of the Prince’s advocacy letters. In truth, Brazier’s thesis rests on a different foundation. He says the Prince’s advocacy activities are “squarely within” a constitutional convention applicable to the Heir to the Throne because of a direct parallel which he posits between the Heir to the Throne and the Sovereign (Brazier §99) [4/79]. On this basis, the Prince’s redefined advocacy role is the Heir to the Throne acting as though he were Sovereign, protected as though he were Sovereign.
54. There are many difficulties with this suggested analysis (as to which,
see too §§83-88 below). First, it takes a constitutional convention applicable to the Sovereign [4/17], and extends it to the Heir to the Throne (see §48 above). Mr Allan, for example, is clear in running the two points together. On the question whether the Prince could be “expos[ed] ... to the charge that he is ‘meddling’ in affairs of state”, he answers that this “criticism fails to recognise that the Sovereign is entitled and obliged to make his or her views on matters of state known” (Allan §36 [4/12]). The same point is critical to Professor Brazier’s thesis, as to why “argumentative” correspondence falls within the constitutional convention (Brazier §99 [4/79]): “such interventions ... are of a piece with the kinds of communications which The Sovereign may have”. This explanation of a role in parallel with the Sovereign (Dimbleby p.543 [4/273]) is recorded as involving an “interpretation of the constitution [which is] open to question” (Dimbleby p.437 [2/304]). This rewrites a settled constitutional understanding (§48), by relying on the Prince’s novel and innovative practice.
55. Secondly, if this were the right way to characterise what the Prince
does, then the substance and nature of his expressions which ‘counsel and warn’ would correspond to what is recognisable from the Sovereign. But it is not. The Prince’s self-perception is not that he is acting as anticipatory ‘apprentice’ Sovereign. In September 2002 the Prince’s spokeswoman is reported as speaking of “the Royal Family’s role to ... drawn attention to issues on behalf of us all” and said of the Prince “part of his role must be to highlight problems and represent views in danger of not being heard” (quoted in the Daily Mail and Daily Telegraph on 25th September 2002 [2/7, 3/117]). That description embraces his advocacy speeches (§§36-42 above) and his advocacy letters (§§36, 45-47, 49 above). The Prince’s website (§36 above) refers to the Prince’s speech-making on matters that concern him [4/58] (Lamport §30) [4/35], and to his letter-writing [4/53]. These are linked parts of his so-called “promoting and protecting” role [4/53, 58] (Bolland §§9-15) [2/212-213]. The website refers in both respects to the need to avoid “party political issues” [4/53, 58], not so that the Prince can be party-political only in private advocacy correspondence, but that he avoids being party-political full stop (see §94 below). An obvious problem comes in asserting the ability to seek to persuade the Government on its decision- and policy-making, not only through public domain speeches, but through privileged private channels that for some suggested constitutional reason can never see the light of day. And the logic is that this protective cloak applies to what he says in letters on the very same subject-matter as his speeches, so he can pick and choose his public and private advocacy, it being asserted that he has a “right to correspond in private on the same subject” (Lamport §32) [4/36].
56. Examples of the Prince’s self-perceived advocacy role abound. They
are not the actions of Sovereign ‘dress-rehearsal’. In the context of his letters about the Human Rights Act, for example, a senior royal source is reported to have defended the Prince’s intervention on the basis that: “In making these representations, the prince was doing so on behalf of those regiments of which he is colonel-in-chief, whose top brass had themselves commented on the issue to him” (quoted in the Daily Mail 3 March 2006, [2/50]). His former deputy private secretary Mark Bolland put it this way (WS in HRH Prince of Wales v ANL §12 [2/212]): “[The Prince] often referred to himself as a ‘dissident’ working against the prevailing political consensus”. To understand “what I was about” was “realising my vision of a better
world” and needing to “stand firm on the holy ground of the heart” (quoted in the Guardian 13 November 2008, [2/71-72]).
57. Thirdly, if this logic were correct and operable, the Prince would
necessarily need to act to ‘counsel, encourage and warn’ in a way which was and remained strictly confidential. He could not pick and choose. The constitutional convention applicable to the Sovereign has been described by Alexander Allan. He identifies the principle (Allan §11 [4/4]) that: “the Monarch should not publicly express his or her personal views on matters of State”. As Professor Bognador puts it [2/336]: “The sovereign ... 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”, that being “a fundamental condition”. Professor Brazier says the Prince “consider[s himself] bound by” the constitutional convention applicable to him as Heir to the Throne (Brazier §44 [4/67]) and is “clearly of the view ... that there is no limitation over the type of correspondence covered by it” (Brazier §95 [4/78]). But there cannot be considered by the Prince to be some constitutional imperative to keep his views confidential; nor to express himself “discreetly and cautiously” [2/234]. For, as Professor Brazier also accepts (Brazier §70 [4/72]), the Prince “has made several public interventions on matters of public policy during his long period as Heir to the Throne. This is a matter of public record”. Quire right (§§36-42 above). And, even in relation to his advocacy correspondence, some of this has been referred to (and even placed) by the Prince in the public domain. The Dimbleby biography (§45 above) was authorised (Lamport §§23, 25) [4/33-34] (Lamport 2 §3) [4/58B], the writer having full access to the Prince’s correspondence and being able to “draw heavily” from it and “free to quote extensively from it” (Dimbleby p.xviii [4/55]), the Prince “agreeing to cooperate on ... terms” which gave the biographer the “final decision” and able to exercise his own judgment (Dimbleby p.xx; Lamport §26) [4/57, 4/34]. None of this fits with Professor Brazier’s thesis, of a newly-emerged convention of opinion-expression by the Prince as if he were Sovereign. Brazier is constrained to say that “His Royal Highness appears himself to have overlooked the obligation of confidence inherent in the apprenticeship convention” (Brazier §77 [4/74]). Yet Professor Brazier cannot pick and choose: it is the Prince’s conduct which is relied on to support his suggested constitutional innovation. That conduct simply does not bear the hallmarks which his suggested parallel would involve.
58. Fourthly, this ‘apprenticeship’ function of practising how to ‘counsel,
encourage and warn’ is emphatically not what the Prince himself thinks he is doing. Far from eliding the Sovereign and the Heir to the Throne, he is known to draw a vital distinction between the two. His advocacy activities are not a dress-rehearsal of how he ought to behave as a Sovereign able to ‘counsel and warn’. When Channel 4 broadcast its “Dispatches” documentary “Charles: The Meddling Prince” (12 March 2007), the Prince through his principal private secretary Sir Michael Peat issued a 21-page rebuttal defending the Prince’s actions. As was recorded at the time (Sunday Express 11 March 2007 [2/62]):
Prince Charles has vowed to stop “meddling” when he becomes King and has given the first revealing insight into how he will reign as monarch.
In a lengthy document drafted by Charles’s right-hand man Sir Michael Peat, he reveals how the heir to the throne will “change when he becomes King”. The dossier – compiled in defence of the way the Prince lives and runs his affairs – reads:
“It hardly needs saying that the Prince of Wales, of all people, knows that the role and duties of the heir to the throne are different to those of the Sovereign and that his role and the way he contributes to national life will change when he becomes King.
“In other words, it is misconceived and entirely hypothetical to suggest that problems will result if the Prince of Wales fulfils his role in the same way when King. He will not.”
This point is referred to by Professor Brazier at §75 [4/74]. But it is reasoning which is totally inconsistent with the suggestion that the Prince is acting to ‘counsel, encourage and warn’ in the same way that the Sovereign does; that his actions are of the nature and fall within the ambit of the convention applicable to the Sovereign; that
he is simply learning and practising the Sovereign’s role as ‘apprentice’. If any of that were true, then there would be a claim to symmetry and not distinction; the Prince and Sir Michael Peat would not have been emphasising that the roles of Heir and Sovereign are “different”, that the Prince “of all people, knows” of that difference, that his role “will change when he becomes King”, that he would not “fulfil his role in the same way when King”, and that this change would be what means “problems will result”.
PART III: SUBMISSIONS Information “obtained” (s.41(1)(a)) (DN§§27-34)
59. This is a preliminary topic which arises only in the context of FOIA
s.41(1). The point is framed as issue 1 in the Respondent’s List of Issues. The correct analysis is as follows. Section 41(1) is applicable in the present case, but cannot encompass in blanket fashion the entirety of the correspondence. There is a restricting precondition in section 41(1)(a). To that extent, the Commissioner was right (DN§§30-34). However, the ‘mechanism’ by which the information comes to be held is important (cf. DN§29). That is because “obtained” requires some active step by the public authority to acquire the information, for example by means of a request. It does not cover information which the person has decided unilaterally and voluntarily to send. This is Ground 1 of the appeals (see the Notice of Appeal §§14-16 [1/284]).
60. In arguing for a blanket exemption for the correspondence between
the Prince and Ministers, the Government begins with section 41 (quoted at DN§25), contending that it is universally applicable to all such communications. The immediate problem with that submission is that it encounters the restriction in section 41(1)(a): “obtained by the public authority from any other person”.
61. The Government argues for an expansive interpretation which would
have the Tribunal effectively delete that requirement (Additional Parties’ Notice of Appearance §§16-19) [1/326-327]. The Government says that if information is held, and its disclosure would
be a breach of confidence actionable by the person whom it concerns, then it is exempt. But information being held is covered by section 1(1)(a) (“holds information”) and section 1(1)(b) (“if that is the case”). And disclosure which would be an actionable breach of confidence by the relevant person is section 41(1)(b). Those ingredients do not suffice. There is a limiting criterion: section 41(1) (a), which the Government’s arguments seek to ignore. This is the point powerfully made by the Commissioner (at DN§30):
... the way in which section of the Act is drafted means that information is not exempt simply if its disclosure would constitute an actionable breach of confidence as in common law. Rather the inclusion of section 41(1)(a) means that the public authority also has to have received that information from a third party. In effect section 41 of the Act creates an additional requirement ...
That was the end of the road for this argument by the Government. But for good measure the Commissioner also identified a second point at DN§31.
62. Two questions remain. The first is whether the Commissioner was
right that letters written by the public authority will contain the information “obtained” from the other person only if they reflect the content of that information. That conclusion (DN§33) is plainly correct. The focus is on “the content of the information” (DN§32), which means reflecting the “actual” substance of what the person has communicated (DN§33). It is no surprise then to find that Governmental letters to the Prince do not all meet this requirement (DN§34). The Government is wrong to contend that a statement by a Minister recording the mere fact of correspondence, or the general subject matter, is protected under section 41. The Commissioner is right on this point.
63. The second remaining question concerns the word “obtained”.
Parliament might have decided to dispense with section 41(1)(a), or it might have used the language “received from” or “provided by”. It did neither. The use of the word “obtained” must be taken to be deliberate, and it is the section itself which has to be interpreted. The natural meaning of “obtained” connotes an active, rather than a merely passive, step. It connotes information which has been elicited. There are other statutory exemptions which protect, in accordance
with their terms, a person who volunteers information: see eg. section 40 (personal data) and section 43 (commercial interests). Those are general in import whereas section 41 is restricted to confidential information which has been actively obtained. That is unsurprising. Where a public authority acts positively in seeking or requesting or eliciting information, the person from whom the information is “obtained” is in a position of responsive cooperation and might well expect to find a special protection designed to deal with that situation. At any rate, that is what Parliament has provided. “Obtain” is used in the same sense in the DPA 1998. See e.g. the Second Data Protection Principle (“Personal data shall be obtained only for one or more specified and lawful purposes...”) which only makes sense if “obtaining” is a positive, purposeful activity engaged in by the data controller.
‘Exceptionality’ test (DN§§85-87, 91)
64. The introduction to this topic is at §§9-10 above. The correct analysis
is as follows. Information is exempt under FOIA s.41(1)(b) only if the public authority can establish that disclosure would expose it to the risk of a breach of confidence claim which, on the balance of probabilities, would succeed: see HEFCE v Information Commissioner and Guardian (EA/2009/0036) at §30. That means that there would be a prima facie breach of confidence and that there would be no defence to the hypothetical claim. ECHR Article 8 informs the analysis. But there is no legal basis for a special “threshold” which requires a “very strong set of public interest arguments” or “an exceptional case” (§9 above). The test is whether disclosure would be for a legitimate aim and proportionate in all the circumstances: see Article 8(2). Article 8 has to be balanced against Article 10: see Re S  1 AC 593 at §17. See also Prince of Wales v Associated Newspapers Ltd  Ch 57 at §§65-69. The test is proportionality not exceptionality (Prince of Wales §67), involving a public interest balance (§68).
65. An actionable breach of confidence may arise in its orthodox form, as
under the classic three-part definition in Coco v A.N.Clark (Engineers) Ltd  RPC 41, 47. Here, the necessary quality of confidence involves an objective view: see HEFCE at §§32-36; also Spycatcher  1 AC 109, 282C-D. Communication in circumstances importing an obligation of confidence is also an objective test involving contract
or equity, where in all the circumstances disclosure would be unconscionable: Spycatcher at 281B-H. The section 41 exemption could also be made out by reference to the derivative species of actionable misuse of private information, where in all the circumstances the information is private so as to engage Article 8 rights, as where there is a reasonable expectation of privacy. Again the test is objective: what would the reasonable person of ordinary sensibilities feel if placed in the same position as the claimant and faced with the same publicity? See Murray v Express Newspapers Plc  Ch 481 at §§24, 27, 35-36, 40; also Campbell v MGN  2 AC 457 at §99.
66. The public interest defence to a claim for breach of confidence
involves a question of proportionality. That means whether, having regard to the nature of the information and all the relevant circumstances, it is legitimate for the owner of the information to seek to keep it confidential or whether it is in the public interest that the information should be made public: see Prince of Wales v ANL  Ch 57 at §68; also Derry City Council (EA/2006/0014) at §35 especially (i)-(m); LRT v Mayor of London  EMLR 4. ECHR Article 10 comes into play because of the public’s Article 10 rights to receive information, treating the public authority as a willing discloser in the hypothetical claim for breach of confidence or misuse of private information: see Derry City Council. The tribunal needs to weigh up the nature and extent of the detriment from disclosure against the public interest in the information concerned, including by considering the extent of any existing relevant public debate and the contribution which the information would make to that debate: see Derry City Council (EA/2006/0014) at §35(h) and (l). In the public interest balance, arising under actionable misuse of private information, there needs to be an intense focus on the comparative importance of the competing rights and justifications in the individual case, applying the proportionality test: see Re S (a child)  1 AC 593 at §17.
67. Where did the Commissioner go wrong? He was right to recognise the
orthodox balancing exercise, by reference to cases such as LRT and Derry City Council (DN§81). He was right to recognise the significance of ECHR Article 10, by reference to cases such as Kenedi (DN§§8283). He was right to hold that the public interest defence (or public interest balance) does not, in principle, require an “exceptional”
public interest in disclosure (DN§84). He was right therefore to hold that in a case of commercial information there would be no especially high threshold requiring an “exceptional” set of public interest arguments (DN§85) (§11 above). Where he went wrong was in holding that there was nevertheless a situation requiring the application of a high threshold, where the information is ‘personal and private’ (DN§86) (§§9, 11 above). The authorities do not support this approach, and the Commissioner cited no authority as underpinning it. Nor did he explain why, if commercially protected information does not attract such a threshold, other private materials should do so. His approach involved a misdirection which took it off the rails. The Tribunal needs to conduct the exercise for itself, untained by this error of law.
‘Truly personal’ content (DN§§86-87)
68. The introduction to this topic is at §§11-12 above. The correct
analysis is as follows. There is no ‘exceptionality’ test, even if the content of the information is characterised as ‘truly personal’: see §§64-67 above. The nature of the information being disclosed affects the degree of interference with the individual’s Article 8 rights (see eg. Z v Finland (1998) 25 EHRR 371 §§95-99) and the proportionality of that interference. A disclosure of “correspondence” may engage Article 8: see the wording of Article 8(1). There are differences between correspondence which does or does not have ‘truly personal’ content; and whether that content contains intimate details (eg. medical information). There are also differences between ‘personal’ functions and activities, and those which concern the individual as a public or professional figure, a distinction drawn even where public and private are said to be intertwined: see eg. Corporate Officer of the House of Commons v Information Commissioner (Baker) (EA/2006/0015 and 0016). Correspondence from the Prince of Wales within the scope of the constitutional convention (educating the Heir to the Throne: see §§19-26 above) and advocacy communications (§§27-51 above), are both squarely on the ‘public’ side of this line. It is accepted that “the withheld information” is information which is “focused on the business of government” (DN§52). This is not ‘truly personal’ content, still less intimate personal details.
69. Article 8 extends to “correspondence”. And “private life” does not
exclude professional or business activities, in that working life constitutes a significant opportunity for the exercise of the individual’s right to establish and develop relationships with other human beings: Niemietz v Germany (1992) 16 EHRR 97 at §§29-31. Letters which are not concerned with establishing and developing relationships with other human beings are therefore to be located within the protection for “correspondence” rather than “private life”.
70. A person who plays a role in public life has a modified expectation of
protection for ‘privacy’, or put another way is more likely to find Article 8 privacy rights outweighed, except where the information relates exclusively to private life. There is here a strong countervailing consideration: “the public has a right to be informed, which is an essential right in a democratic society”, which means that even “aspects of the private life of public figures” can be covered by that public interest right: see Von Hannover v Germany (2005) 40 EHRR 1 at §§63-64. In particular, as the Strasbourg Court explained in Tarsasag a Szabadsagjogojkert v Hungary (App No.37374/05, 14 April 2009) at §37:
... the Court considers that it would be fatal for freedom of expression in the sphere of politics if public figures could censor the press and public debate in the name of their personality rights, alleging that their opinions on public matters are related to their person and therefore constitute private data which cannot be disclosed without consent.
In this case, the Prince is certainly a “public figure” and the correspondence certainly covers his “opinions on public matters”. It is a fundamental, though revealing, error that the Government should seek to invoke an Article 8 “inner core of beliefs and convictions” to protect views and convictions expressed by the Prince (Additional Parties’ Notice of Appearance §10(2)) [1/323].
71. It is also worth remembering that considerations of ‘reputation’ are
protected by Article 8 only to a very limited extent: see the majority judgment in Karako v Hungary (App. No.39311/05, 28 April 2009) at §§22-23. Article 8 is engaged only where, by reason of its character or gravity, the attack on reputation inevitably has a direct effect on the
person’s private life, or constitutes such a serious interference with his private life as to undermine his personal integrity.
72. Where did the Commissioner go wrong? He was wrong to refer to
disclosure of this correspondence as an act which would “infringe” and “amount to an invasion of” the Prince’s “privacy” (DN§§65, 6970, 124). True, Article 8 was engaged, because this was “correspondence”. But Article 8 privacy rights were not being infringed, breached or invaded. There is no “invasion of privacy” through the disclosure of the opinions on public matters of the Prince as a public figure (cf. §70).It is quite impossible to characterise correspondence which it is accepted is “focused on the business of government” (DN§52) as being of a “private and personal nature” and relating to “intimate personal or family life” rather than “public and professional life” (DN§86). It is similarly impossible to contend that disclosure of such correspondence “would undermine His Royal Highnesses’ dignity by invasion of his privacy” (DN§124).
73. To call the correspondence, and moreover to do so in blanket fashion,
“more private in nature than public” (DN§87) is unsustainable. The crucial point relied on, to characterise “the Prince of Wales’ public role” as part of his “private life” or “inextricably linked” with his private life, was that: “he only occupies such positions because of the family into which he was born” (DN§87). But this is not a sound reason for the truly “private”, “personal” and “intimate” characterisations of the correspondence relating to what is accepted to be a “public role”. Precisely the same could be said, for example, of a hereditary Peer whose Parliamentary position is based on birth (cf. Information Commissioner’s Response §53 [1/308]). In fact, the Prince himself perceives his correspondence as being in the nature of his duty as Heir to the Throne (Dimbleby p.544 [2/324]). This is part of his ‘promoting and protecting’ activities (§36 above). It should be noted that in von Hannover -, the ECtHR found for Princess Caroline not because she had a hereditary title, but because she exercised no functions within or on behalf of the state. The approach is governed by function, not status. Sir Stephen Lamport refers to the Prince’s “role [as] a function of his birth” (§28), but he immediately goes on to recognise the importance of distinctions based on substance (§§29-32). Sir Stephen recognises that an advocacy role is different, but he insists on the qualification that it be advocacy
deliberately conducted by the Prince in the public domain (§§29-30) and not sought to be undertaken or continued by letter.
74. So much for the suggestion of ‘truly personal’ content (§11 above).
There was another feature of this case which related to the nature of the correspondence. Far from denying the “public role”, or recharacterising it as “private life” or “personal” and “intimate” subject-matter, this is a consideration which arises out of the constitutional convention: educating the Heir to the Throne (§14 above). This was certainly a relevant consideration, but it did not justify the conclusions reached in this case. The convention is concerned with education; this case is about advocacy. It will be convenient to deal with this in one place, under the next topic, of ‘public interest detriment’ (§§75-95 below).
‘Public interest detriment’ (DN§§86-92; 108-124) 75. The introduction to this topic is at §§13-16 above. The correct analysis is as follows. Neither an ‘exceptionality’ test (§§64-67 above), nor a characterisation of the correspondence as ‘truly personal’ (§§68-74 above) is sustainable. There is of course a public interest balance to be struck in assessing proportionality and the public interest, including for the purposes (§§64-66 above) of actionable breach of confidence and the public interest defence (section 41), and more generally under the Act. And that means identifying reasons which can legitimately be said to weigh in favour of withholding the information. The central features here are said to be (§§14-15 above) the constitutional convention (educating the Heir to the Throne), together with the accompanying weighty expectation of confidentiality and need for apparent political neutrality. None of these, however, can attach in blanket fashion to the Prince’s correspondence in its entirety. The convention (see §§19-26, 54-58 above) has a particular scope, function and focus to which any legitimate accompanying protective aims or concerns should be tailored. The Prince’s known engagement in advocacy correspondence (§§27-51 above) in any event undermines the extent to which a public interest harm can be invoked so as to protect such information from disclosure.
76. The constitutional convention involves the Heir to the Throne being
educated in the ways and workings of government. As Professor Tomkins explains, the convention relates to a role which is “dignified”, rather than the “efficient” (Tomkins §15(a) [3/21]). As is fairly observed, in his correspondence with Ministers, “one does not even remotely get the sense that the Prince enters into political correspondence with Ministers because he is seeking to educate himself in (or seeking to be educated in) the business of Government” (Tomkins §15(a)(i)). As it is put in the Notice of Appeal (§23(4)) [1/288]: “From the correspondence already available it appears that the Prince seeks to initiate debate with ministers on matters of public concern, rather than passively receiving education about the business of government”. See too §§26, 30, 32 and 36-51 above.
77. There is no constitutional convention that accords the Prince a special right to lobby Government, still less secretly, and by reason of his royal status (Tomkins §15(1)(iii)). Indeed, advocacy or lobbying activities should in principle accord with fundamental Nolan Principles and the safeguards identified by the Select Committee (Tomkins §§12, 15(a)(iv)).
78. It is important not to overstate the extent to which disclosure would
undermine the constitutional convention (educating the Heir to the Throne), compromise the perception of political neutrality or have a chilling effect on communications undertaken in the public interest between the Prince and Ministers. This is especially so, where it is a matter of public record that the Prince holds and expresses strong views on matters of public policy and engages with Ministers on issues which concern him. And where, moreover, it is said that the Prince perceives his advocacy correspondence to be his duty (Dimbleby p.544 [2/324]).
79. Where did the Commissioner go wrong? He was right (§14 above) to
recognise that the constitutional convention is in respect of “information which relates to The Prince of Wales being educated in the ways and workings of government” (DN§67). He was right that the relevant public interest would be “in the ensuring [that] the convention that the Heir to the Throne can be instructed in the
business of government is not undermined” (DN§89). He was entitled to say that the “constitutional convention” could carry “an explicit (and weighty) expectation that such correspondence would be confidential” (DN§66). He was even entitled to say that the protection of the constitutional convention could be a weighty matter (DN§110). But there were fatal difficulties which remained.
80. It was unsound to find in respect of communications which “do not
fall within [the Commissioner’s] interpretation of the convention, there is still a weighty expectation that such correspondence will be kept confidential” (DN§68). It was unsound for the Commissioner to conclude that the disclosure of any correspondence was held by the Commissioner (DN§89) to be damaging to the constitutional convention (“a significant public interest in ... ensuring [that] the convention ... is not undermined”) and the accompanying weighty expectation of confidentiality (the “weighty public interest in maintaining confidences”). And it was unsound to identify a relevant “chilling effect” outside the scope of the constitutional convention (DN§§121-122). See too §§14-15 above.
will be recalled that the Government was arguing for a constitutional convention of universal and all-embracing scope (§21 above). That was rightly rejected (DN§§67, 109) (§22 above). The Commissioner rightly described the convention as relatively narrow (DN§109), though he ought to have been more explicit than his charity and personal examples (DN§67), and ought to have spelled out that advocacy correspondence would fall outside the scope of the constitutional convention. To be educated is not the same as to seek to persuade and influence.
82. Having rightly rejected (§22 above) the suggestion of a universal and
all-encompassing convention (DN§67: “this convention cannot be interpreted so widely”), the Commissioner was wrong to find a universal and all-embracing “weighty expectation” (DN§68). That involved a mismatch between the correspondence (“such correspondence”) covered by the convention and the correspondence covered by the expectation of confidentiality said to arise out of the convention. It involved upholding the Government’s position as to scope, which the Commissioner had rightly rejected as to scope,
accepting it as to the associated “weighty expectation” (DN§68). The answer could not be dictated by what the Government was arguing as to the scope of the convention, nor by what the practice was. After all, that very argument as to scope (ie. an alleged universallyapplicable convention) and the practice as to disclosure (ie. blanket withholding of information) were being impugned and the Commissioner in adjudicating had upheld that challenge.
83. Faced with this fundamental problem, the Government counter-
attacks by seeking to impugn the Commissioner’s conclusions (§§2223 above) as to the limits of the constitutional convention. Reliance is placed on the thesis of Professor Brazier, who contends that the convention should be seen as extending to any correspondence between the Prince and ministers (Brazier §89 [4/77]). There are many difficulties with this: see §§54-58 above. It cannot account for the lack of any perceived duty of confidentiality on the part of the Prince (cf. Tomkins §7 [3/16]). It fails to distinguish between the Prince and the Sovereign, it being said that the Sovereign has the constitutional function to ‘counsel, encourage and warn’ (DN§51; Brazier §§20-29 [4/63-64]). It conflates ‘educational’ correspondence, to educate the Heir to the Throne in the ways and working of Government, with correspondence relating to ‘governance and issues of public policy’ generally (Brazier §§55, 82 [4/69, 75]). It then extends ‘governance’ to cover all functions including charity work (Brazier §§83-87 [4/75-77]). It involves the assertions that a universal practice of confidentiality identifies an all-embracing scope of the convention (Brazier §§89-103 [4/77-80]), when it does no such thing. On this basis, the convention loses its prescriptive standardsetting colour, becoming merely descriptive of what this Prince chooses to do. Any ‘confidential’ letter of any nature which he made it his ‘practice’ to write would become constitutionally protected. It would accept ‘innovation’ as convention, contrary to basic principle (Tomkins §§10, 13, 15(a)(ii) [3/18ff]). For as Professor Brazier has accepted the Prince’s practice is a new development rather than a longstanding feature (Tomkins §14 [3/20]). It would also surrender the constitutional principle of political neutrality, since the Prince could choose to write in whatever ‘confidential’ way he wanted, counselling urging and warning without reference to any ‘dignified’ role, or even acting in a ‘party political’ manner. Down that path would lie a constitutionally-protected lobbying function (cf. Tomkins §15(a)(iii) [3/22]), constitutionally-protected preferential treatment and privileged access for advocacy actions, and a cover-up for what
in truth would be unconstitutional behaviour (Tomkins §5 [3/14]). Blanket all-embracing confidentiality protection as a constitutional principle is not, with respect, a convincing thesis. It is perhaps unsurprising that it is a thesis put as a new suggestion (Brazier: “it is time to recognise” (Tomkins §14 [3/20])) and which does not command anything approaching a consensus (cf. Tomkins §14).
84. Professor Brazier fairly accepts, moreover, that he is only able to
assist with one side of the scales: he gives his view of the constitutional principles and interests; he cannot comment on the wider public interest questions relating to freedom of information (Brazier §§2, 94 [4/60, 78]). His thesis is absolute and all-embracing. As to absolute (Brazier §55 [4/69]):
In my opinion any document which concerns governance and which is sent to a Minister by His Royal Highness, and any response from that Minister, must attract the same absolute confidentiality as attaches to The Queen’s Audiences and written communications.
As to all-embracing, even “argumentative” correspondence “would fall squarely within the scope of the apprenticeship convention with its obligation of confidentiality” (Brazier §98 [4/79]).
85. To test this suggested absolute and all-embracing constitutional
protection, one can take examples. Suppose Ministers are conducting a public consultation on the question of whether there should be a new terminal at Heathrow. Suppose there is a consultation paper and the Government publishes a response to the consultation, annexing the responses which were received giving views about the proposal. Suppose a planning policy is being revised. Or suppose a planning application has been received and is under consideration by a public authority decision-maker. Suppose an application has been called in by the Secretary of State and has been considered by an inspector. Suppose listed building status is being considered, which would block a development. Suppose the Chelsea Barracks are to be developed and the Prince writes an advocacy letter direct to the local planning authority rather than Prince-to-Prince? Suppose St Paul’s is the subject of a proposal, and the Prince writes advocacy letters rather
than speaking out publically? Suppose consideration is being given to protected status for a building, which would prevent a development. Suppose Government decides to impose on the farming community some new measure. Suppose there is a U-turn which makes mandatory a certain vaccination. Or imposes a stubble-burning ban. Suppose businesses are given mandatory gold-plated pollution abatement duties, or social responsibility obligations. Suppose new requirements for pension funds. Suppose the Human Rights Bill is amended by Government to exclude military activities overseas. Suppose salmon fishing is restricted. Or suppose a new compensation scheme with new limits, or funded by a levy.
86. Such controversies as these are well-known to the Courts as well as to the public. They are subject to democratic controls, and ultimately to the rule of law. One can think of examples regarding foot-andmouth, environmental-protection and education, bans on industries, restrictions on NHS-availability of drugs, airport development policy, planning applications, GM-crops, pesticides, architecture at sensitive sites, the scope of the Human Rights Act to the British military abroad; restrictions as to herbal medicines; and so on. Such examples as these can readily be found discussed in the pages of the case-law of the Administrative Court, and shown to the Tribunal.
87. It is one thing to say that Government communications which update
and educated the Prince on matters such as these fall within a constitutional convention. But what if the Prince has written advocacy letters to persuade Ministers or other public authorities in those contexts? What if he has done so alongside, or instead of, speaking out publicly? Would there really be a constitutional protection, in blanket and absolute fashion; akin to “legal professional privilege” (DN§110) (§23 above)? Even though he speaks out openly, is known to engage in advocacy correspondence, and approved a biography which put illustrations of such communications into the public domain? What if Government publishes responses received in the context of a defence cut White Paper, or airport development consultation? What if there is a legal challenge? Suppose a letter before claim is received which asks for a candid explanation of what matters were taken into account and whether all objections were disclosed. Is there an “absolute” (§84 above) constitutional protection? Emphatically not. The public interest in transparency
must allow that advocacy letters can see the light of day. Ex-Minister Richard Caborn has the nub of the point as to why it is wrong to keep advocacy letters secret (quoted in the Guardian 16 December 2009 [2/100]):
[The Prince] is entitled to press his views ... If he is making his views known to ministers, they should be in the public domain. He can’t have it both ways.
88. Constitutional considerations aside, there is another basic and
fundamental problem with the suggested public interest in protection. It arose out of the fact that it is well-known, and is in the public domain, that the Prince engages in advocacy correspondence with Ministers. That publicly known fact is reflective, moreover, of the Prince’s own actions, including in authorising the Dimbleby autobiography. The Commissioner referred to media coverage of this issue (DN§78) and to the Dimbleby examples (DN§117). But he apparently took the view that this was without force, it being for the Prince to pick and choose (consent and self-censor) which letters come to be in the public domain (DN§118). That cannot be right. In the first place, the very fact that the Prince is willing, in such cases as he chooses, to disclose the fact of advocacy communications serves to underline that these are not within the constitutional convention. If they were, he would doubtless himself owe a perceived obligation of confidentiality (cf. Tomkins §7 [3/16]). The fact, moreover, that the Prince has been prepared to put such activities into the public domain undermines any possible principle of an expectation of confidentiality (Tomkins §§8, 12, 16 [3/16ff]). In these circumstances it could not in any event be said that disclosure would undermine any constitutional convention (Tomkins §15(d) [3/24]). There is, in short, no constitutionally grounded argument that the Prince’s communications of his views and opinions must remain in confidence.
89. That leaves appearances of political neutrality. The Commissioner’s
view was that “it would clearly not be in the public interest if the Heir to [the] Throne and future Monarch appeared to be politically partisan” (DN§89), a reference to the argument for protection from disclosure which would mean “His Royal Highness’ political neutrality would be put at risk” (DN§51). Insofar as this reflects the public interest in free and “unchilled” communications educating the Heir to
the Throne in the ways and workings of government, it simply restates the interest in protecting that correspondence (§§22-23 above). Insofar as it is intended to protect against disclosure of the Prince’s advocacy correspondence (lobbying), it is demonstrably unsound. Moreover, it cannot withstand the obvious point, that the information in the public domain – including as a result of the Prince’s own actions – undermines this basis for maintaining blanket secrecy.
90. Logically, the principle of political neutrality means one of two
possibilities. The first possibility is that the Prince’s advocacy correspondence does not in substance compromise the principle of political neutrality, because that principle is concerned with something altogether narrower, in the sense of party-political (see Notice of Appeal §25 [1/289]), and which the Prince steadfastly respects. That appears to be the Prince’s own position: Mark Bolland explains how the Prince “avoided party politics” (Evans §9 [3/5]). Alexander Allan puts it in this way (Allan §10 [4/3]): “it is a vital feature of the constitutional settlement that the Sovereign cannot be seen to favour one particular political party above another”. That means not having “particular party political predilections” (Allan §18 [4/6]). Professor Brazier refers to the need to be “politically neutral, outside and above party politics” (Brazier §31 [4/65]), and to an “absolute neutrality as between the political parties and the policies of various Governments” (Brazier §59 [4/70]). In describing the Prince’s “interventions on matters of public policy”, Professor Brazier comments that: “In the main such matters do not divide the political parties, and so are not party-political”, albeit that they involve public policy and could be characterised as “political” in a wider sense “that decisions on them fall to be made from time to time by Ministers and Parliament” (Brazier §70 [4/72]).
91. Likewise, the Prince’s website emphasises that the Prince is careful to
avoid “party political issues”, including in his correspondence with Ministers [4/53]. If that is the test, and if the Prince is adhering to it, there is no problem on this account in there being transparency. After all, the Prince’s speeches are governed by the self-same principle [4/58] and he is able to engage in them and the people and press can see those activities and judge for themselves. Party-politics is the formulation referred to by Lamport (§§20, 30) [4/32, 35], by Bolland (§10) [2/10] (“he is never party-political”) [2/38], by Sir Michael Peat
[2/101], (Peat §4) [4/40] and the Prince’s other aides [2/11], by the Prince himself (Dimbleby p.427 [2/294]), by the Editor of The Times (Dimbleby p.327 [2/255]) and by Ministers themselves (eg. former Environment Minister Meacher) [2-16]. On that basis, the Prince is reported to be “known to steer clear of partisan involvement” [2/18]. For the Prince owes a “party political neutrality” (Lamport §4) [4/27] and his advocacy avoids “party political issues” (Lamport §21) [4/33].
92. The second logical possibility would be that the Prince’s advocacy
correspondence does in substance compromise the principle of political neutrality. That would be for one of two reasons. Either because he does not do in his correspondence what he promises publicly [4/53]: “The Prince is always careful to avoid party political issues”. Or because the principle of political neutrality is concerned with some wider sense of “political”, and in ensuring that the Heir to the Throne does not engage in – and is seen not to engage in – seeking to influence governmental decision-making or policy-making.
93. In the case of neither of these logical possibilities could the
withholding of the correspondence be justified by a public interest harm in the name of preserving the appearance of political neutrality. In the first case (§91 above), the appearance in political neutrality would not be compromised but secured and confirmed, just as in the case of the Prince’s controversial speeches which fall to be judged by the same neutrality standard. In the second case (§92 above), the appearance in political neutrality would prove to be false, misleading and undeserved and there can be no public interest harm in exposing the truth. Moreover, if the effect of that were “chilling”, what would be deterred for the future would be inapt conduct infringing an important constitutional principle. But if the wider concept of neutrality were the right one, and were infringed by the Prince’s advocacy activities, any ‘damage’ would be long done by the public domain speeches and the authorised biography illustrations.
94. What is important in all of this is that “political neutrality” is a matter
of substance and not just of appearance (or perception: Brazier §74 [4/73]). Professor Brazier encapsulates the two when describing the Sovereign (Brazier §31 [4/65]): “The Sovereign must be, and be seen
to be, politically neutral, outside and above party politics”. He then explains that “The Prince of Wales is under the same constitutional obligation as The Queen to maintain political neutrality”, which he says “is fully accepted by His Royal Highness” (Brazier §59 [4/70]).
95. Preserving the appearance of impartiality can hardly be in the public
interest if that is a false picture: it must protect and preserve an existing reality (Tomkins §9 [3/17]). Put another way, there could be no justification for unconstitutional behaviour to be covered up; quite the contrary (Tomkins §5 [3/14]). Especially when the substance of the Prince’s action is said to reflect his perceived duty (Brazier §71 [4/73]). This point can be illustrated by considering the position of Judges, in respect of whom the rule requiring apparent impartiality (no apparent bias) is a central guarantee of natural justice. Where in substance there is some connection with the cause or matter, it cannot be right for that to remain concealed in the interests of preserving apparent impartiality. On the contrary, the first requirement of the law against apparent bias would be to secure disclosure of the relevant fact. A graphic example is Pinochet (No.2)  1 AC 119.
Public interest benefit (DN§§74-79, 90-92, 106, 125)
96. The introduction to this topic is at §§17-18 above. The correct
analysis is as follows. The public interest in disclosure of the correspondence outweighs (s.41), and is not outweighed by (s.39), any public interest detriment. There would be a public interest defence to any hypothetical claim for breach of confidence, no blanket immunity from disclosure could begin to satisfy the Article 8 and Article 10 proportionality test, and there is a public interest in disclosure not displaced by any public interest detriment (s.39).
97. Where did the Commissioner go wrong? He rightly identified the
important “public interest arguments in favour of disclosure” (DN§§90, 125) (§§17, 29 above). He rightly recognised they “touch directly on many, if not all, of the central public interest arguments underpinning the Act” (DN§90). He recognised the public interest in “ensuring that public authorities are accountable for and transparent in their actions; furthering public debate; improving confidence in decisions taken by public authorities”. And he recognised the
“specific arguments relevant to this case in relation to The Prince of Wales relationship with government Ministers” and which “deserve to be given particular weight” (DN§90). He had summarised them earlier (DN§§74-79). The determination had already gone off the rails: through the invocation of an ‘exceptionality’ test (DN§91) (§§64-67 above); through the characterisation of ‘truly personal’ content (DN§§86-87) (§§68-74 above); through the approach to the public interest detriment (DN§89) (§§75-95 above): the constitutional convention; the protection extending beyond its identified scope; the expanded accompanying expectation of confidentiality; and the suggestion of protecting appearances of political neutrality.
98. The public interest arguments in favour of disclosure were correctly summarised by the Commissioner (DN§§74-79). They related to: (1) governmental accountability and transparency (DN§74); (2) the increased understanding of the interaction between Government and Monarchy (DN§75); (3) a public understanding of the influence of the Prince if successfully exerted (DN§76); (4) public reassurance and public confidence if it is unsuccessfully exerted (DN§77); (5) the public domain knowledge of alleged inapt interference (DN§78); and the public debate as to the role of the Monarchy (DN§79).
99. As the Appellant explains (Evans §17 [3/8]), the press articles show
that instances which have come to light of the Prince ‘lobbying’ government spark considerable public debate about whether such communications are appropriate and as to the particular views which the Prince has been putting forward. These interventions have frequently been the subject of comment by members of the public, newspapers, MPs, peers, Ministers themselves, and professionals working in the fields in which the Prince is known to have expressed his strong views. See too §§46, 49-51 above. As Paul Richards puts it (Richards §11 [3/12): “It is difficult to assess the extent of Prince Charles’ influence. A good starting point would be the publication of the correspondence. This would help us to know the extent, and influence, of Prince Charles the lobbyist”. As Professor Tomkins explains (Tomkins §15(d) [3/24]): “disclosure would promote good governance, constitutional propriety and a more fully informed debate on constitutional matters, each and all of which are strongly in the public interest”.
100. These are very powerful public interest considerations. They arise,
moreover, in the context where lobbying activity is in principle controversial and is seen as appropriate for regulatory standards of control (Richards §10): see especially the Nolan Principles [2/368] and PASC 2009 Report [2/351] (Tomkins §§12, 15(a)(iv) [3/22]). Lobbying is the activity by those in a democracy “making representations to government on issues of concern” [2/354]. That is precisely what the Prince does, and precisely why it is different from his educational function. The strong public interest in transparency where lobbying is concerned has been recognised by the Tribunal: see eg. Evans (EA/2006/0064) §§26-28; and DBER (EA/2007/0072) §§132-134. There are obvious dangers in “privileged access to power, policy and Government” and so what is called for is the “maximum reasonable degree of transparency” [2/225]. The powerful public interest considerations which arise in a situation of a so-called threat to apparent political neutrality raises a concern of substance which strongly militates against secrecy (see §94 above). They must be considered against the backcloth of the Prince’s public pronouncements on matters of public controversy, and the material which is already in the public domain (§§30-51 above). As it is put in the Notice of Appeal (§27 [1/289]):
... these arguments must be considered in the context of the Prince’s public pronouncements on matters of public controversy, and the content of his communications with government so far as that is already known ... These pronouncements and communications give rise to a strong and legitimate public concern that the Prince engages in lobbying and that his views may have an inappropriate or disproportionate effect on government policy and/or government handling of specific issues. Were such undue influence to exist, it would be a matter of the greatest constitutional importance, requiring public debate at the highest level. Accordingly there is a pressing need for transparency which should justify disclosure of all but the most personal communications.
101. Indeed, even assuming that an ‘exceptionality’ test were somehow
apt (§§9, 64-67), the Commissioner erred in holding that these were not a ‘strong set’ of ‘exceptional’ public interest arguments (DN§91). Even assuming that there were somehow ‘truly personal’ content (§§11, 68-74), he erred in holding that these were insufficient to outweigh the interests and expectations of privacy (DN§§86-87). Even
assuming somehow some harm to the public interest relating to the constitutional convention (DN§89) from communications beyond its scope (§§13-15, 75-95), he erred in holding that they did not outweigh those concerns (s.40) and were outweighed by those concerns (DN§§107-127). These findings were in each case unsound as to the premise (see above), but in any event as to their conclusion. In upholding this rigid and blanket exemption, the Commissioner got the approach – and in any event the balance – wrong. Statutory amendment 102. The Government seeks to place reliance in this appeal on an amendment in relation to section 39 which is not yet in force, which would change it from a qualified to an unqualified exemption in the case of the Heir to the Throne. The amendment is contained in the Constitutional Reform and Governance Act 2010. This point is framed as issue 17 in the Respondent’s List of Issues.
103. On 16 April 2010 the First-Tier Tribunal (before this case was
transferred to the Upper Tribunal) raised with the parties the following question [1/330B], premised on the 2010 Act coming into force:
... when considering the FOIA Act’s public interest test, is the [Tribunal] bound to conclude that the 2010 Act sets out what Parliament considers to be in the public interest, with the consequence that while the law has not altered and the legal test remains that which applied at the time the requests under the FOA Act were made, there is no longer any room for a view that the disclosure sought by the appellant would be in the public interest.
104. The 2010 Act is still not in force. Section 37 is a qualified exemption and must be applied as a qualified exemption. The public interest balance is a matter for the Tribunal, under the Act as presently applicable. It could not conceivably be right to allow its application to be influenced or dictated by a provision of a fundamentally different character which is not the law and, if anything, serves to emphasise a contrast with what is the law. Nor in any event can the view of Parliament, in removing for the future a public interest balance from those who apply the FOIA, be equated with the true ambit of a
constitutional convention. In the context of a qualified exemption, the Commissioner correctly held s.37(1)(a) to be tailored in its proper application to the scope of the relevant constitutional convention (DN§120) (§23 above). Indeed, if the constitutional principle were so clear, protective and all-encompassing, it could be left to the Tribunal faithfully to apply it. In fact, it is a convention limited in scope and part of an overall balance.
105. It cannot therefore be right for Government to contend, as it has
(Additional Parties’ Notice of Appearance §22 [1/328]), that “even before [these] amendments have come into force, the fact that Parliament has seen fit to provide for such an absolute exemption is a powerful argument against disclosure”. The Tribunal applies the Act, as it is in force. In asking the question whether Parliament see fit to provide an absolute exemption, there is only one answer: no, it has not. An absolute exemption is indeed a powerful answer against disclosure. But the Tribunal is applying no such thing. Statutory amendments, and their implementation dates, exist for a reason: to change the law from the date that they are in force; not before. The Commissioner got the position right in the principled response set out in his written submissions dated 21 April 2010 (§§5-6) [1/330C]:
... this appeal should be dealt with by reference to the provisions of FOIA that were in force at the time of the request...
The amendments that have subsequently been made under the 2010 Act should not ... affect the assessment of the public interest by the Tribunal.
EIR Regulation 12(f)
106. The Environmental Information Regulations (EIR) were invoked by the
Commissioner in 5 of the Decision Notices3. In 2 cases (DEFRA and Department for Culture Media and Sport4), the Commissioner found that all the correspondence was environmental information. In the other cases, some of the correspondence was environmental information and the balance fell to be considered under FOIA. The
DEFRA [1/1-31]; DCMS [1/111ff]; NIO [1/162ff]; CO [1/207ff] & DoH [1/255ff] [1/1] & [1/103]
Decision Notice in the case of the Department of Health encapsulates the Commissioner’s approach to the EIR and is a convenient focus for the analysis5. The application of the Regulation to the correspondence is addressed in Ground 7 and is framed as issue 11 in the Respondent’s List of Issues.
107. If the Appellant were to prevail in relation to sections 41 and 37 on the basis of the submissions set out above or any of them, then on no view could EIR Regulation 12(5)(f) then produce a different answer in relation to the parts of the correspondence to which the EIR apply.
108. Regulation 12(2) creates an express presumption in favour of
disclosure. Compared to the qualified exemptions in FOIA (both classbased and prejudice-based) the threshold which must be crossed before this exception is engaged is a high one: “would adversely affect...”: see Archer (EA/2006/37) §51. When considering the public interest, regard should be had to the underlying rationale for disclosure of environmental information, as stated in the parent Directive: “Increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decisionmaking and, eventually, to a better environment”. See Bristol City Council (EA/2010/0012) at §16.
109. Where did the Commissioner go wrong? He was right to find that not
all the correspondence will fall within Reg 12(5)(f): information is only “provided” by Prince Charles where it is contained in a communication from him, or where a communication from the government closely replicates the content of the information originally provided by the Prince (DoH§155). He correctly identified the higher threshold which applies under Reg 12(5) (DoH§158). He was correct to proceed on the basis that the factors to be balanced were essentially the same as those which arose under FOIA (DoH§161). The error lay in the conduct of the balancing exercise itself, for the same reasons as set out above in relation to the FOAI exemptions.
[1/226 & see 255ff].The reasoning in the “EIR-only” cases is necessarily lengthier, but to the same effect.
110. Notably, in the two “EIR-only” cases, the Commissioner recognised
that “the public interest arguments in favour of disclosing the information are compelling” but then concluded that “disclosure of the particular correspondence falling within the scope of this request would not necessarily fulfil these public interest arguments”6. This “particular correspondence” with DEFRA and the DCMS presumably includes advocacy by the Prince on farming policy and architecture. The Prince has a well known public stance on these matters, and there is demonstrable public concern at his lobbying and apparent influence in these areas (see Evans WS §§13-17 [3/7-8]). Accordingly, and contrary to the Commissioner’s conclusions, these are cases in which disclosure is particularly likely to serve the public interest.
111. The Commissioner considered the arguments for non-disclosure on
Data Protection Grounds only in 3 cases, and then only in relation to a small subset of the correspondence: environmental information which either related to emissions7, or which was not “provided” by the Prince of Wales8, such that EIR Reg 12(5) could not be invoked. He found in each case that disclosure would be unfair, contrary to the First Data Protection Principle. This is challenged by the Appellant in Ground 8 and framed as Issue 14 on the Respondent’s List of Issues.
112. The Additional Parties now invite the Tribunal to uphold the Decision
Notices on the additional ground (see §7 above) that all the information falling within FOIA consists of personal data, disclosure of which would breach the First Data Protection Principle 9. Their stated reason is that disclosure could not satisfy DPA 1998, Schedule 2,
DEFRA §80 [1/17]; DCMS §87 [1/120] Cabinet Office §161-172 [1/210ff] 8 DEFRA §81-92 [1/18ff]; DoH §162-172 [1/259ff] 9 Notice of Appearance, section III [1/322-324]. It will be noted that there is a lacuna in the Additional Parties’ Case: they do not formally contend that the environmental information which the Commissioner held to be exempt under Reg 12(5) is also, or in the alternative, personal data exempt from disclosure under Reg 13. Presumably they wish to contend that all the requested information (environmental and non-environmental) consists of personal data which should not be disclosed. The Appellant is content for the Tribunal to deal with the appeals on that basis.
paragraph 610 (and hence would be deemed unfair). This is framed as Issue 9 on the Respondent’s List.
113. Again, if the Appellant were to prevail in relation to sections 41 or 37,
or Regulation 12(5), on the basis of the submissions set out above or any of them, then on no view could FOIA s.40, or EIR Reg 13 produce a different answer. In other words, personal data adds nothing to “all the reasons already given”: Additional Parties’ Notice of Appearance §13 [1/324].
114. The fundamental value which the DPA 1998 serves to protect is the
Article 8 right to personal privacy. This is clear from the recitals and article 1 of Directive 95/46/EC (Data Protection), which the 1998 Act implements. An appreciation of this underlying purpose should inform any decision as to (a) whether particular information amounts to “personal data” and (b) whether the processing of such data is fair. Thus in Durant v FSA  FSR 28 at §28 Auld LJ said that it deciding whether a reference to the data subject amounts to his personal data, it may be helpful to consider “whether the information is biographical in a significant sense, that is going beyond the recording of the putative data subject’s involvement in a matter or an event that has no personal connotations, a life event in respect of which his privacy could not be said to be compromised” and that “in short, [personal data] is information that affects his privacy, whether in his personal or family life, business or professional capacity”.
115. In a FOIA or EIR case, the “legitimate interests pursued by the data
controller or by the third party or parties to whom the data are disclosed” (Sch 2, para 6) are synonymous with the public interest in disclosure, and the test is broadly comparable to the balancing test which applies under the public interest test for qualified exemptions under FOIA: Corporate Officer of the House of Commons (Baker) (EA/0015&16) at §90.
116. When considering whether disclosure would be “unwarranted... by
reason of prejudice to the rights and freedoms or legitimate interests of the data subject” it is again necessary to focus closely on the
Notice of Appearance §11-13
extent to which a particular disclosure would interfere with his article 8 right to respect for private and family life. The interests of a data subject who performs a public role are not paramount, and the decision-maker can and must distinguish between personal data relating to his private and public life: see §§68-74 above. A failure to do so will lead to the vice identified by the ECtHR in Tarsasag (§70 above).
117. The expectations of the data subject are relevant.
But they are relevant only insofar as they are reasonable, and where the data subject has or should have knowledge of FOIA itself, those reasonable expectations are tempered by the terms of the Act: Corporate Officer of the House of Commons (Leapman & ors) (EA/2007/0060 et seq) §45 & 79(b), upheld on appeal  EWHC 1084, see §18-34.
118. In respect of the vast majority of the correspondence, there is no
decision for the Tribunal to review, and the Tribunal must undertake its own analysis, applying the principles above, which will include asking whether each piece of correspondence satisfies the Durant test for personal data at all.
119. Insofar as the Commissioner has made a determination in respect of
personal data, where did he go wrong? Again, it is convenient to refer to the Department of Health Decision11. Again, for the reasons already given in respect of FOIA s.41 and 37, the Commissioner mischaracterised the information as potential harmful to “The Prince of Wales’ privacy and dignity as protected by Article 8 ECHR” and overstated the potential detriment to the Prince’s political neutrality, while underestimating the public interest benefit in disclosure.
120. Additionally – and in particular – the Commissioner wrongly assessed
the expectations of the Prince (a matter on which the Tribunal has no evidence from the Prince himself) as reasonable without reference to the Prince’s own familiarity with FOIA. The Appellants request covers correspondence in the 3 months following the entry into force of FOIA and the EIR (1 January 2005), as well as 4 months prior to their implementation. No doubt, as part of his education in and about the
§ 162-172 [1/258-260]
business of government, he will have been told in advance about FOIA – a major piece of legislation which changed the landscape for public bodies, including government departments. He will, or should have, been made aware that the exemption most likely to apply to his correspondence (s.37(1)(a)) is a qualified exemption and that, even where his correspondence might also contain confidential information or personal data, it was possible that circumstances might arise which justified disclosure. If, after 1 January 2005, the Prince had any expectation that his correspondence would not be disclosed in any circumstances, that expectation was unreasonable. There may have been a legitimate “weighty” expectation in respect of correspondence falling within the scope of the Constitutional convention (properly defined), but even then, the expectation fell short of an absolute assurance of confidentiality.
121. In the circumstances, disclosure of the correspondence would not be unfair to the Prince of Wales.
Lists and Schedules (DN§§128-135)
122. This is dealt with in Grounds 9-16 (§§32-40) [1/291-293]. The points
are framed as issues 5-7, 10, 12-13 and 15-16 in the Respondent’s List of Issues. The Commissioner concluded as follows: (a) that the lists and schedules did not fall to be disclosed essentially for the same reasons as applied to the correspondence (DN§§134-135); but (b) if anything, there was an added public interest detriment because of the damaging speculation that could occur if the fact, nature and degree of the correspondence were in the public domain but not the content (DN§131, 133), as was said to have been evidenced in one case (DN§§133, 135). Where the correspondence constitutes environmental information, the Commissioner found that part of a schedule describing that information would itself be environmental information and protected from disclosure under Reg 12(5)(f) or Reg 13 for the same reasons as the correspondence itself (DoH §181).
123. The correct position is as follows. First, the reasons for refusing disclosure of the correspondence are not sound, as has been explained above. Secondly, the fact, nature and (to some extent) degree of the correspondence is in the public domain. The concern as to damaging speculation is one which ought to be deployed as part of
the public interest in disclosure of the content, which will confirm or reassure. Moreover, it can hardly be right to resist disclosure by reason of the content and then rely on public ignorance as to the content to resist disclosure of the fact, nature and degree. Thirdly, there are strong reasons why – if the content is said to be protected, for example to facilitate a free exchange of information in the constitutional convention of educating the Heir to the Throne – the lists and schedules are the very minimum that the public interest in transparency would require, applying the rigours of proportionality and the strong imperatives arising from Article 10.
124. These are reasons for rejecting the Commissioner’s conclusions at the balancing stage, but under s.40, s.41 and the EIR, there is a more fundamental problem. Each of these provisions impose a threshold requirement which cannot be satisfied in the case of a list or schedule of correspondence.
125. A list of correspondence, setting out date, parties and subject matter
(collectively a “descriptive list”), will contain nothing confidential, in the orthodox sense. The fact, extent and subject matter of a significant amount of the Prince’s correspondence with government has been disclosed via the Dimbleby biography, with which the Prince co-operated, or has otherwise entered the public domain. The policy areas in which the Prince takes an interest are already widely known. A number of ministers have publicly confirmed the fact and subject matter of their dealings with the Prince (see e.g. press reports quoting Norman Tebbit [2/17], John Prescott and Nick Brown [2/114]) A minister in the last government publicly confirmed that the Prince had meetings with the Health Secretary where the subjects discussed included homeopathy [2/115]. The subject matter of some of the correspondence sought in this case has already been revealed in Parliament and in the policy document of one of the political parties (see Schedule of exhibits to Allan Closed WS: curiously the Additional Parties have refused to put the relevant Hansard extracts and the policy document in open evidence). Against that background, no minister could realistically argue that it is unconscionable to disclose a descriptive list of correspondence.
126. Neither would there be any disclosure of private information. A list
would not disclose any details of the Prince’s private life, nor would it reveal the substance of his views on matters of public policy. A reasonable person of ordinary sensibilities, placed in Prince Charles’ position, would not object to publicity of this limited information. There is therefore no realistic expectation of privacy, and Article 8 is not engaged. The additional parties seek to rely on Malone v UK (1984) 7 EHRR 14 where the disclosure of “metering” information about telephone calls was held to infringe article 8. But that was a case which was closely connected to the applicant’s complaint that his calls had been secretly intercepted (§85) and where the disclosure was not by the other party to the call, but by the service provider, who had access to the information for billing and technical purposes only (§§83-84). It does not follow that it would be an infringement of Mr Malone’s privacy for the recipient of a call to disclose that Mr Malone had called him, or to state the general subject matter of the call. Could disclosure of a list of correspondence, on a stated matter of public policy, between (say) a named company director and a department, realistically be said to raise Article 8 issues? There is no relevant difference here.
127. As to Regulation 12(5)(f), and given what is already publicly known
about the extent of the Prince’s correspondence, the subject matter of the correspondence, and the subjects which attract the Prince’s attention generally, any detriment to the Prince’s interests which would flow from disclosure of a descriptive list would be so minimal that the high threshold test (“would adversely affect”) cannot be satisfied.
128. As to s.40 and Regulation 13, a descriptive list would say nothing
which is “biographical in a significant sense” or affect the Prince’s privacy. The Durant test for personal data is therefore not satisfied at all and it is unnecessary to go on to consider the fairness of processing.
Conclusion 129. For all (and each) of the reasons set out above, this appeal should be allowed and the Tribunal should substitute Decision Notices requiring the public authorities to disclose the requested information.
MICHAEL FORDHAM QC Blackstone Chambers
AIDAN EARDLEY One Brick Court JAN JOHANNES Guardian Newspapers 1.9.10
ANNEX: APPELLANT’S SIMPLIFIED LIST OF ISSUES (see Skeleton §4)
Did the IC reach the wrong conclusion as to the scope of FOIA section 41(1)(a) to the correspondence, by: (1) including letters written by HRH Prince of Wales on his own initiative; and/or (2) excluding letters written to him unless reflecting his actually expressed views or opinions?
Did the IC reach the wrong conclusion as to exemption of correspondence from disclosure under section 41(1)(b)? Specifically, did he apply the wrong approach to: (1) expectations of confidentiality; (2) constitutional conventions and perceived political neutrality; (3) lobbying and seeking to influence policy and decisionmaking; (4) chilling effects on communications between HRH and the Government; (5) matters of a private and personal nature; (6) the Prince of Wales’ rights under ECHR Article 8; (7) whether to distinguish between different categories of information; (8) a need for a very strong set of public interest arguments amounting to an exceptional case to justify disclosure; and/or (9) the arguments and considerations for and against disclosure?
Did the IC reach the wrong conclusion or apply the wrong approach as to exemption of correspondence from disclosure under (1) FOIA section 37 and/or (2) EIR regulation 12(5)(f) and/or (3) EIR regulation 13?
Did the IC reach the wrong conclusion or apply the wrong approach as to exemption of relevant lists and schedules from disclosure under (a) FOIA section 41 (b) FOIA section 37 (c) EIR regulation 12(5)(f) and/or (d) EIR regulation 13?
Were the correspondence and/or the lists and schedules exempt from disclosure under FOIA section 40(2), as personal data relating to HRH whose disclosure would breach data protection principles?
In what way, if at all, are amendments in the Constitutional Reform and Governance Act 2010 section 46 and Sch 7 relevant to these appeals?
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