Wednesday, December 15, 2010

Royal Family and FOI - the state of play

The Daily Mail has reported that there is a dispute within the coalition government over the extent to which the Royal Family are subject to the Freedom of Information Act:
The Queen is at the centre of a Government row over proposed moves that would give the public sweeping rights to demand secret information.

The Liberal Democrats have been incensed by Conservatives’ attempts to restrict a new ‘right to data’ law so that it excludes the Royal Family.

The new open access law, which was secured by the Lib Dems as part of the Coalition agreement, would extend the freedom of information rules, which have unearthed scandals such as last year’s furore over MPs’ expenses.

But after lobbying from Buckingham Palace – which is worried that it would lead to a rash of fresh revelations – the Justice Ministry has proposed a blanket ban on the release of details about the Royals.
At present, the Royal Family itself is not covered by the FOI Act. Where government departments and other public authorities hold communications with Royal Family, that information is subject to the Act and potentially disclosable.

Section 37(1)(a) of the Act provides an exemption for communications with Her Majesty, other members of the Royal Family or with the Royal Household, but the exemption is currently a qualified one subject to the Act's public interest test.

The Information Commissioner has issued a series of decisions involving requests for correspondence or lists of correspondence with the Prince of Wales.  In each case to date, the Commissioner has supported the government department’s decision not to release the information, finding that the balance of public interest favoured confidentiality (see, for example, Department for Business Innovation and Skills FS50080233) These decisions were based not only on the Royal Family exemption (s.37(1)(a)) but also on the exemptions for personal data (s 40) and breach of confidence (s 41).

However, the Commissioner has ordered information about the cost of maintaining the Royal palaces to be disclosed on public interest grounds (see FS50154684). The Department for Culture, Media and Sport appealed this decision to the Information Tribunal, though it has now disclosed the information.  

The Constitutional Reform and Governance Act 2010, which received Royal Assent on 8 April 2010, amended Section 37 of the FOI Act to create a new absolute exemption for communications with the monarch, heir to the throne and second in line. The effect of the amendments will be:
  • to exempt information relating to communications with the monarch, the heir to the throne and the second in line to the throne (i) till 5 years after the individual’s death, or (ii) for 20 years, whichever is later.
  • that this exemption would no longer be subject to the Act’s public interest test, so there would be no possibility of disclosure on public interest grounds during the specified time limit.
  • that communications with other members of the Royal Family would also be protected until 5 years after the individual’s death or for 20 years, but in these cases the public interest test would still apply.
These amendments, together with those to reduce the 30 year rule to 20 years, also contained in the Constitutional Reform and Governance Act, require a statutory instrument to be brought into effect. The Daily Mail report suggests the government are now considering whether to implement the changes. Implementing the changes to the exemption for Royal communications would, however, breach the coalition government's commitment to extending the scope of the FOI Act (see earlier post here).

Meanwhile, a Guardian appeal to the Tribunal against a decision by the Commissioner upholding the withholding of Prince Charles' letters to ministers was adjourned until the new year for reasons the Tribunal panel could "not go into". And the Commissioner recently referred to the unimplemented changes to Section 37 in a decision where he upheld the Ministry of Justice's refusal to release representations made by the Queen or Royal Household regarding the FOI Act itself:
These changes will, when brought into force, result in communications with the Sovereign, the Heir to the Throne and the second in line to the Throne becoming absolutely exempt from disclosure under the Act....

In the circumstances of this case the Commissioner recognises that there is significant interest in, and debate surrounding, the proposed changes to the Act, which are likely to have a direct bearing on the future release of communications with the Royal Family and the Royal Household.
Interestingly, the MoJ did confirm that it held information relevant to the request. However, the Commissioner found the balance of public interest favoured withholding the information:
The Commissioner accepts that the information consists of communications which fall within the heart of government, being correspondence from or on behalf of The Queen to the public authority. Accordingly, he again concludes that it would not be in the public interest for the operation of the established convention of confidentiality to be undermined. Furthermore, he accepts that disclosure of the information covered could undermine The Queens’ political neutrality and, as noted above, he accepts that it is inherent in the exemption contained at section 37(1)(a) that it is in the public interest for the political neutrality of all members of the Royal Family to be preserved. However, the Commissioner would like to clarify here that he is not suggesting that this exemption is, effectively, ‘absolute’ and that there may be cases where the public interest balance would be different if there was an equally weighty public interest in disclosure.
The effect of the recent amendments of course would be to prevent such disclosure on public interest grounds taking place.

See also:
Explanatory Notes to the Constitutional Reform and Governance Act here.

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