Justice CommitteeWritten evidence from Republic

About Republic

1. Republic is a membership-based pressure group which lobbies and campaigns for the abolition of the monarchy in the UK. In addition to campaigning for this primary objective we also see our mission as being to hold to account the monarchy and royal household and to represent the views of republicans to a wider audience and to public authorities. We represent some 20–25% of the population and our campaign is supported by over 20,000 republicans from across the political spectrum, including 15 MPs.

2. Republic has long campaigned for the extension and reform of freedom of information law in relation to the royal household, supported by prominent transparency advocates such as Heather Brooke (author of Your Right to Know: A Citizens Guide to Freedom of Information), Roy Greenslade (Professor of Journalism, City University), Mike Harris (Index on Censorship) and Adam Tomkins (John Millar Professor of Public Law, Glasgow University).

Introduction and Summary

3. This submission on the Freedom of Information Act 2000 has been prepared in response to the call for evidence from the Justice Committee. We have confined our response to those sections most relevant to our area of expertise.

4. While Republic is an enthusiastic supporter of the Act, we believe that the continued exclusion of the monarchy and the exemption on all communications between the royal household and other public authorities—an exemption recently made absolute for certain communications—are indefensible anomalies which undermine the government’s commitment to transparency and prevents the public holding the royal household to account.

5. We invite the Committee to consider the following proposals:

The royal household should be defined as a public authority within the Act.

The absolute exemption on communications from the monarch, the heir and second in line to the throne should be reverted to a qualified exemption.

The qualified exemption (Section 37) for communications from other members of the royal family or royal household should be removed entirely.

The Monarchy and the Freedom of Information Act

6. The Freedom of Information Act has never applied directly to the monarchy, because—unlike the other houses of parliament—the royal household is not defined as a public authority within the legislation. However, Section 37 of the Act provided a qualified exemption to communications between public authorities and the royal family and those acting on their behalf.

7. While a public interest test did apply, in practice there was always a strong presumption in favour of non-disclosure. Ministry of Justice guidance stated that “the need to maintain the neutrality of the Sovereign, the need not to undermine diplomatic and goodwill work and the need to preserve personal safety” meant that “it is likely to be in exceptional circumstances only that the public interest will come down in favour of disclosure”.1

8. The Constitutional Reform and Governance Act 2010 went further, removing the public interest test entirely on requests for communications from the monarch, the heir and the second in line to the throne. Such information can only be released 20 years after it was created, or five years after the death of the member of the royal family concerned—whichever is later. This puts correspondence between, for example, Prince William and the Department for Culture, Media and Sport about the Olympics in the same category as information about terrorist cells from state security bodies such as MI5, MI6 and GCHQ.

9. The exclusion of the monarchy is a serious anomaly that makes little constitutional sense. The FOIA essentially claims that at the pinnacle of the British constitution there is no public authority, only a private household. The monarchy is clearly a public authority in two respects: it is publicly funded and it is there to provide a public service through providing the nation with a head of state and all the functions that entails.

10. One effect of the monarchy’s exclusion is that the public is prevented from scrutinising the monarchy, for example by accessing detailed information on how the royal household spends (or lobbies for) public funds. For an institution that directly receives around £40 million of public money a year—and is likely to cost the taxpayer in the region of £200 million annually—this is inexcusable, and directly contrary to the government’s goal of financial transparency.

11. More significantly, the exemption that covers all communication between the royal household and the government conceals the extent to which members of the royal family may attempt to influence government policy. This has taken on a heightened importance in recent years as the Prince of Wales makes increasingly vocal interventions into contentious political debates. Indeed, it has been suggested by some—including the Campaign for Freedom of Information—that the absolute exemption was introduced precisely to conceal the political role he is taking.2

Neutrality of the Sovereign

12. The maintenance of the monarch’s supposed neutrality has been central to the argument for the royal household’s exemptions from the Act. The Ministry of Justice has stated that the absolute exemptions are necessary to “ensure the constitutional position and political impartiality of the monarchy is not undermined”,3 and neutrality has also put forward as a reason to favour non-disclosure when a public interest does apply.

13. Clearly the political impartiality of the head of state is fundamental to the British constitution, but the argument confuses the appearance of neutrality with its practice. The exemptions are clearly intended to protect the former. But political neutrality needs to be evidenced, not simply professed. If a holder of public office is required to be impartial, then they must demonstrate that impartiality by being transparent and open about their actions.

14. The argument is even weaker when applied specifically to the Prince of Wales. Giving evidence in support of The Guardian’s appeal over the government’s refusal to release some of the Prince’s correspondence (in response to a request submitted before the absolute exemption was introduced), constitutional lawyer Professor Adam Tomkins explained that:

15. “The purpose of the confidentiality is not to create an appearance of political neutrality; rather it is to preserve the reality of political neutrality. You cannot preserve the reality of something that does not exist […] If that political neutrality has already been surrendered, as is clearly (if regrettably) the case with regard to the Prince of Wales, the ‘good constitutional reason’ for the rule disappears”.4

16. Put simply, if our constitutional arrangements are threatened by greater transparency then that is an argument for new arrangements—not more secrecy.

17. The issue of proper scrutiny is made all the more urgent when we consider the requirement on parliament to seek consent from the monarch or the heir for any legislation that affects their private interests. In response to an article in the Guardian in late 2011 the government and Clarence House confirmed the right still exists but refused to say on what occasions, if any, consent had been sought or refused, or if consent was granted on certain conditions.5 Clearly there is a powerful public interest in knowing whether legislation is being directly influenced by either our head of state or her eldest son on the grounds of private interest, yet the Act currently forbids any public access to relevant material.

18. While there may be a case for a qualified exemption for communications between the head of state and heir and other public bodies it is hard to make the same case for all members of the royal household. The exemption is far too broad and includes many issues where constitutional concerns have no relevance, such as communications between junior royals and publicly funded bodies such as Historic Royal Palaces.

Conclusion

19. The government has pledged to “extend transparency to every area of public life” and “throw open the doors of public bodies, to enable the public to hold politicians and public bodies to account”.6 We can think of no better way of demonstrating the government’s commitment to its transparency agenda than bringing the monarchy and royal household fully into the scope of the Act. Doing so would make clear that no public official, elected or otherwise, is beyond the scrutiny of the British people, and that British citizens have a right to know in whose interests and for what reasons government decisions are being made.

February 2012

1 “Freedom of Information Guidance – Section 3”, Ministry of Justice, 2006 http://webarchive.nationalarchives.gov.uk/+/http://www.justice.gov.uk/guidance/docs/foi-exemption-s37.pdf

2 “Maurice Frankel: An important blow has been struck for freedom of information”, The Independent, 2 March 2010.

3 Ministry of Justice statement, 10 June 2009.

4 “Prince Charles”s “crusading” forfeits right to confidentiality, says expert”, The Guardian, 15 September 2010.

5 “Prince Charles has been offered a veto over 12 government bills since 2005”, The Guardian, 30 October 2011.

6 The coalition: our programme for government, Cabinet Office, 2010.

Prepared 25th July 2012