A matter concerning Prince Charles, letters written to government ministers and a bid by the Guardian to make them public has been playing out in British courts and the media for the past few years. It highlights an interesting and important aspect of constitutional law namely, what, if any, political power does the monarch, or members of her family, wield?
We all know that a constitutional monarch should be “politically neutral”. What that actually means in practice is more difficult to define. We can safely assume that the Queen has political views of her own. Constitutionally, she is perfectly entitled to make those views known to her ministers. Walter Bagehot, who provided the British with the closest they have to a working definition of constitutional monarchy, famously claimed that the sovereign had three rights in relation to ministers: to be consulted, to encourage and to warn. This offers ample scope for the implicit expression of political views.
The notion of political neutrality, therefore, rests not on an expectation that the Queen is “apolitical”, but on three other things: the doctrine of ministerial “advice”, a strict code of secrecy, and the personal discretion of the monarch. The Queen only speaks and acts publicly in any significant sense on the advice of her ministers. This both maintains the power of elected representatives and shields the Queen from personal criticism.
Meanwhile, British prime ministers strictly adhere to the convention that the substance of their conversations with her in their weekly meeting should be treated as confidential. In this, as in many other aspects of Britain’s unwritten constitution, much depends on everyone behaving well. No amount of secrecy will maintain an impression of political neutrality if the monarch gives any impression of being partisan or determined to promote their own political agenda. Luckily, the Queen has been a model of good behaviour.
The expectations placed upon other members of the royal family are less clear, particularly if they are not directly in line to the throne. Prince Philip never seems to have felt much obligation to conceal his views or render them anodyne (Harold Macmillan dismissed one of his interventions as being “too like that of a clever undergraduate who has just discovered Socialism”). On the whole, however, his comments have been treated indulgently, both because they tend to enliven otherwise rather stilted royal occasions and because they generally steer clear of party political issues.
Meanwhile, the recent decision of princes William and Harry to join their father in support of a public campaign against elephant poaching will probably be seen less as a political intervention than a continuation of the tradition Frank Prochaska has described as “welfare monarchy”, by which members of the royal family have sought to associate themselves with “good causes”.
Prince Charles, however, is a very special case, and not simply because he is the heir apparent. Rather than simply slipping out in casual conversation, his firmly-held and sometimes controversial views have formed the basis for a number of set-piece speeches. We also know that he is in fairly regular contact with ministers. Putting the two together, it is difficult to avoid the suspicion that Charles may be exploiting his special access to Whitehall in order to lobby for his pet causes in ways that might undermine confidence in his ability to act as a politically neutral sovereign. His supporters claim his contacts with ministers are merely a way of preparing him for kingship. Prevented, however, by official secrecy from learning about the precise nature of these contacts, we are in no better position to assess whether a troubling constitutional line has been crossed than we are to know whether the fridge light goes off when we close the door.
Guardian FoI request
Soon however, we may be able to make just such a judgement. In April 2005, the Guardian journalist Rob Evans applied under the Freedom of Information (FOI) Act to obtain the release of 27 letters written by Charles to various government departments since the previous September. The departments refused to release the papers and their decision was upheld by the information commissioner. Evans’ appeal against this ruling was then considered by a special tribunal. During the course of an exhaustive six-day hearing, it considered evidence from all sides and even went into closed session when examining the documents themselves.
In September 2012, the tribunal upheld Evans’ right to see “advocacy correspondence” from the Prince of Wales on the grounds that “it will generally be in the overall public interest for there to be transparency as to how and when Prince Charles seeks to influence government”.
The judgement was, however, almost immediately overturned by a certificate issued by the attorney-general, Dominic Grieve, who claimed the release of the documents would undermine Charles’s political neutrality and inhibit his ability to correspond frankly with ministers. Last week, in the latest twist to this story, the Court of Appeal overturned Grieve’s decision, pointing out that he had been unable to point to any error of law or fact behind the tribunal’s conclusion.
So where does that leave us? Unless the Supreme Court overturns this latest judgement, Charles’s “advocacy correspondence” will have to be released. Even if it is not, we know the tribunal believed its contents to be of such political significance that it was in the public interest to release it. In the process, the tribunal demonstrated the need for a public watchdog to prevent members of the royal family using official secrecy to conceal actions that many of us would consider improper and unconstitutional.
The tragic irony, however, is that any similar request made today under FOI would almost certainly fail. In a change introduced in the dying days of the last Labour government, and which came into effect in January 2011, the law was revised so that there is now no public interest appeal against any decision to withhold correspondence relating to the Queen and Prince Charles. This, it was explained, was so that “the constitutional and political impartiality of the Monarchy is not undermined”.
The change clearly came in response to pressure from the palace, keen to ensure that no similar attempt could be made to investigate royal activities. The government was cowardly in surrendering to this, and as the letters themselves may vividly reveal, the public interest was very poorly served. The notion that secrecy alone can maintain the political neutrality of the monarch is dangerous and wrong.