Closed curtains at the palace

James Gray looks at attempts to let the Freedom of Information Act shine a light on the royals
April 2011

‘The government believes that we need to throw open the doors of public bodies, to enable the public to hold politicians and public bodies to account.’ So proclaimed the coalition agreement between the Tories and the Lib Dems last June. But one door has remained firmly shut – and is now being bolted forever.

The Freedom of Information Act never applied directly to the monarchy, despite the royal household receiving at least £40 million of public funds each year. Moreover, any correspondence between the royals and government departments that were covered by the Act was also specifically exempted.

But that exemption was not absolute. Requests for correspondence between royals and ministers were subject to a ‘public interest test’. If a request passed the test then the documents could – in theory at least – be released.

The situation changed with the Constitutional Reform and Governance Act 2010, brought in by the Labour government. It amended the Freedom of Information Act so that all correspondence from the monarch, the heir to the throne and second in line was added to the list of absolute exemptions, alongside information related to national security.

The effect was to remove all possibility of disclosure during the specified time limit – normally 20 years, or five years after the death of the member of the royal family concerned.

These amendments required a statutory instrument to be brought into effect, which justice secretary Kenneth Clarke duly issued in January this year.

One effect of the monarchy’s total exemption from the Freedom of Information Act is that the public is prevented from accessing detailed information on how the royal household spends public funds. Revelations about waste and greed at the palace would certainly be damaging to the monarchy – and the government – at a time of rising prices, drastically reduced public services and widespread unemployment.

But more significantly, the exemption conceals the extent to which members of the royal family, particularly Charles, influence government policy. And that is probably what it’s designed to do. The government’s official justification of the exemption is that it will ‘ensure the constitutional position and political impartiality of the monarchy is not undermined’. In other words – those of the Times – the exemption is a ‘gagging law to protect Prince Charles’.

From Walter Bagehot to Vernon Bogdanor, establishment constitutionalists have argued that the political impartiality of the monarchy is the glue that holds the parliamentary process together. The appearance of neutrality is so important, the argument goes, that it must be protected at all costs – and royals should be free to meddle in politics without fear of being exposed.

It’s an argument that has been comprehensively rebutted by Professor Adam Tomkins, legal adviser to the House of Lords select committee on the constitution. ‘You cannot preserve the reality of something that does not exist,’ he told a freedom of information tribunal last September, when the Guardian launched an appeal over the government’s refusal to release some of Charles’s correspondence. ‘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.’

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

The fact that the exemption was introduced by Labour and brought into force by Conservatives and Liberal Democrats demonstrates clearly that this is not an issue that divides along party lines – it’s a case of the political establishment looking after itself. Anything that weakens the monarchy also jeopardises the great swathes of unaccountable powers exercised by the prime minister and cabinet on the monarch’s behalf.

The political class may disagree on the ends to which those powers should be used, but rarely questions their moral basis. ‘Openness and transparency has the potential to transform government,’ the Cabinet Office tells us – just as long as that transformation is on the establishment’s terms.

‘Ministers and royals alike believe that the interests of the royal family are above and beyond those of the public,’ explains Graham Smith, campaign manager of the pressure group Republic. ‘That is a contemptible attitude that demonstrates much of what is wrong with the monarchy.’

So as things stand, Charles’s attempts to influence government policy on health, architecture, education, agriculture, the environment, even war and peace, will now remain secret until years after his death.

But there is hope. Republican MPs, possibly including some recalcitrant Lib Dems, plan to table amendments to Nick Clegg’s Protection of Freedoms Bill – which, despite its grandiose title, is currently little more than a reaction to right-wing media scares – which would not only reverse the absolute exemption but also define the monarchy for the first time as a public authority.

Republicans may yet get their chance to let daylight in on the hidden operations of the monarchy’s influence on public policy.


 

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