Royal exemption from FOI is wrong for the most vital reasons of transparency and legitimacy

By Graham Smith

State secrecy is apparently a key principle of the British constitution – so says our government.  Following a review of the 30 year rule by Paul Dacre (yes, he of the Daily Mail), Gordon Brown announced a number of changes to the law. One of them is to introduce an absolute exemption from the Freedom of Information Act for all correspondence between government and the royal household.

At present the monarch, our head of state, is already completely exempt, simply because the institution at the pinnacle of our constitution is not deemed in law to be a public authority.  However, wherever the palace has dealings with government departments and other authorities covered by the Act, documents held by those authorities are subject to disclosure requests. But, there is an exemption (section 37) which says these documents are only to be disclosed if there is a public interest in disclosing them.

The government plans to remove that public interest test, so the exemption becomes absolute.  In short, they are saying that the interests of the government and the palace outweigh the interests of the public. This is an extraordinary claim for the government of a democracy to make.

Why does this matter, you may ask? Well, it matters for all sorts of pretty vital reasons. The documents being kept under lock and key aren’t private letters between Liz Windsor and ‘her’ ministers, they are formal communications between our head of state and our government.  These include attempts by the palace to lobby the government, lobbying from Charles Windsor on any number of his pet projects, correspondence relating to funding and finances, details of the palace’s relationship with the military and decisions concerning the future plans of the head of state. In all these areas there is a clear public interest for disclosure.

At this current time the palace is reportedly busy trying to persuade the government to give them a multi-million pound raise in the Civil List – at a time when all parties are competing over slashing public spending. Try to find out about that lobbying and we’re told it’s none of our business.

Earlier this year Charles Windsor was granted a massive tax-break by the Chancellor, to the tune of around £700,000 year.  Try and find out why and how that happened and we’re told that’s none of our business too.

Charles also routinely lobbies ministers on the environment, health, education, planning and all manner of issues. When we protest that he should be keeping out of politics because he is heir to the throne we are told: “as yet he has no constitutional position, so he is free to say what he likes. He’ll be quiet once he’s King”. So we use the Freedom of Information Act to find out the extent of his lobbying and we’re told: “Charles has a constitutional position which requires him to be impartial, so we cannot tell you about his lobbying”. Both statements can’t be true.

This is potentially very serious. Charles’ views on most of the issues he campaigns on are generally at odds with those who have professional expertise on the matter.  Yet he has direct and privileged access to ministers, ministers who, sadly, listen to him. They listen to him because they buy into the absurd notion that what he thinks matters, not because of what he knows or has learnt, but because of who gave birth to him. We therefore need to know: are ministers taking decisions based on the interests of the people, or on the say-so of Charles Windsor?

Where tax and spending are concerned we clearly have a right to know how our money is being spent, and who is lobbying for it to be spent in certain ways. Again, we need to know who is exercising what power and in whose interests. That’s a fundamental principle of democracy. Alas, our government doesn’t agree. For them the key priority is that we protect the pretence of royal impartiality.

Impartiality is an act like any other, and in a democracy it must be seen to be done. It must be proven and it must be accountable. The royals aren’t impartial, they are secretive. There’s a difference.

In statements issued recently the government has said:

“It is a fundamental constitutional principle that communications between the Queen and her Ministers and other public bodies are essentially confidential in nature and there is therefore a fundamental public interest in withholding information relating to such communications.  That is so because the Sovereign has the right and the duty to counsel, encourage and warn her government.”

And:

“In relation to […] information relating to the Royal Household, it has become clear that those safeguards are insufficiently robust to protect our current constitutional arrangements, and need changing.”

My answer to that is simple: if our constitution requires state secrecy, that is a stronger case than any for reforming our constitution. It is not a case for amending the FOI Act and removing the right of citizens to know what their head of state is up to and how and why the palace is spending our money.

The amendment is planned to be introduced before the next election. It will be back-dated, so any requests for information still under review, even if they have been sent to the High Court, will immediately be dropped under the new absolute exemption.

Within a week of an Early Day Motion being tabled by Lynne Jones MP 29 Members of Parliament have backed her call to stop this change to the law. In truth, we need to go further. The palace should be brought fully under the remit of the Act and we must have much greater transparency.  But to ensure we can continue to make that case, we must resist this government amendment.

You can find out more about the EDM and how you can help here.

Graham Smith is Campaign Manager for Republic.