Royal communications are now absolutely exempt from the FOIA. Certainly one of the more controversial aspects of recent reforms to the Act, and one that begs a number of questions: what is covered by this exemption, why should the royals be exempt at all, and what will the public be missing out on in the future?
In the past, FOI brought a number of Royal controversies to light: from the Buckingham Palace request for money targeted at energy saving grants for those on low incomes, the communications between ministers and the Royal household about the spending of the £38.2 million allocated to staff palaces, to the highly controversial involvement of Prince Charles in lobbying ministers.
Of these, the former two will remain accessible under the reforms. The absolute exception covers all communications of the monarch, her heir, and the second in line to the throne, while the correspondence of the rest of the Royal Household with public bodies remains subject to a qualified exemption. So, the requests about finances would result in exactly the same outcome now as before the amendments. Similarly, if people are requesting records of Prince Andrew’s activities as the UK’s trade envoy, then the decision to release, at least under section 37, will be taken in light of a qualified exemption. The real change will be felt with respect to the third and more controversial example: letters allegedly sent between ministers and Prince Charles lobbying on political matters are now inaccessible to FOI requesters. Is this a change for the better?
“The essence of constitutional monarchy is that the Queen and other members of the Royal Family remain politically neutral”, said Professor Vernon Bogdanor when the changes were announced in January. The Queen must work with governments of all political hues, which could be difficult if her political leanings were known, something that applies equally to her heirs. It is also important that the heir to the throne educates himself in the affairs of state to prepare for his future role as King. But is it right that the new exemption covers as much as it does?
The Lord Chancellor defended the absolute exemption on the grounds that the amendment “is necessary to protect the long-standing conventions surrounding the monarchy and its records”. However, the ICO decision of earlier this month, on whether it was in the public interest for Prince Charles’ communications with ministers, which turned on the unamended legislation, took full account of these conventions under the qualified exemption. Is it right, as is now the case, that the public interest can never override these conventions? If a senior Royal is exercising undue influence on government, does this not go beyond the purpose of the conventions?
So what will we miss out on in the future? The short answer is, probably not very much, but what is problematic is that what is now excluded falls at the more politically controversial end of the spectrum. Is it right that no matter what high profile Royals are saying to politicians, the public will not find out until that person is dead? If a senior Royal were exercising undue influence on government, is this something that ought to be confidential?