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Friday, March 14, 2014

Minister's veto on FOI release of Prince Charles' advocacy letters not based on reasonable grounds

 A long running-now in its ninth year-battle waged by The Guardian for access under the UK Freedom of Information Act and Environmental Information Regulations to 27 letters sent by Prince Charles to ministers in the previous Labour government took another turn this week.
Are you ready:
the Court of Appeal quashed a certificate issued by the Attorney-General that vetoed an Upper Tribunal finding that reversed the decision of the Information Commissioner who had upheld the departments' decisions to refuse to disclose the letters.

In plain speak, the Upper Tribunal decision stands, that the letters in so far as they contain 'advocacy correspondence' should be released,

For the moment at least. Leave has been granted to the Attorney General to appeal to the Supreme Court.

The Tribunal found 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... In broad terms our ruling is that although there are cogent arguments for non-disclosure, the public interest benefits of disclosure of “advocacy correspondence” falling within Mr Evans's requests will generally outweigh the public interest benefits of non- disclosure."

It did not rule that purely personal or social correspondence, or "correspondence within the established constitutional convention that the heir to the throne is to be instructed in the business of government" should be disclosed. [Court of Appeal at 18].

The key finding in the unanimous Court of Appeal decision(pdf) was that the purported exercise of the veto power was unlawful on administrative law grounds in that the Attorney General did not have 'reasonable grounds' to issue the certificate under the FOI act, and with regard to environmental information the certificate is incompatible with EU law.

'Wednesbury unreasonable' features strongly.

Analysis by Dr Mark Elliott of the University of Cambridge (Public Law for Everyone) and Jon Baines (Information Rights and Wrongs) suggest the Court itself may have erred in setting the reasonableness bar too high. 

Having found the Attorney General improperly issued the certificate, the Court did not delve into the the reasonableness of the views cited by the Attorney General in disagreeing with the Upper Tribunal decision:
that (i) so-called advocacy correspondence formed part of The Prince of Wales’s preparation for kingship; (ii) The Prince of Wales and Ministers would feel “seriously inhibited” from exchanging views candidly and frankly if advocacy correspondence were not kept confidential; (iii) disclosure would jeopardise the perception of the Prince as politically neutral; (iv) the advocacy correspondence had a “constitutional function”; and (v) the correspondence reflected The Prince of Wales’s “most deeply held personal views and beliefs”.[41]
Even though Candid and Frank are popping up way down here as well,at least we removed the dreaded conclusive certificates from the Federal FOI landscape five years ago otherwise all that 'reasonableness' business might be highly relevant.

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