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Friday, 27 March 2015

Prince Charles' letters: R (on the application of Evans) and another v Attorney General

The Supreme Court has now given judgment in R (on the application of Evans) and another v Attorney General, the case brought by the Guardian seeking access to Prince Charles' letters under the Freedom of Information Act.  The Court ruled in favour of the Guardian and therefore at some point in the future disclosure will now have to be made.

I wrote about the case at an earlier stage in the process here. It was not an uncontroversial opinion, as the comments section indicates, though I stand by the view that the Prince should not have been writing letters lobbying for change.  This is not because I disagree with all of his views - though I certainly disagree with his support of homeopathy and his more general unscientific pronouncements (brutally dissected by the late Christopher Hitchens here).  The problem is the more general principle that the monarchy is supposed to reign, not rule.  The late Tony Benn used to have four questions for any man or woman with power he met. They were along these lines:

1.  What power do you have?

2.  How did you obtain it?

3.  In whose interests do you exercise it?

4.  How can I get rid of you?

In the case of the Monarchy, the answer to question (1) has traditionally been 'not very much', and hence the rest were of not so great importance.  By seeking to influence government policy, Charles would change that answer and hence cause significant embarrassment to his position.  The Attorney-General almost admitted as much in his decision and his pronouncements on the letters earlier in the case.

It is true that the Queen grants the Prime Minister a weekly audience, at which she presumably shares her views on a wide range of matters.  But no Prime Minister (and the Queen has been on the throne since Winston Churchill occupied No. 10 Downing St) has ever said she lobbies for any particular course of action, only that she offers advice here and there. For ardent republicans - and there is no doubt that the Evans case was a flanking attack on the entire monarchy by the Guardian - the mere fact of her meeting politicians in a different capacity from an ordinary citizen is objectionable of itself. But they would still concede that Charles' letter-writing is of a different order of magnitude, and much more damaging to the monarchy accordingly.

I do not buy the argument based on privacy - the notion that Charles is entitled to private correspondence like anyone else.  He is indeed entitled to privacy - on matters appropriately private.  Thus, if he wrote to a friend, or if he wrote a private journal (which he did, and which I argued in one of my books should be confidential) then that would be no-one else's business.  But if he is seeking to influence an important matter of policy, whether in regard to the environment, human rights, architecture, alternative medicine or whatever, then that is properly something of public concern, given his constitutional position.  No-one could pretend that his letters on such subjects would be no different from those of Disgusted of Tunbridge Wells.

In my earlier blog, a commentator referred to the German president, who is supposed to be neutral in party politics, but who still intervenes and takes positions on contentious political matters.  There are two responses: first, the positions are not identical - the German constitution is a carefully crafted arrangement, not easily compared with the British one; and secondly, the German president is elected, and thus there is a ready answer to Tony Benn's question (4) which does not apply in the case of Charles.

There is also the question of one of Charles' letters concerning a ministerial decision which is later made subject to a judicial review challenge.  Would a letter from the Prince amount to an irrelevant factor?  Or would it otherwise breach natural justice, on the basis that no-one would have had a chance to respond to it?

I should stress that none of the above actually fell for decision in the legal proceedings.  The court did not need to consider whether Charles should be writing the letters in the first place, what consequences there might be for him, and what consequences there might be for anyone else. Instead, it was concerned primarily with the separate but equally interesting issue of whether, and in what circumstances, the Attorney-General might overturn a decision of a judicial tribunal. There is a short note on the UK Supreme Court Blog here and I will link to a longer discussion when one appears.