UK Prince Memos Released; FOIA Changes Threatened

13 May 2015

As the British public finally got a look at memos sent by Prince Charles to government ministers, the re-elected Conservative government indicated its intention to tighten control of the freedom of information law.

The release of the royal memos culminating a 10-year legal battle fought by The Guardian newspaper, which finally got to describe the memos:

The letters reveal that Charles lobbied ministers, including the former prime minister Tony Blair, on a wide range of issues, including agriculture, the armed forces, architecture and homeopathy.

During the long legal tussle, decided only recently by a Supreme Court ruling (See report), Parliament approved an absolute FOIA exemption for the royal family.

The ruling in the case challenged the government’s use of the so-called ministerial veto, saying that ministers could not overrule decisions of the courts or tribunals merely because they disagreed with them: they needed particularly strong reasons for a veto.

An official representing the Prime Minister said May 13 that there was a “strong case” for beefing up the veto provision.

“Our view remains – as the government has argued in the lengthy legal proceedings [regarding the Prince’s correspondence] – that there is a strong case for there being the ability to exercise a ministerial veto,” an official told a briefing of journalists, The Independent and others reported.

“Our view hasn’t changed but the ruling has generated some uncertainty in regards to those provisions and in the light of that we will consider this issue.”

Campaign for Freedom of Information Director Maurice Frankel said:

When the FOI Bill was passed, parliament assumed the veto could be used against decisions of the Information Commissioner in certain circumstances.  The possibility of it being used against a court or tribunal decision, as in the Prince Charles case, was never debated. In that case the Supreme Court ruled ministers must show they are relying on new evidence, an error of law or, at least, have proper grounds for rejecting a court or tribunal’s factual findings, if that was what they were doing. It couldn’t meet any of these tests.

Ministers are now suggesting that they should be able to overturn a judicial decision under the FOI Act simply because they prefer their own view, disregarding the fact that the court may have tested the arguments rigorously and persuasively justified its findings. That is too much power for ministers to have. They should appeal against decisions they disagree with, not simply overturn them.

The Campaign also said that the Supreme Court had ruled that the ministerial veto could not be used to block the release of environmental information as a veto was incompatible with the EU legislation which underpin that right of access.  In the ruling Lord Neuberger, the President of the Supreme Court, also pointed out that there was “a powerful case” for saying that it would be a misuse of the veto to use it against a decision of the Information Commissioner where there was already a right of appeal to the Tribunal.

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