The monarchy should be subject to the Freedom of Information Act

Dr Huw Evans

This article is prompted by removal of public access to information about Andrew Mountbatten-Windsor when he was a trade envoy in 2004.

The monarchy stands largely outside arrangements created by the Freedom of Information Act 2000 (FOIA) about access to information. It should, though, be subject to the same FOIA obligations as other public authorities. Far greater transparency is needed.

Under the FOIA there is a general right of access on request to information held by public authorities. There are exemptions, but the default position is that public authorities must disclose information. The monarchy, however, is not a public authority under the FOIA.

Public authorities covered by the FOIA include government departments, local government, devolved government, the NHS, the police, the BBC, state schools, and related bodies such as publicly owned corporations.

The FOIA applies to information held in various formats such as written and electronic documentation, photographs, drawings, and audio and visual recordings.

Although there is a presumption that information should be disclosed, grounds do exist for refusal. Some information may be exempt from disclosure altogether such as if it relates to national security. This is known as an absolute exemption.

Other information may be subject to a qualified exemption, meaning that information may be withheld if it is in the public interest; in these cases there is a balancing exercise between competing public interests concerning disclosure and non-disclosure.

There are also practical grounds for refusal such as if information is already public, the cost of gathering information is disproportionate, or that a request is frivolous or vexatious.

There is an exemption that applies where a public authority holds information about the monarchy.

There is an absolute exemption from disclosure if it covers communications with, or on behalf of: the monarch; the monarch’s heir; the person second in line to the throne; or someone who has later become monarch, heir or second in line.

There is a qualified exemption covering communications with other royal family members and the royal household together with communications about the award of honours: i.e. information need not be disclosed if it is in the public interest not to disclose it.

Normally, where information is withheld from disclosure under the FIOA, that exemption applies for 20 years before the information can be made public.

However, under the monarchy exemption. the exemption is lifted either after 20 years or five years after the death of the royal family member concerned, whichever is the later.

The Andrew Mountbatten-Windsor case showed confusion over time limits: information about his UK trade envoy role from 2004 was released after 20 years, though it should have been withheld until five years after his death, potentially decades later. It seems that once this error was discovered, the information was withdrawn from public access.

‘Grace and favour’

Despite being outside the FOIA there is a non-statutory regime operated by the Royal Household to provide information about how it goes about its business: e.g. concerning its use of public money. This is welcome, but it is on a ‘grace and favour’ basis.

And it begs the question, if the monarchy is prepared to submit itself voluntarily to a disclosure regime, why shouldn’t it be a public authority under the FOIA?

Also, as it is outside the FOIA, information which would otherwise become public after 20 years (or longer), does not become public, unless the monarchy chooses to make it available.

Case for change

The UK has a constitutional monarchy, not an absolute monarchy, and should be accountable and subject to similar scrutiny as other parts of the state. It should not stand apart in an aloof and elitist way.

The principles behind the FOIA are clear: public administration should be transparent unless there are good reasons for restrictions.

And, surely, a fundamental premise about a freedom of information regime is that it should apply to everyone involved? To exclude monarchy undermines the regime’s integrity.

The monarchy should be treated as a public authority under the FOIA because it carries out a constitutional role and uses public money. It would then be in the same position as any other public authority.

Reframed

Of course, not all information would be disclosable because good grounds could exist for non-disclosure: e.g. to support the monarch’s position as head of state. But the monarchy and other public authorities would be on a ‘level playing field’.

The monarchy exemption also needs to be reframed: first, in terms of its scope and, second, about the length of time allowed before information is made public.

The scope of the exemption is too broad. In the ‘black spider memos’ case letters from Charles Mountbatten-Windsor, then heir to the throne, to various government departments were ordered to be disclosed under the FOIA. The letters expressed the future monarch’s (often strong) personal views on a range of issues.

Afterwards, the FOIA was amended to include the current monarchy exemption. If sent now, the letters would not be disclosed solely due to the sender’s identity.

This raises concerns, given the monarchy’s supposed apolitical role. As to the second point, in the Andrew Mountbatten-Windsor case, the information from
2004 is protected from disclosure until five years after his death. Yet, for example, Welsh Government cabinet minutes are released after 20 years.

‘Lost’

A current case about Welsh Government cabinet meeting minutes being ‘lost’ is
illustrative. Although of concern, the disappearance is a separate issue. However, the case shows that the information disclosure exemption time limits for the Welsh Government differ greatly from those for the monarchy, with no clear justification.

While the monarch remains head of the UK state the monarchy must be fully and
equitably integrated into the FOIA regime. This is needed for the sake of constitutional and broader societal fairness.