“Any person making a request for information to a public authority is entitled – (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) if that is the case, to have that information communicated to him.”
“shall cease to have effect if, not later than the twentieth working day following the effective date, the accountable person in relation to that authority gives the Commissioner a certificate signed by him stating that he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure [to comply with section l(l)(a) or (b)].”
“Member States shall ensure that public authorities are required, in accordance with the provisions of this Directive, to make available environmental information held by or for them to any applicant at his request and without his having to state an interest.”
“1. Member States shall ensure that any applicant who considers that his request for information has been ignored, wrongfully refused (whether in full or in part), inadequately answered or otherwise not dealt with in accordance with the provisions of articles 3, 4 or 5, has access to a procedure in which the acts or omissions of the public authority concerned can be reconsidered by that or another public authority or reviewed administratively by an independent and impartial body established by law .... 2. In addition to the review procedure referred to in paragraph 1, Member States shall ensure that an applicant has access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final .... 3. Final decisions under paragraph 2 shall be binding on the public authority holding the information. Reasons shall be stated in writing, at least where access is refused under this Article.”
“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law ....”
“In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”
“Factors in favour of disclosure Governmental accountability and transparency; The increased understanding of the interaction between government and monarchy; A public understanding of the influence, if any, of Prince Charles on matters of public policy; A particular significance in the light of media stories focusing on Prince Charles's alleged inappropriate interference/lobbying; Furthering the public debate regarding the constitutional role of the monarchy and, in particular, the heir to the throne; and Informing the broader debate surrounding constitutional reform. Factors against disclosure Potential to undermine the operation of the education convention; An inherent and weighty public interest in the maintenance of confidences; Potential to undermine Prince Charles's perceived political neutrality; Interference with Prince Charles's right to respect for private life under article 8; and A resultant chilling effect on the frankness of communication between Prince Charles and government ministers.”
“ The fact that the information in question consisted of private and confidential letters between The Prince of Wales and Ministers. The fact that the request in this case was for recent correspondence. The fact that the letters in this case formed part of The Prince of Wales’s preparation for kingship. The potential damage that disclosure would do to the principle of The Prince of Wales’s political neutrality, which could seriously undermine the Prince’s ability to fulfil his duties when he becomes King. The ability of the Monarch to engage with the Government of the day whatever its political colour, and maintain political neutrality as a cornerstone of the UK’s constitutional framework.”
“[T]he principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document”
“The principle of legality means not only that Parliament cannot itself override fundamental rights or the rule of law by general or ambiguous words, but also that it cannot confer on another body, by general or ambiguous words, the power to do so.”
“I have on reasonable grounds formed the opinion that, in respect of the requests concerned, there was no failure to comply with section 1(1)(b) of the Act or regulation 5(1) of theEnvironmental Information Regulations 2004 .”
“not persuaded that the Secretary of State was entitled to reject the ombudsman’s finding merely because he preferred another view which could not be characterised as irrational. …. [I]t is not enough that the Secretary of State has reached his own view on rational grounds. …. [H]e must have a reason (other than simply a preference for his own view) for rejecting a finding which the ombudsman has made after an investigation under the powers conferred by the Act.”
“7. In the United Kingdom, that constitutional balance is preserved by the constitutional convention that the Monarch acts on, and uses prerogative powers consistently with, Ministerial advice ("the cardinal convention"). The corollary to the cardinal convention is the convention that the Monarch has the right, and indeed the duty, to be consulted, to encourage, and to warn the government (the "tripartite convention"). The tripartite convention ensures that a measure of influence is retained for the Monarch within the constitution. The tripartite convention is most obviously, though not solely, expressed through the Prime Minister's weekly audience with the Monarch. 8. In order to prepare for the exercise of the tripartite convention, the heir to the Throne has the right to be instructed in the business of government: a right described by the Tribunal in this case as the "education convention". The Tribunal in this case accepted the importance of the education convention; and accepted that it carried with it a duty of confidentiality. However, the Tribunal concluded both that "advocacy correspondence" was outside the education convention; and that such correspondence formed no part of The Prince of Wales' preparations for kingship, because it was not undertaken as part of preparation for kingship, and was not the type of activity in which the Monarch would engage. 9. In my view, it is of very considerable practical benefit to The Prince of Wales' preparations for kingship that he should engage in correspondence and engage in dialogue with Ministers about matters falling within the business of their departments, because such correspondence and dialogue will assist him in fulfilling his duties under the tripartite convention as King. Discussing matters of policy with Ministers, and urging views upon them, falls within the ambit of "advising" or "warning" about the Government's actions. It thus entails actions which would (if done by the Monarch) fall squarely within the tripartite convention. I therefore respectfully disagree with the Tribunal's conclusion that "advocacy correspondence" forms no part of The Prince of Wales' preparations for kingship. I consider that such correspondence enables The Prince of Wales better to understand the business of government; strengthens his relations with ministers; and enables him to make points which he would have a right (and indeed arguably a duty) to make as Monarch. It is inherent in such exchanges that one person may express views and urge them upon another. I therefore consider that, whether or not it falls within the strict definition of the education convention, “advocacy correspondence” is an important means whereby The Prince of Wales prepares for kingship. It serves the very same underlying and important public interests which the education convention reflects. 10. If such correspondence is to take place at all, it must be under conditions of confidentiality. Without such confidentiality, both The Prince of Wales and Ministers will feel seriously inhibited from exchanging views candidly and frankly, and this would damage The Prince of Wales' preparation for kingship. Indeed, it is difficult to see how the exchange of views in correspondence could continue at all without confidentiality. Also, The Prince of Wales is partypolitical neutral. Moreover, it is highly important that he is not considered by the public to favour one political party or another. This risk will arise if, through these letters, The Prince of Wales was viewed by others as disagreeing with government policy. Any such perception would be seriously damaging to his role as future Monarch, because if he forfeits his position of political neutrality as heir to the Throne, he cannot easily recover it when he is King. Thus in this context, confidentiality serves and promotes important public interests. 11. I also consider that the disclosure of “advocacy correspondence” engages the important freestanding interest in the preservation of confidences. Both The Prince of Wales, and Ministers, correspond on the basis that their exchanges are strictly confidential. Furthermore, I consider that the public interest in maintaining confidentiality will be buttressed where The Prince of Wales's letters reflect his and deeply held views and convictions, given under impress of confidentiality. 12. In my view, these are important public interests in nondisclosure, which will generally apply to “advocacy correspondence” between The Prince of Wales and Ministers. Of course, I recognise that each case must be decided on its own particular facts, so I have gone on to examine how those public interests apply in this case. I take the view that they apply with particular force, in circumstances where: (1) The requests were made in April 2005. Thus, at the time when the requests fell to be responded to, the correspondence was very recent; and it is still relatively recent. (2) Much of the correspondence does indeed reflect The Prince of Wales' most deeply held personal views and beliefs. (3) The letters in this case are in many cases particularly frank. They also contain remarks about public affairs which would in my view, if revealed, have had a material effect upon the willingness of the government to engage in correspondence with The Prince of Wales, and would potentially have undermined his position of political neutrality. (4) There is nothing improper in the nature or content of the letters. The public interests in disclosure 13. I recognise, and take account of, the public interests in disclosure identified in the Upper Tribunal's judgment, namely governmental accountability and transparency; the increased understanding of the interaction between government and Monarchy; a public understanding of the influence, if any, of The Prince of Wales on matters of public policy; an interest in disclosure in light of media stories focusing on The Prince of Wales' alleged inappropriate interference, or lobbying; furthering the public debate regarding the constitutional role of the Monarchy, and in particular the heir to the Throne; and informing broader debate surrounding constitutional reform. 14. In my view, the factors in favour of disclosure identified by the Tribunal in this case are good generic arguments for disclosure of the information. However, if they were decisive in the present case it would have to be at the expense of the strong public interest arguments against disclosure, centred upon The Prince of Wales' preparation for kingship and the importance of not undermining his future role as Sovereign. 15. I also consider that the very high public interest that the Tribunal identified in the public knowing what The Prince of Wales said to Ministers was at least in part dependent upon the Tribunal's assumption that The Prince of Wales was in no different position from any other lobbyist, when making representations to Ministers, save that he did so from a position where his representations would be accorded special weight. I do not consider that The Prince of Wales's correspondence is properly viewed in that light, in circumstances where it is part of his preparation for kingship. I take the view that the correspondence has a constitutional function, which makes any analogy between it and correspondence between a private individual and a Minister inapposite.”
“(2) Professor Brazier [called by the Departments] accepted that under his thesis communications fell within the convention because they were a rehearsal for kingship, but was not able to point to anything evidencing a recognition by Prince Charles that there was a rehearsal mode or that he was acting within this rehearsal mode. There was powerful evidence that Prince Charles did not regard himself as acting in rehearsal mode. The biography made no suggestion of it. Indeed, the 1995 article characterised the correspondence in question as advocacy 'for real' under a radical parallel with the sovereign's tripartite convention. The Clarence House website described Prince Charles 'Promoting and Protecting' through publicly aired views and private correspondence, including with ministers. Sir Stephen Lamport [also called by the Departments] was emphatic that the descriptions "rehearsal" and "training" were inapt. On the contrary, Prince Charles believed that his contact with government could be used for the wider public benefit. The only thing which distinguished Prince Charles's role from the sovereign's, on Sir Stephen's evidence, was that the government did not feel they had to treat his advice as they would treat the Queen's. The memorandum by Sir Michael Peat showed that as regards Prince Charles's current actions (a) he understands the constitutional functions that the sovereign has (and he would have), and (b) that is decidedly not the character of his actions, indeed ( c) he would change as sovereign and stop intervening in the way that he does. That explanation was inconsistent with Sir Stephen Lamport's and Sir Alex's [Sir Alex Allan, called for the Departments] metaphor of the "apprentice stonemason". ….. (4) It is a fundamental condition of the exercise by the sovereign of the tripartite convention that the sovereign does not express views in public on matters of public policy. If Prince Charles is to be taken as being in 'rehearsal' mode, why would he so obviously act incompatibly with the necessary discipline accompanying the role he is supposedly rehearsing? Put another way, the absence of a perceived obligation of (rehearsed) silence in public on the public policy undermines the idea of a perceived right of (rehearsed) encouragement and warning in private. … (6) Professor Brazier's thesis was not able to identify any distinction between what Prince Charles is doing, nor what the government is doing, which is different because this is supposedly 'rehearsal' mode. On the contrary, it is precisely the same course of conduct of both parties which led to the Brazier 1995 suggestion of Prince Charles having the right to seek to urge and persuade. If the true analysis is that Prince Charles has no such right, but merely a right to rehearse, there would need to be a difference between the two. But none has been identified, merely the fact that this is the heir and not the monarch.”
“99. Problems (2), (4) and (6) are interlinked. It seems to us that they are much more substantial. First, the submissions for the Commissioner and the departments never distinctly grappled with the point that Prince Charles himself has recognised that as sovereign, "he must stop intervening in the way that he does." Mr Swift acknowledged that Prince Charles does not deal with government in "rehearsal mode". His suggested answer was that (1) instruction gives rise to debate, encouraged by ministers; (2) the convention takes the form of a debate or conversation, not a lecture; (3) Prince Charles can only learn how to debate and question issues of policy by actually debating and questioning issues of policy, not by pretending to do so; and (4) preparation for kingship over a period of four decades will involve forming a relationship with ministers in which matters of substance are discussed. However, in the public examples that we have seen, the plain facts are that what Prince Charles is doing is not prompted by a desire to become more familiar with the business of government, and simply is not addressing what his role would be as king. We cannot accept Mr Swift's contention that when Prince Charles discusses matters "for real" with ministers, both he and ministers appreciate that this is in the context of his preparation for kingship. The examples we have identified in our chronology of events at Open Annex 2 do not involve any assumption that Prince Charles has the rights of the monarch, but they all have as their context Prince Charles's strong belief that certain action on the part of government is needed. On analysis, as it seems to us, neither Sir Alex nor Sir Stephen was able to justify an assertion that either side saw these exchanges as part of preparation for kingship.”
“103. In our view the new approach as advanced by Professor Brazier in his witness statement would involve a massive extension of the education convention. The new approach seemed to involve a proposition that whenever Prince Charles interacted with government this helped to prepare him to be king and was therefore part of the education convention. The logical consequence of this proposition would be that the education convention extended both to advocacy correspondence and to correspondence on charitable or social matters without any advocacy element. As noted in section G of OA3, however, in cross-examination Professor Brazier resiled from his earlier stance in relation to charitable and social matters. What happened was that Mr Pitt-Payne put to him the difficulty that correspondence on charitable matters might be written by any other member of the royal family: it was not done as part of preparation to be king. In the course of cross-examination Professor Brazier gave consideration to this difficulty both in relation to charitable matters and in relation to social matters. In the light of that consideration, he very fairly acknowledged that - subject to there being no advocacy element - the Commissioner was right to say that the education convention did not cover correspondence on charitable and social matters. In that regard he accepted that he may have conflated two different things which should not have been conflated: the scope of the convention on the one hand and the obligation of confidence on the other. 104. Thus the analysis of the expert witness for the Departments changed during the course of oral evidence. He was confronted with difficulties facing any proposition that whenever Prince Charles interacted with government this helped to prepare him to be king and was therefore part of the education convention. His recognition of those difficulties led him to accept the Commissioner's narrower view that the scope of the education convention did not extend to charitable or social matters. Inevitably, as it seems to us, he was thereby accepting that merely incidental help in preparation for kingship - at least in charitable and social contexts - will not suffice. What we find illuminating is that the question which led Professor Brazier to change his mind did not merely point out that other members of the royal family might write on charitable matters. There was an additional element to the question which made the crucial point that such correspondence was not written "as part of preparation to be king". To our mind, for the reasons developed by Mr Fordham in cross-examination of Professor Brazier, that crucial point applies equally to advocacy correspondence. 105. The massive extension of the convention advanced by the Departments, and the less massive extension identified by the Commissioner, would both have to meet the second element of the Jennings test. In the context of the education convention this would require that both sides considered that as part of Prince Charles's preparation to be king they were bound to permit correspondence with government in the manner contemplated by the extension. Professor Brazier's witness statement relied on both sides exchanging correspondence on the explicit or implicit assumption that all of it would remain confidential. As noted above, however, in oral evidence he accepted that it was wrong to conflate confidentiality and the scope of the convention. The submissions for Mr Evans accepted that the traditional education convention involved informing Prince Charles about governmental matters and responding to queries from him about that information. The evidence before us, as examined in open session, demonstrates that interaction between Prince Charles and government went far beyond this, but not "as part of preparation to be king". Published advocacy correspondence shows Prince Charles using his access to government ministers, and no doubt considering himself entitled to use that access, in order to set up and drive forward charities and to promote views - but not as part of his preparation for kingship. Ministers responded, and no doubt felt themselves obliged to respond, but again not as part of Prince Charles's preparation for kingship. Indeed Prince Charles himself accepts, and government acknowledges, that his role as king would be very different. The inevitable conclusion is that while correspondence going beyond the traditional education convention may well be confidential, and is not (despite Professor Tomkins's concerns) said by Mr Evans in these proceedings to be unconstitutional, it does not have the special status of correspondence falling within a constitutional convention. 106. There is another element in the Jennings test which leads to the same conclusion. It is the third element: there must be good reason for the suggested extension. The good reason advanced by Professor Brazier for such a massive extension was difficult to pin down. At times it appeared to be simply that both sides regarded their discussions as confidential - something which he later accepted was not determinative of the scope of the convention. At other times it appeared to be that whenever Prince Charles interacted with government this helped to prepare him to be king - but he has accepted that, at least in the charitable and social context, merely incidental help does not suffice. In our view, however, there is an overwhelming difficulty in suggesting that there is good reason for regarding advocacy correspondence by Prince Charles as falling within a constitutional convention. It is a difficulty that was recognised in Professor Brazier's answer cited earlier: it is the constitutional role of the monarch, not the heir to the throne, to encourage or warn government. Accordingly it is fundamental that advocacy by Prince Charles cannot have constitutional status. Professor Brazier sought to escape this difficulty by saying that under his extension to the education convention there was no obligation on government to consider what Prince Charles said. This in our view offers no escape: the communication of encouragement or warning to government has constitutional status only when done by the monarch. Even if ministers (despite every appearance of thinking the contrary) are under no obligation to consider what is said, they have received it and it is open to them to take account of it. It would be inconsistent with the tripartite convention to afford constitutional status to the communication by Prince Charles, rather than the Queen, of encouragement or warning which ministers might then take account of.”
“174. … The "to and fro" between Prince Charles and government involved in advocacy communications may carry an incidental benefit of increasing Prince Charles's knowledge of how government works, but unless there is some additional element they cannot properly be described as preparation for kingship.”
“Without such confidentiality, both The Prince of Wales and Ministers will feel seriously inhibited from exchanging views candidly and frankly, and this would damage The Prince of Wales' preparation for kingship. Indeed, it is difficult to see how the exchange of views in correspondence could continue at all without confidentiality.”
“there is good reason to think that Prince Charles will not, as a result of liability to disclosure, cease to make points to government that in his view need to be made. The chronology forcefully suggests that these are things that he feels strongly cannot be left unsaid: see for example OA2 at paras 35, 37, 43(4), 61, 62 and 97. Moreover, he has not been dissuaded by publicity in the past: we consider that the high degree of publicity afforded to Prince Charles's dealings with government in the past has not prevented his being educated in the ways and workings of government, nor has it deterred him from corresponding frankly with ministers.”
“Also, The Prince of Wales is party-political neutral Moreover, it is highly important that he is not considered by the public to favour one political party or another. This risk will arise if, through these letters, The Prince of Wales was viewed by others as disagreeing with government policy.”
“176. … [T]he concern was a concern about perception, and "political" was used in a narrow sense of "party-political". The concern that was advanced by the Commissioner and the Departments was that disclosure of the disputed information might lead the public to think that Prince Charles favoured one political party over another. The Departments were at pains to stress that Prince Charles was not politically partisan, and the Commissioner made it clear that he did not suggest this. The concern is thus about misperception. … 182. … The word "political" can be used in a broad sense, connoting an activity relating to policy. It is apparent from Prince Charles's public advocacy, from the revelations in the biography about his private advocacy, from purported revelations elsewhere about his private advocacy, and from public criticism of his advocacy activities ... that in this broad sense of "political" Prince Charles's activities are not neutral and in a number of respects have been controversial. It was common ground in the present case that despite all this, and despite views he has advocated often being later adopted to a greater or lesser extent by politicians or government, Prince Charles had succeeded in not being perceived as party-political. There is a risk that a view publicly advocated by him at a time when it did not divide political parties may do so in the future, but that is a risk that he has been prepared to run. 183. ... As we explain below, it does not follow that failure by members of the public to distinguish between views on partypolitical issues and views on wider matters of policy involves "unfair criticism" - or even if it were "unfair", that Prince Charles or the royal family generally needs to be protected from it. 184. It follows from this reasoning that we do not accept the broad general proposition advanced by the Commissioner on this aspect. It is true that a decision to abstain from making certain kinds of statement in public may be rendered ineffective if private correspondence were disclosed. This has to be seen, however, in the context of advocacy correspondence. In that context the Commissioner's submission effectively becomes that while Prince Charles desires to be known publicly as an advocate on some issues, nevertheless there is a public interest in not revealing his advocacy on issues where he does not wish his stance to be known publicly. There may be special cases - for example, particular circumstances where, in order to achieve some public good, there is an initial period where secrecy is necessary to avoid tipping off wrongdoers. In the absence of this, or some other special circumstance, we do not accept that a desire that the public should not know of his advocacy on a particular issue of itself gives rise to a public interest in non-disclosure. 187. … For reasons explained in our conditionally suspended annex, we can say that in the disputed information - consistently with what in 1985 he described as his own practice – Prince Charles avoids "party arguments'', "party code-words" and "personalities". If it were possible to identify in the disputed information anything on a topic which attracted partypolitical controversy either at the time it was written or now, just as The Times in 1985 thought the public interest permitted public statements on such a topic, we consider that in the 21st century "our language is not so deformed and our politics are not so penetrating" as to make it in the public interest not to disclose advocacy communications on such topics. 188. There is, as it seems to us, a short answer to all the various ways in which the Departments have sought to rely on dangers of "misperception" on the part of the public. It is this: the essence of our democracy is that criticism within the law is the right of all, no matter how wrongheaded those on high may consider the criticism to be.”
“… it is not reasonable for an accountable person to issue a section 53 certificate simply because, on the same facts and admittedly reasonably, he takes a different view from that adopted by a court of record after a full public oral hearing.”
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