internal ico guidance - section 37 version 2.0

7/31/2019 Internal ICO Guidance - Section 37 Version 2.0

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Section 37(1)(a) guidance

Key points

Section 37(1)(a) covers a wide range of information because it applies to any

communication with the Queen, the other members of the Royal Family or theRoyal Household. It also applies to information that relates to thecommunications identified above. In line with our general approach the termrelates to is interpreted broadly.

The factors inherent in the exemption can be summarised as follows:

1. Protecting the ability of the Sovereign to exercise her right to consult, toencourage and to warn her Government and to preserve her position ofpolitical neutrality Bagehots convention.

2. Protecting the ability of the Heir to the Throne to be instructed in thebusiness of government in preparation for when he is King and inconnection with existing constitutional duties, whilst preserving his ownposition of political neutrality and that of the Sovereign.

3. Protecting the ability of the Sovereign and the Heir to communicateopenly, including with Government, regarding their work with charities/ascharitable entrepreneurs.

4. Preserving the political neutrality of the Royal Family and particularly theSovereign and the Heir to the Throne to ensure the stability of the

constitutional monarchy.

5. Protecting the privacy and dignity of the Royal Family

The first two factors have been interpreted narrowly to cover communicationsregarding official constitutional duties and the exercise of the executive powersby the Sovereign or Heir.

Some protection has been given to the communications involving charities. Incases involving the Prince of Wales this will encompass some of the informationthat has been a matter of public concern because it is considered by some toconstitute lobbying.

No specific protection has been afforded to the communications the Prince ofWales exchanges with Government as part of his role Protecting and Promoting,which is also contentious. However the political neutrality argument may in itselfbe relevant to such communications.


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It is accepted that where information falls within the convention there will be anassumption against disclosure and strong public interest arguments would beneeded for the outcome to favour disclosure. This is similar to the approachtaken to sections 42 and 35(1)(c).

In relation to all other factors the assumption is in favour of disclosure as persection 2(1)(b). Having said that, where the information relates to or would harmthe Sovereign, arguments in favour of maintaining the exemption are likely to besignificant. In relation the Heir, it will be important to recognise his uniqueposition and to balance this with the public concerns regarding his interactionwith Government. These cases are likely to be finely balanced.


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Introduction

The aim of this briefing paper is to set out the Commissioners approach tosection 37(1)(a). It includes details of the factors that caseworkers are likely to

need to consider in most cases involving the exemption.

In light of the cases that are currently open with the ICO the guidance also looksat some of the specific issues that need consideration in the cases involvingmaterial related to the Prince of Wales.

Section 37 states that -

(1) Information is exempt information if it relates to

(a) communications with Her Majesty, with other members of the Royal

Family or with the Royal Household, or(b) the conferring by the Crown of any honour or dignity

(2) The duty to confirm or deny does not arise in relation to information which is(or if it were held by the public authority would be) exempt information by virtue ofsubsection (1).

The Royal Family/Household is not a public authority for the purposes of the Act.The exemption is likely to be most regularly used by departments that haveexchanged correspondence with the Royal Family. It may also be used by policeforces charged with protecting the Royal Family, for example where security

arrangements have been communicated.

Engaging the exemption

The exemption will cover correspondence to or from a member of the RoyalFamily or Royal Household. It will also cover draft letters, memos or referencesto the existence of meetings irrespective of whether they have in fact been sentor received or have occurred. This is on the basis that the exemption provides forinformation which relates to communications and is thus broader thaninformation which is itself a communication.

However information must still constitute (or relate to) a communication to fallwithin the exemption. So, for example an internal note held by a governmentdepartment that references the Royal Family/Household will not necessarily fallwithin this definition. It must be evident that the information is intended for or hasbeen communicated or that it references some other communication falling withinthe definition. Records of audiences with Ministers or agendas of meetings willbe covered.


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Information which references meetings between members of the Royal familyand third parties are also likely to be caught by the exemption on the basis thatsuch interactions constitute communications and the material relates to thosecommunications.

For further examples of the type of information likely to fall within this section seepage 2 of Awareness Guidance 26.

Who is a member of the Royal Family?

The Commissioners approach as per the Awareness Guidance will be to includeall individuals who hold/or are entitled to hold the title of Majesty or RoyalHighness and their spouses.

Those entitled to use the title Majesty or Royal Highness and their spouses(since 1st January 1975)

THE QUEENPrince Philip, Duke of EdinburghQueen Elizabeth The Queen Mother (deceased)Prince of WalesThe Princess of Wales (deceased)The Duchess of CornwallPrince William of WalesPrince Henry of WalesThe Prince Andrew(later The Duke of York)The Duchess of YorkPrincess Beatrice of York

Princess Eugenie of YorkThe Prince Edward(later The Earl of Wessex)The Countess of WessexLady Louise WindsorThe Princess Anne, Mrs Mark Phillips(later The Princess Royal)Captain Mark PhillipsRear-Admiral Timothy LaurenceZara Phillips MBEPeter Phillips

Autumn Phillips (wife of Peter Phillips)Princess Margaret, Countess of Snowdon (deceased)The Earl of SnowdonPrincess Alice, Duchess of Gloucester (deceased)The Duke of GloucesterThe Duchess of GloucesterThe Duke of KentThe Duchess of Kent


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Prince Michael of KentPrincess Michael of KentPrincess Alexandra, the Hon. Lady OgilvyThe Rt. Hon. Sir Angus OgilvyPrincess Alice, Countess of Athlone

Section 37(1)(a) can still apply to information relating to deceased members ofthe Royal Family, including for example the Queen Mother and the Princess ofWales.

The Royal Household

This is not defined but as the Awareness Guidance suggests will cover allhouseholds of members of the Royal Family. It will include permanent membersof the relevant private office and those who assist members of the Royal Familyfrom time to time with their private, official and constitutional affairs. It will not

include contractors supplying goods and services to the Royal Household (e.g.holders of Royal Warrants).

The Royal Household provides support and advice to the Queen and employsover 1,200 people. Details about the work of each department are available onthe Royal Household website www.royal.gov.uk. In summary it is divided intothe following key departments and areas of responsibility:

The Lord Chamberlains Office - oversees the conduct and general business ofthe Royal Household. The Lord Chamberlain is a source and focal point forimportant matters which have implications for the Household as a whole and is

the channel of communication between the Sovereign and the House of Lords.

The Royal Collection Department Responsible for the public opening of officialresidences and upkeep of the royal art collection.

The Privy Purse and Treasurers Office Covers financial management of publicfunding granted to the Royal Household, Information Systems Management andTelecommunications, Personnel, Internal Audit and Property.

The Master of the Households Department Split into two areas, (G Branch)-responsible for organisation and running of ceremonial events and entertainmentat all residences and F branch responsible for food for all of the Royal Familyand staff.

The Private Secretarys Office responsible for supporting the Queen in herduties as Head of State. The Private Secretary is the channel of communicationbetween the Head of State and the Government, not only in the United Kingdombut also in the 15 other realms of which The Queen is Sovereign. The PrivateSecretary informs and advises The Queen on constitutional, governmental and
http://www.royal.gov.uk/http://www.royal.gov.uk/


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political matters in the United Kingdom and the Commonwealth. They are alsoresponsible for liaising with the armed forces, the Church and the organisationsof which the Queen is Patron.

Certain members of the governments Whips offices in both Houses of

Parliament are formally members of the Royal Household. (Senior governmentWhips in the Commons are designated the Treasurer and Comptroller of theHousehold; the Vice Chamberlain also serves as a Senior government Whip;Junior Government Whips in the Lords are Lords and Baronesses in Waiting).The Whips activities as government Whips are not covered by this exemption.

Royal Charities

Many members of the Royal Family act as patrons for a wide range of charities.Not everything done in the name of these charities will fall within section 37(1)(a).However, if correspondence relates to the charities and is either from a member

of the Royal Family or the Royal Household then it will. However correspondencebetween one of the Royal charities and a public authority will not fall within theexemption, for example letters between Companies House and the charity officesregarding the accounts because it does not relate to a communication with amember of the Royal Family or the Royal Household.

What type of information may be covered by 37(1)(a)?

Communications with the Royal Family are likely to be held by public authoritiesfor a number of reasons and covering a wide range of subjects. As AwarenessGuidance 26 suggests this may include:

Communications between Her Majesty, or others within the Royal Family,and government ministers

Correspondence between the Royal Households and public authorityofficials for example in relation to royal visits

Records or agendas of audiences (private meetings) with a member of theRoyal Family

Material which has been shown, or will be shown, to Her Majesty forapproval

Drafts prepared for broadcasts, speeches and messages etc sent by or onbehalf of Her Majesty or another member of the Royal Family.


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What is inherent in section 37(1)(a)?Philip Coppel1 states that,

the task of weighing the public interest in maintaining an exemptionthat is purely classed based (in other words that does not have sometype of prejudice as one of its composite elements) is always difficult.The task is particularly difficult where, as in section 37(1), theexemption does not reflect a well-understood proscription againstdisclosure: for example, safeguarding national security, legalprofessional privilege, trade secrets and so forth. Whereas in the lattercases it is always possible to assess the extent to which exemption isrequired in order to protect against that well-recognised harm, there isno such familiar protection to be secured by section 37(1), leaving theweighing exercise particularly prone to idiosyncratic views of the

underlying public interest perceived to be protected by the exemption.With this caveat, it is suggested that the strength of the public interestin maintaining the exclusion of the duty to confirm or deny theexistence of, or the duty to communicate, information relating tocommunications with members of the Royal Family or with the RoyalHousehold will depend on the nature and public importance of thatinformation. The Monarch performs a number of importantconstitutional, legal and political functions and maintains open lines ofcommunication with Parliament and the government at the highestlevel at all times. The Royal Family more generally fulfil other publicand official functions and are the recipients of public funds in return.The nature and content of their interactions with the outside worldwhen they are acting in a public capacity and at public expense maytherefore be of considerable public interest and the countervailingfactors favouring non-disclosure will turn largely on the extent to whichexposure to public scrutiny would prejudice the effective working of theRoyal Family and the Royal Household given their status andimportance. Where communications have taken place with members ofthe Royal Family acting in their private capacities, however, the publicinterest in disclosure may be less strong and the legitimate interest inensuring their privacy and dignity will acquire more force.

The statement above explains the key difficulty in relation to section 37(1)(a),namely the lack of clarity about exactly what is inherent in the exemption. Inadopting a literal reading of the exemption and a broad interpretation of theterm relates to, it is possible that a wide range of harm of differentsignificance could arise as a result of the disclosure of communications. Thisis because those communications could be on any topic. Similarly given thewide variety of topics that the Royal Family/Household may correspond aboutthe public interest in disclosure is also likely to vary significantly from case tocase.

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Whilst the distinction Coppel draws between official duties carried out atpublic expense and private correspondence is interesting it is important at theoutset to recognise that it may be difficult in some cases to establish in whichcapacity something is written or communicated. Moreover, it is likely to benecessary to consider widely drawn chilling effect arguments irrespective of

the capacity in which the individual is communicating.

However, although it may be difficult, as with any class based exemption it willbe necessary to determine based on the specific content and context of eachcase, which specific public interest arguments are relevant both for andagainst disclosure, to attribute weight to those factors and to balance them.

This guidance will now set out which interests the Commissioner considers tobe inherent in section 37(1)(a) and why there is a public interest is inprotecting them. It will also explain when particular factors are likely to berelevant and how to approach attributing weight and the balancing exercise

Factors in favour of maintaining the exemption:

Section 37(1)(a) covers any communication to or from members of the RoyalFamily and/or the Royal Household. There are some public interestarguments that are likely to be relevant in any case involving section 37(1)(a).However there are specific arguments regarding constitutional conventionsthat will not apply in every case but will be relevant in many involvingcommunications between the Sovereign and/or the Heir and the Government.These are addressed first below.

The first two public interest factors set out below relate to constitutionalconventions and are likely to be most relevant in cases involving centralgovernment departments and their executive agencies. They are unlikely toapply in relation to other public authorities because they deal conventionalrights afforded to the Sovereign and Heir to communicate with Government.However these arguments may still be relevant in some cases where a broadchilling effect argument is cited and evidenced.

1. Protecting the ability of the Sovereign to exercise her right toconsult, to encourage and to warn her Government and to

preserve her position of political neutrality Bagehotsconvention.

The British constitutional monarchy has evolved and developed overhundreds of years, as have the conventions associated with it and both willcontinue to do so. As Vernon Bogdanor has commented it is preciselybecause the conventions of the constitution depend ultimately upon the stateof public opinion that it is so difficult to determine with certainty at any onetime what they actually are. Many conventions, indeed, are unspoken ratherthan explicit.

Although conventions are not written or precise and can change over time, theCommissioner recognises that it is a well established principle that the Queen

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has the constitutional right to consult (or be consulted by) her Government,the right to encourage and the right to warn. This is known as Bagehotsconvention and describes the Queens right to have opinions aboutGovernment policy and to express them to her Government and for Ministersto seek input and take advice from the Queen in return. The Commissioner

understands that communications about a wide range of issues related to theexercise of her executive powers (the key ones are listed below and furtherdetail is available in Annex A) as well as other constitutional duties areexchanged by the Queen and the Government. This may includecommunications about activities undertaken to represent Britain to the rest ofthe world, receiving foreign ambassadors and making State visits overseas insupport of diplomatic and economic relations. The Commissioner accepts thatwhere communications regarding such matters are made between the Queenand Government they are done so under Bagehots convention.

To try and clarify when Bagehots convention may be relevant the key

executive powers retained by the Sovereign and about which she may seek orreceive advice are listed below.

Appointment of Prime Minister

Ordinarily the leader of the majority party will be appointed Prime Ministerfollowing a general election. In the event that no one party has an absolutemajority in the House the Queen will send for the leader of the party with thelargest number of seats or with the next largest. Alternatively, she would haveto initiate discussions with and between the parties to discover whether agovernment could be formed by a politician who was not a party leader orwhether a coalition government could be formed.

Dissolution of Parliament

The Sovereign may also dissolve Parliament and cause a general election tobe held. They would normally accept the advice of the Prime Minister andgrant dissolution when it is requested.

Royal Assent to legislation

As a constitutional Monarch, the Sovereign is required to assent to all Billspassed by Parliament, on the advice of Government ministers. The RoyalAssent (consenting to a measure becoming law) has not been refused since1707.

There is a public interest in preserving the ability of the Sovereign andGovernment to communicate about policies, given that the Sovereign is in aunique and neutral position. She can therefore act as a neutral soundingboard for the Prime Minister and by extension Government Ministers. AsSovereign and Head of the Commonwealth the Queen is exposed to a broadrange of individuals and issues and there is a benefit to her knowledge and

experience being imparted to the Government of the day. This can informpolicies and assist in the promotion of British interests at home and abroad. In

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the case of the present Monarch the longevity of service and thereforeexperience can be seen to give greater weight to this argument, though thiswill also be dependent on the topic(s) the requests ask about and theinformation in each case.

In his book Constitutional Practice, Rodney Brazier gives a number ofexamples of where the current and previous Monarchs have exercised theirrights under the convention. The official biography of George VI suggests theassistance and support he offered to Neville Chamberlain over the policy ofappeasement. In 1976 James Callaghan (Foreign Secretary) wascontemplating an approach to the regime that had made a unilateraldeclaration of independence in Rhodesia during 1965. He mentioned this tothe Queen during dinner and the following day her Private Secretary wrote toMr Callaghan offering the Her Majestys view that, despite the possibleproblems, this would be a worthwhile step2.

Given the powers that the Sovereign exercises and the duties carried out tofurther British interests at home and overseas, there is also an interest inensuring that she is fully informed about Government policy and issuesaffecting the nation.

There is a public interest in preserving the confidentiality of thecommunications exchanged when exercising the right to consult, warn and soas to preserve the political neutrality of the Sovereign. This is central to theoperation of a constitutional monarchy in a democratic society. There is apublic interest in ensuring confidence in that system and ensuring it canoperate effectively. As Brazier explains the Sovereign must exercise herconstitutional role impartially; she must be even-handed and colour-blind toGovernments of different political colours. Partisanship would lead toobjections from disadvantaged political parties and would in all likelihood leadto questions about the ongoing position of the monarchy. In particular it wouldcall into question the position of the Sovereign as a neutral umpire which theconstitution requires. This constitutional obligation is crucial when some of theexecutive powers are considered, for example the Sovereigns power toappoint the Prime Minister and the process in the event of a hung Parliament.

Whilst the Queen is not technically bound to accept and act on the advice of

her Ministers in effect she must do so to preserve the constitutional monarchyin its current state3. Advice is usually linked to exercise of the Sovereignsfunctions or executive powers. It is only on the basis that she accepts that inreality she is bound by the advice that the aforementioned conventional rights(and presumably the ongoing executive powers) can be welcomed andretained in a democratic system. If the Queen refused to accept formalministerial advice the result could be that either the government would resignor the Sovereign would abdicate. See for example, Edward VIII renounced the

2 Brazier Constitutional Practice (1994) page 186.3 The extent to which the Monarch is bound to act on advice is a point of considerable academic debate.

Geoffrey Marshall suggests that it is not as restrictive as some have suggested. For the purposes ofsection 37(1)(a) the Commissioner adopts the position that formal advice from Ministers is binding on

the Sovereign.

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throne in 1936 because of his Governments opposition to his marriage todivorcee Wallis Simpson. If information in a particular case exposed a refusalby the Sovereign to accept Ministerial advice this would be a very strongargument in favour of disclosure.

As the Sovereign is bound to accept the advice of her Ministers, they in returnaccept responsibility for what she says in public. Therefore, all but two of herspeeches are approved by Ministers in advance, the exceptions being theChristmas Day broadcast and the Commonwealth Day message. These tendto be more personal in nature, relate to the Commonwealth and not issues ofBritish Government policy. As a result they are arguably less likely to result inaccusations of partisanship.

In order for exchanges to be of most value it is important that the Sovereignand Government representatives can be free and frank when theycommunicate. The Commissioner recognises that there is an expectation of

confidence and that if communications were routinely released this would belikely to reduce the candour of recorded communications.

When is this factor likely to be relevant?

Protecting the convention will be relevant in most cases involvingcommunications between the Sovereign and Government regardingconstitutional functions or the exercise of executive powers as those will havebeen made under the convention. It is not only the communications sent bythe Sovereign that may be sensitive but also the responses or approachesfrom Government.

Where the information being withheld under 37(1)(a) is not acommunication/draft communication regarding such matters or it is notbetween the Sovereign or her staff and Government the convention will notimmediately be relevant. In practice, in the absence of any complaints and ofdetails in the public domain about the Queens communications, it is difficult todetermine to what extent any information exists which would fall outside theconvention. This is more relevant when considering the Prince of Wales aswill be explained further below.

It is important to recognise that even where the convention is not deemed tobe directly relevant it would still be appropriate to consider whether disclosureof the information in question is likely to have any chilling effect both in termsof candour and the recording of communications exchanged in the context theconvention. If the content of the information means that this argument hasmerit then preservation of the convention will still be a relevant factor.However the public authorities will need to fully explain why this is the casewith reference to the information in dispute. It is also worth highlighting thatwhilst the convention may not always apply in relation to the Sovereignscorrespondence there are likely to be other factors (explained further below)that may well be relevant and of significant weight.

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The Commissioner also understands that one of the Sovereigns officialfunctions is to confer honours and dignities. Whilst there is a specificexemption for material relating to the conferring of an honour or dignity, theCommissioner accepts that communications in relation to such matters willalso involve the exercise of the convention. Therefore section 37(1)(a) and

preservation of the convention may also be relevant in such cases.

2. Protecting the ability of the Heir to the Throne to be instructed inthe business of government in preparation for when he is Kingand in connection with existing constitutional duties whilstpreserving his own position of political neutrality and that of theSovereign

Section 37(1)(a) does not recognise the Heir as requiring explicit protectiondistinct from other members of the Royal Family. However the Commissionerrecognises that the Heir is in a different constitutional position to other

members of the Royal Family because he will one day ascend the Throne, hehas some powers similar, though not identical to those of the Sovereign, as aCounsellor of State and he undertakes some royal duties on behalf of theQueen.

Having examined Bagehots convention it is necessary to consider the distinctconvention that has been cited in relation to communications to and from theHeir to the Throne. This is the Heirs right to be instructed in the business ofgovernment and has been claimed by the public authorities as analogous toBagehots convention. The following section will set out the Commissionersview on the breadth of the Heirs convention in the light of the earliercomments regarding the Queen.

The public authorities claim that the Heirs convention is wide in scope andapplies to any exchanges between the Prince of Wales and Government,irrespective of the subject matter. The Commissioner considers that the Heirsconvention is the same in scope as the Sovereigns. It will therefore berelevant to some, though not all communications between the Prince of Walesand Government in the Commissioners view. It will be relevant in relation tocommunications between the Heir and Government regarding the exercise ofpowers, for example in his capacity as Counsellor of State or Privy Councillor.

These roles are explained further below.

The Prince of Wales supports the Queen by acting as a Counsellor of State(appointed under The Regency Act 1937). Counsellors of State act on behalfof the Sovereign in the event of illness or absence. The Prince of Wales hasbeen qualified to Act as a Counsellor of State since he was 18. Counsellorsfunctions must be exercised jointly and therefore as a matter of practice twoCounsellors act together. With several exceptions the Counsellors do jointlywhat the Sovereign can do alone4. This includes giving Royal Assent tolegislation and presiding at meetings of the Privy Council. Counsellors of

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Exceptions Counsellors cannot dissolve Parliament without the Queens express instruction or grantany title or peerage. They are usually prevented from assenting to any Bill altering the line of

succession, royal style or titles, or repealing legislation which secures the Church of Scotland.

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State do not stand in for the Queen at her weekly audiences with the PrimeMinister of the day. Counsellors of State are appointed in the event of theSovereign contracting an illness that was not so serious as to justify aRegency. The Prince of Wales would be Regent if the Queen were so ill thatshe could not perform royal functions or were not able to carry them out

because of any definite cause.

The Prince of Wales is also a member of the Privy Council and, as the Dukeof Cornwall, has the right to sit in the House of Lords. He has only spoken inthe House of Lords once in 1974 in a debate about leisure. Brazier suggeststhat the decision not to speak in the House since may be to ensure that thereare no suggestions of acting unconstitutionally, for example if any interventionwas to have impact on legislation or a speech was critical of Governmentpolicy.

It is questionable whether or not the Prince of Wales is bound by Ministerial

advice in the same way as the Sovereign. It is perhaps unlikely that any wouldin fact be offered given that the Heir does not have the same powers as theSovereign. However, given that he can act as Counsellor of State he couldexercise some powers on behalf of the Queen. In the event that advice wasoffered in this regard by Ministers the Commissioner will assume that thePrince would be required to accept it. This is on the same basis that if he wereto do otherwise he would call into question the position of the monarchy in amodern democracy. Therefore, as in relation to the Sovereign, if a casepresented evidence that the Prince of Wales had refused to accept advicefrom Ministers regarding the exercise of the executive powers that he is ableto carry out as Counsellor of State or the carrying out of official duties there islikely to be a significant public interest in the release of such information.

As has been mentioned earlier, conventions change and evolve over time. SirIvor Jennings set out the following test for determining the existence of aconvention. These elements are:

that there are precedents;that those involved in the precedents believed that they were bound bya rule; and there is a reason for it.

In reaching his view about the breadth of the convention the Commissionerhas considered the aforementioned test against the range of communicationsfalling within the exemption. He considers that all three criteria are met inrelation to the communications regarding the exercise of powers in thePrinces capacity as a Counsellor of State or Privy Councillor and aboutconstitutional duties, hence the narrow interpretation of the convention.

There are precedents for the exchange of communications between the Heirto the Throne and Government. Brazier points to the example of those likeGeorge V who have prepared themselves punctiliously. He highlights thatthe Queen has inducted the Princes of Wales into constitutional and

governmental affairs with his full co-operation. On the basis of the narrowinterpretation the Commissioner notes that all parties involved in those

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precedents appear to have believed that they were bound by the convention,i.e. the need to engage and to keep the content confidential. This is evidencedby the ongoing communications on both sides and the absence of publicstatements about the content. The reason for the rule is to ensure that theHeir is properly prepared for the time he will become King and for carrying out

existing duties as well as to preserve his position of political neutrality.

There is a public interest in ensuring that the Heir to the Throne is properlyprepared for his accession. It is important to preserve the space in which hecan correspond with Government regarding matters related to the exercise ofconstitutional powers and the fulfilment of official duties. For example, it isimportant that free and frank exchanges with Government can take place withGovernment relating to official Royal visits undertaken by the Heir on behalf ofthe Queen, so that British interests can be preserved and the decisions of theGovernment regarding international diplomacy are accurately represented. Itis also important that issues of importance to Britain that come to the attention

of the Heir when carrying out such duties can be openly communicated backto Government. Furthermore there is a public interest in ensuring that the Heiris able to continue working on behalf of the Queen in furtherance of Britishinterests overseas.

As with the Sovereign there is a public interest in ensuring that the politicalneutrality of the Heir is not undermined given that he will become King. Wherethe disclosure of information would harm that position because it may bemisconstrued as political partisanship there is a public interest in avoiding thatharm. This would undermine the confidence in the monarchy within ademocratic society. However if the information were to reflect politicalpartisanship then this would constitute a strong argument in favour ofdisclosure.

Whilst the Commissioner accepts that the convention will apply tocommunications as mentioned above, it is publicly acknowledged that thePrince of Wales writes frequent and sometimes lengthy letters to Ministers toraise issues of concern to him connected with his charities or the work heviews as protecting and promoting. The Commissioner does not accept thatcommunications in these categories are covered by the convention.

Whilst the Royal Family has been involved in supporting the work of charitiesfor many years, the Prince of Wales has developed this to includecommunicating with Ministers on behalf of or in relation to his charities. Hehas also decided to carve out a role for himself communicating withGovernment as part of what he terms his promoting and protecting role.

Applying Jennings test there appears to be a lack of precedent in relation tosuch communications independent of the Prince of Wales. This isunderstandable given that these are aspects of his role that the presentPrince of Wales has developed. In the Prince biography by JonathanDimbleby he is quoted as saying my great problem in life is that I do not

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really know what my role in life is. At the moment I do not have one. Butsomehow I must find one5.

The Commissioner does not accept that a convention can be establishedsimply by virtue of a member of the Royal Family deciding that they have a

right to communicate in this way and that the Government is required torespond. Whilst the Prince of Wales may consider this part of his role and theGovernment may have accepted it, there is no evidence to demonstrate whyeither party considered themselves bound by a rule to engage in this wayfrom a constitutional point of view. Furthermore it is not required of him as theHeir and therefore the Commissioner does not accept that there is a clearreason for the convention to encompass such communications.

However the fact that the convention does not apply to all communicationsdoes not however mean that those not afforded its protection do not fall withinthe exemption. Nor does it mean that there are no arguments in favour of

protecting such communications. Other arguments which may be relevant areset out further later.


It will be relevant in relation to communications undertaken as part of the rolesof Counsellor of State and Privy Councillor and to those related to theundertaking of official duties in support of the Queen as described above. It isalso likely to be relevant where correspondence relates to issues raised withGovernment as a result of formal Royal visits or in the Heirs capacity as asenior military figure. It can also be seen to apply where communicationsrelate to the carrying out of official ceremonial duties. Obviously it would alsocover communications/correspondence passed to the Prince of Wales by theQueen as part of the process of preparing him for accession.

As with the Sovereign, where correspondence does not fall within thecategories set out above but disclosure would have a chilling effect on thecandour or recording of communications exchanged in the context of theconvention, preservation of the convention will still be a relevant factor.However the public authorities will need to fully explain why this is the casewith reference to the information in dispute.

3. Protecting the ability of the Sovereign and the Heir tocommunicate openly regarding their work with charities/ascharitable entrepreneurs, including with Government

Whilst the conventions outlined previously do not, in the Commissioners viewapply to communications with the Sovereign or the Heir regarding theircharities, they nevertheless fall within section 37(1)(a). Moreover theCommissioner considers that a separate public interest argument in favour ofprotecting the ability of the Sovereign and the Heir to communicate openlyabout their work in this area, including with Government, is inherent in this

exemption.5 Dimbleby J (1994) The Prince of Wales page 358

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For many years the Royal Family has worked to support charities andencourage voluntary work. The Queen has over 600 patronages and the Dukeof Edinburgh has 700. The Prince of Wales has developed his own public roleto include acting as a charitable entrepreneur. Since the establishment of The

Princes Trust in 1976 he has founded or become President of 16organisations which focus on homes and communities, health, education,work, the environment and the arts. In addition to his core charities the Princeis also President or Patron of 352 other charities. According to his website he,together with his wife seeks to use his position to make a difference for thebetter in the United Kingdom and internationally.

The Commissioner recognises that there is a public benefit in the work thatthe Royal Family and particularly the Queen and the Prince of Wales do forcharities. In 2005 the Prince helped to raise 109 million to support the workof his various charities. He accepts that in order to represent and promote

their charities there is a need for members of the Royal Family to interact withGovernment. Many of the charities they are involved with issues related to orinfluenced by Government policy. The Commissioner also recognises that, theconstitutional position of the Sovereign and the Heir means that they mustremain politically neutral and appear to be so. He accepts thatcorrespondence dealing with issues their charities are tackling couldsometimes be misconstrued as politically partisan. Therefore they need tocommunicate confidentially with Government to avoid any harm to theirposition.

The Commissioner is satisfied that there is a public benefit derived from thework done by charities associated with or established by members of theRoyal Family. This is in part due to the input members of the Royal Familyoffer, including by way of raising issues and garnering support viacorrespondence with the Government. The Commissioner recognises thatthere is a public interest in preserving the ability of the Royal Family tocontinue to enter into communications related to their charities in a free andfrank manner.

In cases relating to the Prince of Wales it will be appropriate, when assessingthe public interest in disclosure, to take into account the fact that much of the

public concern regarding his interaction with Government has involvedcommunications regarding his work with charities. This is in view of the factthat many of them deal with issues affected by the Governments policydecisions. The Princes decision to engage with Government on issues thatraise questions about his role and the influence he has exerted is likely insome cases to increase the weight that should be attributed to arguments infavour of disclosure.

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Where will this factor be relevant?

This factor will be relevant where communications with the Royal Family/Household relate to the work they undertake on behalf of or in relation to the

charities they have established or agreed to represent. Where the informationis free and frank, the chilling effect on correspondence of this nature is morelikely to be of significant weight. Similarly this will be the case wheredisclosure may lead to the content of a communication being misconstrued aspolitically partisan.However, when considering this argument, the Commissioner would besceptical of accepting a claim that the disclosure of any material in thiscategory would result in a lack of candour in the future. It will be necessary togive careful consideration to the content of the material in question andconsider how free and frank it is as well as the timing of the request.

In cases related to the Prince of Wales although careful regard should be hadfor concerns about political neutrality it will also be necessary to consider thefact that he is a committed charitable entrepreneur who may not be too readilydissuaded from communicating with Ministers about matters of concernregarding the causes he supports. This will involve a careful judgement basedon the content of the information. When determining what, if any, weightshould be attributed to this argument it will be appropriate to take into accountwhat information is already in the public domain. In doing so, it will beimportant to differentiate between circumstances where the existence andcontent of the correspondence is known and those where the Princes viewsare public but the nature/content of any correspondence is not.

4. Preserving the political neutrality of the Royal Family andparticularly the Sovereign and the Heir to the Throne to ensure thestability of the constitutional monarchy

The need to preserve the political neutrality of the Sovereign and the Heir ispart and parcel of the arguments in favour of protecting the conventions. It isalso a consideration when looking at communications they exchange inrelation to the work of their charities. However, it may also be a factor in itself

in cases where the previous factors are not relevant. It could apply tocommunications from or to any member of the Royal Family. All members arerequired to remain politically neutral, primarily to protect the position of theSovereign. However in practice it is most likely to be relevant in relation tocommunications to or from the Sovereign or the Heir (or those made on theirbehalves). The explanation as to why there is a public interest in preservingthe political neutrality of the Sovereign and Heir has been addressed inrelation to the first two factors above and is not rehearsed again here.

Where it is deemed that the disclosure of the information would call intoquestion the political neutrality of the Sovereign or the Heir this is likely to be

an argument worthy of considerable weight, though the content of theinformation will be determinative when assessing the severity, extent and

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frequency of any such harm. There is likely to be a significant public interest inmaintaining the exemption where the information would lead to accusations ofpolitical partisanship. If there was clear evidence of partisanship and inrelation to a matter of major public importance then the public interest mayfavour disclosure but this is likely to be exceptional.

When is this likely to be a relevant factor?

It is difficult to predict where this is likely to be relevant for most of the RoyalFamily or the Royal Household. However it may be relevant in some casesrelated to communications from or to the Prince of Wales (or those written onhis behalf) in relation his work under the banner Protecting and Promoting.

The Princes website describes this aspect of his work as something that hehas developed as a means of making a difference and using his position as acatalyst for change and to generate debate. It includes helping to ensure that

views held by many people which otherwise might not be heard receive someexposure. The Prince does this through letters to and meetings withGovernment Ministers and other people of influence, by giving speeches,writing articles and participating in television programmes.

It is precisely because the Prince has opted to pursue certain issues that areclosely related to matters of public policy such as organic farming andaffordable rural housing, that the disclosure of correspondence may in somecases call into question his position of political neutrality. The content of theinformation will need careful consideration to assess whether its disclosurewould result in such speculation.

It will be appropriate to assess the degree to which information would harmthe Princes position of political neutrality and/or whether disclosure of hiscommunications would call into question the Sovereigns position. Informationwhich would undermine the Sovereigns position is likely to be most deservingof protection. The fact that there is little information in the public domainregarding the Queens communications and that she only speaks publicly onmatters affecting public policy on the advice of Ministers also demonstratesthe importance of preserving her neutrality.

However, the Prince of Wales is in a slightly different position. It is acceptedthat he must remain neutral because he will become King. However he is notcurrently in the same position as the Queen. This distinction has been used toexplain why it is possible for him to make public his personal views on mattersrelated to public policy. Whilst he is careful to submit many of his speeches toMinisters for their consideration in advance of speaking out, the fact remainsthat he nevertheless feels able to make his views known.

The Princes public statements have been a matter of considerable publicconcern and have resulted in questions about how this accords with theposition that he is in as Heir. The fact that the Prince of Wales has written to

Government about matters of public policy and that he has spoken aboutthem on public platforms was addressed by his Principal Private Secretary. In

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response to a critical television documentary Sir Michael Peat wrote a letter toChannel 4. In rebutting the suggestion that the Princes interference in policymatters could lead to a constitutional crisis when he becomes King heexplained that,

It hardly needs saying that The Prince of Wales, of all people, knows that therole and duties of the Heir to the Throne are different to those of theSovereign and that his role and the way he contributes to national life willchange when he becomes King. In other words it is misconceived and entirelyhypothetical to suggest that problems will result if The Prince of Wales fulfilshis role in the same way when King. He will not.

In the Commissioners view, by the same token it may be possible now tomake some of his communications public without harming his position. Thismay not be the case in the future. Therefore when deciding whetherinformation would harm the Princes position of political neutrality it will be

relevant to consider what, if any, information has already been made publicabout his views on a particular matter. It will then need to be compared withthe disputed information to reach a view on whether the content is eitheralready known or would reveal anything particularly sensitive in this regard.

5. Protecting the privacy and dignity of the Royal Family

Given the Commissioners broad interpretation of the exemption he acceptsthat another factor inherent will be protecting the privacy and dignity ofmembers of the Royal Family. Given that the lives of the Royal Family aresubject to a significant amount of public scrutiny protection of their privacy willrequire careful consideration.

The Commissioner accepts that there is a public interest in protecting thedignity of the Royal Family so as to preserve their position and ability to fulfiltheir constitutional functions and their role as a unifying symbol for the nation.Moreover there is a public interest in ensuring that they are able to expresspersonal views about matters of significance to the Government in private aswould be the right any other person.


The Commissioner accepts that communications written by members of theRoyal Family are likely to contain their personal views and disclosure of suchinformation may be intrusive. Similarly some correspondence written on theirbehalf will also reflect their personal opinions. The degree of infringement willbe dependent on the content of the information in question.

Generally the disclosure of views, opinions or details expressed by a memberof the Royal Family about their private family life will constitute a considerableinfringement of privacy. Moreover the public interest arguments in favour ofdisclosure may well be of more limited weight than in those cases involving

communications about their public role. The Commissioner has already madea decision in relation to a case involving correspondence about

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correspondence from Diana, Princess of Wales where he upheld that thepublic interest in preserving the Princess privacy. See paragraphs 33 and 34of Decision Notice FS50142320.www.ico.gov.uk/upload/documents/decisionnotices/2009/fs_50142320.pdf.

It will be important to think about the nature of the information in question andthe context of the communication when thinking about privacy. The Prince ofWales took the Associated Newspapers Limited to court for breach ofconfidence following the publication of his personal journals and it was heldthat there was an expectation of confidence in relation to those documentsdespite the fact that he shared them with 50 members of his family and staff.In reaching the decision the Judge commented that although the Prince is apublic figure he still has a right to privacy. In his view there was a reasonableexpectation of privacy in relation to journals detailing a personal experience oftravels around the globe, albeit that these may have been funded by thepublic purse and involved official duties. [A3/2006/0082/CHANF]

The Commissioner would distinguish between the above example and casesinvolving communications and particularly letters from the Prince of Wales tothe Government in which he seeks to highlight concerns he has regardingpublic policy. Whilst the contents of such a communication will still be key todetermining the level of intrusion, he takes the view that a journal is moreinherently private in nature. In contrast he considers that there must bedifferent expectations and interests in letters which focus on matters of publicpolicy or issues relating to a particular charity. Furthermore whilst the viewsexpressed in the Princes correspondence may be personal ones, it remainsthe case that he is seeking to use his position and influence to prompt debateand to shape matters of public policy. There is likely in some cases to be asubstantial public interest in exposing such information albeit that there mayalso be some significant intrusion.

Public interest in disclosure.

The public interest arguments in favour of disclosure that apply in most casesare likely to be relevant here and there is no need to rehearse them here.Specific arguments that may arise could include:

Understanding the roles and responsibilities of the Royal Family

Enabling the public to understand the influence exerted by members ofthe Royal Family on matters of public policy

Furthering public debate regarding the operational of the constitutionalmonarchy and particularly the role of the Heir

Informing public debate surrounding reform and the alternative of arepublic

Ensuring public confidence in the decisions of government

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However, it will be important to remember the following:

When arguing that disclosure of the information would inform public debate orreveal how the government has made a decision, i.e. the input it has had fromthe Royal Family make sure the content of the material in question would in

fact have this effect. In the Prince of Wales cases against AssociatedNewspapers, the Judge made the point that whilst the press had madevarious arguments as to why there was a public interest in publishing hisjournals, the contents of the Hong Kong journal did not support those claims.

Arguments in favour of disclosure are often made on the basis that theinformation would reveal some sort of inappropriate communication or attemptto influence. The public interest in disclosure can also have weight where theoutcome would be to reveal something positive or would allay concerns.

Balancing the public interest

Anodyne information should be disclosed

In DfES v the Information Commissioner & the EveningStandardthe Tribunalcommented that the term relates to could safely be given a broadinterpretation because as the exemption was qualified public authorities arerequired to adopt a common sense approach to the disclosure of anyinformation which caused no, or no significant damage to the publicinterest. (para 53). The scope of section 35 is arguably broader than section37(1)(a) and can cover a wider range of information. Nevertheless theinformation that relates to communications with the Royal Family or theRoyal Household is still relatively broad. It can include communications ofmany different types that contain information of varying degrees of sensitivity.The Commissioner will adopt the same approach as the Tribunal whereinformation is anodyne and can be found to have little or not impact on any ofthe factors he considers to be inherent in section 37(1)(a).

Conventions

The Commissioner will accept that where either Bagehots convention or theright to be instructed in the business of Government is relevant there is an

inherent public interest in preserving those conventions. As such the publicinterest in maintaining the exemption is likely to command significant weight.Though it is worth noting that arguments in favour of disclosure, where theinformation concerns the fulfilment of a public role at public expense, may stillbe worthy of significant weight.

In adopting this approach the Commissioner notes the comments of MrJustice Blake in the case ofHM Treasury v Information Commissioner[2009]EWHC 1811. In that case the exemption in section 35(1)(c) that relates toadvice given by the law officers was considered, together with argumentsabout the associated convention that the existence of such advice is never

revealed by Government. When exploring the general issue of conventionsthe judge referred to John McEldowneys Public Law. This stated that, it is a

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mistake to confine the discussion of conventions to merely good politicalpractices and thereby beyond constitutional significance. Although unwrittenin form and unclear in existence, they offer important guidance over thebehaviour of government.

In the aforementioned case the Mr Justice Blake accepted that there was nogeneral presumption of a public interest in non-disclosure in section 35 as awhole. However he took a different decision in relation to section 35(1)(c). Heargued that the decision to include a very specific subsection reflecting thewell established convention regarding law officers advice justified anassumption against disclosure (see para 39). Whilst section 37(1)(a) includesno specific references to the conventions the Commissioner considers that, inview of his narrow interpretation of them, it is appropriate to accept anassumption against disclosure where they are deemed relevant.

Other

In relation to the remaining arguments the Commissioner considers that thescales will start equal and that the assumption in favour of disclosure insection 2(2)(b) will apply.

Where the information is likely to be harmful to the Sovereign the publicinterest arguments in favour of maintaining the exemption are likely to besignificant. Whilst it will still be possible for the balance to fall in favour ofdisclosure, the information will need to warrant significant weight beingattributed to the arguments in support of this outcome.

Similarly where the disputed information relates to the Prince of Wales it willbe important to give weight to the fact that he is also in a unique position asHeir to the Throne and that he could become King at any point. However, insome cases involving the Prince of Wales, there are likely to be arguments infavour of disclosure that deserve considerable weight, given the degree ofpublic debate and concern about the basis on which he interacts withGovernment about matters of public policy. These cases are likely to be finelybalanced.

Timing

As with any case involving the public interest test, the timing of the request islikely to be a key factor when deciding what weight to attribute to thearguments in favour of maintaining the exemption. In general terms the morerecent the communication the more likely it is to be sensitive. This isparticularly true if communications about the topic or issue are ongoing.

The public authorities have argued that because the members of the RoyalFamily remain in post for life the sensitivity of information is unlikely todecrease over time. The Commissioner rejects this general argument andwould expect more specific arguments in relation to the impact of the timing of

the request on the factors on either side of the scale. Support for rejecting thisgeneral argument can be taken from section 63 of the Act. This states that

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section 37(1)(a) will not apply to information in a historical record i.e. one thatis over 30 years old. If the sensitivity of information in this class did notdecrease over time it is unlikely that section 37(1)(a) would have been dis-applied in this way.

Section 37(2)

The same factors as have been previously set out will be relevant whenconsidering cases involving section 37(2). When determining which of thefactors is relevant it will be appropriate to consider what type of informationwould fall within the request, whether or not it is actually held.

Where it is difficult to determine which factors will be relevant it may benecessary to probe the public authority further about what information wouldbe within the scope and potentially to obtain a sample of the information.

The nature of the request and what the confirmation or denial would revealwill be important. As a general rule the more specific a request the moreinformative the confirmation or denial is likely to be but also the more harmful.For example a request for any correspondence between the Prince of Walesand the Cabinet Office is unlikely to be sensitive if there are no identifiedtimescales or topics specified. In contrast where a request asked for anycommunication in which the Prince of Wales argued in favour of a particularapproach to policies on organic farming would clearly by more sensitivebecause it would reveal to some degree the content of any relevantcommunication.

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Annex A

Royal Prerogative powers

The legislature dissolution of parliament, granting royal asset to bills, letterspatent

The Judicial system pardoning of convicted offenders or remitting orreducing sentences

Foreign Affairs the making of treaties, the declaration of war and making ofpeace, issuing of passports.

The Armed Forces Commander in Chief, control, organisation anddisposition of the armed forces

Appointments and honours appointment of ministers, judges, conferring ofhonours

Immunities and privileges the personal immunity of the Sovereign frombeing sued

In times of emergency requisitioning of ships

Miscellaneous powers relating to Royal Charters, mining precious metals,coinage, guardianship of infants.

internal ico guidance - section 37 version 2.0

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