IN THE UPPER TRIBUNAL EA/2010/0014 et al

Evans v Information Commissioner

APPELLANT’S SKELETON ARGUMENT

For hearing: 14th September 2010 (4 days).

The appellant considers that 3 days will be sufficient.

There are 6 hearing bundles. References in square brackets are to Bundle/Page unless otherwise
indicated. The suggested essential pre-reading for this appeal comprises (a) the skeleton arguments
and (b) the Decision Notice in relation to DBIS [1/32]. References in the form (DN§1) are to the
paragraphs of that DBIS Decision Notice [1/32].

PART I. INTRODUCTION

1. The question in these important appeals is whether correspondence between

HRH the Prince of Wales (“the Prince”) and Government Departments, and
lists scheduling that correspondence, have properly been regarded by the
Commissioner as being exempt from disclosure under the Freedom of
Information Act (“FOIA”). The central issue really comes to this. In the case of
correspondence which involves the Prince’s well-known advocacy activities
(see §§27-53 below), do the various public interest factors favour (i) disclosure
(transparency) or (ii) non-disclosure (secrecy)? The Commissioner said (ii). But
the right answer is (i), and the appeals should therefore be allowed.

2. These are linked appeals under FOIA section 57(1), by an award-winning

Guardian journalist (Evans §2) [3/2]. He had made requests in April 2005 to
some 7 central Government authorities, for disclosure of correspondence
between the Prince and departmental ministers (between 1 September 2004 and
1 April 2005), and of lists and schedules relating to that correspondence. On 15
December 2009 the Commissioner upheld the Departments’ claims to invoke
exemptions against disclosure. The 142-paragraph Decision Notice (DN§§1-
142) in the case of the Department for Business, Innovation and Skills [1/32]

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 encapsulates the essence of the Commissioner’s decision-making analysis and
so is a convenient focus for the analysis in this skeleton1.

3. The correct approach to an appeal under FOIA s.57 is as explained in Guardian

Newspapers Ltd (EA/2006/0011 & 0013) at §§14-23. The exercise is not akin to
judicial review. The Tribunal’s starting-point is the Decision of the Notice of the
Commissioner, but the Tribunal can review the Commissioner’s findings of fact
and reach its own factual conclusions based on the whole of the material before
it. The Tribunal must consider the correct application of the statutory
provisions to the facts as found. When addressing the public interest (s.2(2)(b))
the Tribunal is considering a question of fact, not law or discretion, and will
reach its own view as to where the balance lies.

4. The Tribunal has a list of 17 issues from the Respondent and Additional Parties.
The Appellant had suggested that a simplified list might be of greater
assistance to the Tribunal and his suggested list is annexed to this skeleton in
case the Tribunal finds it a helpful reference point. What matters is to deal with
the substance of the case which the Appellant will do in this skeleton argument
in what is intended to be an orderly and logical sequence.

5. The Commissioner’s central conclusions were two-fold. First, he upheld a

claimed exemption under FOIA section 41 (DN§§24-92), on the basis that
disclosure would be an actionable breach of confidence, in relation to material
obtained in confidence (DN§§71 & 92). That exemption was held by the
Commissioner to be applicable to all letters written by the Prince (DN§27), but
only to those letters written to him containing content reflecting the actual
views or opinions which he had raised (DN§§32-34). There would, in the
Commissioner’s view, be no public interest defence to a posited action for
breach of confidence (DN§92). Secondly, as to the rest of the correspondence
(DN§§93, 99), the Commissioner upheld a claimed exemption under FOIA
section 37 (DN§§93-127), which applies to correspondence with members of the
Royal Family. There, in the Commissioner’s view, the public interest favoured
the withholding of the information from disclosure (DN§§126-127).

1
The Decision Notices in DBIS and DCSF [1/66] concerned FOIA only. The 5 other cases also involved
consideration of the EIR.

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6. Public interest considerations were at the heart of the Commissioner’s analysis.
In relation to section 41, the Commissioner applied the balancing exercise
(DN§81) necessary to decide whether a public interest defence would arise to
prevent a finding of breach of confidence. He held (DN§92) that there would be
no public interest defence. In relation to section 37, he applied the section 2(2)
(b) public interest test applicable in the case of a qualified exemption (DN§100).
He held (DN§§126-127) that the public interest favoured maintaining the
exemption. Section 40 is the subject of issues 1-7 of the Respondent’s List of
Issues and section 37 is issue 8.

7. One difference between sections 41 and 37 concerned onus. Under section 41

(public interest defence) the public interest in disclosure had to be shown by
the appellant to outweigh protection of the information (DN§80). Under section
37 (qualified exemption: public interest balance) the public interest in
withholding had to be shown by the public authorities to outweigh disclosure
of the information (DN§100). Unsurprisingly, the public interest considerations
were closely similar under both limbs of the case and the outcome did not turn
on onus. Nor is the outcome of this appeal, either way, likely to turn on onus or
classification. That point holds for the third exemption now relied on by the
Respondents, namely section 40 (issue 9 in the Respondent’s List of Issues). The
Appellant does not object to that point being raised, the Tribunal’s jurisdiction
being flexible (see King (EA/2007/0085) at §§53-56) and it being important on
all sides to deal with the substance of the matter and get to the legally correct
conclusion. There are additional points in the case, which arise depending on
the analysis of the main issues under the main provisions. These include
arguments relating to (a) environmental information (Environmental
Information Regulations) and (b) lists and schedules. It seems fair to say,
however, that all paths lead ultimately to the public interest and a balancing of
the competing considerations. The Commissioner concluded that a blanket
protection from disclosure was justified. The critical question is whether that
was right.

8. The ‘four corners’ of the Commissioner’s public interest analysis were the
following four linked, key features: (1) an ‘exceptionality’ test; based on (2)
‘truly personal’ content; and (3) public interest detriment; not outweighed by
(4) public interest benefit. Each is challenged on these appeals, in what is a
root-and-branch attack on the result and approach favoured by the
Commissioner (see Grounds of Appeal 2-5 [1/284-290]). The position, by way of
introduction, is as follows.

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9. The first key feature was the ‘exceptionality’ test. The Commissioner’s self-
direction in law was that “disclosure of such information would require an
exceptional set of public interest arguments” (DN§91), the requirement being for “a
very strong set of public interest arguments” (DN§86, §87), so that “the content ...
[must] present an exceptional reason or reasons for the information to be disclosed”
(DN§92). This approach was articulated expressly only in relation to section 41.
However, it was said to be a reflection of applicable principles under ECHR
Article 8 (DN§§69-70), and the Commissioner’s views as to privacy and dignity
appeared to carry across into the public interest balance under section 37
(DN§108), though the ‘exceptionality’ test was not explicitly repeated.

10. This ‘exceptionality test’ approach is challenged in Ground 2 of the grounds of

appeal, that the Commissioner “applied the wrong test”. In a nutshell, “the
Commissioner set the threshold too high when asking whether the public interest in
disclosure was sufficient to outweigh the privacy/ confidentiality of the information”
(Notice of Appeal §§17-20, especially §20) [1/284-285]. This point is framed as
issue 2(i) in the Respondent’s List of Issues. Submissions are developed at §§64-
67 below.

11. The second key feature (see §8 above) was the ‘truly personal’ content. This
was the finding that was held to trigger the ‘exceptionality’ test (see §9 above).
The Commissioner had held that disclosure “would place in the public domain
details of The Prince of Wales’s views and opinions on a number of issues”, which he
said “would amount to an invasion of his privacy” (DN§70). The Commissioner
accepted that “in cases where the information is of a commercial nature”, he would
“follow the lead of the Tribunal [in the Derry and LRT cases] in that no exceptional
case has to be made for disclosure” (DN§85). However, the factor said to justify the
invocation of the ‘exceptionality’ test here was that “the information is of a private
and personal nature”, meaning relating to (a) “intimate personal or family life”
rather than (b) “public and professional life” (DN§86). The reason why this case
was held to be on the “private” side of this line (ie. (a)), was because of the
Prince’s “unique position” and the “significant overlap” between his “public role as
Heir to the Throne and a senior member of the Royal Family” and his “private life”,
the two being “inextricably linked” (DN§87). The Commissioner explained what
he meant, namely that the Prince “only occupies such [public] positions because of
the family into which he was born” (DN§87). Here, privacy and dignity carried
through into the public interest balance under section 37 (DN§§108, 124).

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12. This ‘truly personal’ content approach is challenged in Ground 3 of the
Grounds of Appeal, that the Commissioner “wrongly attached a constant (and
excessively great) weight to the Prince of Wales’s rights under Article 8”. In a
nutshell, this was not information of “truly personal content”, nor of “significant
intrusion”, nor of information “more private than public” (Notice of Appeal §21)
[1/285-287]. The point is repeated in respect of section 37 (see Ground 6) [1/290].
This point is framed as issues 2(ii) and (iii) in the Respondent’s List of Issues.
Submissions are developed at §§68-74 below.

13. The third key feature (see §8 above) was the ‘public interest detriment’. The
Commissioner identified an intrusion into matters “of a private and personal
nature” (DN§§86-87), alongside which were “additional arguments ... in favour of
non-disclosure” (DN§88). Those additional matters concerned (i) harm in
relation to a constitutional convention, said to be accompanied by (ii) a weighty
expectation of confidentiality and (iii) a need for apparent political neutrality.

14. The constitutional convention was in respect of “information which relates to The
Prince of Wales being educated in the ways and workings of government” (DN§67).
The relevant public interest was “a significant public interest in the ensuring [that]
the convention that the Heir to the Throne can be instructed in the business of
government is not undermined” (DN§89). The convention was said by the
Commissioner to be a weighty matter (DN§110), requiring freedom and
frankness (DN§119) and in which a “chilling effect” would be detrimental
(DN§126). He accepted that a “chilling effect” even outside the scope of the
constitutional convention was a matter to be given some weight, albeit less
weight (DN§§121-122).

15. As to a weighty expectation of confidentiality, the Commissioner held that the

recognised “constitutional convention” carried “an explicit (and weighty)
expectation that such correspondence would be confidential” (DN§66). The
protection of the constitutional convention was a weighty matter (DN§110). But
the Commissioner also upheld a weighty expectation” which went beyond “such
information”. He found that even in respect of communications which “do not
fall within [the Commissioner’s] interpretation of the convention, there is still as
weighty expectation that such correspondence will be kept confidential” (DN§68). The
Commissioner gave two reasons for broadening the “weighty expectation” in this

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 way, to apply beyond the reach of the convention. First, that “the established
practice [was] that communications between The Prince of Wales and government
ministers have not been disclosed or commented on by either party”. Secondly, that
the Government’s “position” was that “all correspondence ... falls within the scope
of the convention” (DN§68), albeit that this was a view which the Commissioner
had rejected as wrong (DN§67): “this convention cannot be interpreted so widely”.
By this reasoning, the disclosure of any correspondence was held by the
Commissioner (DN§89) to be damaging to the constitutional convention (“a
significant public interest in ... ensuring [that] the convention ... is not undermined”)
and the accompanying (and expanded) weighty expectation of confidentiality
(the “weighty public interest in maintaining confidences”). As for appearances of
political neutrality, the Commissioner added that “it would clearly not be in the
public interest if the Heir to [the] Throne and future Monarch appeared to be politically
partisan” (DN§89). That was a reference to the Government’s arguments
(DN§51) that routine disclosure of correspondence between the Prince and
Ministers would mean “His Royal Highness’ political neutrality would be put at
risk”.

16. This approach to public interest detriment is challenged in Ground 4 of the

Grounds of Appeal, that the Commissioner “attached excessive weight to the
arguments in favour of withholding the information”. In a nutshell, the
Commissioner “overestimated the extent to which disclosure would undermine the
constitutional Convention ..., compromise the perception of political neutrality, and
have a chilling effect on the communications between the Prince and government”
(Grounds of Appeal §22, also §§23-26). The point is repeated in the context of
section 37 (Ground 6). This point is framed as issue 3 in the Respondent’s List
of Issues. Submissions are developed at §§75-95 (also §§52-58) below.

17. The fourth key factor in the analysis (see §8 above) was the public interest
benefit. The Commissioner identified “a number of public interest arguments in
favour of disclosure” (DN§90). They were repeated in the context of section 37
(DN§125). These were arguments which “touch directly on many, if not all, of the
central public interest arguments underpinning the Act” (DN§90). Those FOIA-
underpinning public interest arguments involved “ensuring that public
authorities are accountable for and transparent in their actions; furthering public
debate; improving confidence in decisions taken by public authorities”. There were
also “specific arguments relevant to this case in relation to The Prince of Wales
relationship with government Ministers” and which “deserve[] to be given particular
weight” (DN§90). These public interest benefits had been summarised earlier in

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 the determination (DN§§74-59). They were held not to satisfy the
Commissioner’s ‘exceptionality’ test (DN§91), not to outweigh the interests and
expectations of privacy in the context of ‘truly personal’ content (DN§§86-87)
nor the additional public interest arguments (DN§89). They were later held, in
the context of section 37, to be outweighed by the public interest arguments in
favour of non-disclosure (DN§§107-127).

18. This approach to public interest benefit is challenged in Ground 5 of the

Grounds of Appeal, that “the Commissioner attached insufficient weight to the
arguments in favour of disclosure”. In a nutshell, there was a “strong and legitimate
public concern that the Prince engages in lobbying and that his views may have an
inappropriate or disproportionate effect on government policy and/or government’s
handling of specific issues” (Notice of Appeal §27) [1/289]. The point is repeated
in the context of section 37 (Ground 6) [1/290]. This point is framed as issue 4 in
the Respondent’s List of Issues. Submissions are developed at §§96-101 below.

PART II: CONTEXT

Educating the Heir to the Throne

19. As has been seen (§§13-15 above), there is a constitutional convention which is
at the heart of this case. It relates to the Heir to the Throne. It involves
communications between Government and the Heir to the Throne for a
particular purpose. That purpose is educating the Heir to the Throne in the
ways and workings of Government (§14 above). So, this is “the convention that
the Heir to the Throne is instructed in the business of government in preparation for
the time when he will be King” (Allan §4 [4/2]). And that kind of communication
is said to need to be “conducted in strictest confidence” (Allan §4).

20. This constitutional convention is the essential underpinning for withholding

the correspondence: see the Information Commissioner’s Response §46 [1/306].
What is invoked is a public interest in non-disclosure which is said to apply
where documents are “squarely within the scope of the Constitutional Convention”:
see Information Commissioner’s Response §47.1 [1/306] (referring to Scotland
Office v Information Commissioner (EA/2007/0128) especially at §78).

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21. The Government’s position in this case has been that this constitutional
convention applies to all correspondence between the Prince and the
Government. As the Commissioner recorded (DN§68):

... it is the Commissioner’s understanding that the public authority’s

position is that all correspondence The Prince of Wales exchanges with
government ministers falls within the scope of the convention ...

That is the position which is maintained on this appeal. Mr Allan states the
view that the correspondence in its entirety “directly concerns the constitutional
convention that The Prince of Wales should be educated in and informed about the
business of government” (Allan §33 [4/11]). The convention is where the
suggested expectation of confidentiality and public interest protection come
from: “it is important for The Prince of Wales to correspond with Ministers as part of
the constitutional convention I have described” (Allan §31 [4/10]). Professor Brazier
agrees (see §53 below).

22. The Commissioner, however, did not accept that the convention was all-
encompassing in its scope. As he put it (DN§109)2:

... the Commissioner believes that the scope of the constitutional convention
in respect of the Heir to the Throne is relatively narrow. That is to say it will
only cover correspondence in which The Prince of Wales is in fact being
educated in the ways and workings of government ...

Similarly (DN§67):

... the Commissioner wishes to clarify his position in relation to the scope of
the constitutional convention provided to the Heir to the Throne. In the
Commissioner’s opinion given that the purpose of this convention is to
allow the Heir to the Throne to be educated in the ways and workings of
government, the only information which will attract the protective
confidentiality of this convention is information which relates to The Prince
of Wales being educated in the ways and workings of government.

2
Underlining in quotations in this skeleton connotes emphasis added.

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23. That conclusion was said by the Commissioner to have consequences. Four can
be found. First, it could be linked to a strong public interest which was said to
need to be protected (see §110):

... where the information does fall within the Commissioner’s definition of
this convention, he accepts that there is a significant and weighty public
interest in preserving the operation of this convention, ie. it would not be in
the public interest that the operation of the established confidential
convention would be undermined. This is particularly so given that the
convention is designed to protect communications at the heart of
government, ie. the Heir to the Throne and government Ministers. The
significant weight which protecting the convention attracts can be ...
correctly seen as akin to the strong weight applied to maintaining the
exemption ... contained at section 42 as it will always be strongly in the
public interest to protect legal professional privilege.

Note the express parallel there being drawn with “legal professional privilege”.
Secondly, it led to the nexus between protected information covered by the
constitutional convention and a need to be able to speak freely within that
constitutional function. As the Commissioner had put it (DN§89):

... the Commissioner agrees that there is a significant public interest in ...
ensuring [that] the convention that the Heir to the Throne can be instructed
in the business of government is not undermined ...

As he later explained (DN§119):

In the Commissioner’s opinion, disclosure of information falling within the

scope of [the] convention would lead The Prince of Wales, and possibly the
government minister with whom he corresponds, to feel constrained or more
reluctant to take part in the process of being educated about the business of
government.

Thirdly, it meant that Commissioner was prepared to accept that Government

could only invoke section 37(1)(a) to protect educational communications
(DN§120):

... the protection afforded to communications from government ministers

only extends to their contribution to educating the Heir to the Throne; it

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 would be incorrect to argue that section 37(1)(a) provides a protection for
government ministers to discuss more widely matters of policy or
development ...

Fourthly, it led to the Commissioner’s distinction, between “information which

falls within the scope of the Convention” (see §126) and “correspondence which does
not fall within the scope of the convention” (see §121, also §127).

24. That the convention is not universal and all-embracing was illustrated by two
types of correspondence which the Commissioner said he was giving as
examples. He said (DN§67):

... for example, it does not cover correspondence in which His Royal Highness
may be discussing his charitable work or indeed information of a
particularly personal nature ...

It is not difficult to think of correspondence which would fall within these

examples. “Dear Minister, It was lovely to see you at the Palace for the drinks party”;
“Dear Your Royal Highness, Thank you for dinner”; “Dear Prime Minister, I write to
inform you of a delicate situation regarding my health”.

25. It is not difficult to think of correspondence which would fall within the scope
of being educated about the business of government (§§19, 22 above). The
Minister might write a letter: “Dear Your Royal Highness, here is your monthly
update as to the activities of my Ministry”. The Prince might write: “Dear Minister,
I would be grateful for an update as to the activities of your Ministry”. Education
involves a questioning mind, so there might be a letter: “Dear Minister, can you
please clarify what this means?”; or “Dear Minister, what is your Ministry
proposing?”; or “Dear Minister, why did your Ministry do that?”. This point about
scope can also be made by taking a different constitutional arm of the State.
Take Parliament. Or take the Courts. What would it mean to be educated in the
ways and workings of Parliament? Or in the ways and workings of the Courts?

26. In fact, the correspondence in this case is not said (see §§30, 32 and 76 below) to
be in the nature of the Prince being educated about the business of government.
The correspondence does not fit within that function; rather, the constitutional

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 convention is expanded and modified to include it (§53 below). The
correspondence is known to be about the Prince’s opinions and views being
put forward to government (§30 below). This not the educational function.
Perhaps that is because education about governance takes place within the
“regime” of meetings receiving Ministers, as Professor Brazier suggests (Brazier
§§50-51) [4/68]. Perhaps it is that education was a phase which happened
“initially” and “through formal instruction and education in the business of
Government”, as described by Sir Stephen Lamport (§9) [4/28-29]. Whatever the
reason, this case is not about ‘educational’ correspondence. Rather, this case is
all about ‘advocacy’ communications, which seek to influence or persuade.

Advocacy Communications

27. The nature of such advocacy communications can be illustrated, again, by

supposing that there were a person who is constitutionally entitled to be
educated in the ways and workings of the Courts (§25 above). Suppose now
that this person were instead to write a letter which was designed to influence
the Courts in their decision-making. That is plainly something different. In the
present context of Governmental policy-making and decision-making,
Professor Brazier recognises this as a distinct type of communication: he calls it
“argumentative” correspondence (Brazier §97). It can relate to a Governmental
policy or decision, putting forward the Prince’s view for consideration as to
what policy or decision the Government should make. Could this kind of
communication be undertaken by the Heir to the Throne, with his privileged
access to Ministers, with a secrecy which is then sought to be justified by
reference to the constitutional function of being entitled to be educated in the
ways and workings of Government? That does not seem very promising. And
yet that is what this case is all about.

28. The former Liberal Democrat home affairs spokesman Chris Huhne expressed
a straightforward distinction when he said (quoted in The Guardian 16
December 2009 [2/100] and the Daily Mail 17 December 2009 [2/102a]):

[The Prince] has to be very careful to respect the traditional separation

between the democratically accountable parts of the constitution and the
ceremonial parts. The Prince of Wales is entitled to ask about what is going
on but if he is urging a particular point of view, then that’s a different
matter.

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 As was said by former Minister Lord Rooker (quoted in The Guardian 18
December 2009 [2/113]):

If it was for the education of a future King, it would have been legitimate.
The letters I saw were more ‘I think you should do this, why don’t you
consider the other?’ If they were from an informed member of the public, an
academic or someone from a non-governmental organisation, they would be
published, so why shouldn’t these be?

29. The Commissioner rightly accepted that there is an important public interest in
questioning whether the Prince seeks to use channels of communication to
influence policy-making and decision-making. There is the “public interest” in
ensuring that “government is accountable for and transparent in its decision making
processes” (DN§74). There is the public interest in allowing the public to
understand “the influence (if any) exerted by The Prince of Wales on matters of
public policy” (DN§76). There is the public interest in steps “to reassure the public
that no inappropriate weight ha[s] been placed on the views and preferences of The Heir
to [the] Throne” (DN§77). There is the context, where there are in the public
domain the “media stories which focus on The Prince of Wales’ alleged inappropriate
interference in matters of government and political lobbying” (DN§78); and where
there is the “public debate regarding the constitutional role of the Monarchy and
particularly the Heir to the Throne” (DN§79).

30. It is known that the correspondence in this case is concerned with the
expression by the Prince of his views and convictions (leaving aside some
matters of a purely private and social nature) on matters of government policy.
The Additional Parties’ Notice of Appearance confirms (§10(2) [1/323]) that:

In these 7 cases, The Prince of Wales’ correspondence to Ministers either

records the personal views and convictions of His Royal Highness, or is (in
respect of particular passages or particular isolated items) or a private and
social nature. The correspondence from Ministers to The Prince of Wales
either responds to personal views and convictions expressed by His Royal
Highness; or is correspondence of a private and social nature.

As to the subject-matter of these “views and convictions”, the witness evidence

confirms (Allan §38 [4/13]) that:

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 ... the correspondence under review consists almost entirely of matters of
potential or actual government policy, because it consists almost entirely of
discussion of government business.

31. After all: “We know that Prince Charles lobbies and we know that he does so regularly
and assiduously” [2/224]. The Prince is “expressing his own views to Government”,
having been “involved in public affairs for such a long time” (Lamport §38) [4/38].
Thus, the Prince was reported in 2002 as corresponding with the Prime
Minister, the Home Secretary, the Education Secretary, the Environment
Secretary and Defence Secretary [2/11] and to have written “more than 100
letters to ministers in recent years” [2/21]. The Prince’s private secretary Sir
Michael Peat confirmed in 2006 that the Prince writes and “raises questions about
matters which he regards as being of public concern”, “issues which he believes are
important” [2/40].

32. It is revealing that when the Government departments come to make their
“chilling effect” arguments in this case (see DN§113), these are not about
communications which educate about the business of Government. The
functions which are sought to be preserved instead involve contributing to
policy and decision-making itself. The Government’s position is that it is
“essential to the operation of the convention that His Royal Highness should be able to
express views to Ministers on important issues of government” (DN§50). As the
Commissioner put it (DN§113), the concerns were that disclosure of
communications could:

... affect the frankness and candour with which relevant parties will make
future contributions to that policy/decision making;

... affect the frankness and candour with which relevant parties will
contribute to other future, different, policy debates and decision making
processes;

And again:

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 ... affect the frankness and candour with which relevant parties will
contribute to other future, different, policy debates and decision making
processes.

This is important, for it accepts that the Prince engages in, and in these letters is
engaging in, correspondence in order to seek to influence Government policy
and decision-making. It is the Prince’s “opinions” which are said to be the
“useful content” (Lamport §38) [4/37-38]. And of course it is the attempted
influence in decision- and policy-making which so strongly engages the public
interest.

33. The present case has this following important public domain dimension. It is
very well known, including from the Prince’s own statements and actions, that
the Prince does indeed use communications with Ministers for the purposes of
stating his views and seeking to contribute to policy-making and decision-
making. But, according to the Government, the content is to be kept secret and
is not to be seen. The public is not to know about it, whether any concerns are
well-founded, or whether indeed it should be reassured. When the Prince
writes to state his view on a pending policy- or decision-making process, does
he urge action in accordance with his views? If not, why are they expressed? If
so, in what way and to what effect? Is he met with: “Dear Your Royal Highness,
we have taken your views into account and you will be pleased to hear that we have
decided not to proceed with the proposal”? Or is he met with: “Dear Your Royal
Highness, it is always nice to hear from you but it would not be right to allow your
personal views expressed privately to influence our policy-making or the decision-
making”? Absent transparency in the public interest, there is simply fertile
ground for speculation. Ironically, elsewhere in the analysis the Government’s
own position is to refer to a situation where the fact of communication but not
its contents are known as conducive to “damaging speculation” (DN§131).

34. The question-marks do not relate simply to what the Prince does. They relate to
how that is received by Government, and the Ministerial response to it. It is
known, and will be seen (§§36-49 below), that the Prince’s advocacy
interventions are legion and have frequently been successful, including as to
changes in Government policy (eg. stubble-burning [2/344]); or nearly so (eg.
foot-and-mouth vaccination [2/42]). It is said that the Prince would be in a
“uniquely disadvantaged position” if he alone could not write advocacy letters
(Lamport §35) [2/37]. In fact, he does so, and from an advantaged position.
There are understandable concerns as to the extent to which the Prince’s letters

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 are “getting ... more of a response than any constituent of mine who writes to a
minister” [2/7]; whether Ministers not only have “enjoyed the dialogue” but have
“asked favours in return” [2/11]; whether his views are given “the same weight as
any other ordinary person” [2/23]; whether recipients “listen, not because of what he
thinks, but because of who he is” [2/48]. The evidence is that the Prince’s letters to
Ministers are treated very differently, because of who he is: see eg. Evans §11
[3/6]; Richards §§5-6 [3/10-11]. As Dr Wright MP put it [4/50] “it is not fanciful to
suggest that a Government Minister might decide to see things from the point of view
of the person writing from the palace”. And as Professor Brazier has put it [2/345]:
“Ministers are naturally likely to accord far more weight to the Prince’s views than to
those of most other individuals; by being who he is his words and actions can have
constitutional consequences”.

35. An important part of the context as to the Prince’s correspondence with

Ministers concerns his other actions in the public domain. That is significant
not least because of the suggestion of damaging a constitutional convention: “If
the views of the Heir to the Throne on the policies on which he or she has been briefed
were to become public” (Allan §18 [4/6]). That approach suggests that the Prince is
careful to ensure that his views are only ever expressed privately and are kept
confidential by him (cf. §57 below). As Professor Tomkins has explained
(Tomkins §§8, 12 and 16) [3/18&24]: (1) throughout the period since the 1970s
the Prince has aired in public his opinions on a wide range of matters of public
policy; (2) these have included holistic medicine, genetically-modified crops,
cuts in the armed forces, architecture and agricultural policy; (3) such letters
have been referred to, quoted and reproduced in the Dimbleby biography,
which is an authoritative work with which the Prince cooperated and whose
factual accuracy he checked (Brazier §71 [4/73]; cf. Allan §23 [4/8]); (4) it is clear
from a range of sources that the Prince’s correspondence with Ministers is a
form of lobbying, which is an activity known to call for standards of
transparency, openness and accountability; and (5) the Prince has sanctioned
extensive quotations from and reproductions of his correspondence.

36. A good starting-point is the Prince’s own public domain website which refers
to his role of “Promoting and Protecting” [4/53, 58]. Under that rubric are to be
found his actions “Raising issues”, “to highlight issues which are of concern to
himself and to others”, such as “the environment, genetically modified crops, and the
need for community planning on a human scale” [4/58]. But also under the same
rubric are to be found his activities of “Correspondence and meetings” whereby he
“privately corresponds with and meets with Government Ministers, business leaders

15
 and other people of influence on a variety of subjects that have been brought to his
notice or which concern him” [4/53]. The same ‘political neutrality’ principle is
said to govern both types of action.

37. In relation to “raising issues”, take some public domain examples relating to
healthcare. The Prince’s biographer calls this a “sustained campaign” by the
Prince (Dimbleby p.573 [2/329]). He illustrates the Prince’s activities by
recording how the Prince used a December 1982 speech to the British Medical
Association “to attack some of the fundamental tenets” of the medical profession
(Dimbleby p.306 [2/234]). That speech on the philosophy of medicine was his
“most controversial” to date, which “sent a shudder through the medical
establishment” including “the drugs industry” (Dimbleby p.308 [2/236]). The
Prince there criticised what he called “the deeply ingrained suspicion and outright
hostility ... towards anything unorthodox” [2/69]. In his May 1999 speech to the
Integrated Healthcare Conference, the Prince advocated (as President of the
Foundation for Integrated Medicine) improving the healthcare available to
“everyone in this country” by adding “other traditions” to “orthodox western
medicine”, “reaching across the disciplines”, and promoting “self-regulation” of
complementary and alternative therapies [2/147-150]. The Prince’s public
domain promotion of alternative medicine included writing in NHS Magazine
(December 2000) that “Alternative medicine should be available to all on the NHS”
[2/35], and his 2006 World Health Organisation speech [2/52]. These actions
precipitated responses which included the 2004 letter of Professor Baum to the
British Medical Journal [2/25-26], with the host of consequential further
responses [2/27-33]; and the 2006 joint letter by Professor Baum and 12 other
eminent scientists [2/52].

38. Take public domain examples relating to education. His biographer gives the
illustration of the Prince’s 1989 speech, as patron of the Thomas Cranmer
Schools Prize, when the Prince “turned the full blast of his outrage on the
educational establishment” regarding modernism in education (Dimbleby p.453
[2/316B]). The Prince spoke of English language standards and “a dismal
wasteland of banality, cliché and casual obscenity” [2/70]. He then “went even more
vigorously on the attack against the educational establishment” in his 1991
Shakespeare Birthday lecture, criticising “fashionable trends in education” and
curriculum policy failures which “get it wrong almost before we have begun”
(Dimbleby pp.454-456) [2/316C-316D].

16
39. Take public domain examples relating to agriculture. The Prince’s biographer
illustrates his activities by referring to a 1980s speech to the national organic
food production conference which “horrified the agricultural establishment with a
radical assault on conventional methods of farming”, a threat “not only to established
practice but to powerful vested interests – in this case the agrochemical industry” and
one relating to “core questions of public policy” (Dimbleby pp.311-312) [2/239-
240]. A further example is the Prince’s 2008 Sir Albert Howard Memorial
Lecture, in which he advocated autonomy for small and family farmers and for
traditional and organic agriculture [2/195-198]. He spoke out against GM crops,
countering the argument that “GM food is now essential to feed the world”, and
characterising GM crops as “a wrong turning” [2/196] with their associated
“risks” [2/198]. The Prince described the fundamental beliefs which led him to
“keep sticking my sixty-year-old head above an increasingly dangerous parapet”
[2/197, 2/72], recognised that some would dismiss his ideas as “romantic,
idealized, ill-informed and impractical” [2/197], and described the need for “those of
us who care about these issues ... to fight for many more years before we have a general
acceptance” [2/198]. The Prince had spoken out in 2002 about “the most appalling
problems” which he believed GM crop contamination was going to bring [2/35].

40. Take public domain examples relating to environmental protection. The

Prince’s biographer gives illustrations including the Prince’s 1970 speech about
“the horrifying effects of pollution” (Dimbleby p.312 [2/240]) and advocating
costly abatement technology and new regulatory standards (Dimbleby pp.421-
422 [2/288-289]); that being the year after his 1969 speech about Atlantic
salmon, known to have provoked the Prime Minister’s interest [2/129] and to
have precipitated immediate action [2/130]; the Prince’s 1987 speech to the
North Sea Conference advocating “stricter controls on dumping” (Dimbleby
p.424 [2/291]) seen as “tacitly rebuking” Government and helping “shift opinion
within the government” (Dimbleby p.425 [2/292]); his 1988 speech as patron of
the European Year of the Environment which “again urged the government to act
with greater conviction” and attacked the CEGB for inaction on acid rain
(Dimbleby p.425 [2/292]); his 1989 speech to the Saving the Ozone Layer World
Conference calling for a total elimination of CFC gases “to throw down the
gauntlet to the government” (Dimbleby pp.427-428 [2/294-295]); his Madrid
speech to the EC Conference on the Urban Environment advocating a higher
priority for waste recycling (Dimbleby pp.438-439 [2/305-306]). At the 2000
Reith Lectures [2/159-163] the Prince spoke of an intuitive, spiritual approach to
sustainable development, placing science alongside sacred ideas of creation
and stewardship and “the grain of nature”, advocating “a precautionary approach”
which “still faces a degree of official opposition” [2/160]. His speech at the 2009

17
 Nobel Laureates Symposium on Climate Change [2/177-180] praised
alternative, integrated solutions and described the urgent need for “global
decision-makers ... to be persuaded that strong, committed and coordinated action is
needed now” [2/177]. The Prince’s controversial [2/85] 2009 Richard Dimbleby
Lecture criticised “modernism” as “a dangerously short-sighted approach” and
advocated a “shift” from a “reductive, mechanistic approach to one that is more
balanced and integrated with Nature’s complexity” [2/185-190]. His 2009
Copenhagen speech [2/191-194; 2/96] advocated climate change solutions by
“public, private and NGO sectors” [2/192], highlighting “private sector ... corporate,
social and environmental responsibility” including specifically “pension funds”
[2/193] in which he took an active interest [2/83]. His 2010 Oslo speech spoke of
the vindication of the “few brave souls” who had been “ringing the alarm bells”
and praised various nations for their initiatives on deforestation [2/181-182].

41. Take public domain examples relating to the built environment. The Prince’s
biographer illustrates his activities with examples including the Prince’s 1984
speech to the Royal Institute of British Architects, described as a choice by the
Prince “to open up on yet another front” (Dimbleby p.314 [2/242]). In that speech
[2/199-200] the Prince accused “some planners and architects” of having
“consistently ignored the feelings and wishes of the mass of ordinary people”. On
disabled access, he welcomed as “excellent” an amendment to the Building
Regulations which he was “told” the Department of the Environment was
“preparing”. He criticised the Mansion House Square project, and condemned a
proposed National Gallery extension in Trafalgar Square as “a monstrous
carbuncle” [2/200, 70, 112, 125]. His intervention “torpedoed” both schemes
(Dimbleby p.449 [2/316]), as did a later 2004 intervention regarding Smithfield
[2/108]. In a 1985 speech to the Institute of Directors the Prince spoke out about
the “inhuman conditions” of inner-city housing (Dimbleby p.320 [2/248]). In his
1987 Mansion House (Corporation of London) speech (Dimbleby pp.445-448
[2/312-315; 2/70]) the Prince condemned the competing projects for the
development around St Paul’s [2/75, 107, 111], describing people as being “fed
up with being talked down to and dictated to by the existing planning, architectural
and development establishment” (Dimbleby p.446 [2/313]), and launching a “root
and branch denunciation of the planning system itself” (Dimbleby p.447 [2/314]).
The St Paul’s scheme was later scrapped as a result of the Prince’s intervention
[2/107, 111]. In 2005 he tried again to intervene in relation to a St Paul’s
development, an intervention launched “during the planning process” [2/106-
107], like his now infamous Prince-to-Prince interference on Chelsea Barracks
[2/74, 124]: see the judgment of Vos J [3/60]. The Prince’s planning interventions
are said to have given him “such influence behind the scenes” that significant new

18
 developments came to be “presented to him for his approval” (Dimbleby p.449
[2/316]) as though he were a statutory consultee [2/108]. Meanwhile, the Prince
developed his own neo-Georgian village at Poundbury near Dorchester [2/109].
In his 2009 RIBA Trust lecture [2/151-156; 2/103] the Prince gave the latest in the
line of “my inconvenient interferences” [2/152], advocating traditional, “organic
architecture” respecting the ordering of Nature and with a community role in
design and planning [2/152]. He condemned the “flawed” Modernistic approach
[2/153] and the “brutal destruction” of the 1960s developments [2/154]. These
were, yet again, controversial views involving “significant differences” [2/158].

42. Take the following further public domain examples. The Prince’s biographer
illustrates his actions by further references, for example to: the Prince’s 1970
speech at the Cambridge Union speaking out against the new Concorde
supersonic aircraft (Dimbleby p.422 [2/289]); the Prince’s 1989 speech (at the
Building a Better Britain Exhibition) condemning the situation in Romania,
having “formed the view that the government’s attitude was dilatory and
pusillanimous” and having “decided to go public” after fruitless letters to the
Foreign Secretary (Dimbleby pp.431-432 [2/298-299]); the Prince’s speech at
Mansion House on the armed forces (Dimbleby p.520 [2/317]); and the Prince’s
1981 full-page Observer article on intermediate technology (Dimbleby pp.312,
423 [2/240, 2/290]). Further examples would include: the Prince’s 1975 speech to
the House of Lords on anti-social behaviour [2/69]; his 2004 Independent on
Sunday article criticising the science of nanotechnology [2/34]; and the
interpretation of his non-attendance of 1999 and 2005 State Banquets for leaders
of China nor the 2008 Beijing Olympics [2/59, 2/67, 2/73]. It can be noted at this
point that the rules as to Parliamentary debates would stand modified in all
these contexts wherever the Prince has made a public statement on a matter of
public interest and so “engages in public debate” [2/219-220, 232].

43. As the Appellant himself has explained (Evans WS [3/1-8]), in suggesting to the
Tribunal the context for the public concern which arises as to the legitimacy
and content of the Prince’s correspondence with Ministers (Evans §17): (1) the
Prince is known to have engaged in prolific correspondence with Ministers
extending to 8 known Government departments during the period 2006-2009
(§5); (2) examples of the content include letters advocating his views on
fisheries policy, Romania, stubble-burning, energy policy, the army, the
Human Rights Act, foot and mouth vaccinations, Zimbabwe, architecture,
hunting and fishing (§6); (3) these are not ‘truly personal’ content nor the
educating of the Heir to the Throne (§7); (4) this activity can be put alongside

19
 his other lobbying (§8), his public speeches (§§12-14) on matters including
alternative medicine, architecture and urban development, the environment
and climate change, GM crops, farming and education and his advocacy
intervention in the Chelsea Barracks case (§§15-16); (5) it is known that the
Prince’s self-perception includes acting as an influence on controversial
matters, often in seeking to be a voice for the voiceless (§§9-10), while seeking
to avoid “party politics” (§9); (6) it is also in the public domain that the Prince’s
correspondence is understood to be treated differently by Government (§11).
That last point is strongly reinforced by the evidence of Paul Richards [3/9-12],
who describes examples relating to complementary medicine, primary school
syllabus and eco-town design (§8), and who explains how the Prince’s letters
bypass the centralised mailroom going to the top of the Ministerial pile and
into the red box (Richards §5). The evidential picture is also supported by the
2006 witness statement of Mark Bolland [2/211-215], to which attention is
invited.

44. The evidential picture as to the Prince’s advocacy correspondence is a

compelling one. As is explained in the Notice of Appeal (§§23-24) [1/288-289]:
(1) it is a matter of public record that the Prince holds and expresses strong
views on matters of public policy and corresponds with Ministers about them;
(2) the Prince has repeatedly used public platforms to express his strongly held
views; (3) the fact that the Prince corresponds regularly with Ministers is well-
documented and publicly admitted on the Prince’s behalf as well as by some
Ministers or their advisers; (4) some of this advocacy correspondence has been
published; (5) the Prince’s self-perceived role has been described on his behalf
as representational, “drawing attention to issues on behalf of us all” and
“representing views in danger of not being heard”; (6) the available materials
indicate that the Prince has expressed strong views on matters of political
controversy, including as to legislation being introduced; (7) the high degree of
publicity afforded to the Prince’s dealings with government have not
prevented his being educated in the ways and workings of government; (8) nor
have they deterred him from corresponding frankly with ministers.

45. The Prince’s biographer has illustrated the Prince’s activities as vividly and
freely with examples of the Prince’s letters to ministers, as he did with the
Prince’s speeches (§§37-42 above). There is the description of the “missives to
cabinet ministers – about government policy in relation to (among other matters) the
disabled, South Africa, the Gulf and Romania” (Dimbleby p.405 [2/268]). There are
the Prince’s 1989 letters to Foreign Secretary Howe, advocating urgent action in

20
 relation to Romania (Dimbleby pp.431-432 [2/298-299]). There is the
correspondence with Prime Ministers on the built environment, promoting a
scheme so vigorously that “it became the catalyst for a fundamental shift in
government thinking” (Dimbleby p.368 [2/273]) and seeking “to enlist the new
Prime Minister in this cause” (Dimbleby p.380 [2/285); likewise the 1988 letter to
Environment Secretary Ridley “to try to persuade the government .. to restrain the
free market in favour of the environment in the Green Belt, and more generally in
towns and villages” and referring to “the sort of controls I believe are necessary”
(Dimbleby pp.450-451 [2/316A]). There are the environmental protection letters
to Energy Minister Morrison advocating a ban on stubble-burning, in response
to which the Government “shifted ground” and “retreated” and finally in a “volte-
face” did announce a ban (Dimbleby pp.434-436 [2/301-303]); and the letters to
Environment Secretary Wakeham “reproaching [him] for the government’s
grudging response to the Commons Energy Select Committee report on the
‘greenhouse effect’ and asking what proposals were in hand for developing renewable
sources of energy as alternatives to coal” (Dimbleby p.436 [2/303]). There are the
armed forces letters: the 1991 letter to the Prime Minister expressing anxieties
about proposed cuts, in the context of a Government White Paper; the 1992
letter to Defence Secretary Rifkind reiterating those concerns, considered to be
“vindicated” by 1993 announcements of increases; and the 1992 letters to Rifkind
about the proposed removal of regimental bands, which were less obviously
successful (Dimbleby pp.520-523 [2/317-320]).

46. The press interest in such correspondence, and the many other reported
examples, is unsurprisingly high. That can be seen from the sample of news
stories provided for the Tribunal [2/1-128]. On healthcare, there were concerns
in February 2010 about the Prince “secretly lobbying ministers in support of using
discredited homeopathic medicines on the NHS”, and at the very time when a
Commons committee was calling on the NHS to stop such funding [2/115]. On
education, it was reported in March 2006 that the Prince had raised with
ministers concerns about “school standards” [2/48]. On agriculture, it was
reported in September 2002 that Downing Street had reacted to the Prince’s
“blunt warning about the dangers of genetically-modified crops” [2/1], the Prince
having written to Prime Minister Blair [2/9] referring to the government
“destroying the countryside” [2/71]; and having written to ministers about GM
food [2/17]. It was reported in December 2009 that the Prince wrote letters to
Agriculture Minister Nick Brown about the plight of poor farmers [2/114]. On
environmental protection, the Prince is known to have written in 1969 to Prime
Minister Wilson about Atlantic Salmon [2/129-137, 142-146; 69] and North Sea
sea-birds [2/138-141; 114]; he was reported in September 2002 to have written to

21
 Scottish Deputy Rural Affairs Minister Allan Wilson about farmed salmon
[2/23]; he was reported in March 2006 to have written to the Conservative
Government about the dangers of global warming and the harsh impact of
carbon fuels [2/47]. On the built environment, the Prince reportedly: wrote to
the Scottish First Minister on the designs for the new Scottish Parliament [2/23];
wrote to Health Secretary Hewitt recommending a design technique for all new
hospital trust buildings [2/100, 102a, 128]; is consulted by the Department of
Health on the designs of all new PFI hospitals [2/48]; wrote to Communities
Secretary Blears advising his preferred way of developing ecotowns [2/99, 102a,
128]; wrote to Chief Secretary to the Treasury Burnham as to approaches to
sustainable housing supply [2/100, 102a, 128]; wrote to Junior Minister Howells
about the Turner prize [2/71]. Reportedly, he was “at work through back
channels” to influence the choice of architect for the Royal Opera House [2/75],
was behind a letter to Exeter University about Professor Ernst [2/60]; and wrote
urging English Heritage to lobby ministers to stop a Smithfield development
[2/60, 108], subsequently writing to thank Culture Secretary Jowell when the
building was listed and the plan blocked [2/108]. Such activities are of a piece
with the Dimbleby biography’s illustrations of the Prince in action (see §§37-42,
45 above).

47. As to further examples of letters to ministers reportedly written by the Prince,

there are: the letter to Prime Minister Blair to urge ministers to “do more to help
families fleeing Robert Mugabe’s brutal regime in Zimbabwe” [2/1, 5]; the letters to
Lord Chancellor Irvine on compensation culture, red tape and political
correctness [2/4, 6, 13-14, 70-71]; the letter to the Scottish First Minister about
the ban on hunting with dogs [2/23]; letters to Culture Secretary Chris Smith
about extra funding for the Royal Ballet [2/17] and to Lord Tebbit about cuts to
the coastguard service [2/17]; letters about fire doors and volunteer dinner
ladies [2/19]; letters to the Lord Chancellor about the Human Rights Act 1998
[2/20, 45, 48-48a] including its implications for the British military [2/46, 48-48a];
letters to the Prime Minister advocating an urgent vaccination programme in
the foot-and-mouth crisis [2/41]; letters to the Environment Minister opposing
pit closures [2/47]; letters to Ministers about House of Lords reform, devolution
and to the Foreign Secretary about Tibet [2/48]. The Prince is also reported to
have contemplated, but drawn back from, lobbying for a referendum on the
Channel Tunnel [2/58].

48. As Professor Tomkins explains (Tomkins §§9-13 [3/17-20]), the practice of the
Heir to the Throne engaging in correspondence of this kind with Ministers is

22
 novel, an innovation by the present Heir. It does not have the imprimatur of a
constitutional convention, and cannot be said to be a constitutional right or
duty. As Sir Michael Peat explained (§5), “it is of course well known that the
Constitution does not provide any formal role for the Heir to the Throne” [4/40]. The
settled position is that whereas it is the Sovereign’s right and duty to ‘counsel,
encourage and warn’, it is only the Heir to the Throne’s right to be instructed
on the business of government [4/47] (§54 below). That right to be instructed in
the business of government is, as is recognised by Brazier, “uncontroversial”
[2/343]. But advocacy (pressing his own views) by the Heir to the Throne is
something recognised as different (the “assumption of another right”); something
“novel” [2/344]; and something which would be a “constitutional innovation”
[2/345]. Lamport describes the Heir to the Throne’s function of being “briefed on
government affairs” (Lamport §11) [4/29]. He says that the Prince’s
communications were “initially ... formal instruction and education in the business
of Government” (Lamport §9) [4/29]; but that they have been followed by what
he calls “latterly ... continuing interaction with Ministers”. When the Prince’s
biographer speaks of the Prince’s advocacy role he speaks of the Prince seeking
to “redefine the role of the Prince of Wales” (Dimbleby p.313 [2/241]).

49. The implications of the Prince’s advocacy activities can be illustrated by

considering examples of those who defend the Prince’s right to speak up, and
those who express concerns about aspects of his advocacy role. As to defence of
his right to speak up, there is said to be a “general Westminster chorus
diplomatically ‘welcoming’ his interventions” [2/59]. The Prince’s 2002
spokesperson characterised the Prince’s “role to highlight problems and represent
views which are in danger of not being heard”, then suggesting that this could “only
be fulfilled properly if complete confidentiality is maintained”, and denying that “it is
... about exerting undue pressure or campaigning privately” [2/4, 8, 13]. Iain Duncan
Smith MP said the Prince should be “free to speak his mind on political issues” and
that such correspondence should remain “personal” [2/5]. Prime Minister Blair’s
spokesman said the Prince “is entitled to express his views” [2/21]. Sir Michael
Peat has emphasised that the Prince is “very careful” to ensure that he is not
“party political” [2/101] and that his actions would be different as Sovereign
[2/62]. Environment Minister Meacher has described the Prince’s letter writing
as “refreshing” [2/15] and Lord Tebbit “found his interest informed and entirely
proper” [2/17]. First Secretary of Wales Rhodri Morgan has said he “saw nothing
wrong in his helpful advice” [2/20]. His opinions have been described as
“interesting and well informed” [2/19], “refreshing and helpful ... constructive and
well thought through” [2/43]. The Prince has been hailed for exercising his “free
speech” [2/80]. The question, however, is not whether the Prince is entitled to

23
 speak up in advocating his opinions and suggestions. He has been defended for
that. The question, rather, is whether the public interest favours secrecy over
transparency when the Prince seeks to use his privileged private access to
Ministers to advocate those opinions and suggestions. Is that defensible, by
some public interest imperative?

50. The Daily Telegraph has reported on the debate “on the Prince’s very role, and on
how far he can go in his private communication with government ministers without
laying himself open to the charge of proper interference” [2/11]; the Sunday Times has
reported on the “latent fear” that “royalty was meddling in politics” [2/19]; and the
Guardian has reported on the “growing concern that the Prince is continuing to
interfere in political matters” [2/99-100]. In 2007, Channel 4 broadcast a Dispatches
documentary The Meddling Prince, on his “interfering in affairs of state” [2/58];
2/tab 10]; and the Daily Mail has reported on “new speculation that when the
Queen dies, the monarchy could skip a generation” [2/89]. Tony Banks MP has
articulated the dangers of the Prince becoming embroiled in party political
issues [2/5], as have Dennis Skinner MP [2/14] and Ian Davidson MP [2/49-50].
Davidson has drawn attention to the democratic mechanisms for being
“involved in politics” [2/7]; and Norman Baker MP has said in the planning
context that the Prince “should not step in and subvert normal democratic processes”
[2/78], a view echoed by Culture Secretary Bradshaw [2/111], and by leading
architects including Lord Foster and Zaha Hadid [2/111]. Paul Flynn MP has
said that the Prince’s views on fox-hunting and GM foods “reflected the narrow
concerns of a multi-millionaire landowner” [2/16] and Tommy Sheridan too has
commented that the Prince is “likely to have been pursuing the interests of the
privileged establishment” [2/23-24].

51. Sir Robin Janvrin was reportedly concerned that “the Prince was straying onto
‘dangerous ground’” [2/20]. An unnamed minister was reported as describing the
Prince’s letters as “intolerable”, “extremely ill-advised and foolish” [2/21]. John
McCallion MSP has described it as “quite disturbing that an unelected person
should be able to interfere in this way” and has said that “undue influence [is] being
exerted to put across his own particular views” [2/23]. Professor Baum has
expressed concern about the Prince advocating “unproven therapies” for cancer
patients [2/25]; and twelve doctors and scientists joined him in opposing use of
scarce NHS resources for complementary medicine, including Professor Ernst
[2/60], Sir James Black and Sir Keith Peters [2/52-53]. Dr Philip Moriarty has
questioned the Prince’s qualifications to speak out against nanoscience,
Professor Richard Jones expressed concerns about the Prince and apparent

24
 “political campaigning”, and Professor Stephen Wood said that “the Prince needed
to be more informed” [2/34]. Former Defence Minister Kilfoyle has said the Prince
“should not be immersing himself in these sorts of political controversies”, “it’s not
appropriate” [2/49]; Lord Moonie has explained why “I really don’t agree with
Prince Charles on this issue” [2/49]; and Former Environment Minister Raynsford
has warned about the “almost feudal way” the Prince intervened over Chelsea
Barracks [2/78]. Max Hastings has written about “the huge risks of attempting to
be an activist” Heir to the Throne [2/65]; Sir Richard Rogers has called for a
public inquiry “into the constitutional validity of Charles’s interventions” [2/75];
and RIBA President Prasad has warned that the Prince’s architecture
interventions “could deter investors from developing projects in London” [2/78].
Chris Huhne MP has said that the Prince “is entitled to ask about what is going on
but if he is urging a particular point of view, then that’s a different matter” [2/100,
102a]; and Ex-Sports Minister Caborn has said: “If he is making his views known
to ministers, they should be in the public domain” [2/100, 102a]. Chairman of the
Justice Select Committee Sir Alan Beith agrees, saying that: “When [the Prince]
takes up issues with ministers which we know he has views on, it seems sensible this
should be open in the normal way” [2/113]. Dr Evan Harris MP has criticised the
situation where the Prince can “seek to influence policy” both “secretly” and using
special “access to the Health Secretary” [2/116]. Former Minister Baroness Quin
has said the Prince’s activities “verge on the grotesque” [2/119] and are “at the
very least ... unwise” [2/230].

The Sovereign

52. Since it is not educational in nature (§§26, 30, 32 above), it has been said that
this kind of ‘advocacy’ correspondence by the Prince is a manifestation of
another constitutional convention, one associated with the Sovereign. The
Sovereign is said to have the function of being able to ‘counsel, encourage and
warn’ (Lamport §5) [4/27]. Material is supplied to the Sovereign for her
information (Brazier §26 [4/9]) and strict confidentiality is said necessarily to
attach to that information. It is also said to attach to any expression by her
which might ‘counsel, encourage or warn’, and that this confidentiality is a
perceived duty on her part as Sovereign. It is then said that the Prince as Heir
to the Throne is entitled to function as an ‘apprentice’, by preparing or learning
to undertake this function to ‘counsel, encourage and warn’. This point is said
to be fundamental in understanding what the Prince is doing and why
confidentiality is so important.

25
53. The point is exposed in Professor Brazier’s reasoning. He refers to “two reasons”
which he says leave him in “no doubt” that the Prince’s “’argumentative’
correspondence” (§27 above) should be seen as falling “squarely within” the
constitutional convention applicable to the Prince of Wales as Heir to the
Throne (Brazier §§97-98) [4/79]. Brazier accepts that his suggested
confidentiality must attach to a constitutional convention, to be within its scope
and so be intrinsic in it (Brazier 109) [4/81]. As to that scope, Brazier’s published
views are well known. He has accepted that educational communications are
covered by an “uncontroversial” constitutional right [2/343], whereas the
Prince’s advocacy (argumentative) communications with Ministers pressing his
views would be “another right”, one “constitutionally much more interesting”,
“novel” and a “constitutional innovation” [2/344-345]. Professor Brazier does not
equate advocacy (or argumentation) with education. He says that the
Ministerial response “might” be educational. This is his second reason. At best,
it could relate only to particular content, and could apply only to the response
depending on its nature. The possibility of an education-convention, assuming
that it is a real one on the materials themselves, could not begin to justify the
blanket protection of the Prince’s advocacy letters. In truth, Brazier’s thesis
rests on a different foundation. He says the Prince’s advocacy activities are
“squarely within” a constitutional convention applicable to the Heir to the
Throne because of a direct parallel which he posits between the Heir to the
Throne and the Sovereign (Brazier §99) [4/79]. On this basis, the Prince’s
redefined advocacy role is the Heir to the Throne acting as though he were
Sovereign, protected as though he were Sovereign.

54. There are many difficulties with this suggested analysis (as to which, see too
§§83-88 below). First, it takes a constitutional convention applicable to the
Sovereign [4/17], and extends it to the Heir to the Throne (see §48 above). Mr
Allan, for example, is clear in running the two points together. On the question
whether the Prince could be “expos[ed] ... to the charge that he is ‘meddling’ in
affairs of state”, he answers that this “criticism fails to recognise that the Sovereign is
entitled and obliged to make his or her views on matters of state known” (Allan §36
[4/12]). The same point is critical to Professor Brazier’s thesis, as to why
“argumentative” correspondence falls within the constitutional convention
(Brazier §99 [4/79]): “such interventions ... are of a piece with the kinds of
communications which The Sovereign may have”. This explanation of a role in
parallel with the Sovereign (Dimbleby p.543 [4/273]) is recorded as involving
an “interpretation of the constitution [which is] open to question” (Dimbleby p.437
[2/304]). This rewrites a settled constitutional understanding (§48), by relying
on the Prince’s novel and innovative practice.

26
55. Secondly, if this were the right way to characterise what the Prince does, then
the substance and nature of his expressions which ‘counsel and warn’ would
correspond to what is recognisable from the Sovereign. But it is not. The
Prince’s self-perception is not that he is acting as anticipatory ‘apprentice’
Sovereign. In September 2002 the Prince’s spokeswoman is reported as
speaking of “the Royal Family’s role to ... drawn attention to issues on behalf of us
all” and said of the Prince “part of his role must be to highlight problems and
represent views in danger of not being heard” (quoted in the Daily Mail and Daily
Telegraph on 25th September 2002 [2/7, 3/117]). That description embraces his
advocacy speeches (§§36-42 above) and his advocacy letters (§§36, 45-47, 49
above). The Prince’s website (§36 above) refers to the Prince’s speech-making
on matters that concern him [4/58] (Lamport §30) [4/35], and to his letter-
writing [4/53]. These are linked parts of his so-called “promoting and protecting”
role [4/53, 58] (Bolland §§9-15) [2/212-213]. The website refers in both respects
to the need to avoid “party political issues” [4/53, 58], not so that the Prince can
be party-political only in private advocacy correspondence, but that he avoids
being party-political full stop (see §94 below). An obvious problem comes in
asserting the ability to seek to persuade the Government on its decision- and
policy-making, not only through public domain speeches, but through
privileged private channels that for some suggested constitutional reason can
never see the light of day. And the logic is that this protective cloak applies to
what he says in letters on the very same subject-matter as his speeches, so he
can pick and choose his public and private advocacy, it being asserted that he
has a “right to correspond in private on the same subject” (Lamport §32) [4/36].

56. Examples of the Prince’s self-perceived advocacy role abound. They are not the
actions of Sovereign ‘dress-rehearsal’. In the context of his letters about the
Human Rights Act, for example, a senior royal source is reported to have
defended the Prince’s intervention on the basis that: “In making these
representations, the prince was doing so on behalf of those regiments of which he is
colonel-in-chief, whose top brass had themselves commented on the issue to him”
(quoted in the Daily Mail 3 March 2006, [2/50]). His former deputy private
secretary Mark Bolland put it this way (WS in HRH Prince of Wales v ANL §12
[2/212]): “[The Prince] often referred to himself as a ‘dissident’ working against the
prevailing political consensus”. To understand “what I was about” was “realising
my vision of a better world” and needing to “stand firm on the holy ground of the
heart” (quoted in the Guardian 13 November 2008, [2/71-72]).

27
57. Thirdly, if this logic were correct and operable, the Prince would necessarily
need to act to ‘counsel, encourage and warn’ in a way which was and remained
strictly confidential. He could not pick and choose. The constitutional
convention applicable to the Sovereign has been described by Alexander Allan.
He identifies the principle (Allan §11 [4/4]) that: “the Monarch should not publicly
express his or her personal views on matters of State”. As Professor Bognador puts it
[2/336]: “The sovereign ... is not entitled to make it known that he or she holds different
views on some matter of public policy from those of the government”, that being “a
fundamental condition”. Professor Brazier says the Prince “consider[s himself]
bound by” the constitutional convention applicable to him as Heir to the Throne
(Brazier §44 [4/67]) and is “clearly of the view ... that there is no limitation over the
type of correspondence covered by it” (Brazier §95 [4/78]). But there cannot be
considered by the Prince to be some constitutional imperative to keep his views
confidential; nor to express himself “discreetly and cautiously” [2/234]. For, as
Professor Brazier also accepts (Brazier §70 [4/72]), the Prince “has made several
public interventions on matters of public policy during his long period as Heir to the
Throne. This is a matter of public record”. Quire right (§§36-42 above). And, even
in relation to his advocacy correspondence, some of this has been referred to
(and even placed) by the Prince in the public domain. The Dimbleby biography
(§45 above) was authorised (Lamport §§23, 25) [4/33-34] (Lamport 2 §3) [4/58B],
the writer having full access to the Prince’s correspondence and being able to
“draw heavily” from it and “free to quote extensively from it” (Dimbleby p.xviii
[4/55]), the Prince “agreeing to cooperate on ... terms” which gave the biographer
the “final decision” and able to exercise his own judgment (Dimbleby p.xx;
Lamport §26) [4/57, 4/34]. None of this fits with Professor Brazier’s thesis, of a
newly-emerged convention of opinion-expression by the Prince as if he were
Sovereign. Brazier is constrained to say that “His Royal Highness appears himself
to have overlooked the obligation of confidence inherent in the apprenticeship
convention” (Brazier §77 [4/74]). Yet Professor Brazier cannot pick and choose: it
is the Prince’s conduct which is relied on to support his suggested
constitutional innovation. That conduct simply does not bear the hallmarks
which his suggested parallel would involve.

58. Fourthly, this ‘apprenticeship’ function of practising how to ‘counsel,

encourage and warn’ is emphatically not what the Prince himself thinks he is
doing. Far from eliding the Sovereign and the Heir to the Throne, he is known
to draw a vital distinction between the two. His advocacy activities are not a
dress-rehearsal of how he ought to behave as a Sovereign able to ‘counsel and
warn’. When Channel 4 broadcast its “Dispatches” documentary “Charles: The
Meddling Prince” (12 March 2007), the Prince through his principal private

28
 secretary Sir Michael Peat issued a 21-page rebuttal defending the Prince’s
actions. As was recorded at the time (Sunday Express 11 March 2007 [2/62]):

Prince Charles has vowed to stop “meddling” when he becomes King and has
given the first revealing insight into how he will reign as monarch.

In a lengthy document drafted by Charles’s right-hand man Sir Michael Peat,

he reveals how the heir to the throne will “change when he becomes King”.
The dossier – compiled in defence of the way the Prince lives and runs his
affairs – reads:

“It hardly needs saying that the Prince of Wales, of all people, knows
that the role and duties of the heir to the throne are different to those
of the Sovereign and that his role and the way he contributes to
national life will change when he becomes King.

“In other words, it is misconceived and entirely hypothetical to

suggest that problems will result if the Prince of Wales fulfils his role
in the same way when King. He will not.”

This point is referred to by Professor Brazier at §75 [4/74]. But it is reasoning

which is totally inconsistent with the suggestion that the Prince is acting to
‘counsel, encourage and warn’ in the same way that the Sovereign does; that
his actions are of the nature and fall within the ambit of the convention
applicable to the Sovereign; that he is simply learning and practising the
Sovereign’s role as ‘apprentice’. If any of that were true, then there would be a
claim to symmetry and not distinction; the Prince and Sir Michael Peat would
not have been emphasising that the roles of Heir and Sovereign are “different”,
that the Prince “of all people, knows” of that difference, that his role “will change
when he becomes King”, that he would not “fulfil[] his role in the same way when
King”, and that this change would be what means “problems will result”.

PART III: SUBMISSIONS

Information “obtained” (s.41(1)(a)) (DN§§27-34)

29
59. This is a preliminary topic which arises only in the context of FOIA s.41(1). The
point is framed as issue 1 in the Respondent’s List of Issues. The correct
analysis is as follows. Section 41(1) is applicable in the present case, but cannot
encompass in blanket fashion the entirety of the correspondence. There is a
restricting precondition in section 41(1)(a). To that extent, the Commissioner
was right (DN§§30-34). However, the ‘mechanism’ by which the information
comes to be held is important (cf. DN§29). That is because “obtained” requires
some active step by the public authority to acquire the information, for
example by means of a request. It does not cover information which the person
has decided unilaterally and voluntarily to send. This is Ground 1 of the
appeals (see the Notice of Appeal §§14-16 [1/284]).

60. In arguing for a blanket exemption for the correspondence between the Prince
and Ministers, the Government begins with section 41 (quoted at DN§25),
contending that it is universally applicable to all such communications. The
immediate problem with that submission is that it encounters the restriction in
section 41(1)(a): “obtained by the public authority from any other person”.

61. The Government argues for an expansive interpretation which would have the
Tribunal effectively delete that requirement (Additional Parties’ Notice of
Appearance §§16-19) [1/326-327]. The Government says that if information is
held, and its disclosure would be a breach of confidence actionable by the
person whom it concerns, then it is exempt. But information being held is
covered by section 1(1)(a) (“holds information”) and section 1(1)(b) (“if that is the
case”). And disclosure which would be an actionable breach of confidence by
the relevant person is section 41(1)(b). Those ingredients do not suffice. There is
a limiting criterion: section 41(1)(a), which the Government’s arguments seek to
ignore. This is the point powerfully made by the Commissioner (at DN§30):

... the way in which section of the Act is drafted means that information is
not exempt simply if its disclosure would constitute an actionable breach of
confidence as in common law. Rather the inclusion of section 41(1)(a) means
that the public authority also has to have received that information from a
third party. In effect section 41 of the Act creates an additional
requirement ...

That was the end of the road for this argument by the Government. But for
good measure the Commissioner also identified a second point at DN§31.

30
62. Two questions remain. The first is whether the Commissioner was right that
letters written by the public authority will contain the information “obtained”
from the other person only if they reflect the content of that information. That
conclusion (DN§33) is plainly correct. The focus is on “the content of the
information” (DN§32), which means reflecting the “actual” substance of what
the person has communicated (DN§33). It is no surprise then to find that
Governmental letters to the Prince do not all meet this requirement (DN§34).
The Government is wrong to contend that a statement by a Minister recording
the mere fact of correspondence, or the general subject matter, is protected
under section 41. The Commissioner is right on this point.

63. The second remaining question concerns the word “obtained”. Parliament might
have decided to dispense with section 41(1)(a), or it might have used the
language “received from” or “provided by”. It did neither. The use of the word
“obtained” must be taken to be deliberate, and it is the section itself which has to
be interpreted. The natural meaning of “obtained” connotes an active, rather
than a merely passive, step. It connotes information which has been elicited.
There are other statutory exemptions which protect, in accordance with their
terms, a person who volunteers information: see eg. section 40 (personal data)
and section 43 (commercial interests). Those are general in import whereas
section 41 is restricted to confidential information which has been actively
obtained. That is unsurprising. Where a public authority acts positively in
seeking or requesting or eliciting information, the person from whom the
information is “obtained” is in a position of responsive cooperation and might
well expect to find a special protection designed to deal with that situation. At
any rate, that is what Parliament has provided. “Obtain” is used in the same
sense in the DPA 1998. See e.g. the Second Data Protection Principle (“Personal
data shall be obtained only for one or more specified and lawful purposes...”) which
only makes sense if “obtaining” is a positive, purposeful activity engaged in by
the data controller.

‘Exceptionality’ test (DN§§85-87, 91)

64. The introduction to this topic is at §§9-10 above. The correct analysis is as
follows. Information is exempt under FOIA s.41(1)(b) only if the public
authority can establish that disclosure would expose it to the risk of a breach of
confidence claim which, on the balance of probabilities, would succeed: see
HEFCE v Information Commissioner and Guardian (EA/2009/0036) at §30. That
means that there would be a prima facie breach of confidence and that there
would be no defence to the hypothetical claim. ECHR Article 8 informs the

31
 analysis. But there is no legal basis for a special “threshold” which requires a
“very strong set of public interest arguments” or “an exceptional case” (§9 above).
The test is whether disclosure would be for a legitimate aim and proportionate
in all the circumstances: see Article 8(2). Article 8 has to be balanced against
Article 10: see Re S [2005] 1 AC 593 at §17. See also Prince of Wales v Associated
Newspapers Ltd [2008] Ch 57 at §§65-69. The test is proportionality not
exceptionality (Prince of Wales §67), involving a public interest balance (§68).

65. An actionable breach of confidence may arise in its orthodox form, as under the
classic three-part definition in Coco v A.N.Clark (Engineers) Ltd [1969] RPC 41,
47. Here, the necessary quality of confidence involves an objective view: see
HEFCE at §§32-36; also Spycatcher [1990] 1 AC 109, 282C-D. Communication in
circumstances importing an obligation of confidence is also an objective test
involving contract or equity, where in all the circumstances disclosure would
be unconscionable: Spycatcher at 281B-H. The section 41 exemption could also
be made out by reference to the derivative species of actionable misuse of
private information, where in all the circumstances the information is private
so as to engage Article 8 rights, as where there is a reasonable expectation of
privacy. Again the test is objective: what would the reasonable person of
ordinary sensibilities feel if placed in the same position as the claimant and
faced with the same publicity? See Murray v Express Newspapers Plc [2009] Ch
481 at §§24, 27, 35-36, 40; also Campbell v MGN [2004] 2 AC 457 at §99.

66. The public interest defence to a claim for breach of confidence involves a
question of proportionality. That means whether, having regard to the nature
of the information and all the relevant circumstances, it is legitimate for the
owner of the information to seek to keep it confidential or whether it is in the
public interest that the information should be made public: see Prince of Wales v
ANL [2008] Ch 57 at §68; also Derry City Council (EA/2006/0014) at §35
especially (i)-(m); LRT v Mayor of London [2003] EMLR 4. ECHR Article 10
comes into play because of the public’s Article 10 rights to receive information,
treating the public authority as a willing discloser in the hypothetical claim for
breach of confidence or misuse of private information: see Derry City Council.
The tribunal needs to weigh up the nature and extent of the detriment from
disclosure against the public interest in the information concerned, including
by considering the extent of any existing relevant public debate and the
contribution which the information would make to that debate: see Derry City
Council (EA/2006/0014) at §35(h) and (l). In the public interest balance, arising
under actionable misuse of private information, there needs to be an intense

32
 focus on the comparative importance of the competing rights and justifications
in the individual case, applying the proportionality test: see Re S (a child) [2005]
1 AC 593 at §17.

67. Where did the Commissioner go wrong? He was right to recognise the
orthodox balancing exercise, by reference to cases such as LRT and Derry City
Council (DN§81). He was right to recognise the significance of ECHR Article 10,
by reference to cases such as Kenedi (DN§§82-83). He was right to hold that the
public interest defence (or public interest balance) does not, in principle,
require an “exceptional” public interest in disclosure (DN§84). He was right
therefore to hold that in a case of commercial information there would be no
especially high threshold requiring an “exceptional” set of public interest
arguments (DN§85) (§11 above). Where he went wrong was in holding that
there was nevertheless a situation requiring the application of a high threshold,
where the information is ‘personal and private’ (DN§86) (§§9, 11 above). The
authorities do not support this approach, and the Commissioner cited no
authority as underpinning it. Nor did he explain why, if commercially
protected information does not attract such a threshold, other private materials
should do so. His approach involved a misdirection which took it off the rails.
The Tribunal needs to conduct the exercise for itself, untained by this error of
law.

‘Truly personal’ content (DN§§86-87)

68. The introduction to this topic is at §§11-12 above. The correct analysis is as
follows. There is no ‘exceptionality’ test, even if the content of the information
is characterised as ‘truly personal’: see §§64-67 above. The nature of the
information being disclosed affects the degree of interference with the
individual’s Article 8 rights (see eg. Z v Finland (1998) 25 EHRR 371 §§95-99)
and the proportionality of that interference. A disclosure of “correspondence”
may engage Article 8: see the wording of Article 8(1). There are differences
between correspondence which does or does not have ‘truly personal’ content;
and whether that content contains intimate details (eg. medical information).
There are also differences between ‘personal’ functions and activities, and those
which concern the individual as a public or professional figure, a distinction
drawn even where public and private are said to be intertwined: see eg.
Corporate Officer of the House of Commons v Information Commissioner (Baker)
(EA/2006/0015 and 0016). Correspondence from the Prince of Wales within the
scope of the constitutional convention (educating the Heir to the Throne: see
§§19-26 above) and advocacy communications (§§27-51 above), are both

33
 squarely on the ‘public’ side of this line. It is accepted that “the withheld
information” is information which is “focused on the business of government”
(DN§52). This is not ‘truly personal’ content, still less intimate personal details.

69. Article 8 extends to “correspondence”. And “private life” does not exclude
professional or business activities, in that working life constitutes a significant
opportunity for the exercise of the individual’s right to establish and develop
relationships with other human beings: Niemietz v Germany (1992) 16 EHRR 97
at §§29-31. Letters which are not concerned with establishing and developing
relationships with other human beings are therefore to be located within the
protection for “correspondence” rather than “private life”.

70. A person who plays a role in public life has a modified expectation of
protection for ‘privacy’, or put another way is more likely to find Article 8
privacy rights outweighed, except where the information relates exclusively to
private life. There is here a strong countervailing consideration: “the public has a
right to be informed, which is an essential right in a democratic society”, which means
that even “aspects of the private life of public figures” can be covered by that public
interest right: see Von Hannover v Germany (2005) 40 EHRR 1 at §§63-64. In
particular, as the Strasbourg Court explained in Tarsasag a Szabadsagjogojkert v
Hungary (App No.37374/05, 14 April 2009) at §37:

... the Court considers that it would be fatal for freedom of expression in the
sphere of politics if public figures could censor the press and public debate in
the name of their personality rights, alleging that their opinions on public
matters are related to their person and therefore constitute private data
which cannot be disclosed without consent.

In this case, the Prince is certainly a “public figure” and the correspondence
certainly covers his “opinions on public matters”. It is a fundamental, though
revealing, error that the Government should seek to invoke an Article 8 “inner
core of beliefs and convictions” to protect views and convictions expressed by the
Prince (Additional Parties’ Notice of Appearance §10(2)) [1/323].

71. It is also worth remembering that considerations of ‘reputation’ are protected

by Article 8 only to a very limited extent: see the majority judgment in Karako v
Hungary (App. No.39311/05, 28 April 2009) at §§22-23. Article 8 is engaged

34
 only where, by reason of its character or gravity, the attack on reputation
inevitably has a direct effect on the person’s private life, or constitutes such a
serious interference with his private life as to undermine his personal integrity.

72. Where did the Commissioner go wrong? He was wrong to refer to disclosure of
this correspondence as an act which would “infringe” and “amount to an
invasion of” the Prince’s “privacy” (DN§§65, 69-70, 124). True, Article 8 was
engaged, because this was “correspondence”. But Article 8 privacy rights were
not being infringed, breached or invaded. There is no “invasion of privacy”
through the disclosure of the opinions on public matters of the Prince as a
public figure (cf. §70).It is quite impossible to characterise correspondence
which it is accepted is “focused on the business of government” (DN§52) as being
of a “private and personal nature” and relating to “intimate personal or family life”
rather than “public and professional life” (DN§86). It is similarly impossible to
contend that disclosure of such correspondence “would undermine His Royal
Highnesses’ dignity by invasion of his privacy” (DN§124).

73. To call the correspondence, and moreover to do so in blanket fashion, “more

private in nature than public” (DN§87) is unsustainable. The crucial point relied
on, to characterise “the Prince of Wales’ public role” as part of his “private life” or
“inextricably linked” with his private life, was that: “he only occupies such positions
because of the family into which he was born” (DN§87). But this is not a sound
reason for the truly “private”, “personal” and “intimate” characterisations of the
correspondence relating to what is accepted to be a “public role”. Precisely the
same could be said, for example, of a hereditary Peer whose Parliamentary
position is based on birth (cf. Information Commissioner’s Response §53 [1/308]). In
fact, the Prince himself perceives his correspondence as being in the nature of
his duty as Heir to the Throne (Dimbleby p.544 [2/324]). This is part of his
‘promoting and protecting’ activities (§36 above). It should be noted that in von
Hannover [62]-[64], the ECtHR found for Princess Caroline not because she had
a hereditary title, but because she exercised no functions within or on behalf of
the state. The approach is governed by function, not status. Sir Stephen
Lamport refers to the Prince’s “role [as] a function of his birth” (§28), but he
immediately goes on to recognise the importance of distinctions based on
substance (§§29-32). Sir Stephen recognises that an advocacy role is different,
but he insists on the qualification that it be advocacy deliberately conducted by
the Prince in the public domain (§§29-30) and not sought to be undertaken or
continued by letter.

35
74. So much for the suggestion of ‘truly personal’ content (§11 above). There was
another feature of this case which related to the nature of the correspondence.
Far from denying the “public role”, or recharacterising it as “private life” or
“personal” and “intimate” subject-matter, this is a consideration which arises out
of the constitutional convention: educating the Heir to the Throne (§14 above).
This was certainly a relevant consideration, but it did not justify the
conclusions reached in this case. The convention is concerned with education;
this case is about advocacy. It will be convenient to deal with this in one place,
under the next topic, of ‘public interest detriment’ (§§75-95 below).

‘Public interest detriment’ (DN§§86-92; 108-124)

75. The introduction to this topic is at §§13-16 above. The correct analysis is as
follows. Neither an ‘exceptionality’ test (§§64-67 above), nor a characterisation
of the correspondence as ‘truly personal’ (§§68-74 above) is sustainable. There
is of course a public interest balance to be struck in assessing proportionality
and the public interest, including for the purposes (§§64-66 above) of actionable
breach of confidence and the public interest defence (section 41), and more
generally under the Act. And that means identifying reasons which can
legitimately be said to weigh in favour of withholding the information. The
central features here are said to be (§§14-15 above) the constitutional
convention (educating the Heir to the Throne), together with the accompanying
weighty expectation of confidentiality and need for apparent political
neutrality. None of these, however, can attach in blanket fashion to the Prince’s
correspondence in its entirety. The convention (see §§19-26, 54-58 above) has a
particular scope, function and focus to which any legitimate accompanying
protective aims or concerns should be tailored. The Prince’s known
engagement in advocacy correspondence (§§27-51 above) in any event
undermines the extent to which a public interest harm can be invoked so as to
protect such information from disclosure.

76. The constitutional convention involves the Heir to the Throne being educated
in the ways and workings of government. As Professor Tomkins explains, the
convention relates to a role which is “dignified”, rather than the “efficient”
(Tomkins §15(a) [3/21]). As is fairly observed, in his correspondence with
Ministers, “one does not even remotely get the sense that the Prince enters into
political correspondence with Ministers because he is seeking to educate himself in (or
seeking to be educated in) the business of Government” (Tomkins §15(a)(i)). As it is
put in the Notice of Appeal (§23(4)) [1/288]: “From the correspondence already
available it appears that the Prince seeks to initiate debate with ministers on matters of

36
 public concern, rather than passively receiving education about the business of
government”. See too §§26, 30, 32 and 36-51 above.

77. There is no constitutional convention that accords the Prince a special right to
lobby Government, still less secretly, and by reason of his royal status
(Tomkins §15(1)(iii)). Indeed, advocacy or lobbying activities should in
principle accord with fundamental Nolan Principles and the safeguards
identified by the Select Committee (Tomkins §§12, 15(a)(iv)).

78. It is important not to overstate the extent to which disclosure would undermine
the constitutional convention (educating the Heir to the Throne), compromise
the perception of political neutrality or have a chilling effect on
communications undertaken in the public interest between the Prince and
Ministers. This is especially so, where it is a matter of public record that the
Prince holds and expresses strong views on matters of public policy and
engages with Ministers on issues which concern him. And where, moreover, it
is said that the Prince perceives his advocacy correspondence to be his duty
(Dimbleby p.544 [2/324]).

79. Where did the Commissioner go wrong? He was right (§14 above) to recognise
that the constitutional convention is in respect of “information which relates to
The Prince of Wales being educated in the ways and workings of government”
(DN§67). He was right that the relevant public interest would be “in the
ensuring [that] the convention that the Heir to the Throne can be instructed in the
business of government is not undermined” (DN§89). He was entitled to say that
the “constitutional convention” could carry “an explicit (and weighty) expectation
that such correspondence would be confidential” (DN§66). He was even entitled to
say that the protection of the constitutional convention could be a weighty
matter (DN§110). But there were fatal difficulties which remained.

80. It was unsound to find in respect of communications which “do not fall within
[the Commissioner’s] interpretation of the convention, there is still a weighty
expectation that such correspondence will be kept confidential” (DN§68). It was
unsound for the Commissioner to conclude that the disclosure of any
correspondence was held by the Commissioner (DN§89) to be damaging to the
constitutional convention (“a significant public interest in ... ensuring [that] the
convention ... is not undermined”) and the accompanying weighty expectation of

37
 confidentiality (the “weighty public interest in maintaining confidences”). And it
was unsound to identify a relevant “chilling effect” outside the scope of the
constitutional convention (DN§§121-122). See too §§14-15 above.

81. It will be recalled that the Government was arguing for a constitutional
convention of universal and all-embracing scope (§21 above). That was rightly
rejected (DN§§67, 109) (§22 above). The Commissioner rightly described the
convention as relatively narrow (DN§109), though he ought to have been more
explicit than his charity and personal examples (DN§67), and ought to have
spelled out that advocacy correspondence would fall outside the scope of the
constitutional convention. To be educated is not the same as to seek to
persuade and influence.

82. Having rightly rejected (§22 above) the suggestion of a universal and all-
encompassing convention (DN§67: “this convention cannot be interpreted so
widely”), the Commissioner was wrong to find a universal and all-embracing
“weighty expectation” (DN§68). That involved a mismatch between the
correspondence (“such correspondence”) covered by the convention and the
correspondence covered by the expectation of confidentiality said to arise out
of the convention. It involved upholding the Government’s position as to
scope, which the Commissioner had rightly rejected as to scope, accepting it as
to the associated “weighty expectation” (DN§68). The answer could not be
dictated by what the Government was arguing as to the scope of the
convention, nor by what the practice was. After all, that very argument as to
scope (ie. an alleged universally-applicable convention) and the practice as to
disclosure (ie. blanket withholding of information) were being impugned and
the Commissioner in adjudicating had upheld that challenge.

83. Faced with this fundamental problem, the Government counter-attacks by

seeking to impugn the Commissioner’s conclusions (§§22-23 above) as to the
limits of the constitutional convention. Reliance is placed on the thesis of
Professor Brazier, who contends that the convention should be seen as
extending to any correspondence between the Prince and ministers (Brazier §89
[4/77]). There are many difficulties with this: see §§54-58 above. It cannot
account for the lack of any perceived duty of confidentiality on the part of the
Prince (cf. Tomkins §7 [3/16]). It fails to distinguish between the Prince and the
Sovereign, it being said that the Sovereign has the constitutional function to
‘counsel, encourage and warn’ (DN§51; Brazier §§20-29 [4/63-64]). It conflates

38
 ‘educational’ correspondence, to educate the Heir to the Throne in the ways
and working of Government, with correspondence relating to ‘governance and
issues of public policy’ generally (Brazier §§55, 82 [4/69, 75]). It then extends
‘governance’ to cover all functions including charity work (Brazier §§83-87
[4/75-77]). It involves the assertions that a universal practice of confidentiality
identifies an all-embracing scope of the convention (Brazier §§89-103 [4/77-80]),
when it does no such thing. On this basis, the convention loses its prescriptive
standard-setting colour, becoming merely descriptive of what this Prince
chooses to do. Any ‘confidential’ letter of any nature which he made it his
‘practice’ to write would become constitutionally protected. It would accept
‘innovation’ as convention, contrary to basic principle (Tomkins §§10, 13, 15(a)
(ii) [3/18ff]). For as Professor Brazier has accepted the Prince’s practice is a new
development rather than a longstanding feature (Tomkins §14 [3/20]). It would
also surrender the constitutional principle of political neutrality, since the
Prince could choose to write in whatever ‘confidential’ way he wanted,
counselling urging and warning without reference to any ‘dignified’ role, or
even acting in a ‘party political’ manner. Down that path would lie a
constitutionally-protected lobbying function (cf. Tomkins §15(a)(iii) [3/22]),
constitutionally-protected preferential treatment and privileged access for
advocacy actions, and a cover-up for what in truth would be unconstitutional
behaviour (Tomkins §5 [3/14]). Blanket all-embracing confidentiality protection
as a constitutional principle is not, with respect, a convincing thesis. It is
perhaps unsurprising that it is a thesis put as a new suggestion (Brazier: “it is
time to recognise” (Tomkins §14 [3/20])) and which does not command anything
approaching a consensus (cf. Tomkins §14).

84. Professor Brazier fairly accepts, moreover, that he is only able to assist with one
side of the scales: he gives his view of the constitutional principles and
interests; he cannot comment on the wider public interest questions relating to
freedom of information (Brazier §§2, 94 [4/60, 78]). His thesis is absolute and
all-embracing. As to absolute (Brazier §55 [4/69]):

In my opinion any document which concerns governance and which is sent to

a Minister by His Royal Highness, and any response from that Minister,
must attract the same absolute confidentiality as attaches to The Queen’s
Audiences and written communications.

39
 As to all-embracing, even “argumentative” correspondence “would fall squarely
within the scope of the apprenticeship convention with its obligation of confidentiality”
(Brazier §98 [4/79]).

85. To test this suggested absolute and all-embracing constitutional protection, one
can take examples. Suppose Ministers are conducting a public consultation on
the question of whether there should be a new terminal at Heathrow. Suppose
there is a consultation paper and the Government publishes a response to the
consultation, annexing the responses which were received giving views about
the proposal. Suppose a planning policy is being revised. Or suppose a
planning application has been received and is under consideration by a public
authority decision-maker. Suppose an application has been called in by the
Secretary of State and has been considered by an inspector. Suppose listed
building status is being considered, which would block a development.
Suppose the Chelsea Barracks are to be developed and the Prince writes an
advocacy letter direct to the local planning authority rather than Prince-to-
Prince? Suppose St Paul’s is the subject of a proposal, and the Prince writes
advocacy letters rather than speaking out publically? Suppose consideration is
being given to protected status for a building, which would prevent a
development. Suppose Government decides to impose on the farming
community some new measure. Suppose there is a U-turn which makes
mandatory a certain vaccination. Or imposes a stubble-burning ban. Suppose
businesses are given mandatory gold-plated pollution abatement duties, or
social responsibility obligations. Suppose new requirements for pension funds.
Suppose the Human Rights Bill is amended by Government to exclude military
activities overseas. Suppose salmon fishing is restricted. Or suppose a new
compensation scheme with new limits, or funded by a levy.

86. Such controversies as these are well-known to the Courts as well as to the
public. They are subject to democratic controls, and ultimately to the rule of
law. One can think of examples regarding foot-and-mouth, environmental-
protection and education, bans on industries, restrictions on NHS-availability
of drugs, airport development policy, planning applications, GM-crops,
pesticides, architecture at sensitive sites, the scope of the Human Rights Act to
the British military abroad; restrictions as to herbal medicines; and so on. Such
examples as these can readily be found discussed in the pages of the case-law
of the Administrative Court, and shown to the Tribunal.

40
87. It is one thing to say that Government communications which update and
educated the Prince on matters such as these fall within a constitutional
convention. But what if the Prince has written advocacy letters to persuade
Ministers or other public authorities in those contexts? What if he has done so
alongside, or instead of, speaking out publicly? Would there really be a
constitutional protection, in blanket and absolute fashion; akin to “legal
professional privilege” (DN§110) (§23 above)? Even though he speaks out openly,
is known to engage in advocacy correspondence, and approved a biography
which put illustrations of such communications into the public domain? What
if Government publishes responses received in the context of a defence cut
White Paper, or airport development consultation? What if there is a legal
challenge? Suppose a letter before claim is received which asks for a candid
explanation of what matters were taken into account and whether all objections
were disclosed. Is there an “absolute” (§84 above) constitutional protection?
Emphatically not. The public interest in transparency must allow that advocacy
letters can see the light of day. Ex-Minister Richard Caborn has the nub of the
point as to why it is wrong to keep advocacy letters secret (quoted in the
Guardian 16 December 2009 [2/100]):

[The Prince] is entitled to press his views ... If he is making his views known
to ministers, they should be in the public domain. He can’t have it both
ways.

88. Constitutional considerations aside, there is another basic and fundamental

problem with the suggested public interest in protection. It arose out of the fact
that it is well-known, and is in the public domain, that the Prince engages in
advocacy correspondence with Ministers. That publicly known fact is
reflective, moreover, of the Prince’s own actions, including in authorising the
Dimbleby autobiography. The Commissioner referred to media coverage of this
issue (DN§78) and to the Dimbleby examples (DN§117). But he apparently took
the view that this was without force, it being for the Prince to pick and choose
(consent and self-censor) which letters come to be in the public domain
(DN§118). That cannot be right. In the first place, the very fact that the Prince is
willing, in such cases as he chooses, to disclose the fact of advocacy
communications serves to underline that these are not within the constitutional
convention. If they were, he would doubtless himself owe a perceived
obligation of confidentiality (cf. Tomkins §7 [3/16]). The fact, moreover, that the
Prince has been prepared to put such activities into the public domain
undermines any possible principle of an expectation of confidentiality
(Tomkins §§8, 12, 16 [3/16ff]). In these circumstances it could not in any event

41
 be said that disclosure would undermine any constitutional convention
(Tomkins §15(d) [3/24]). There is, in short, no constitutionally grounded
argument that the Prince’s communications of his views and opinions must
remain in confidence.

89. That leaves appearances of political neutrality. The Commissioner’s view was
that “it would clearly not be in the public interest if the Heir to [the] Throne and
future Monarch appeared to be politically partisan” (DN§89), a reference to the
argument for protection from disclosure which would mean “His Royal
Highness’ political neutrality would be put at risk” (DN§51). Insofar as this reflects
the public interest in free and “unchilled” communications educating the Heir
to the Throne in the ways and workings of government, it simply restates the
interest in protecting that correspondence (§§22-23 above). Insofar as it is
intended to protect against disclosure of the Prince’s advocacy correspondence
(lobbying), it is demonstrably unsound. Moreover, it cannot withstand the
obvious point, that the information in the public domain – including as a result
of the Prince’s own actions – undermines this basis for maintaining blanket
secrecy.

90. Logically, the principle of political neutrality means one of two possibilities.
The first possibility is that the Prince’s advocacy correspondence does not in
substance compromise the principle of political neutrality, because that
principle is concerned with something altogether narrower, in the sense of
party-political (see Notice of Appeal §25 [1/289]), and which the Prince
steadfastly respects. That appears to be the Prince’s own position: Mark
Bolland explains how the Prince “avoided party politics” (Evans §9 [3/5]).
Alexander Allan puts it in this way (Allan §10 [4/3]): “it is a vital feature of the
constitutional settlement that the Sovereign cannot be seen to favour one particular
political party above another”. That means not having “particular party political
predilections” (Allan §18 [4/6]). Professor Brazier refers to the need to be
“politically neutral, outside and above party politics” (Brazier §31 [4/65]), and to an
“absolute neutrality as between the political parties and the policies of various
Governments” (Brazier §59 [4/70]). In describing the Prince’s “interventions on
matters of public policy”, Professor Brazier comments that: “In the main such
matters do not divide the political parties, and so are not party-political”, albeit that
they involve public policy and could be characterised as “political” in a wider
sense “that decisions on them fall to be made from time to time by Ministers and
Parliament” (Brazier §70 [4/72]).

42
91. Likewise, the Prince’s website emphasises that the Prince is careful to avoid
“party political issues”, including in his correspondence with Ministers [4/53]. If
that is the test, and if the Prince is adhering to it, there is no problem on this
account in there being transparency. After all, the Prince’s speeches are
governed by the self-same principle [4/58] and he is able to engage in them and
the people and press can see those activities and judge for themselves. Party-
politics is the formulation referred to by Lamport (§§20, 30) [4/32, 35], by
Bolland (§10) [2/10] (“he is never party-political”) [2/38], by Sir Michael Peat
[2/101], (Peat §4) [4/40] and the Prince’s other aides [2/11], by the Prince himself
(Dimbleby p.427 [2/294]), by the Editor of The Times (Dimbleby p.327 [2/255])
and by Ministers themselves (eg. former Environment Minister Meacher) [2-
16]. On that basis, the Prince is reported to be “known to steer clear of partisan
involvement” [2/18]. For the Prince owes a “party political neutrality” (Lamport
§4) [4/27] and his advocacy avoids “party political issues” (Lamport §21) [4/33].

92. The second logical possibility would be that the Prince’s advocacy
correspondence does in substance compromise the principle of political
neutrality. That would be for one of two reasons. Either because he does not do
in his correspondence what he promises publicly [4/53]: “The Prince is always
careful to avoid party political issues”. Or because the principle of political
neutrality is concerned with some wider sense of “political”, and in ensuring
that the Heir to the Throne does not engage in – and is seen not to engage in –
seeking to influence governmental decision-making or policy-making.

93. In the case of neither of these logical possibilities could the withholding of the
correspondence be justified by a public interest harm in the name of preserving
the appearance of political neutrality. In the first case (§91 above), the
appearance in political neutrality would not be compromised but secured and
confirmed, just as in the case of the Prince’s controversial speeches which fall to
be judged by the same neutrality standard. In the second case (§92 above), the
appearance in political neutrality would prove to be false, misleading and
undeserved and there can be no public interest harm in exposing the truth.
Moreover, if the effect of that were “chilling”, what would be deterred for the
future would be inapt conduct infringing an important constitutional principle.
But if the wider concept of neutrality were the right one, and were infringed by
the Prince’s advocacy activities, any ‘damage’ would be long done by the
public domain speeches and the authorised biography illustrations.

43
94. What is important in all of this is that “political neutrality” is a matter of
substance and not just of appearance (or perception: Brazier §74 [4/73]).
Professor Brazier encapsulates the two when describing the Sovereign (Brazier
§31 [4/65]): “The Sovereign must be, and be seen to be, politically neutral, outside and
above party politics”. He then explains that “The Prince of Wales is under the same
constitutional obligation as The Queen to maintain political neutrality”, which he
says “is fully accepted by His Royal Highness” (Brazier §59 [4/70]).

95. Preserving the appearance of impartiality can hardly be in the public interest if
that is a false picture: it must protect and preserve an existing reality (Tomkins
§9 [3/17]). Put another way, there could be no justification for unconstitutional
behaviour to be covered up; quite the contrary (Tomkins §5 [3/14]). Especially
when the substance of the Prince’s action is said to reflect his perceived duty
(Brazier §71 [4/73]). This point can be illustrated by considering the position of
Judges, in respect of whom the rule requiring apparent impartiality (no
apparent bias) is a central guarantee of natural justice. Where in substance
there is some connection with the cause or matter, it cannot be right for that to
remain concealed in the interests of preserving apparent impartiality. On the
contrary, the first requirement of the law against apparent bias would be to
secure disclosure of the relevant fact. A graphic example is Pinochet (No.2)
[2001] 1 AC 119.

Public interest benefit (DN§§74-79, 90-92, 106, 125)

96. The introduction to this topic is at §§17-18 above. The correct analysis is as
follows. The public interest in disclosure of the correspondence outweighs
(s.41), and is not outweighed by (s.39), any public interest detriment. There
would be a public interest defence to any hypothetical claim for breach of
confidence, no blanket immunity from disclosure could begin to satisfy the
Article 8 and Article 10 proportionality test, and there is a public interest in
disclosure not displaced by any public interest detriment (s.39).

97. Where did the Commissioner go wrong? He rightly identified the important
“public interest arguments in favour of disclosure” (DN§§90, 125) (§§17, 29 above).
He rightly recognised they “touch directly on many, if not all, of the central public
interest arguments underpinning the Act” (DN§90). He recognised the public
interest in “ensuring that public authorities are accountable for and transparent in
their actions; furthering public debate; improving confidence in decisions taken by

44
 public authorities”. And he recognised the “specific arguments relevant to this case
in relation to The Prince of Wales relationship with government Ministers” and
which “deserve[] to be given particular weight” (DN§90). He had summarised
them earlier (DN§§74-79). The determination had already gone off the rails:
through the invocation of an ‘exceptionality’ test (DN§91) (§§64-67 above);
through the characterisation of ‘truly personal’ content (DN§§86-87) (§§68-74
above); through the approach to the public interest detriment (DN§89) (§§75-95
above): the constitutional convention; the protection extending beyond its
identified scope; the expanded accompanying expectation of confidentiality;
and the suggestion of protecting appearances of political neutrality.

98. The public interest arguments in favour of disclosure were correctly

summarised by the Commissioner (DN§§74-79). They related to: (1)
governmental accountability and transparency (DN§74); (2) the increased
understanding of the interaction between Government and Monarchy (DN§75);
(3) a public understanding of the influence of the Prince if successfully exerted
(DN§76); (4) public reassurance and public confidence if it is unsuccessfully
exerted (DN§77); (5) the public domain knowledge of alleged inapt interference
(DN§78); and the public debate as to the role of the Monarchy (DN§79).

99. As the Appellant explains (Evans §17 [3/8]), the press articles show that
instances which have come to light of the Prince ‘lobbying’ government spark
considerable public debate about whether such communications are
appropriate and as to the particular views which the Prince has been putting
forward. These interventions have frequently been the subject of comment by
members of the public, newspapers, MPs, peers, Ministers themselves, and
professionals working in the fields in which the Prince is known to have
expressed his strong views. See too §§46, 49-51 above. As Paul Richards puts it
(Richards §11 [3/12): “It is difficult to assess the extent of Prince Charles’ influence.
A good starting point would be the publication of the correspondence. This would help
us to know the extent, and influence, of Prince Charles the lobbyist”. As Professor
Tomkins explains (Tomkins §15(d) [3/24]): “disclosure would promote good
governance, constitutional propriety and a more fully informed debate on
constitutional matters, each and all of which are strongly in the public interest”.

100. These are very powerful public interest considerations. They arise, moreover,
in the context where lobbying activity is in principle controversial and is seen
as appropriate for regulatory standards of control (Richards §10): see especially

45
 the Nolan Principles [2/368] and PASC 2009 Report [2/351] (Tomkins §§12, 15(a)
(iv) [3/22]). Lobbying is the activity by those in a democracy “making
representations to government on issues of concern” [2/354]. That is precisely what
the Prince does, and precisely why it is different from his educational function.
The strong public interest in transparency where lobbying is concerned has
been recognised by the Tribunal: see eg. Evans (EA/2006/0064) §§26-28; and
DBER (EA/2007/0072) §§132-134. There are obvious dangers in “privileged
access to power, policy and Government” and so what is called for is the “maximum
reasonable degree of transparency” [2/225]. The powerful public interest
considerations which arise in a situation of a so-called threat to apparent
political neutrality raises a concern of substance which strongly militates
against secrecy (see §94 above). They must be considered against the backcloth
of the Prince’s public pronouncements on matters of public controversy, and
the material which is already in the public domain (§§30-51 above). As it is put
in the Notice of Appeal (§27 [1/289]):

... these arguments must be considered in the context of the Prince’s public
pronouncements on matters of public controversy, and the content of his
communications with government so far as that is already known ... These
pronouncements and communications give rise to a strong and legitimate
public concern that the Prince engages in lobbying and that his views may
have an inappropriate or disproportionate effect on government policy
and/or government handling of specific issues. Were such undue influence to
exist, it would be a matter of the greatest constitutional importance,
requiring public debate at the highest level. Accordingly there is a pressing
need for transparency which should justify disclosure of all but the most
personal communications.

101. Indeed, even assuming that an ‘exceptionality’ test were somehow apt (§§9, 64-
67), the Commissioner erred in holding that these were not a ‘strong set’ of
‘exceptional’ public interest arguments (DN§91). Even assuming that there
were somehow ‘truly personal’ content (§§11, 68-74), he erred in holding that
these were insufficient to outweigh the interests and expectations of privacy
(DN§§86-87). Even assuming somehow some harm to the public interest
relating to the constitutional convention (DN§89) from communications
beyond its scope (§§13-15, 75-95), he erred in holding that they did not
outweigh those concerns (s.40) and were outweighed by those concerns
(DN§§107-127). These findings were in each case unsound as to the premise
(see above), but in any event as to their conclusion. In upholding this rigid and
blanket exemption, the Commissioner got the approach – and in any event the
balance – wrong.

46
Statutory amendment

102. The Government seeks to place reliance in this appeal on an amendment in

relation to section 39 which is not yet in force, which would change it from a
qualified to an unqualified exemption in the case of the Heir to the Throne. The
amendment is contained in the Constitutional Reform and Governance Act
2010. This point is framed as issue 17 in the Respondent’s List of Issues.

103. On 16 April 2010 the First-Tier Tribunal (before this case was transferred to the
Upper Tribunal) raised with the parties the following question [1/330B],
premised on the 2010 Act coming into force:

... when considering the FOIA Act’s public interest test, is the [Tribunal]
bound to conclude that the 2010 Act sets out what Parliament considers to
be in the public interest, with the consequence that while the law has not
altered and the legal test remains that which applied at the time the requests
under the FOA Act were made, there is no longer any room for a view that
the disclosure sought by the appellant would be in the public interest.

104. The 2010 Act is still not in force. Section 37 is a qualified exemption and must
be applied as a qualified exemption. The public interest balance is a matter for
the Tribunal, under the Act as presently applicable. It could not conceivably be
right to allow its application to be influenced or dictated by a provision of a
fundamentally different character which is not the law and, if anything, serves
to emphasise a contrast with what is the law. Nor in any event can the view of
Parliament, in removing for the future a public interest balance from those who
apply the FOIA, be equated with the true ambit of a constitutional convention.
In the context of a qualified exemption, the Commissioner correctly held s.37(1)
(a) to be tailored in its proper application to the scope of the relevant
constitutional convention (DN§120) (§23 above). Indeed, if the constitutional
principle were so clear, protective and all-encompassing, it could be left to the
Tribunal faithfully to apply it. In fact, it is a convention limited in scope and
part of an overall balance.

105. It cannot therefore be right for Government to contend, as it has (Additional

Parties’ Notice of Appearance §22 [1/328]), that “even before [these] amendments
have come into force, the fact that Parliament has seen fit to provide for such an
absolute exemption is a powerful argument against disclosure”. The Tribunal applies

47
 the Act, as it is in force. In asking the question whether Parliament see fit to
provide an absolute exemption, there is only one answer: no, it has not. An
absolute exemption is indeed a powerful answer against disclosure. But the
Tribunal is applying no such thing. Statutory amendments, and their
implementation dates, exist for a reason: to change the law from the date that
they are in force; not before. The Commissioner got the position right in the
principled response set out in his written submissions dated 21 April 2010 (§§5-
6) [1/330C]:

... this appeal should be dealt with by reference to the provisions of FOIA
that were in force at the time of the request...

The amendments that have subsequently been made under the 2010 Act
should not ... affect the assessment of the public interest by the Tribunal.

EIR Regulation 12(f)

106. The Environmental Information Regulations (EIR) were invoked by the

Commissioner in 5 of the Decision Notices 3. In 2 cases (DEFRA and
Department for Culture Media and Sport 4), the Commissioner found that all
the correspondence was environmental information. In the other cases, some of
the correspondence was environmental information and the balance fell to be
considered under FOIA. The Decision Notice in the case of the Department of
Health encapsulates the Commissioner’s approach to the EIR and is a
convenient focus for the analysis 5. The application of the Regulation to the
correspondence is addressed in Ground 7 and is framed as issue 11 in the
Respondent’s List of Issues.

107. If the Appellant were to prevail in relation to sections 41 and 37 on the basis of
the submissions set out above or any of them, then on no view could EIR
Regulation 12(5)(f) then produce a different answer in relation to the parts of
the correspondence to which the EIR apply.

3
DEFRA [1/1-31]; DCMS [1/111ff]; NIO [1/162ff]; CO [1/207ff] & DoH [1/255ff]
4
[1/1] & [1/103]
5
[1/226 & see 255ff].The reasoning in the “EIR-only” cases is necessarily lengthier, but to the same
effect.

48
108. Regulation 12(2) creates an express presumption in favour of disclosure.
Compared to the qualified exemptions in FOIA (both class-based and
prejudice-based) the threshold which must be crossed before this exception is
engaged is a high one: “would adversely affect...”: see Archer (EA/2006/37) §51.
When considering the public interest, regard should be had to the underlying
rationale for disclosure of environmental information, as stated in the parent
Directive: “Increased public access to environmental information and the
dissemination of such information contribute to a greater awareness of environmental
matters, a free exchange of views, more effective participation by the public in
environmental decision-making and, eventually, to a better environment”. See Bristol
City Council (EA/2010/0012) at §16.

109. Where did the Commissioner go wrong? He was right to find that not all the
correspondence will fall within Reg 12(5)(f): information is only “provided” by
Prince Charles where it is contained in a communication from him, or where a
communication from the government closely replicates the content of the
information originally provided by the Prince (DoH§155). He correctly
identified the higher threshold which applies under Reg 12(5) (DoH§158). He
was correct to proceed on the basis that the factors to be balanced were
essentially the same as those which arose under FOIA (DoH§161). The error lay
in the conduct of the balancing exercise itself, for the same reasons as set out
above in relation to the FOAI exemptions.

110. Notably, in the two “EIR-only” cases, the Commissioner recognised that “the
public interest arguments in favour of disclosing the information are compelling” but
then concluded that “disclosure of the particular correspondence falling within the
scope of this request would not necessarily fulfil these public interest arguments” 6.
This “particular correspondence” with DEFRA and the DCMS presumably
includes advocacy by the Prince on farming policy and architecture. The
Prince has a well known public stance on these matters, and there is
demonstrable public concern at his lobbying and apparent influence in these
areas (see Evans WS §§13-17 [3/7-8]). Accordingly, and contrary to the
Commissioner’s conclusions, these are cases in which disclosure is particularly
likely to serve the public interest.

Personal Data

6
DEFRA §80 [1/17]; DCMS §87 [1/120]

49
111. The Commissioner considered the arguments for non-disclosure on Data
Protection Grounds only in 3 cases, and then only in relation to a small subset
of the correspondence: environmental information which either related to
emissions7, or which was not “provided” by the Prince of Wales 8, such that EIR
Reg 12(5) could not be invoked. He found in each case that disclosure would be
unfair, contrary to the First Data Protection Principle. This is challenged by the
Appellant in Ground 8 and framed as Issue 14 on the Respondent’s List of
Issues.

112. The Additional Parties now invite the Tribunal to uphold the Decision Notices
on the additional ground (see §7 above) that all the information falling within
FOIA consists of personal data, disclosure of which would breach the First Data
Protection Principle9. Their stated reason is that disclosure could not satisfy
DPA 1998, Schedule 2, paragraph 610 (and hence would be deemed unfair). This
is framed as Issue 9 on the Respondent’s List.

113. Again, if the Appellant were to prevail in relation to sections 41 or 37, or

Regulation 12(5), on the basis of the submissions set out above or any of them,
then on no view could FOIA s.40, or EIR Reg 13 produce a different answer. In
other words, personal data adds nothing to “all the reasons already given”:
Additional Parties’ Notice of Appearance §13 [1/324].

114. The fundamental value which the DPA 1998 serves to protect is the Article 8
right to personal privacy. This is clear from the recitals and article 1 of Directive
95/46/EC (Data Protection), which the 1998 Act implements. An appreciation
of this underlying purpose should inform any decision as to (a) whether
particular information amounts to “personal data” and (b) whether the
processing of such data is fair. Thus in Durant v FSA [2004] FSR 28 at §28 Auld
LJ said that it deciding whether a reference to the data subject amounts to his
personal data, it may be helpful to consider “whether the information is
biographical in a significant sense, that is going beyond the recording of the putative

7
Cabinet Office §161-172 [1/210ff]
8
DEFRA §81-92 [1/18ff]; DoH §162-172 [1/259ff]
9
Notice of Appearance, section III [1/322-324]. It will be noted that there is a lacuna in the Additional
Parties’ Case: they do not formally contend that the environmental information which the
Commissioner held to be exempt under Reg 12(5) is also, or in the alternative, personal data exempt
from disclosure under Reg 13. Presumably they wish to contend that all the requested information
(environmental and non-environmental) consists of personal data which should not be disclosed. The
Appellant is content for the Tribunal to deal with the appeals on that basis.
10
Notice of Appearance §11-13

50
 data subject’s involvement in a matter or an event that has no personal connotations, a
life event in respect of which his privacy could not be said to be compromised” and that
“in short, [personal data] is information that affects his privacy, whether in his
personal or family life, business or professional capacity”.

115. In a FOIA or EIR case, the “legitimate interests pursued by the data controller
or by the third party or parties to whom the data are disclosed” (Sch 2, para 6)
are synonymous with the public interest in disclosure, and the test is broadly
comparable to the balancing test which applies under the public interest test for
qualified exemptions under FOIA: Corporate Officer of the House of Commons
(Baker) (EA/0015&16) at §90.

116. When considering whether disclosure would be “unwarranted... by reason of

prejudice to the rights and freedoms or legitimate interests of the data subject” it is
again necessary to focus closely on the extent to which a particular disclosure
would interfere with his article 8 right to respect for private and family life. The
interests of a data subject who performs a public role are not paramount, and
the decision-maker can and must distinguish between personal data relating to
his private and public life: see §§68-74 above. A failure to do so will lead to the
vice identified by the ECtHR in Tarsasag (§70 above).

117. The expectations of the data subject are relevant. But they are relevant only
insofar as they are reasonable, and where the data subject has or should have
knowledge of FOIA itself, those reasonable expectations are tempered by the
terms of the Act: Corporate Officer of the House of Commons (Leapman & ors)
(EA/2007/0060 et seq) §45 & 79(b), upheld on appeal [2008] EWHC 1084, see
§18-34.

118. In respect of the vast majority of the correspondence, there is no decision for
the Tribunal to review, and the Tribunal must undertake its own analysis,
applying the principles above, which will include asking whether each piece of
correspondence satisfies the Durant test for personal data at all.

119. Insofar as the Commissioner has made a determination in respect of personal

data, where did he go wrong? Again, it is convenient to refer to the Department

51
 of Health Decision11. Again, for the reasons already given in respect of FOIA
s.41 and 37, the Commissioner mischaracterised the information as potential
harmful to “The Prince of Wales’ privacy and dignity as protected by Article 8
ECHR” and overstated the potential detriment to the Prince’s political
neutrality, while underestimating the public interest benefit in disclosure.

120. Additionally – and in particular – the Commissioner wrongly assessed the

expectations of the Prince (a matter on which the Tribunal has no evidence
from the Prince himself) as reasonable without reference to the Prince’s own
familiarity with FOIA. The Appellants request covers correspondence in the 3
months following the entry into force of FOIA and the EIR (1 January 2005), as
well as 4 months prior to their implementation. No doubt, as part of his
education in and about the business of government, he will have been told in
advance about FOIA – a major piece of legislation which changed the
landscape for public bodies, including government departments. He will, or
should have, been made aware that the exemption most likely to apply to his
correspondence (s.37(1)(a)) is a qualified exemption and that, even where his
correspondence might also contain confidential information or personal data, it
was possible that circumstances might arise which justified disclosure. If, after
1 January 2005, the Prince had any expectation that his correspondence would
not be disclosed in any circumstances, that expectation was unreasonable. There
may have been a legitimate “weighty” expectation in respect of correspondence
falling within the scope of the Constitutional convention (properly defined),
but even then, the expectation fell short of an absolute assurance of
confidentiality.

121. In the circumstances, disclosure of the correspondence would not be unfair to

the Prince of Wales.

Lists and Schedules (DN§§128-135)

122. This is dealt with in Grounds 9-16 (§§32-40) [1/291-293]. The points are framed
as issues 5-7, 10, 12-13 and 15-16 in the Respondent’s List of Issues. The
Commissioner concluded as follows: (a) that the lists and schedules did not fall
to be disclosed essentially for the same reasons as applied to the
correspondence (DN§§134-135); but (b) if anything, there was an added public
interest detriment because of the damaging speculation that could occur if the

11
§ 162-172 [1/258-260]

52
 fact, nature and degree of the correspondence were in the public domain but
not the content (DN§131, 133), as was said to have been evidenced in one case
(DN§§133, 135). Where the correspondence constitutes environmental
information, the Commissioner found that part of a schedule describing that
information would itself be environmental information and protected from
disclosure under Reg 12(5)(f) or Reg 13 for the same reasons as the
correspondence itself (DoH §181).

123. The correct position is as follows. First, the reasons for refusing disclosure of
the correspondence are not sound, as has been explained above. Secondly, the
fact, nature and (to some extent) degree of the correspondence is in the public
domain. The concern as to damaging speculation is one which ought to be
deployed as part of the public interest in disclosure of the content, which will
confirm or reassure. Moreover, it can hardly be right to resist disclosure by
reason of the content and then rely on public ignorance as to the content to
resist disclosure of the fact, nature and degree. Thirdly, there are strong reasons
why – if the content is said to be protected, for example to facilitate a free
exchange of information in the constitutional convention of educating the Heir
to the Throne – the lists and schedules are the very minimum that the public
interest in transparency would require, applying the rigours of proportionality
and the strong imperatives arising from Article 10.

124. These are reasons for rejecting the Commissioner’s conclusions at the balancing
stage, but under s.40, s.41 and the EIR, there is a more fundamental problem.
Each of these provisions impose a threshold requirement which cannot be
satisfied in the case of a list or schedule of correspondence.

125. A list of correspondence, setting out date, parties and subject matter
(collectively a “descriptive list”), will contain nothing confidential, in the
orthodox sense. The fact, extent and subject matter of a significant amount of
the Prince’s correspondence with government has been disclosed via the
Dimbleby biography, with which the Prince co-operated, or has otherwise
entered the public domain. The policy areas in which the Prince takes an
interest are already widely known. A number of ministers have publicly
confirmed the fact and subject matter of their dealings with the Prince (see e.g.
press reports quoting Norman Tebbit [2/17], John Prescott and Nick Brown
[2/114]) A minister in the last government publicly confirmed that the Prince
had meetings with the Health Secretary where the subjects discussed included

53
 homeopathy [2/115]. The subject matter of some of the correspondence sought
in this case has already been revealed in Parliament and in the policy document
of one of the political parties (see Schedule of exhibits to Allan Closed WS:
curiously the Additional Parties have refused to put the relevant Hansard
extracts and the policy document in open evidence). Against that background,
no minister could realistically argue that it is unconscionable to disclose a
descriptive list of correspondence.

126. Neither would there be any disclosure of private information. A list would not
disclose any details of the Prince’s private life, nor would it reveal the
substance of his views on matters of public policy. A reasonable person of
ordinary sensibilities, placed in Prince Charles’ position, would not object to
publicity of this limited information. There is therefore no realistic expectation
of privacy, and Article 8 is not engaged. The additional parties seek to rely on
Malone v UK (1984) 7 EHRR 14 where the disclosure of “metering” information
about telephone calls was held to infringe article 8. But that was a case which
was closely connected to the applicant’s complaint that his calls had been
secretly intercepted (§85) and where the disclosure was not by the other party
to the call, but by the service provider, who had access to the information for
billing and technical purposes only (§§83-84). It does not follow that it would
be an infringement of Mr Malone’s privacy for the recipient of a call to disclose
that Mr Malone had called him, or to state the general subject matter of the call.
Could disclosure of a list of correspondence, on a stated matter of public policy,
between (say) a named company director and a department, realistically be
said to raise Article 8 issues? There is no relevant difference here.

127. As to Regulation 12(5)(f), and given what is already publicly known about the
extent of the Prince’s correspondence, the subject matter of the correspondence,
and the subjects which attract the Prince’s attention generally, any detriment to
the Prince’s interests which would flow from disclosure of a descriptive list
would be so minimal that the high threshold test (“would adversely affect”)
cannot be satisfied.

128. As to s.40 and Regulation 13, a descriptive list would say nothing which is
“biographical in a significant sense” or affect the Prince’s privacy. The Durant
test for personal data is therefore not satisfied at all and it is unnecessary to go
on to consider the fairness of processing.

54
Conclusion

129. For all (and each) of the reasons set out above, this appeal should be allowed
and the Tribunal should substitute Decision Notices requiring the public
authorities to disclose the requested information.

MICHAEL FORDHAM QC

Blackstone Chambers

AIDAN EARDLEY

One Brick Court

JAN JOHANNES

Guardian Newspapers

1.9.10

55
 ANNEX:

APPELLANT’S SIMPLIFIED LIST OF ISSUES

(see Skeleton §4)

1. Did the IC reach the wrong conclusion as to the scope of FOIA section 41(1)(a) to the
correspondence, by: (1) including letters written by HRH Prince of Wales on his own
initiative; and/or (2) excluding letters written to him unless reflecting his actually
expressed views or opinions?

2. Did the IC reach the wrong conclusion as to exemption of correspondence from

disclosure under section 41(1)(b)? Specifically, did he apply the wrong approach to: (1)
expectations of confidentiality; (2) constitutional conventions and perceived political
neutrality; (3) lobbying and seeking to influence policy and decision-making; (4)
chilling effects on communications between HRH and the Government; (5) matters of a
private and personal nature; (6) the Prince of Wales’ rights under ECHR Article 8; (7)
whether to distinguish between different categories of information; (8) a need for a very
strong set of public interest arguments amounting to an exceptional case to justify
disclosure; and/or (9) the arguments and considerations for and against disclosure?

3. Did the IC reach the wrong conclusion or apply the wrong approach as to exemption of
correspondence from disclosure under (1) FOIA section 37 and/or (2) EIR regulation
12(5)(f) and/or (3) EIR regulation 13?

4. Did the IC reach the wrong conclusion or apply the wrong approach as to exemption of
relevant lists and schedules from disclosure under (a) FOIA section 41 (b) FOIA
section 37 (c) EIR regulation 12(5)(f) and/or (d) EIR regulation 13?

5. Were the correspondence and/or the lists and schedules exempt from disclosure under
FOIA section 40(2), as personal data relating to HRH whose disclosure would breach
data protection principles?

56
6. In what way, if at all, are amendments in the Constitutional Reform and Governance
Act 2010 section 46 and Sch 7 relevant to these appeals?

57