Last week saw the publication under the Freedom of Information Act, after a 10 year legal battle, of Prince Charles’ ‘Black Spider memos’, a series of letters to Ministers and the then Prime Minister between 2004 and 2005. These letters gave us a snapshot of Charles’ views and attempts to raise awareness on many different topics, from architecture to Iraq and from empty hospitals to badgers.
After such a long battle to keep them secret, many believed the letters would contain some shock revelation or damaging views. However, although high profile FOI disclosures tantalise us with possible ‘smoking guns’, the effects of these information ‘revelations’ can be muted and shaped by pre-existing attitudes. For Charles, the letters actually fit with what we know his concerns are. Any fallout is cushioned by the fact the Monarchy itself is popular-and Charles’ own popularity is increasing.
In the hours and days after, those on either side of the Monarchy debate read into them what they wished. Republic said that the letters were a ‘direct breach of the constitutional boundaries on which our current system of politics relies’. By contrast, Jacob Rees Mogg pointed out how the memos showed Charles ‘doing his duty’ as heir to the throne in warning and offering advice. You can see this same pattern in other ‘revelations’ such as the release of the ‘full’ cache of Jeb Bush’s emails from when he was governor (though there are rumours he had another account). In this sense, the releases just reinforced views-a bit like the MPs’ expenses scandal of 2009. To most, the expenses ‘revelation’ was more a ‘confirmation’ and few trusted MPs before and few did afterwards.
Clarence House and parts of the media have warned that the disclosure could mean there will be no more raising of issues by Charles (at least not by letter):
The publication of private letters can only inhibit his ability to express the concerns and suggestions which have been put to him in the course of his travels and meetings.
In Charles’ case this is very unlikely, if not impossible. Thanks to an amendment to the FOI Act done on the quiet in 2010 (by the Labour government-not the Coalition) the Monarch and heir to the throne are now fully exempt from it. The ‘Black Spider’ requests ‘got through’ because the appeal predated this change-now they can be absolutely refused. So Charles can write away safely. Unless someone leaks something, like, for example, Charles’ view of the Human Rights Act.
Nevertheless, the concern plays into two larger fears around FOI. One is that it inhibits decision-making and has a ‘chilling effect’ on records. This claim has become a cry against ‘too much’ openness. Tony Blair warned of it in his memoirs and ex-Cabinet Secretary Gus O’Donnell also raised it in the 2012 post-legislative scrutiny of FOI. Proving such an effect is very difficult. The evidence is rather flimsy- for Blair it is a little rich blaming sofa government on FOI and O’Donnell cited only two examples. However, one was hypothetical and one related to the 2010 coalition negotiations, something that has only happened a few times in a 100 years.
FOI can have a chilling effect at the margins but there are many reasons why records change-fear of leaks, resources or information technology. Our own research found that many officials were more concerned about the consequences of not having a record if a judge came looking. On a side note, Blair and Charles shared a little joke about evading FOI, which tells us a little about attitudes to the legislation at the top of government. FOI is a law (passed by Tony Blair)-would they joke about evading the Theft Act?
The second fear is that FOI is being ‘abused’. Blair called passing the Act one of his two biggest mistakes and some of the coverage adds to the sense, a further damaging myth, that the Act is being ‘industrially misused’ for political purposes. In fact, most requests go to local government and are below the radar, concerning the ‘micro-politics’ of allotments or holes in the road. There are some high profile mischievous and ‘frivolous’ requests. However, for every request making headlines about people being banned from a library for being too smelly there are many of vital importance including the UK’s involvement in extraordinary rendition, welfare reform and the Libor Banking scandal-and closer to home the existence of a Royal ‘pocket veto’ on legislation.
Like many new mechanisms of participation, FOI is an inherently ‘disruptive’ instrument. Like all parts of a democracy, it is messy and unpredictable and can occasionally go wrong. But in its messiness and unpredictability lies its power. In explaining why FOI matters, I shamelessly borrow Orwell’s definition of liberty ‘If liberty means anything at all it means the right to tell people what they do not want to hear’ (from his unpublished preface to Animal Farm).Transparency and FOI is then ‘the right to ask questions those in power don’t want asked and look for information they don’t want us to see’.