This week, the Supreme Court will decide whether or not certain letters between the Prince of Wales and the Government should be released under the Freedom of Information Act 2000. Rob Evans, a journalist with the Guardian, has fought a long-running battle to see the letters, but the Government has fought him every step of the way. Their approach is ultimately rooted in the idea that the Sovereign’s communications with the Government must be kept private for as long as possible. This notion has largely been taken as axiomatic even as its applicability to Prince Charles has been questioned. But is this royal secrecy really necessary?In order to understand the perceived need for royal secrecy, it’s important to understand that, although the United Kingdom is a constitutional monarchy and the Queen is expected to act on the advice of her Ministers, she still retains some political agency. The nineteenth century political theorist Walter Bagehot argued that the Sovereign has three main rights when interacting with the Government: the right to be consulted, the right to encourage, and the right to warn. But at the same time, the Monarch must be politically neutral. In order to reconcile these conflicting dicta, a convention has emerged whereby the Sovereign’s interactions with the Government are conducted beneath a cloak of privacy.
When the Freedom of Information Act was passed in 2000, communications between the Royal Family and the Government were generally exempt from disclosure. However, this exemption could be set aside if it was in the public interest to do so (this is why the Upper Tribunal ordered the release of some of Prince Charles’ letters). But in 2010, the Government decided that the public interest test should no longer apply, and the Freedom of Information Act was amended accordingly. Under the new regime, communications with the Sovereign, the heir to the Throne, and the second in line for the Throne are absolutely exempt from disclosure. The exemption expires after twenty years, or five years after the death of the relevant member of the Royal Family, whichever is longer.
Obviously, this approach is highly problematic. For one thing, it makes it difficult for scholars to analyze the modern Monarchy. Philip Murphy, author of Monarchy and the End of Empire, has written about how Government vetting teams regularly complicated his research, for the merest mention of communication with the Queen was grounds for withholding a document!
It’s also a godsend for the Monarchy’s critics since it makes it easy for them to claim that the Queen and Prince Charles exert undue influence on the Government, and their allegations can’t really be refuted. Personally, I doubt that the Queen or her son are doing anything untoward, but without hard evidence, I can’t make a reasoned argument.
The simplest way to solve this problem would be to reinstate the public interest test. This seems like the best means of balancing the ideal of transparency against the sensitive nature of much of the Queen’s work. To be sure, there are legitimate grounds for keeping some royal communications out of the public eye (after all, the Queen receives a great deal of highly sensitive information), but the current regime doesn’t differentiate between a document from 1952 and a document from 2002. That’s more than a little absurd.
Supporters of the status quo might argue that the public interest test could dissuade the Queen from giving her Ministers frank advice since there would be a chance her views could be made public in the near future. In practice, however, I suspect those fears are overstated. A hereditary Monarch with life tenure doesn’t need to obsess over her standing in the polls. While the Queen can’t afford to ignore public opinion entirely, she doesn’t have to worry about being voted out of office. As long as it’s clear that she isn’t trying to dictate terms to the Government, I doubt people would get too worked up about her advice to her Ministers.
It’s also debatable whether behind-the-scenes influence is really the best way for the Monarchy to use its power in the twenty-first century. In his incisive comparative study of the Crown in Canada, Australia, and New Zealand, Peter Boyce argues that the Queen’s representatives in those countries will have to expand their roles as community leaders in order to stave off obscurity and irrelevance. It’s an interesting proposition, and one could argue that it applies to the Queen as well. Royal activism is not without its problems, but it could prevent the Monarchy from becoming a splendid cypher.
Whatever the Supreme Court decides, little will change in the short term. Sure, there will be some argy-bargy about Prince Charles’ ‘meddling’ if the letters are released, but with a General Election right around the corner, the story won’t have much traction outside the pages of the Guardian. But that doesn’t mean the matter is settled for all time. Demands for transparency aren’t going to go away, and the Monarchy must be careful, lest it end up on the wrong side of history.
 The story goes something like this: Evans sought access to letters between Prince Charles and several Government departments. When they refused to release them, he appealed to the Information Commissioner, who upheld the refusal. Evans then appealed to the Upper Tribunal, which ordered the release of some of the letters (the so-called ‘advocacy correspondence’). At this point, the Attorney General used the ministerial veto conferred by section 53 of the Freedom of Information Act to effectively set aside the tribunal’s decision. Evans sought judicial review of the Attorney General’s decision. While the High Court upheld the Attorney General’s decision, the Court of Appeal ruled that he’d acted unreasonably.
 Philip Murphy, Monarchy and the End of Empire: The House of Windsor, the British Government, and the Postwar Commonwealth (New York: Oxford University Press, 2013), xi-xii.
 Peter Boyce, The Queen’s Other Realms: The Crown and Its Legacy in Australia, Canada and New Zealand (Sydney: The Federation Press, 2008), 235-236.