Interesting things are afoot in Australia. The Prime Minister recently advised the Governor-General to recall Parliament as a prelude to a rare double dissolution. Because this is an unusual situation, Government House has publicly released Malcolm Turnbull’s advice regarding the recall along with an opinion from the Attorney-General vouching for its constitutional propriety.
This level of openness is not new. In 2013, the then-Governor-General, Quentin Bryce, sought advice from the Acting Solicitor-General about whether she should appoint Kevin Rudd as Prime Minister after he defeated Julia Gillard in a leadership spill, and this opinion was also published online. Three years earlier, Bryce sought guidance from the Solicitor-General when it was suggested that her son-in-law’s position as a prominent Labor frontbencher might create a conflict of interest if the forthcoming General Election produced a hung Parliament. This legal advice was also released to the public.
Admittedly, the Australian Crown’s track record on transparency isn’t perfect: Government House won’t release the correspondence between Sir John Kerr and Buckingham Palace regarding the Whitlam Dismissal until 2027! But they’re still lightyears ahead of the United Kingdom. No matter how unusual the circumstances, you would never see Buckingham Palace release correspondence between the Queen and her British Ministers. The Freedom of Information Act is no help. Royal communications with the Government are absolutely exempt from disclosure under section 37 of the Act, and they won’t be released for many years to come.
The problem with this approach is that it lacks nuance. There was a case last year where the Information Commissioner used section 37 to uphold the National Archives’ refusal to disclose correspondence between Downing Street and the Queen regarding Princess Margaret’s possible marriage to Group Captain Peter Townsend. These documents are now over 60 years old, and both Princess Margaret and Group Captain Townsend are dead. Is it really necessary to keep the entire tranche squirreled away? Was there nothing in there that could reasonably be disclosed?
Buckingham Palace is unlikely to adopt Government House’s proactive approach, but there is another possibility. The disclosure of royal communications could be subject to a public interest test. This would balance the ideal of transparency against the need to respect the Sovereign’s unique constitutional position. Such a provision was actually part of the Freedom of Information Act in its original form, which is why the Government ultimately had to release some of the Prince of Wales’ letters to Ministers last year. However, the law was changed in 2010 in order to create the present blanket exemption. In Scotland, royal communications can still be disclosed if it’s in the public interest to do so, and the Scottish Government specifically ruled out a blanket exemption in 2012.
The example of Australia shows that the Crown can be more transparent without damaging its constitutional role, though institutional inertia will probably preserve the status quo in the United Kingdom for the foreseeable future. Until there is change, what Harold Laski called the ‘metaphysics of limited monarchy’ will remain beyond our ken.
A Venerable Puzzle 