Information rights judgment reveals Charles’ views on the Queen

The Royal Family has been the subject of a good deal of information rights litigation. The most famous is of course the Evans saga, about the ‘advocacy correspondence’ of Prince Charles. There have also been cases about (to name just a few subjects) the cost of police protection for the Royal Family, whether or not the Duchy of Lancaster is a public authority, royal wills and alleged heirs to the throne, as well as – most recently – whether the Duke or Duchy of Cornwall is a public authority for the purposes of the Environmental Information Regulations (EIRs). The most recent judgment focuses on Her Majesty the Queen herself, and reveals the views of Charles (J).

I refer of course to Mr Justice Charles, the Upper Tribunal President who gave judgment in both the Bruton case and the recent appeal of Cross v IC and Cabinet Office [2016] UKUT 0153 (AAC). See here: Cross UT.

The appeal – which leapfrogged the First-Tier Tribunal – saw the requester, Helen Cross, contend that HM the Queen (or the Royal Household, which boils down to the same for these purposes) is a public authority within the meaning of regulation 2(2) of the EIRs. If Ms Cross prevailed, the consequences would include HM the Queen being required to deal with requests for information under the EIRs (who would do the internal reviews, I wonder?). Her Majesty’s refusals could then be challenged before the Information Commissioner, the Tribunals and so on. What fun.

Charles J (sitting with Judge Gray and Dr Fitzhugh) concluded that the Queen is not a public authority. In particular, the Queen is not a government department (i.e. she is not part of the executive or public administration of the state) and she does not exercise functions of public administration and she is not under the control of any other EIR public authority.

The UT’s judgment emphasises the distinction between the Crown as a shorthand term for ‘government’ and the Crown as a shorthand term for the Sovereign. The latter was the relevant sense here.

The Sovereign is entrusted by statute to make certain Orders in Council, but that limited extent of involvement in the legislative process does not altogether preclude her from being a public authority (the legislature is not a public authority for these purposes).

The Sovereign has a number of high-profile national roles (she appoints the Prime Minister, is Head of the Armed Forces and Church of England and so on) but those are symbolic, rather than anything to do with the executive administration – services of public interest do not suffice here.

And it doesn’t matter whether or not the heads of state in Bulgaria and Germany are deemed to be public authorities.

So the Sovereign is not part of the machinery of government. Nor does she perform “functions of public administration”. On this latter issue, here is a point of important wider application from the Cross judgment.

By Article 2(2)(b) of Directive 2003/4/EC, a public authority is  “any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment”. In its judgment in Fish Legal, the CJEU referred to persons “which are entrusted, under the legal regime which is applicable to them, with the performance of services of public interest, inter alia in the environmental field, and which are, for this purpose, vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law” (para 52).

What is the meaning of the underlined words? Are they simply saying that the person must have functions/perform services which may (but need not) include, by way of example. environmental aspects? Or must the relevant functions and services extend to something of an environmental nature? In other words, is the environmental element optional or essential?

Mrs Cross and the IC argued for the former, but the UT concluded that the latter was right. So to be a public authority under limb (b) of the definition in the Directive (or limb (c) under the EIR definition), the relevant functions or services must include something of an environmental nature. You must identify the relevant public interest functions in the environmental field.

As in Bruton, the UT emphasised the need not only to grind your way through the Fish Legal paragraphs, but also to stand back and assess the question in the round. Here, the question of whether the Sovereign is a public authority was answered with a firm no.

So don’t fire off your EIR requests to the Palace just yet.

Anya Proops QC acted for the ICO. Julian Milford was junior counsel for the Cabinet Office.

Robin Hopkins @hopkinsrobin