For nine years, the UK Guardian has campaigned to force the government to release some of Prince Charles’ private correspondence. The dispute relates to 27 so-called ‘black spider memos’, named because of the author’s scrawly handwriting, that the prince wrote to government departments in 2004 and 2005. The Guardian won the latest round last week in the Court of Appeal. But as the issue looks to be heading for the Supreme Court, both sides to this litigation are missing the issue that’s clearly written in black and white: why in a democracy does the monarch have a right to influence the government?
On one side of the courtroom, the government argues against disclosure because if the public read Prince Charles’ ‘particularly frank’ letters on political issues, then this could, on his succession, undermine the political neutrality that is supposed to characterise the sovereign. Disclosure, says the government, could create a perception that ‘would be seriously damaging to his role as future monarch, because if he forfeits his position of political neutrality as heir to the throne, he cannot easily recover it when he is king’. In other words, the government pleads secrecy as necessary to prevent the institution of monarchy from being harmed.
On the other side of the courtroom, the Guardian argues for disclosure because this ‘is a fight that raises important questions about… the proper limits to the monarchy’. The Guardian adds that disclosure is necessary ‘to protect the prince’; it has decided that the prince needs protecting from himself, that he must be less outspoken so that organisations like the Guardian cannot embarrass him in future. The Guardian sums up its disagreement with the government as being about means rather than ends. Both want to protect Prince Charles, but where the government seeks to do it with secrecy, the Guardian desires to substitute ‘speculation and innuendo for truth and transparency’.
The Guardian’s nine-year campaign over, as it puts it, ‘the proper limits to the monarchy’ is one where it and the government both accept the monarch’s right to influence the government. The most interesting thing that the Guardian’s litigation has revealed is not the already well-known fact that Prince Charles meddles in government affairs, but that the UK’s constitution actually requires the monarch to influence the government. The word used by the attorney general, on behalf of the government, is ‘duty’. More specifically he stated that the monarch had a ‘duty, to be consulted, to encourage, and to warn the government’. This duty ‘ensures that a measure of influence is retained for the monarch within the constitution’. The attorney general notes that the duty ‘is most obviously, though not solely, expressed through the prime minister’s weekly audience with the monarch’.
It’s worth dwelling on the attorney general’s comments. His use of the word ‘duty’ to describe how the monarch’s ‘influence’ is to be exercised is interesting because in his classic 1867 study, The English Constitution, Walter Bagehot described the monarch’s powers as no more than a ‘right to be consulted, the right to encourage, the right to warn’. It is interesting how 150 years of democratisation have left the monarch’s ability to influence the government untouched – in fact, on a plain reading of the attorney general’s statement it seems clear that the monarch’s constitutional power to influence the government has been elevated from a right to a duty in this time.