The ‘black spider memos’, coming to prominence on the day Richard III was buried, conjure up images of hunchback spiders scuttling ink across secret letters, hatching plots of tyranny and betrayal. In reality, Prince Charles’s letters to Government Ministers (the nickname being due to his spidery handwriting) are more likely to be pedestrian and worthy attempts at advocacy, unlikely in themselves to shake the monarchy to its core. It is the government’s efforts to suppress them, the obsession with secrecy and the potential disjunct between how the monarchy is understood to operate and how it really does, which are of greater interest.
In the final act of this legal drama, the UK Supreme Court quashed a certificate issued by a former Attorney-General vetoing the release under freedom of information of 27 letters written by Prince Charles to Ministers between September 2004 and April 2005. A court had earlier found that in writing these ‘advocacy letters’, Prince Charles was using his access to Ministers to influence government policies and to urge his own views upon Ministers. It concluded that it was ‘in the overall public interest for there to be transparency as to how and when Prince Charles seeks to influence government’.
In his attempt to veto the release of these letters, the former A-G, Dominic Grieve, argued that such correspondence with Ministers formed part of Prince Charles’s training to be King and that their release had the potential to undermine public confidence in his political neutrality. He said that any perception that Prince Charles was disagreeing with government policy ‘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.’
These arguments raised the obvious question of how it could possibly be part of Charles’s training to be King to behave in precisely the way that would seriously damage his ability to be King. Hence the court concluded that they did not fall within his training, as such an activity was not one in which the monarch could engage. Alarmingly, however, the A-G declared that ‘urging views’ upon Ministers falls squarely within the role and duty of the monarch, and that advocacy corresponsdence ‘enables him to make points which he would have a right (and indeed arguably a duty) to make as Monarch’.
Is it really the right and duty of the monarch to pressure Ministers to change their policies or adopt new ones to meet the preferences of the monarch? This goes well beyond Bagehot’s description of the monarch’s right to be consulted, to encourage and to warn. Many would regard such regal activisim as having ended with Queen Victoria. The courts also seemed to reject such a monarchical role – but a Minister of the Crown regarded it as normal, dutiful behaviour. If this is really how UK monarchs still behave, it reveals a significant cleavage between the public understanding of constitutional monarchy and the political reality.
Changes to British legislation ensure that the truth about the monarch’s actions cannot be revealed. There is now an absolute ban on releasing any government documents concerning communications with the Queen, Prince Charles and Prince William until at least 5 years after their respective deaths. One consequence is that all British files are now strip-mined of any references to the Queen or communications with the Palace before being released under the 30 year rule. History is obliterated and nothing can be known about the operation of the system of constitutional monarchy until well after a long-lived monarch is dead.
This affects Australia and all the other Realms as well. Much of our history is now blacked out in archived files, even in relation to matters well over 30 years old. I recently tried to access UK files about the removal by the Queen of Governors in Caribbean countries. The information is important to understanding how a ‘race to the Palace’ scenario would have worked out in 1975 if Whitlam had sought to sack Kerr first. It is also important to our region, with Tuvalu facing such a crisis in 2013. But we are no longer permitted to know how the Palace deals with requests to remove a Governor-General because this material is now blacked out. Page after page is redacted or removed. Prince Charles’s ministerial lobbying has had the side-effect of removing access to the monarchical history of all the Realms.
The only occasional glimmer of joy in the desolation of gutted historic files occurs when the redactors get sloppy and black out part of the primary letter but accidentally leave the same sentence in a draft letter. Then one can see how absurd, petty and often unlawful the redactions are, as they frequently do not reasonably fall within any valid exemption.
Removing Australian access to historic files concerning the monarchy is also an issue in Australia. The National Archives in Canberra contains a file of Sir John Kerr’s correspondence with the Palace about the 1975 dismissal. Under the 30 year rule, it ought to be available, along with the rest of Sir John’s files. The National Archives claims, however, that these letters are ‘not Commonwealth records and are not subject to the Archives Act’ because they are ‘private correspondence’ and that they cannot be accessed until at least 2027 and then only with the permission of both the Queen’s Private Secretary and the Official Secretary of the Governor-General.
This is arrant nonsense. The letters are held by a Commonwealth Government body, having been written by a Commonwealth officer in his capacity as Governor-General concerning the exercise of his powers as an officer of the Commonwealth. They do not amount to personal correspondence about his garden, his family or the Queen’s corgis. They are about a critical event in Australia’s history. They could not possibly be regarded as ‘personal correspondence’ under any stretch of the imagination, let alone any legal definition. Yet Ministers refuse to release them. While the British courts are prepared to stand up for transparency, our political and bureaucratic leaders remain under the thrall of the monarchy’s power and the cloud of secrecy it imposes to secure the continuance of its power. We are all the poorer for it.
Anne Twomey is a Professor of Constitutional Law at the University of Sydney.
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