The royal family and their right to privacy: who should have access to the records?

Long viewed as rather marginal to modern British political history, the monarchy has been treated more seriously in recent decades, with scholars taking a greater interest in the symbolic and performative aspects of state power. At the same time, most historians recognise that members of the royal family have a right to privacy, like anyone else. A sensible and humane approach to historical archives would, therefore, allow the release of material that cast light on how monarchy operated in a political sense, while to some extent protecting the family from invasive public scrutiny.

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Instead, we seem to have ended up with the opposite: an excessively restrictive regime governing the release of historical documents that makes little effort to draw a distinction between the political and the personal. Meanwhile, the most intimate and sensitive details are revealed by members of the royal family themselves.

How to treat papers relating to the royal family

How did we get to this point? When the 1958 Public Records Act established the modern framework for the transfer of government files to what is now the National Archives, it was on the basis that they would generally be opened 50 years after they were generated. In 1967, that period was reduced to 30 years. However, papers dealing with the monarchy were treated as a separate category, and closed for 100 years.

In 1972, with palace agreement, there was a slight relaxation of the rule. Materials dealing with the title “Royal”, and other matters of style and protocol, would be closed for only 75 years. The 100-year closure period would remain for papers relating to the royal family itself.

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Then came the Open Government White Paper, introduced in 1993 by the Conservative government of John Major. This promised boldly that “Records relating to the royal family will be treated in the same way as all other records”. It stipulated that they would be closed for more than 30 years only if the material they contained might harm national interests, included information supplied in confidence, or might, if disclosed, substantially distress or endanger individuals or their descendants.

Over the following decade, an unprecedented volume of material on the role of the monarchy in British politics was released to the National Archives, most of it from the 1960s and 1970s. The sky did not fall in. There were no real scandals, and all sides seemed fairly happy. This was essentially a pragmatic compromise between the legitimate expectations of historians and the needs of policy-makers to be able to operate with a degree of confidentiality.

The premise of “right to know”

Yet when this was superseded with the full implementation in 2005 of the Tony Blair government’s 2000 Freedom of Information (FOI) Act, premised on the “right to know”, the shutters came down again. Some papers relating to the royal household were covered by an exemption to the FOI Act, but one for which there was a public interest appeal.

In April 2005, Rob Evans, a journalist for The Guardian, applied to see correspondence between Prince Charles and various government departments produced since the previous September. The government opposed the release of these papers and its refusal was initially endorsed by the information commissioner.

In the 1990s and early 2000s, an unprecedented volume of material on the role of the monarchy in British politics was released to the National Archives, most of it from the 1960s and 1970s. The sky did not fall in. There were no real scandals, and all sides seemed fairly happy

In 2012, however, a special tribunal ruled that there was indeed a public interest, and that the correspondence should be released on the grounds that it demonstrated “advocacy” by the Prince of Wales. This was almost immediately overturned by the attorney-general, Dominic Grieve, on the grounds that Charles’ political neutrality would be undermined. But Grieve’s actions were ruled unlawful, first by the Court of Appeal and then, in 2015, by the Supreme Court, at which point the correspondence was finally released.

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Even before Grieve’s attempt to protect Charles’s reputation, the government of Gordon Brown had moved to close this loophole in order, it said, to ensure that “the constitutional position and political impartiality of the monarchy” was not undermined. In 2009, it announced that the FOI exemption for the royal household would be made absolute for the sovereign and the heir to the throne until 20 years after the correspondence was written or five years after their death, whichever was later.

This was incorporated in the Constitutional Reform and Governance Act of 2010, which also exempted correspondence with the second-in-line. Meanwhile, staff from the Cabinet Office have been busily closing material of the monarchy in the private papers of senior British politicians for decades.

Royal Archives as outside the scope of legislation

The catalogue for the papers of former prime minister Anthony Eden at the University of Birmingham records that his correspondence with Queen Elizabeth II is “closed at the request of the Cabinet Office”. Look for the diaries of former prime minister Harold Macmillan in the Bodleian Library in Oxford, meanwhile, and you will find copies with empty spaces where he recorded accounts of his audiences with the Queen in the 1950s and 1960s.

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As for the Royal Archives in Windsor, these are outside the scope of the legislation described above. The palace regards them as the private collection of the royal family, closely guards access to them, and claims the right to vet manuscripts that quote from them. Papers in Windsor relating to the reign of Elizabeth II are currently closed in their entirety, and no announcement has yet been made as to when they will be opened.

The role of political historians

All of this has undoubtedly made it more difficult for historians to incorporate the monarchy into conventional political histories of modern Britain. Eight out of 10 historians who responded to a recent survey by Index on Censorship recorded having had difficulties writing about the royal family.

Biographer Andrew Lownie had to fight a long and expensive legal battle to obtain access to the diaries of Lord Louis Mountbatten. That was despite the fact that the collection of which they are a part was acquired by the University of Southampton in 2011 with a great deal of public money. The Cabinet Office has not disclosed how much additional public money it spent in legal bills trying to keep the diaries closed.

Eight out of 10 historians who responded to a recent survey by Index on Censorship recorded having had difficulties writing about the royal family

So long as the monarchy survives, issues around declassification will continue to be complex and sensitive. One of the things that makes the royal family so fascinating is the very fact that the personal is political. Even in the US, where the 1978 Presidential Records Act incorporated into law the principle that the official papers of presidents and vice-presidents belong to the state, classified papers recently turned up in the personal collections of both Presidents Donald Trump and Joe Biden.

The distinction between political and personal

The question of where to draw the distinction between what is official and what is private is all the more difficult in the case of members of the royal family who were born into the role rather than seeking office. Meanwhile, the fact that Elizabeth II was queen of more than 30 independent Commonwealth realms would make it difficult to pass a similar piece of blanket legislation reclassifying her correspondence in the Royal Archives as UK national archives.

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For example, the extensive correspondence that probably exists between the Palace and Canadian governors-general could arguably be said to belong to Canada (just as in 2020, the Australian High Court ruled that similar correspondence in the Australian National Archives with the Queen’s representative in Canberra belonged to Australia and should be released). Nevertheless, we have in the form of the 1993 Open Government White Paper the model for a compromise that has already worked quite well in practice.

At the start of a new reign, with debates taking place about the monarchy’s role in modern society, we need serious research to underpin those discussions. This will be possible only if we simplify and liberalise the rules governing access to the archives.

Philip Murphy is professor of British and Commonwealth history at the University of London. His books include Monarchy and the End of Empire (Oxford University Press, 2013)

This article was first published in the March 2023 issue of BBC History Magazine