On 18 July 2015, the Sun ran a front page “exclusive” showing a picture of the Queen (aged about 7 or 8) and the Queen Mother doing Nazi Salutes. In the background can be seen the then Prince of Wales, the future Edward VIII. The pictures were extracted from a short piece of film – apparently taken in 1933 or 1934 by the future George VI – from the royal family’s archives. The footage was also made available by the Sun.
However, the story gives rise to interesting and difficult issues concerning privacy, public interest and freedom of information which merit further discussion.
Let’s begin with four points about the factual background which seem relatively clear:
- this is a “home movie”, taken in a family setting at Balmoral, and kept in the royal family’s archives;
- the public release of the footage has not been authorised;
- footage came into the possession of the Sun as the result of a mistake by an archivist and/or a payment (the Daily Mail suggests there was payment of a “four figure sum”);
- the Sun was made aware before publication that Royal family did not wish the footage to be released to the public.
The legal position resulting from this background is clear. In these circumstances, the Sun was under a duty of confidentiality. As a matter of law it was under an obligation to keep the footage confidential unless there was some countervailing public interest in disclosure.
What then was this public interest? An obvious possibility would be the argument that this film reveals something new about the political sympathies of members of the Royal Family, living or dead.
This is, however, an argument which is expressly disavowed by the Sun which tells us:
“… there is clearly no suggestion that the Queen or Queen Mother were ever Nazi sympathisers, Edward’s links with Hitler and fascism are very well documented.”
Furthermore, the Sun goes on to make it clear that nothing at all can be inferred about the views of the Queen and her sister. In an editorial says that the “pictures must be seen in context”
“Elizabeth and Margaret are kids. Families of all kinds, all over Britain, larked around apeing the stiff-armed antics of the faintly comic character with the Charlie Chaplin moustache who had won power in Germany”.
So, in other words, the children were having a bit of fun imitating the amusing habits of a foreign leader rather than expressing political convictions. This seems to be a clear argument against a public interest justification for disclosure.
The Sun’s “public interest” argument lies elsewhere. It seeks to argue that the images have considerable “historical significance” because of the involvement of the Queen’s uncle, Edward who was a “fan of Hitler”. The photographs, we are told, provide an insight into the “warped prejudices of Edward VIII and his friends“.
This point was repeated by the Sun’s Managing Editor, Stig Abell, who told BBC Radio 4 that “It is a historical document that really sheds some insight into the behaviour of Edward VIII”.
There are two difficulties with this. First, the footage does not show the Queen’s uncle instigating the Nazi salutes – the first one is apparently made by the Queen Mother and only then by the Queen and then Edward. Second, and more importantly, it is clear from the Sun’s own coverage that the suggestion that Edward had Nazi sympathies is nothing new: his “links with Hitler and fascism are well-documented“. The footage tells us nothing new whatever about Edward, much less about his friends.
Freedom of Information?
There is, however, a further “public interest” argument, not expressly relied on by the Sun but referred to in some of the press coverage of the story. This is an argument based on “freedom of information” and the transparency of public institutions. As Peter Preston points out, British political history operates to a 30 year rule – Cabinet minutes and other government papers are presumptively released after 30 years. Material from the royal archives is, however, not subject to any such rule.
Furthermore, the Royal household is not a “public authority” for the purposes of the Freedom of Information Act 2000 (“FOIA”) and is, therefore, under no duty to respond to FOIA requests (in fact, in 2010, FOIA was amended to include an absolute exemption for “communications with the sovereign” or the heir to the throne and the second in line of succession).
In short, unlike public officials the royal family can, if it chooses, keep its archives private indefinitely. Films, or letters from the 1930s dealing with the relationship between members of the Royal Family and foreign public officials cannot be accessed by the public (or by researchers) without permission.
Of course, in the absence of a compelling public interest justification, the private archives of families are not open to public inspection. But there is a strong argument that the royal family are in a different position. The Queen is the Head of State and the royal household receives an annual grant of public money. As a result, a strong case can be made out that – after due allowance is made for the privacy of living individuals – material from the royal archives should be made public.
The Sun’s front page has led to a call by historians for the the royal family to disclose documents dealing with relations with the Nazi regime in the 1930s. The more general lesson should perhaps be that we need clear rules as to the public availability of material from the royal archive. This would mean that documents of historical significance would be available to the public not just to those who could afford to pay “four figure” sums.
In short, the Sun’s disclosures can perhaps be justified on wider public interest “transparency” grounds: the footage should be made public under a general presumption of disclosure of historic royal material.
Freedom of information is again under attack – with a new Cabinet Office “Commission” apparently dominated by opponents of transparency. The support of the Sun in a campaign to defend freedom of information and promote greater public transparency would doubtless be welcomed by freedom of information campaigners.