The Mountbatten Diaries Scandal - Southampton University and the Cabinet Office
Dr Andrew Lownie, author of The Mountbattens: Their Lives and Loves, recounts his six year legal fight to secure the release of the Mountbatten private diaries and letters bought with public monies to be open to all.
An acquisition of immense national and historical importance…
“This acquisition is of immense national and historical importance… It is impossible to underestimate the Archives’ historical and national impact; in particular, without them we would find it difficult to understand fully the foundations of the independent states of India, Pakistan and Bangladesh” claimed the National Heritage Memorial Fund’s Chief Executive, as part of the fund raising efforts in 2010 to purchase the private diaries and letters of Dickie and Edwina Mountbatten, the last Viceroy and Vicereine of India.
The efforts were successful with the collection being secured for Southampton’s Hartley Library with the help of £2.8 million from the Heritage Lottery Fund, contributions from Hampshire County Council and £1.6 million of tax waived by HMRC under the Acceptance in Lieu Scheme.
Access denied
The diaries and letters had been widely quoted in the official biographies of Dickie by Philip Ziegler published in 1985 and of Edwina by Janet Morgan in 1991 and several authors had consulted them for their books. I was therefore surprised when in 2015 I began researching my book The Mountbattens: Their Lives and Loves that Southampton claimed to know nothing about them.
After a series of Freedom of Information (FOI) requests, few of which were answered within the statutory required period, Southampton stated that under the Acceptance in Lieu (AIL) arrangements with HMRC, it had acquired ownership of the Mountbatten Archive under a ‘Ministerial Direction’ of 5 August 2011 with an obligation to ‘make it accessible to the public’.
However, there was a proviso for ‘elements’ which the Cabinet Office had notified Southampton were ‘closed’. The diaries and letters were such ‘elements’, Southampton asserted, adding that this was a statutory ban on disclosure, that it would be unlawful to breach it, and that it was therefore exempted under section 44 of the Freedom of Information Act (FOIA) from complying with requests for access to any information contained in the diaries or letters.
The genesis of this seemingly unique Ministerial Direction remains mysterious as neither the University nor the Cabinet Office will even identify the signatory. Indeed, under FOI requests, no government department has accepted any responsibility for it.
The ICO step in
Over the next few years I was repeatedly forced to call on the intervention of the Information Commissioner’s Office (ICO) to force the Cabinet Office and Southampton to respond properly to my requests. In April 2019 the ICO instituted and served contempt proceedings against the University in the High Court under s. 54 FOIA, a step unprecedented against a public authority.
In December 2019 the Information Commissioner issued a Decision Notice, 18 months after I had first approached them and four months after publication of my book, ruling that the diaries and letters should be released, a decision which the Cabinet Office and Southampton appealed.
By the time of the four-day hearing in November 2021, the Cabinet Office and Southampton’s appeal against the Information Commissioner’s Decision Notice requiring them to release the Mountbatten diaries and letters had become academic because Southampton had released 99% of them, over 30,000 pages. In that respect I had achieved my aim. The material that they had kept closed for a decade and fought so hard to prevent being made publicly available proved to be entirely innocuous.
But the tribunal ruled that the Cabinet Office still had the right to apply FOIA exemptions to the diaries and letters which meant that just over a hundred redactions – some a single word, others several paragraphs - were applied on the grounds they were communications with the Sovereign, or that they would damage International Relations or National Security.
Until just before the four-day hearing in November 2021, Southampton had argued they were bound by the Ministerial Direction controlling the letters and diaries but they dropped this argument saying that simply specific FOIA exemptions would be applied. On such grounds the Cabinet Office had no role to play in the hearing, no right to ‘review’ anything or to dictate to Southampton what to do with FOIA, but this was ignored by the tribunal.
Furthermore, there was no evidence that the diaries and letters had ever been ‘closed’- neither the Cabinet Office nor Southampton could cite a specific notice but tried to argue that by implication they had been caught by the ‘undertakings’ concerning Dickie’s official papers in agreements in the 1960s and 1980s but this could not be. The diaries and letters are expressly defined as AIL Chattels in the 2011 Purchase Agreement – not ‘Excluded Records’ i.e. the papers that the Cabinet Office had closed. The 2011 agreement expressly stated that the vendors were free to sell all AIL Chattels and that they are not subject to the Undertakings. Thus, the proviso in the Ministerial Direction couldn’t apply in any event to AIL Chattels. All this was ignored by the tribunal.
Success - but at a high personal cost
Even though I had succeeded in securing the release of 99% of the material – which the ICO had ordered and Southampton and the Cabinet Office had then appealed - my application for costs was dismissed leaving me with a legal bill of £460,000, only £75,000 of which had been raised from a Crowdjustice page.
No private individual should be financially ruined seeking access to material which was purchased with taxpayers’ money on the basis that it would be open to the public but that is the position I now find myself in.
This FOIA exemption – section 27 - has a public interest test and Southampton even then had no obligation to apply it but they did so. An FOIA exemption is available to a public authority in respect of any FOI request but it is not bound to plead it; the authority has a discretion – unless providing the info would otherwise be unlawful (under DPA, Official Secrets Act etc). Southampton were perfectly free to publish the material that allegedly would damage relations with India/Pakistan but choose not to do so in what looks like an academic institution censoring history.
It is quite clear, contrary to the Cabinet Office and Southampton’s claims, that the diaries and letters were open when purchased – they would not have satisfied the Acceptance in Lieu scheme otherwise – and that the reasonable course of action would have been to review the collection to see what could be released when it was acquired in 2011 and not only after they had been forced to do so a decade later. This could easily have been done by experts at Southampton . Instead through to the hearing in November 2021 Southampton claimed that all the diaries and letters were so sensitive they had to be closed , that digitalisation would take years, the material was illegible and fragile etc. None of this was true.
Millions of pounds of public money spent
Millions of pounds of public monies were spent purchasing the total Broadlands Archive (even though we don’t know exactly what was apportioned to the diaries and letters), to make this important collection available to the public. And then, given that Southampton and the Cabinet Office deployed two top QCs and a plethora of lawyers, well over £1 million has been spent suppressing them. However, neither Southampton nor the Cabinet Office will say, even after Questions in Parliament, how much public money has been spent on pursuing this needless appeal. This is something on which both the Cabinet Office and Southampton should be pressed.
One also has to ask why an academic institution, presumably in favour of scholarship being made available and in academic freedom, is censoring private diaries and letters ostensibly on behalf of the Government for which there is no legal justification in what seems an unquestioning relationship between an academic institution and the State.
The campaign has come at a heavy personal cost but I hope that as a result of my efforts an important historical source has been made available and a stand has been made for academic freedom, access to archives, the need for trust and transparency in public institutions and against the abuse of power.
The fight continues
The fight now needs to continue for the remaining innocent redactions to be lifted from these private diaries and letters and for the Nehru-Edwina correspondence, again bought with public funds to be available publicly, to be released. Southampton raised public funds to secure that correspondence and since 2016 have been able to exercise their option over it for a token £100. The question one has to ask is ‘why have they not done so?