Information Commissioner's Report to Parliament on ministerial veto

The Information Commissioner has laid a report to Parliament on the government's veto of the Commissioner’s Decision Notice ordering disclosure of minutes from a Cabinet Sub-Committee on Devolution.

7.4 Further to his press statement and letter to the Secretary of State, the Commissioner particularly regrets that the exercise of the veto prior to the full hearing of the appeal before the Tribunal meant that the issues in dispute were not put to the Tribunal for a consideration which would, in part, have been conducted in closed session. The Commissioner notes that, notwithstanding the criticisms in relation to paragraph 29 of his Decision Notice which were contained in the Secretary of State for Justice’s statement of reasons, these were issues which the Commissioner had conceded as early in proceedings as his response. Given that concession, the Tribunal might have varied the original Decision Notice in any event.
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7.6 Had the case been permitted to proceed to a full hearing of the appeal, the arguments both for and against disclosure would have been rehearsed fully (albeit in closed session) before an impartial Tribunal comprising of a legally qualified Chair and two experienced lay members. As already noted, that panel might have concluded that, to a greater or lesser extent, Commissioner’s findings were flawed and might have substituted the Decision Notice. In the Commissioner’s view, that is precisely the function of the Tribunal.

7.8 The Commissioner is perturbed by the “blanket” nature of the exercise of the veto in the present case. Whilst acknowledging the importance of the constitutional convention which the Secretary of State for Justice seeks to protect, it seems to the Commissioner that a considered review of the 1997 Minutes as part of the appeal process might have resulted in the disclosure of some, or portions of some of the 1997 minutes in redacted form. The Commissioner considers that the convention of collective Cabinet Responsibility could only justify such a blanket refusal if all Cabinet papers were absolutely exempt from disclosure under the Act. However, that is not how the Act is drafted.

7.9 The Commissioner is aware that consideration is being given within government to amendments to legislation that would afford greater protection to certain categories of material including ‘Cabinet papers’. A decision on this and related matters is awaited. TheCommissioner is clear that until such time as any such proposal is enacted each case must continue to be considered on its own merits under the current legislation which, in any event, cannot be retrospective in its application.

7.10 It was the previous Commissioner’s expressed view at the time that the veto was exercised for the first time in February 2009 that it was vital that a ministerial certificate should only be issued under section 53 of the Act in exceptional cases. At that point he was concerned that any greater use of such certificates would threaten to undermine much of the progress made towards greater openness and transparency in government since the Act came into force. The Commissioner agrees strongly with this view and, for this reason, would be very concerned to see the exceptional become the routine.

Read the Information Commissioner’s Report to Parliament