Wednesday, March 24, 2010

Straw questioned on veto and the effect of FOI on advice to ministers

Secretary of State for Justice, Jack Straw, gave evidence to the Justice Committee on 10 March 2010 on the work of the Ministry of Justice. He was asked about use of the veto in relation to cabinet minutes and the effect of FOI on advice to ministers.
Q94 Chair: Thank you very much. I am going to turn to a number of wider issues. I am going to start with a Freedom of Information issue. There have only been two occasions when the Information Commissioner has recommended the disclosure of Cabinet minutes. One was Iraq. The other was devolution last December. You told the House that disclosure of the devolution papers was not in the public interest because it undermined collective responsibility and effective government. That sounds to me like an argument that you would use against ever disclosing any Cabinet minutes. Were you using the power that you had to veto the disclosure of specific Cabinet minutes to take up a position, which the legislation does not have, that no Cabinet minutes shall ever be disclosed by the Information Commissioner's requirement?

Mr Straw: No, most certainly I was not. That would be contrary to the structure of the Act and an abuse of the discretion that is given (in this case to me) under section 53 of the Act. In each case you have to judge the merits or demerits of a section 53 decision strictly on the basis of the information which it is proposed by the Commissioner or the tribunal to release at that time, so this is not remotely a way of bypassing the legislation. I have set out in both cases very detailed explanations about why I reached those decisions, and we followed strictly the non-statutory procedure, with consultation with Cabinet colleagues and so on in advance. There has been a high level of consideration given to this, including by meetings of the Cabinet, with the full papers available to members of the Cabinet, and on the basis of that consultation I formed those judgments. I would just make this wider point: section 53 is there, as I have said in the House on a number of occasions; it is a fundamental part of the architecture of the Freedom of Information Act. The Act would not have come in without section 53 being there because it is there as a balancing measure for what are otherwise the most stringent and powerful Freedom of Information provisions of almost any jurisdiction in the world. I do resist very strongly those who are now seeking to cherry-pick the Freedom of Information Act and say that requesters are entitled to use, say, sections 35 and 36, and the Commissioner and the tribunal are entitled to come to their decisions, but ministers should go into a self-denying ordinance about ever using section 53. That is not how the Act is established. I can say this without any challenge: the Government would not have recommended the Act to the House, following a series of changes greatly to strengthen its provisions, if section 53 had not been there.

Q99 Chair: Let me turn it round and say to you: can you think of a Cabinet discussion that you have taken part in in recent years which, if the Information Commissioner required you to disclose it, you would not veto?

Mr Straw: If I may say so, I am not going to get into the realm of speculation. It is the case, by the way, that one document relating to a Cabinet sub-committee, which was actually the agenda (agendas can be quite revealing), has been released. There have been relatively few requests, as we have said, which have gone to the Commissioner. The other side of this is that a good deal of inter-ministerial correspondence has been released.

Q100 Chair: I cannot escape the conclusion that there are no Cabinet minutes whose disclosure you would not veto.

Mr Straw: That is a wrong conclusion. The conclusion, obviously, Chairman, you decide to come to is a matter for you, but I am just telling you, as the person who has had to exercise this discretion on two occasions, that is wrong. It is not what the law says and it is not what I have said in very detailed explanation. I also just repeat the point, and you may take a different view about this (I hope you do not), that section 53 is an inherent and integral part of the whole architecture of the Act. Even with section 53, this is still amongst the strongest and most incisive freedom of information legislation in the world, contrary, I may say, to those who continued to claim, including people from your benches, that all we were doing was putting into statutory form the previous freedom of information code.

Q101 Mr Tyrie: We were both supporters and remain supporters of FOI. I have had expressed to me quite a number of concerns by officials, informally, that FOI gets in the way of enabling them to offer free and independent advice to ministers; it inhibits them from writing down things from time to time. Is that a problem that has ever been brought to your notice? Do you think there is something we should do about it?

Mr Straw: It is certainly a comment that has been made to me. I do not, myself, feel, in my Department, that officials have been reluctant to say what they think about issues ---

Q102 Mr Tyrie: On paper.

Mr Straw: On paper. It has certainly not made me reluctant to say what I think about issues on paper, because my view is that if you are confident about the reasons that you are offering (in this case a minister is offering) about why they are either going to accept or modify or reject advice which is put forward, then you should be ready to justify that. That is not, by the way, a green light for saying this should be made available on the intranet or internet that day, or even in anything less than what will now be 20 years. Mr Tyrie, it is quite often said that it is an inhibition. Bear in mind that there is a difference in terms of the kind of sensitivity of most of the work in my Department compared to some other key departments.

Q103 Mr Tyrie: I am asking the question in the round, with your constitutional hat on.

Mr Straw: Indeed. I just wanted, as it were, to make your point. When I was at the Foreign Office (I was only there for 18 months after the FOI Act came into force) there was, I think, that sense around, and I have heard that said in respect of other departments handling more sensitive material - for example, in the Treasury. I am anxious here to not either dismiss these opinions, which you have also received, nor to say they are fact. I think, therefore, now that you have raised it, what we need to look at is whether there would be a way of having an independent scrutiny by people who were neither parti pristo ministers or prospective ministers, nor to the Information Commissioner and the Freedom of Information campaigners, who could both look at a series of submissions and compare them with equivalent submissions made before the Freedom of Information Act became law, because it came into force in 2005. So to look back, before it was, as it were, even a gleam in the eye ---

Q104 Mr Tyrie: So get someone in to take a look at this?

Mr Straw: To take a look at this, and also to talk to officials and to try to come to a judgment about that. I will try and get that going.

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