Friday, December 11, 2009

Government uses the veto again

The government has issued a second veto, preventing the disclosure of information under the FOI Act. This follows the veto in February 2009 of cabinet minutes relating to the war in Iraq.

The present case involves a request to see the minutes of the 1997 meetings of the cabinet subcommittee on devolution in Scotland, Wales and the English regions. The committee had been chaired by Lord Irvine, the then Lord Chancellor.

The government withheld the information under the FOI Act exemptions for policy formulation and ministerial communications (section 35(1)(a) and (b)). In June 2009 the Information Commissioner ruled that these should be disclosed. He concluded that the issue was no longer ‘live’ as, by the time of the request in 2005, the policy questions had been settled and devolution had long been introduced in Scotland and Wales. He found that only 1 member of the cabinet committee concerned was still in government. The minutes did not attribute views to any specific minister or offer much insight into the debate or the contributions of individual ministers.

The Commissioner concluded that:

33….he rejects the blanket approach taken by the Cabinet Office which is that disclosure of the minutes, regardless of content is not in the public interest as it would undermine the convention of collective responsibility. Whilst the convention and it [sic] maintenance is one of the public interest factors to be considered, and it is a factor that the Commissioner places much weight upon, it is only one element of the public interest test.

34. In this case, the issues discussed and recorded in the minutes continue to be of significant public interest, but the sensitivity of the specific content has reduced with the passage of time. The Commissioner finds that, on balance, the public interest in maintaining the exemption does not outweigh the public interest in disclosure of the information.

The Iraq veto overruled a decision of the Information Tribunal - this one deals with a decision of the Commissioner. Remarkably, the government had appealed to the Tribunal in this case too: the Tribunal hearing was due to start at the end of January 2010. It is not clear why ministers should change course at such a late stage. If the government had intended to use the veto it could have done so when the Commissioner’s decision was issued, nearly six months ago.

One possibility may be that the government wanted to avoid a Tribunal decision appearing in spring 2010 forcing ministers to disclose or veto the release of the devolution papers just before or during a general election campaign. The actual timing of the veto - announced on the day the House of Commons published a highly contentious batch of MPs’ expenses - is likely to have reduced press coverage of the issue.

Jack Straw, the Justice Secretary and Lord Chancellor, in his statement of reasons for the veto identifies a number of factual disagreements with the Information Commissioner. The Commissioner found that only 1 member of the Cabinet committee was still in government at the time of the request. Mr Straw says that in fact 15 of those who attended committee meetings were ministers when the request was made and 7 of them are still ministers.

He also disagrees with the Commissioner’s view that the policy issues discussed in 1997 are no longer live. He says Welsh devolution was still being considered in 2005 at the time of the request - and led to the Government of Wales Act 2006.

Mr Straw also disagrees with the Commissioner’s view that the papers provide little insight into individual ministers’ views, observing that the views of a number of individuals, including some current ministers, are attributed to them in the minutes.

If Mr Straw is right, he would have had reason to believe that he would succeed in persuading the Tribunal to overturn the Commissioner’s decision. The failure to allow the Tribunal to examine the issues is all the more surprising.

Mr Straw’s statement also says the veto will only be used on a case by case basis, taking account of all the circumstances and that the government has “no fixed view on when the use of the veto power would be appropriate”.

The relevant factors include whether the papers reveal the substance of policy discussion or just the process, whether the issue was significant at the time and remains so, whether the views of individual ministers are identifiable, whether the ministers are still active in public life and their views on any possible disclosure. That suggests that there may be cases where the government would not veto disclosure of relatively innocuous cabinet material if the Commissioner or Tribunal required it, even it believed the public interest favoured confidentiality.

That position is surely preferable to the proposed blanket exemption for all such papers. The government has said it will introduce a new absolute exemption for cabinet papers (plus a separate absolute exemption for communications with the royal family) as part of a package involving the release of government papers after 20 years instead of the current 30 years.

But if ministers now feel free to exercise the veto - twice in one year, so far - is the new exemption necessary? And if ministers acknowledge that they might permit the release of certain cabinet or cabinet committee papers before 20 years, what is the case for the new exemption ruling out any such disclosure altogether?

Read the Information Commissioner’s decision here and the veto announcement and statement of reasons.

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