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.

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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.

Campaign welcomes decision to drop proposed cabinet papers exemption

The government’s announcement that it has dropped its proposal to exempt cabinet papers from the Freedom of Information Act, and that it will reduce the 30 year rule to 20 years, was welcomed by the Campaign for Freedom of Information today.

The changes follow a review of the 30 year rule by a committee chaired by Paul Dacre, managing editor of Associated News, and set up by the prime minister. In response to the review’s recommendations, the government announced that old government records would be publicly available in The National Archives after 20 years, instead of the current 30 years (though the review had called for 15-year period). But it also said it would create two new absolute exemptions to the FOI Act, one for cabinet papers and the other for the Royal Family. In neither case would the Act’s public interest test apply.

But today the government announced that it had decided that a new exemption for cabinet papers was not necessary. The 20 year period for releasing old files will be introduced. A new exemption for the Royal Family will be created.

The Campaign’s director Maurice Frankel said:

We are extremely pleased that the prime minister has decided to drop the proposed cabinet exemption. That would have ruled out the release of any paper circulated to cabinet or a cabinet committee, even if there would be no harm to decision-making or collective responsibility. Requests for such documents will now continue to be considered on their merits. Cabinet minutes may be unlikely to emerge, given the way the ministerial veto has been used so far, though that too is not entirely out of the question, particularly for older or less contentious material or where the public interest in disclosure is overwhelming. And the 20 year rule will mean old records are more likely to emerge while the events they refer to are still remembered.

The Campaign pointed out that cabinet or cabinet committee papers were protected by existing FOI exemptions for policy formulation and ministerial communications, subject to the Act’s public interest test. The government also has the power to veto decisions of the Information Commissioner or Tribunal. The veto has been used twice to date, blocking the release of cabinet minutes about the war in Iraq and cabinet committee minutes on devolution. However, the veto is judicially reviewable, which provides some safeguard against its casual use.

The new 20 year rule will be phased in over 10 years by doubling the volume of old government records released each year.

However, a new absolute exemption, which will protect information about the monarch, the heir and second in line to the throne for 20 years and then, if the individual concerned is still alive, until 5 years after their death. This exemption will not be subject to the Act’s public interest test. The Campaign said it regretted this change, and believed the public interest test should continue to apply to such matters.

For other members of the Royal Family, an exemption will apply for the same length of time but will be subject to the public interest test.

Notes

The government’s announcement is at: http://www.justice.gov.uk/about/docs/government-response-30-year-rule-review.pdf

The Government’s outline response to the Dacre report is set out in Gordon Brown’s ‘statement on constitutional renewal’ of 10.6.09 http://www.number10.gov.uk/Page19579

The Dacre report can be found at: http://www2.nationalarchives.gov.uk/30yrr/30-year-rule-report.pdf

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.

Govt plans to extend FOI Act "disappointingly modest"

Campaign for Freedom of Information
Press release 16 July 2009

The government’s plans to extend the Freedom of Information Act to just 4 bodies or classes of organisation is “a useful but disappointingly modest result”, according to the Campaign for Freedom of Information.

The four are the Association of Chief Police Officers (ACPO), the Financial Services Ombudsman, the Universities and Colleges Admissions Service (UCAS) and Academy schools. ACPO had volunteered to be brought under the Act, which the Campaign said “reflects well on the organisation”.

But the Campaign said it was disappointed at the narrow scope of the proposals. The Act allows contractors providing services on behalf of a public authority to be brought under its scope, if the provision of the service is a function of the authority. However, the government is not proposing to designate any contractors.

The Campaign had argued that private health bodies providing surgical or diagnostic services under the NHS should be subject to the Act as should providers of social care services and educational and criminal justice services. People’s rights to know about the quality of a public service they receive should be the same, whether the service is provided by a public authority itself or by a private body under contract to the authority, the Campaign said.

The Campaign highlighted the fact that the government has decided not to bring private prisons under the Act, although last month the Prime Minister’s spokesman cited private prisons as an example of the kind of body that would be covered (Afternoon press briefing, 10.6.2009, http://www.number10.gov.uk/Page19602). The government’s October 2007 consultation document on extending the Act also referred to private prisons as an example of the type of body that could be designated.

See:

• Full CFOI press release - http://www.cfoi.org.uk/foi160709pr.html
• The consultation document and the Government's response are available here.
• The Campaign’s submission to the consultation is here.
  

A Ministerial Statement also confirmed that a revised records management code of practice under section 46 of the FOI Act has been issued. However, the expected publication of the Government's formal response to the review of the 30 year rule has now been deferred.

On 10 June 2009, the Prime Minister announced that the 30 year period before old official papers are made public would be reduced to 20 years, but Cabinet documents and information relating to the Royal Family would be made exempt from the FOI Act altogether for 20 years, an extremely retrograde step. The MoJ Statement said "The Government are considering carefully the practical details of implementing a new rule and aim to publish their full response in late summer".