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.

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

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.