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Is use of the FOI ministerial veto becoming "routine"?

Charles Brasted

Charles Brasted,

London

Jamie Potter

10 September 2012
We reported in this blog earlier this year on the decision of Andrew Lansley, the (then) Health Secretary, to exercise the ministerial veto to prevent disclosure of a NHS reform transition risk register, which disclosure had been ordered by the First-tier Tribunal.  At the time we described the ministerial veto (under s.53 of the Freedom of Information Act "FOIA") as "rarely-used"; however, it is no longer clear that such an epithet is entirely accurate, with the Information Commissioner suggesting this week that use of the veto is becoming "routine", at least in certain circumstances. 

On 31 July 2012, the Attorney General, Dominic Grieve, exercised the ministerial veto to override the Information Commissioner's decision (FS50417514) to order the disclosure of the minutes of the meetings of the Cabinet on 13 and 17 March 2003 concerning the military invasion of Iraq.  The Commissioner had first ordered the disclosure of these minutes on 19 February 2008, a decision which was upheld by the Information Tribunal by a majority of 2:1.  However, on 23 February 2009, the (then) Secretary of State for Justice, Jack Straw, exercised the ministerial veto for the first time. 

The original requester remade his request in 2011, and it was again refused by the Cabinet Office, leading the Information Commissioner to decide that there was no reason for him to depart from his original decision that the public interest in disclosure of the minutes outweighed the public interest in maintaining the section 35 FOIA exemption for ministerial communications. 

Rather than appeal the decision to the Information Tribunal, the Attorney-General exercised the ministerial veto primarily in light of the public interest in maintaining collective cabinet responsibility and protecting the safe space for free and frank deliberation within Cabinet.  As set out in his statement of reasons:

"The importance attaching to these public interest considerations is particularly great when the Cabinet is discussing matters of high controversy.  Those are precisely the occasions where the benefits that stem from Cabinet confidentiality can be most valuable."

However, in his Report to Parliament on the use of the veto published this week, the Commissioner rightly notes that it is precisely the cases of "high controversy" that give rise to a strong public interest in favour of disclosure.  Indeed, given the accepted strong public interest in favour of maintaining Cabinet confidentiality, the situation would appear to be something of a Catch-22: the Commissioner can only order disclosure where the public interest in the relevant matter is high, but it is precisely those matters in which it appears that the ministerial veto is now being deployed.

In his report, and accompanying blog, the Commissioner questions the appropriateness of such "routine" use of the veto in respect of orders for the disclosure of Cabinet Office minutes, particularly given the considerable public expense occasioned by the Commissioner's investigations and Tribunal appeals.  A means of avoiding such costs would be to make the section 35 exemption absolute, a suggestion made by the Commissioner in his submission to the Justice Committee's Inquiry into the operation of FOIA (which we also reported in this blog); however, this suggestion was not taken up. 

The Attorney General in part responds to the suggestion that use of the veto is becoming "routine" by noting that the Government did publish Cabinet minutes in 2010, although those minutes related to meetings that took place in 1986, and which were only six years from automatic disclosure in any event.  It should also be noted that the veto had only been used twice in the first seven years' operation of the Act, but has already been exercised three times in the first seven months of this year.  It remains to be seen whether this is indicative of trend of simply an aberration.

Charles Brasted

Charles Brasted,

London

Jamie Potter

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