Information that even the Ombudsman could not see

NOTE: The Code of Practice on Access to Govenment Information was introduced by the Conservative Government in April 1994 as an alternative to a freedom of information act. The Code has now been superseded by the Freedom of Information Act 2000 which came fully into force on 1 January 2005. An archived version of the Code is available on the The National Archives website here.

This further evidence of the Campaign for Freedom of Information to the Parliamentary Select Committee on the Parliamentary Commissioner for Administration (the Ombudsman) describes the handling of a particular request.

20 March 1995

Further to our evidence of March 16 we are writing to describe the Campaign’s experiences with one particular request under the open government code of practice. This has may be of significance, since it involves the only case so far under the code in which the Ombudsman has been prevented by the government from carrying out an investigation.

In May 1994, the Campaign applied to the Lord Chancellor’s Department (LCD) for the report of an inter-departmental working group which had considered the implications of a legal ruling of constitutional significance.

The Campaign’s request for the report on this subject was refused, and the refusal upheld on internal review. The LCD advised the Campaign of its right to complain to the Ombudsman. However, when the Campaign did so, the report was withheld from the Ombudsman himself, on the grounds that it was a cabinet committee document – a fact which had not been mentioned to the Campaign. The Ombudsman’s investigation was then abandoned.

This raises a number of concerns: about the lack of frankness during the handling of the request; about the circumstances in which it might be appropriate for certain documents in this class to be publicly available; and about the justification for this limitation on the Ombudsman’s powers.

In its 1992 judgement in the case of Pepper v Hart [1992, WLR, 1032] the House of Lords relaxed the rule which had prevented the courts from referring to ministerial statements when interpreting legislation. In future, if legislation is found to be ambiguous or obscure, the courts may refer to what a minister said in Parliament during the bill’s passage, providing the statement specifically addresses the issue at question in a clear way.

The ruling could have far-reaching implications. For example, it may encourage ministers to clarify ambiguities by making statements in the House, rather than by amending the legislation. Since Parliament does not have to approve and cannot amend a ministerial statement, this could strengthen ministerial control over the legislative process at the expense of Parliament. The ruling might also tempt ministers to clarify ambiguities only where this could lead a court to adopt a view helpful to the government, but remain silent in other cases. An alternative view is that if ministers give Parliament a misleading account of the intended effect of an obscure clause, the courts may later interpret it in light of the minister’s account, in effect holding the government to its word.

In refusing the Campaign’s request the LCD argued that the report fell within the scope of exemption 2 of the code, and was:

“internal opinion, advice, recommendation, consultation and deliberation”.

In particular the LCD described the report as “advice to Ministers….containing proposals for consideration”. The department also pointed out that there was no commitment in the code to release pre-existing documents, of which this was an example. There was no suggestion that the report was a cabinet committee paper.

The Campaign argued that the report, which according to a Written Answer [7.3.94, col.70] had been acted upon, might be regarded not as advice but as guidance to departments and ministers on the approach they should adopt in light of the ruling. The code commits departments to releasing internal guidance. Precedents for such disclosures, include the publication of ‘Questions of Procedure for Ministers’, and the ‘Memorandum of Guidance for Officials Appearing Before Select Committees’ (the so-called ‘Osmotherley Rules’).

Moreover, even if at the time it was written the report consisted of “advice”, if that advice had since been accepted and implemented, the report could now be regarded as a description of the policy that had been adopted. Disclosing adopted recommendations cannot harm the “frankness and candour of internal discussion” – which is what exemption 2 of the code explicitly seeks to protect. The code also requires the disclosure of “the facts and analysis of the facts” behind major decisions. Arguably, the report might fall into this category too.

Finally, the Campaign argued that even if the report fell within exemption 2, there was a strong public interest in its release. The code provides for the release of exempt information if “any harm or prejudice arising from disclosure is outweighed by the public interest in making information available”.

The LCD’s response to the Campaign offered some comments on the significance of the Pepper v Hart ruling, but did not agree that the report should be disclosed. It advised the Campaign of the right to complain to the Ombudsman if dissatisfied with the decision.

We did complain, and the Ombudsman accepted the complaint for investigation. However, the investigation was abruptly discontinued after the Lord Chancellor’s Department refused to supply the requested report to the Ombudsman. Although the Ombudsman has wide powers of access to departmental information, section 8(4) of the Parliamentary Commissioner Act 1967 expressly denies him the right to obtain information or documents “relating to proceedings of the Cabinet or of any committee of the Cabinet”.

We have three concerns arising from this episode.

The first concerns the lack of frankness on the part of the Lord Chancellor’s Department in its response to the request. At no point in its correspondence with the Campaign did the LCD suggest that the document requested was a cabinet committee paper. It was throughout described merely as “advice”. The status of the document appears to have been deliberately concealed.

I take particular exception to having been explicitly invited by the LCD to complain to the Ombudsman, only to find the department proceeding to block the Ombudsman’s investigation on grounds not previously mentioned in the correspondence with us. The impression is that, having found that its arguments for withholding the document had been challenged, the government was not prepared to have the issue examined on its merits by the Ombudsman.

The existence of cabinet committees is no longer a matter of secrecy. In the past, civil servants were told that they should “in no circumstances” reveal “information…about the existence, composition or terms of reference of Cabinet Committees” [Osmotherley Rules, paragraph 32] However, in May 1992 the government issued a complete list of the titles, membership and terms of reference of cabinet committees. Now that the taboo on acknowledging their existence has been broken, it is hard to see why the present charade should have been necessary.

The second question raised, is whether the document itself should be excluded from access under the code. Cabinet committee proceedings are themselves exempt from access under exemption 2. However, the exemption is not absolute and is subject to an overriding public interest test. The Campaign argued that there may be such a public interest here. The relevant passages from the code are:

Exemption 2

“Information whose disclosure would harm the frankness and candour of internal discussion, including:

* proceedings of Cabinet and Cabinet committees;

* internal opinion, advice, recommendation, consultation and deliberation

* projections and assumptions relating to internal policy analysis; analysis of internal policy options and information relating to rejected policy options;

* confidential communications between departments, public bodies and regulatory bodies.”

The preamble to Part II of the code states:

“References [in exemptions] to harm or prejudice include both actual harm or prejudice and risk or reasonable expectation of harm or prejudice. In such cases it should be considered whether any harm or prejudice arising from disclosure is outweighed by the public interest in making information available“. (my emphasis)

Thus the code envisages that even cabinet committee papers might occasionally be disclosable, where there was an overriding public interest in openness. We believe the decision on whether this was such an occasion should have been left to the Ombudsman.

The convention that cabinet and cabinet committee papers should be kept confidential is designed to protect the collective responsibility of cabinet decision taking. Questions of Procedure for Ministers states:

“Collective responsibility requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. This in turn requires that the privacy of opinions expressed in Cabinet and Ministerial Committees should be maintained” [paragraph 18].

The clearest example of information protected by this convention are cabinet and cabinet committee minutes. I should stress that the Campaign is not suggesting that minutes should be disclosed, other than under the 30-year rule.

However, there may be other kinds of information which, on the merits of the case, can be disclosed without jeopardising collective responsibility or the frankness of internal discussion even though they happen to have been submitted to or produced by a cabinet committee.

For example, a purely factual paper on an issue which the government had acknowledged was under consideration – for the sake of argument, perhaps no more than a set of statistics – could presumably be disclosed without damage to collective responsibility. Had the identical paper been prepared for an individual minister, its disclosure would raise no objection of principle at all.

If the Pepper v Hart report discusses the various views of different ministers on the issues involved, then its disclosure would no doubt undermine the conventions relating to collective responsibility.

However, we have no reason to believe that the report contains such discussion. It may be that it does no more than (a) analyse the implications of the House of Lords ruling and (b)æsuggest to departments the changes in previous practice that should be adopted in response. These suggestions might indeed constitute “advice”, as the LCD maintained. However, if the suggestions have been adopted and put into effect, then they are no longer advice but a description of actual current practice. They would represent the collective position of the government and their disclosure could not undermine either collective responsibility or the frankness of internal discussion. Interdepartmental reports have in fact sometimes been published by government itself in these circumstances.

The point of the code is that disputes of precisely this kind should be referred to the Ombudsman. The fact that the government is not prepared to allow this in such cases undermines the code itself.

The problem that has occurred here is unlikely to be an isolated incident. There are now a great number of cabinet committees, dealing with a wide variety of issues on which the public may seek information. The 1992 list of cabinet committees described committees on: science and technology; industrial, commercial and consumer affairs; the environment; home and social affairs; local government; health strategy; London; drug misuse; alcohol misuse; the co-ordination of urban policy; and women’s issues.

Where a factual or analytical paper is submitted to such a committee, and does not indicate the views of, or a conflict between, ministers we think its disclosure should be possible under the code, notwithstanding that is a cabinet committee paper.

The third issue raised is whether the restriction on the Ombudsman’s powers in section 8(4) of the Parliamentary Commissioner Act 1967 is necessary, and whether the Ombudsman should be able to see papers of this kind.

It may be that under conventional maladministration work, the Ombudsman rarely comes up against this restriction and that cabinet committee proceedings are generally not relevant to his work. This may change as a result of the code, as requests are made for information about policy issues.

The wording of the code does envisage that cabinet committee papers might be disclosable where there is an overriding public interest. Yet the Ombudsman cannot address this possibility because he cannot see the papers himself.

Even if the Ombudsman were able to see such papers, the government would always have an ultimate safeguard – for the Ombudsman cannot himself release information against the government’s wishes. Section 11(3) of the 1967 Act permits a minister to issue a certificate preventing the Ombudsman from disclosing any information which would be “prejudicial to the safety of the State or otherwise contrary to the public interest“.

We suggest that this restriction on the Ombudsman’s access to information – which the code itself envisages may occasionally legitimately be disclosed – should be lifted. This change was in fact recommended by this committee in 1978 when it reported its view that “no harm would be done by allowing the Commissioner access to Cabinet or Cabinet committee papers in the very rare cases where he considered it necessary, except where the Attorney-General certified that such access would itself be ‘prejudicial to the safety of the State or otherwise contrary to the public interest’.” [Fourth Report, Session 1977-78, HC 615, paragraph 34.]

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