Letter to Jeff Rooker MP, Agriculture Minister, about the publication of papers of previous administrations

October 9, 1997

Dear Jeff,

I was recently asked by a television programme to comment on the non-publication of the Hygiene Advice Team’s report ‘Red Meat’, edited by William Swann, and have seen your letter of August 20 on the subject to Dr John Godfrey. I understand that your department’s view is that this document falls into the class of papers relating to a previous administration which ministers of a new government cannot see, and you therefore cannot see it yourself – or make it public.

I know that you have taken a number of important initiatives in increasing public access to information relating to MAFF’s work, and that you will only have withheld this information reluctantly, and in light of advice you have received. However, I wonder whether the advice in this case is correct?

The approach to ministerial access to papers of a previous administration is summarised in the Cabinet Office’s Guidance on Guidance, which states that the current convention remains as set out by Mrs Thatcher when she was Prime Minister on January 24 1980, Hansard, cols 305-7.

Mrs Thatcher’s statement makes clear that the main object of the convention is to protect “minutes or documents written by a predecessor of a different Party” and in particular to avoid revealing “the particular personal views of his predecessor”. It states that the convention may also apply to “the advice given by officials to the previous Minister” but adds that “The guiding line must be to avoid embarrassment to previous Ministers”.

After reading a little about the background to the ‘Red Meat’ report it is not clear that it falls within the class of documents covered by this convention at all. The report was not written by former ministers and, I understand, did not describe ministers’ views.

However, it doesn’t seem to be advice to ministers either. In the Commons on March 6 this year the then Prime Minister described this report as “a routine report, of which there are many, not normally shown to Ministers and not shown to Ministers on this occasion” [col 1019]. This in itself suggests that the report itself falls outside the scope of the convention. (Separate considerations may of course apply to papers describing Ministers’ subsequent discussions, once the report came to their attention after being leaked in March this year.)

I believe that the purpose of the convention, insofar as it relates to advice, is to protect the position of civil servants when a government changes. Presumably the intention is to avoid showing new ministers papers which might suggest, or be misunderstood as implying, that individual officials who now advise them were in some sense responsible for politically contentious proposals, which the new minister may previously have opposed, as this might undermine the officials’ position in the eyes of a new administration.

However, it seems unlikely that this report could fall into this category. I understand that some 85% of it consists of a factual account of the degree of compliance with hygiene requirements at abattoirs, without identifying the individual plants concerned. The remainder of the report apparently consists largely of recommendations as to best practice. It appears to be a technical report, of a kind which would not normally be regarded as “advice” at all. I also understand that the report’s editor and most of its contributors were not career civil servants, but worked under fixed term contracts to prepare the review and have since left the civil service. Considerations which might apply where a new minister begins to work with, say, the permanent secretary who advised his predecessor, do not seem relevant here.

Even if the report were advice, it may fall within the classes of papers that the convention itself accepts may legitimately be shown to ministers. The policy as set out by Mrs Thatcher acknowledges that new ministers will sometimes require access to their predecessors’ papers where “the national interest requires that there should be some continuity of policy”. It adds: “Under modern conditions it is not practicable for departments to make a completely fresh start with all their work….Departments use their discretion in making the best reconciliation possible in each individual case”. It is surely arguable that the serious risk to public health caused by the poor hygiene conditions at abattoirs revealed in this report could bring it into this category.

Mrs Thatcher’s statement also specifically adds that “there may be no objection to showing an incoming Minister, e.g. a report which his predecessor saw but on which action remains to be taken”. As I understand it, this last passage may well also apply (or have applied) to the report in question. The statement adds “Some papers, e.g. reports, may, if appropriate, be suitable for showing to new Ministers”.

The convention also excepts “documents which were made widely available outside Government”. It has been suggested that the original report (and not just the later edited version) may have been circulated to the Meat Industry Forum, and if this is the case it may provide additional grounds for regarding it as a document to which the convention does not apply. The fact that extracts from a leaked copy of the report were widely quoted in all national newspapers in March this year, makes any decision to now withhold it from ministers particularly difficult to understand, since the report is virtually in the public domain already.

Most remarkably, a leaked copy of this report was obtained by Tony Blair, as leader of the opposition. In the House of Commons on March 6 (col.1019) he stated “This is Mr Swann’s report. I have read it. It is 54 pages long and contains 81 recommendations.” It seems extraordinary that a report which was seen by Mr Blair shortly before becoming Prime Minister should now be withheld by officials from the minister responsible for his government’s policy in this area.

An entirely different set of questions are raised when papers are sought by the public, rather than an incoming minister. Such requests are governed by the Code of Practice on Access to Government Information. The Code itself is retrospective, and envisages that people should be able to apply for information compiled prior to its implementation – or during the lifetime of a previous government.

Whereas the explicit purpose of the convention is “to avoid embarrassment to previous Ministers”, this is not a legitimate basis for withholding information under the Code. Following a recommendation from the Select Committee on the Parliamentary Commissioner for Administration (HC 84, Session 1995-96, para 27) the last Government amended the Guidance on Interpretation of the Code in 1997 to make this explicit. The Guidance now states (page 22, para 0.3):

“potential embarrassment which may be caused to civil servants or Ministers should not be a factor in deciding whether information should be made available”

It therefore appears, bizarrely, that while you as a minister may be denied sight of papers produced by the previous government, in order to avoid embarrassing former ministers, the public cannot be denied access on these grounds. Unless protected by the Code’s exemptions, the information would have to be disclosed.

Given that the report does not apparently identify individual abattoirs by name, most of the Code exemptions are probably not relevant. I note that Mr Hogg, when he was Minister of Agriculture, described the document as “an internal working document” [Hansard, 6/3/97 col 1023], which might suggest that it would be subject to Exemption 2 of the code which deals information whose disclosure would “harm the frankness and candour of internal discussion”. However, Mr Swann himself has stated that the report was originally intended for publication. The Parliamentary Ombudsman, who deals with complaints under the Code, held in an early case that disclosing information which had been prepared in “the expectation that, in the fullness of time, it was to be published in its entirety” would not jeopardise the frankness and candour of internal discussions (HC14, Session 1994-95, page 3, para 9). Elsewhere he reported that “Exemption 2 cannot apply in perpetuity to information created in the expectation that in the fullness of time it would be released” (HC91, Session 1994-95, para 17(i)).

Another objection may be that the report is a draft, and was not intended for publication in that form. However, my understanding is that it had already gone through a process of editing, and was regarded as complete and factually accurate by its authors, who saw the proposed changes as an attempt to remove criticism which they felt to be justified. Mr Swann is quoted as saying that he and his co-authors were asked to reconsider their final draft but felt that “there was very little we could alter. We took out the odd adjective but we could not change the general thrust of the report. It would have damaged our professional integrity to have done so”. (Daily Telegraph, 7.3.97, page 4)

Even if the report were held to consist of internal discussion, capable of falling within Exemption 2, it would still have to be disclosed under the Code if the public interest in openness outweighed any harm that might be done under any of the relevant exemptions which refer to harm. This is an explicit requirement, set out in the Preamble to Part II of the Code.

The public interest in this matter relates to the fact that the report is said to have described much more serious concerns about abattoirs, with clear implications for public health, than had previously been recognised. Newspaper accounts, based on a leaked copy of the report, suggest that it described poor hygiene conditions, widespread contamination of carcasses, failure to maintain meat in refrigerated conditions, failure to comply with measures to remove specified bovine offal, as required by BSE regulations; and other shortcomings. These are factors to which a court would attach considerable importance in considering whether disclosure was in the public interest.

Furthermore, the edited version of the report which was made public is said to have substantially watered down the original criticism of abattoir hygiene conditions. Newspaper reports which contrasted the two versions also suggested that several hazards which had been addressed in the original report were omitted from the published version altogether. There is a public interest in knowing whether such deletions were made, and if so whether they were justified or amounted to an attempt to deliberately conceal from the public the true extent of the hazard.

Finally, the fact that the full version of the report was not offered to Sir Hugh Pennington, who was at that time chairing the investigation into the fatal outbreak of E.Coli food poisoning in Lanarkshire, is a further source of concern and public interest in the matter.

I have written at such length, and may make this letter public, because this illustrates what appears to be a wider problem across Whitehall relating to the convention on previous papers. I should stress that is not because I wish to suggest that the failure to release the report now is itself exceptionally serious. Nor do I have any doubt about the importance of the changes you are introducing both to improve meat hygiene and to establish greater openness in MAFF, for example by publishing abattoir hygiene scores, revealing the brand names of products tested in food surveys, and in other ways.

There is clearly a case for preventing ministers browsing through past cabinet minutes or other sensitive accounts of their predecessors’ views in order to make political capital out of what they might discover. However, there is a danger that this convention may be applied indiscriminately, without regard to its exceptions, and without reference to the changes introduced by the open government Code, as appears to have happened in this case. The result may be to deny ministers themselves access to reports to which the public has a right of access or which their predecessors might have had to make public if challenged under the Code. This is likely to be both a substantial obstacle to greater openness and an unnecessary impediment to ministers in their own work.

Yours sincerely,

Maurice Frankel

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