Policy advice released after months not decades

A version of this article by the Campaign’s director, Maurice Frankel, appeared in Press Gazette on 2 May 2008.

In the past, officials’ advice to ministers, and the discussions leading to it, have been confidential. You could see it after 30 years, but not before. The Freedom of Information Act has shattered that convention.

Whitehall argues that officials need to be able to tell ministers, in private, what is wrong with their proposals. If their advice is disclosed and used against ministers, civil servants may pull their punches. Policies will not be properly scrutinised.

But the Information Tribunal has rejected the view that all such discussions need decades of secrecy. It has ordered disclosure of some material after only months. Despite two High Court challenges, the government has failed to overturn its approach.

The FOI Act contains a broad exemption for anything to do with government policy formulation. Decisions come down to the Act’s public interest test. The Tribunal has accepted that the public interest normally favours confidentiality while policy is being developed. Ministers and officials need “time and space…to hammer out policy…without the threat of lurid headlines” it says. But once the decision has been taken and announced, the case for disclosure becomes stronger.

In key decisions the Tribunal has:

  • ordered the Department of Work and Pensions to disclose a 2004 assessment of the benefits of introducing identity cards.
  • required disclosure of officials’ 2005 advice to John Prescott, then Deputy Prime Minister, on granting planning permission for a tower block near Westminster. These showed that civil servants had agreed with a planning inspector that permission should be refused – but that Mr Prescott granted it.
  • ordered the release of high level Department for Education and Skills board minutes discussing a 2003 schools funding crisis.
  • told the Treasury to release budget submissions about a 1999 tax cut (though it accepted that a few paragraphs could still be withheld).

The government has complied with these decisions. But in two other cases it has challenged the Tribunal in the High Court.

The first involved the ‘gateway reviews’ which assessed progress on the identity cards programme. The Office of Government Commerce argued that once information falls within the Act’s policy formulation exemption the public interest is always harmed by disclosure. This was a crucial point. If the OGC was right, the cards would be permanently stacked against disclosure.

The judge, Mr Justice Burnton, rejected the argument. He noted that the exemption was so wide that even published reports considered by government would be caught, though they “cannot possibly be confidential”. It would “be unreasonable to attribute to Parliament an intention to create a presumption of a public interest against disclosure” he concluded.

The decision also contained an unwelcome setback. The Tribunal had quoted a 2004 select committee report calling for these reviews to be published. This provoked the Speaker of the House of Commons, rarely a friend of FOI, to intervene, arguing that this was a breach of Parliamentary privilege – and the judge agreed. If a committee report was submitted in evidence, the other side must be allowed to challenge its findings. But this would breach the 1689 Bill of Rights prohibition on courts questioning anything said in Parliament.

The judge ruled that nothing said in Parliament – not even the answer to a parliamentary question – can be accepted as evidence unless both parties agree that it is uncontentious or it is used simply to explain an issue’s history. By relying on the committee report here the Tribunal had, according to the judge, taken into account “an illegitimate and irrelevant matter”. The decision was quashed and will now be reheard by the Tribunal.

The finding has wider implications. Requesters arguing for disclosure to the Commissioner or Tribunal should try not to rely too heavily on Hansard. They should also look for statements made outside Parliament as well, such as public speeches, press releases or ministerial correspondence.

The second High Court case involved an application to the Export Credits Guarantee Department for support of an oil and gas extraction project off the Sakhalin island near Japan.

Using the Environmental Information Regulations, which contain the same public interest test as the FOI Act, Friends of the Earth applied for the submissions to ECGD made by several government departments.

But as no final decision on the project had been made, the Information Commissioner ruled that, at least for now, the public interest favoured confidentiality.

The Tribunal, however, disagreed. It noted that that the submissions were either not sensitive or “if anything, likely to improve the quality of the deliberative process”. They should be disclosed.

ECGD appealed, arguing that the Tribunal had ignored the public interest in confidentiality and misapplied the relevant exemption. The judge, though criticising some of the Tribunal’s drafting, found its decision correct in law. The documents have now been disclosed.

These challenges will continue. The Commissioner’s decision that cabinet minutes on the Iraq war should be disclosed will certainly be challenged. A committee considering a possible cut in the 30 year rule is due to report in the summer. But a giant leap in openness has already occurred.

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