Ministerial veto used for third time

The Campaign for Freedom of Information expressed regret at the Attorney General’s decision today to veto the release of minutes of the Cabinet Ministerial Committee on Devolution to Scotland and Wales and the English Regions (DSWR). The Information Commissioner had ordered their partial disclosure under the Freedom of Information Act (see earlier post). However, the Commissioner agreed that information directly identifying individual ministers should be withheld as should certain passages discussing “the more sensitive areas of policy” and the legal advice referred to in the minutes. The Cabinet Office’s appeal to a Tribunal against the decision was due to be heard next month.

The Campaign said: “In December 2009 the Labour government also vetoed an earlier decision of the Information Commissioner ordering disclosure of the same cabinet sub-committee minutes. It too did so shortly before a Tribunal hearing was due to take place. This time round, the Commissioner has made a more limited order, accepting that some parts are still sensitive and should be withheld. Regrettably, both governments have preferred to rely on the veto rather than make their arguments to the Tribunal.”

This is the third use of the ministerial veto since the Act came into force. The previous occasions involved the minutes of the cabinet meeting at which the legality of the war in Iraq was discussed, and an earlier decision relating to the same devolution subcommittee minutes.

The Commissioner’s decision ordering partial disclosure of the minutes stated that he “has recognised the validity and weight of the argument against disclosure on the grounds of preserving the convention of collective Cabinet responsibility”:

His conclusion is that this factor tips the balance in favour of maintenance of the exemptions in relation to some of the information, specifically content that identifies individual Ministers and other content that in the Commissioner’s view covers what could be fairly characterised as the more sensitive areas of policy discussed by the Devolution Committee. In relation to the content identifying individual Ministers and the content recording discussions on sensitive issues, the view of the Commissioner is that the factor relating to collective Cabinet responsibility continues to carry significant weight. The Commissioner would stress that his decision in relation to information identifying Ministers means that only the content specifically identifying any Minister should be redacted…

In relation to the remainder of the content, the Commissioner considers that its disclosure would not be likely to result in harm to the convention of collective Cabinet responsibility, particularly given the passage of time. The Commissioner considers there to be a specific public interest in disclosure in order to inform current and future debate about devolution and a general public interest in the transparency and openness in decision-making.

In his statement of reasons for exercising the veto, the Attorney General says he considers this to be “an exceptional case” in accordance with the Government’s policy on use of the veto in section 35(1) cases:

I have considered this case in the light of the Government’s published policy on use of the veto, taking particular account of the following factors which I believe to be relevant:

  • The information in this case records considerable discussions on the substance of the Government’s policy on devolution. It is not merely concerned with the process of decisions being taken.
  • Devolution was a significant policy at the time, and indeed remains so…
  • A number of individuals have comments attributed to them in the minutes, including where they are not in agreement on certain policy issues. Although the Commissioner decided that content identifying individual ministers should be withheld, I do not consider that such an approach significantly alters the public interest considerations in relation to the remainder of the information.
  • Of the large number of Ministers who took part in at least one of the DSWR meetings a significant majority remain active in public life: 12 are currently members of the House of Commons and a further 19 are members of the House of Lords;
  • Of those former Ministers engaged in the Committee the majority favoured withholding this information. I consider this a particularly relevant consideration given that the information constitutes papers of a previous administration with the consequence that I, as the accountable person, am the only current Minister able to view the documents.

The Attorney General’s written ministerial statement is here.
The Information Commissioner’s response and decision notices relating to this case are here.

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