The Bludgeoning of the Decision Notice

With the latest ministerial veto, is a quaint British tradition emerging?

So, the Attorney General has exercised his powers of veto under section 53 of the Freedom of Information Act 2000 (FOIA) for the third time this year. The only one of his predecessors to use the veto – Jack Straw – only managed to use it twice in one year, so Mr Grieve must now be considered champion at wielding this most blunt of legislative instruments.

Section 53 allows an accountable person (who can be any member of the Cabinet but who, by what appears to be a convention in making, has always thus far been the Attorney General) to issue a certificate to the Information Commissioner (ICO) telling him, in effect, that he got it wrong when ordering disclosure of information under FOIA.

The target of this week’s veto was, for the second time, an ICO decision that Cabinet minutes from March 2003 relating to the decision to go to war in Iraq, and to the then Attorney General’s legal advice regarding the military action, should be disclosed by the Cabinet Office. This decision notice, issued only on 4 July this year was in very similar terms to one issued by the ICO in February 2008, which was the subject of a Straw veto in February 2009, although only after the decision in favour of disclosure had been upheld by the Information Tribunal.

Much has been written about the potentially illiberal nature of the section 53 power – which seems to be a possibly unique example in statute of an executive override over the judiciary. It is ironic that some former and current government figures have argued so strongly for Cabinet minutes to be totally exempt from FOIA disclosure, when the veto can be wielded so easily and decisively (although they would no doubt counter-argue that it is only being used so often because of the lack of a class exemption applying to such information). Indeed, the Justice Committee, in its recent report as part of the post-legislative scrutiny of FOIA, said

we remind everyone involved in both using and determining that space that the Act was intended to protect high-level policy discussions…We also recognise that the realities of Government mean that the ministerial veto will have to be used from time to time to protect that space

There is no bar on someone requesting the same information again from the Cabinet Office, nor any mechanism to allow the ICO not to keep issuing decision notices in favour of disclosure. Given this (and given the words of the Justice Committee) perhaps we are seeing the beginnings of a quaint British tradition, like The Dragging of the Speaker of the Commons or The Searching of the Cellars. I shall call it The Bludgeoning of the Decision Notice.


Filed under Freedom of Information, Information Commissioner, Information Tribunal

5 responses to “The Bludgeoning of the Decision Notice

  1. Andrew

    I think I read somewhere in the coverage of the veto that the Attorney General has issued a couple of the vetoes because he’s the only member of the current Cabinet that has access to the papers of the previous administration.

    In any case, the danger of it being used so frequently that it ceases to be ‘exceptional’ is that it loses its newsworthiness over time, and therefore any meaningful accountability for the person wielding it.

    The real problem with the veto is that philosophically, it undercuts the entire raison d’etre of the Act, which is to transfer into non-political hands the final decision on where the balance of public interests lies. An argument can be made that in a democracy, that final decision should lie in the hands of elected politicians rather than the judges, but I think we’ve ample evidence that this is simply self-serving crap, and ministers are incapable of reaching disinterested decisions on matters like this. If ministers were really confident that their views on the balance of public interests were correct, they’d agree to an amendment of the Act that meant they’d pay the costs of any judicial review of the use of the veto when it was used. This is what happens in New Zealand. Or rather, it would be what happened if this provision hadn’t scared off Ministers from using the veto in the 25 years since the Act was amended to insert this provision.

    What’s most disappointing about the Committee’s consideration of the ‘space to think’ arguments is the refusal/inability to contemplate the possibility that better policy might be made (and outcomes achieved) if more people were able to contribute to the policy development process, and test the arguments and evidence before a decision is made. You’d have plenty of evidence of this taking place in local government. But it’s a shame that the recent Civil Service Reform white paper doesn’t manage to join up the dots between contestable policy advice (in which they seek to learn from New Zealand), and the fact that this implies greater openness around policy making. So the advice can be contested.

  2. Andrew

    It would also have been useful if the Justice Select Committee had reviewed chapter 8 of the New Zealand Cabinet Manual.

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