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.