Disclosure of government documents and the ministerial veto: When will the Information Commissioner take up the challenge?

24 May 2012

The ongoing dispute concerning the disclosure of NHS risk registers under the Freedom of Information Act 2000 hit the headlines again in recent weeks after Andrew Lansley exercised his veto under the Act to prevent disclosure of one register further to the earlier decision of the Information Tribunal (see blog on 11.04.12). Given the evident dismay of the Information Commissioner on each of the three earlier occasions when the veto has been exercised, the immediate question was whether, this time, he would seek judicial review of the minister’s decision.

It is self evident that whilst the veto is available under the Act, ministers will take advantage of the protection that it provides. However, at the time that the Act was passed, assurances were provided to Parliament that the veto would only be used in truly exceptional circumstances, which are outlined in the Government’s policy on its application.

On the first occasion the veto was exercised, with respect to the disclosure of cabinet minutes concerning the war in Iraq, the then Commissioner sought and published advice from counsel. He concluded that there was no reasonable prospect of successful judicial review of the decision, in part as it would be difficult to persuade a court that the minister’s own assessment of public interest was unreasonable. On the second occasion, with respect to cabinet minutes concerning devolution, the Commissioner, now Christopher Graham, indicated that the circumstances were sufficiently different to the first case to warrant taking further legal advice but upon reflection, he would wait to see if “exceptional does indeed become more routine.” However, when the veto was exercised the third time, again in relation to cabinet minutes on devolution, the Commissioner did not think it constructive or appropriate to take further steps.

Which brings us to the most recent veto. In the Commissioner’s formal report to Parliament dated 15 May, he roundly rejected the reasons given by the minister for the veto. In his statement of reasons, Mr Lansley relied heavily upon the necessity for a “safe space” for policy formulation. However, this was a fundamental feature of the Tribunal’s reasoning – justifying the disclosure of only one of the two registers in dispute. Mr Lansley also emphasised the importance of preserving risk registers generally as a vital tool of effective government. The Commissioner referred back to the absence of any evidence before the Tribunal to substantiate the fear of a “chilling effect.” Finally, the Commissioner emphasised that this case fell within the Government’s own published criteria relating to exceptional circumstances.

However, despite setting out the various ways in which he considers that the minister’s decision was irrational and unreasonable, the Commissioner made no mention of seeking advice on judicial review. Instead, he has simply reaffirmed his commitment to bringing each and every veto to the attention of Parliament by way of a formal report. Even allowing for the fact that a judicial review of the ministerial veto would be difficult – to succeed the Commissioner would have to establish that Mr Lansley could not rationally have concluded that the exercise of it fell within the terms of the Government’s policy – it is surprising and disappointing that the possibility of judicial review seems to have fallen off the Commissioner’s radar. The “exceptional” is becoming more routine and simply reporting to Parliament is hardly likely to put a brake on this.

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