The Post-Legislative Review of the Freedom of Information Act: A vote of confidence in the ministerial veto

26 July 2012

The Justice Select Committee has today published its report following its post-legislative scrutiny of the Freedom of Information Act 2000. What’s the verdict? “It has been a success.” The Committee had no difficulty in concluding that the legislation had achieved its primary objectives of increasing openness and transparency. However, more careful consideration was given to whether this new regime has affected the quality of decision making within government and whether the existing safeguards, in the form of statutory exemptions backed up by a ministerial veto, strike the right balance in protecting the effective operation of government.

This issue was reviewed earlier this year within the context of the Information Tribunal’s decision to allow the disclosure of an NHS risk register. Although the document fell within the section 35 exemption relating to the formulation and development of policy, it was subject to countervailing public interest considerations in favour of disclosure. To the evident concern of the Information Commissioner, the ministerial veto available under the Act was swiftly exercised to prevent disclosure.

The Committee heard a similar range of evidence to the Tribunal concerning the much debated “chilling effect” of the Act upon effective decision making. Lord O’Donnell, former cabinet secretary, spoke of the uncertainty amongst policy makers as to whether something written down would be subsequently disclosed. In his words, “How do you avoid this problem arising? You basically find a medium which is not covered by FOI. The cost of mobile phone bills goes up between ministers.” Jack Straw, former Home Secretary, was aware that other Government departments had unminuted meetings for fear of future disclosure. Both witnesses suggested that certain areas of government communication should be protected by an absolute exemption to disclosure.

In contrast, the UCL Constitution Unit, having conducted interviews with a large number of officials across central and local government, concluded that the Act had not negatively impacted upon the quality of advice. Nevertheless, it was also apparent that written records may sometimes not be as correspondingly full and frank as the advice being received. 

Faced with continuing uncertainty with respect to the extent and nature of the feared “chilling effect”, the Committee approved the status quo in its report, confirming that the existing exemptions should be relied upon to ensure there is a “safe space” for policy formulation and development. Rather than recommending that the section 35 exemption should become absolute, the Committee confirmed that the “ministerial veto will have to be used from time to time to protect that space.”

At present, the existing guidance on operation of the veto states it should only be used in “exceptional circumstances,” a point which has been highlighted by the Information Commissioner repeatedly. The Committee therefore recommended that, if the veto is to be used to protect high level policy discussions and cabinet minutes on a more routine basis, the existing guidance should be amended accordingly.

The Information Commissioner has previously expressed his concern that the ministerial veto should not be routinely relied upon. Further to the express encouragement of the Committee and its suggested amendment to the underlying guidance, it appears likely that the veto may indeed be exercised more freely and frequently.

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