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Second use of ministerial FOI veto

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Martin Rosenbaum | 12:44 UK time, Thursday, 10 December 2009

The government has today overruled the information commissioner and issued a veto blocking a freedom of information disclosure for the second time.

Jack StrawThe Justice Minister Jack Straw has announced he is preventing the release of minutes of Cabinet committee on devolution from 1997.

This ministerial veto follows the commissioner's decision in June that disclosing the information would be in the public interest. This was on the basis that the sensitivity of the material was reduced by the passage of time.

The government had at first planned to appeal this ruling to the Information Tribunal, which was to hear the case in January. But ministers have now decided instead to use their veto power which annuls any judgment from the commissioner or tribunal.

Mr Straw said in a written statement to MPs:

"Whilst the convention of collective Cabinet responsibility is only one part of the public interest test, in my view disclosure of the information in this case would put the convention at serious risk of harm. The decision to exercise the veto in this case was not taken lightly."

The ministerial veto was first used by the government in February to stop the publication of minutes of cabinet meetings which had discussed the legality of the Iraq war.

The Information Commissioner Chris Graham today said he:

"[I]s concerned that the government may routinely use the veto whenever he orders the disclosure of the minutes of Cabinet proceedings, irrespective of the subject matter or age of the information."

The commissioner's decision argued that "the minutes themselves do not offer much insight into the nature of the debate or the contributions of individual ministers which would, as suggested by the Cabinet Office, undermine the convention," but this analysis is dismissed as "inaccurate" by Mr Straw in the reasoning he gives for his use of the veto.

However last month the government did comply with a ruling from the commissioner that other Whitehall papers about devolution from 1997 should be released.

These revealed the fears of Scottish Office officials that other civil servants were not taking devolution sufficiently seriously.

Today's development will concern freedom of information campaigners who were worried that the first veto on the Iraq minutes would pave the way for later instances on less sensitive topics.

Peter Facey of the campaign group Unlock Democracy commented:

"This is 12 years after the event. Devolution has already happened and is well established. There have been two general elections, a change of prime minister and numerous government reshuffles since. We struggle to see how it is in the public interest not to disclose all the information relevant to this case, especially as national security is not involved."

(As a declaration of interest, I should point out that I have complaints pending at the Information Commissioner's Office about the refusal of the Cabinet Office to release old cabinet papers that I have requested).

Update 16:45: Some further thoughts:

1. It is striking that the government issued the veto now before even arguing its appeal at the Information Tribunal. This suggests that either it was convinced it would lose or the fears of openness advocates like the Campaign for Freedom of Information are correct that the threshold for use of the veto would drop considerably after the first occasion (or both).

2. The statement of reasons [56KB PDF] justifying the veto spells out a new government policy on the detailed criteria for its use. There is an interesting contrast between this apparently nuanced and discretionary approach identified here and their stated (but as yet unimplemented) intention to make all cabinet papers absolutely exempt from FOI.

3. The statement of reasons is also highly critical of the factual content of the commissioner's decision, for example on the continuing political involvement of those who took part in the discussions in 1997. If these criticisms are valid, then it looks like the ICO decision notice might not even be bronze-standard, let alone gold-standard.


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