Tribunal hearing for Westland FOI case
The coalition government is continuing with the policy pursued by Labour of trying to keep secret the minutes of the 1986 cabinet meeting during which Michael Heseltine dramatically resigned.
This was made clear yesterday at a tribunal hearing in central London, where the Cabinet Office appealed against a ruling from the Information Commissioner [68.26KB PDF] last year that the minutes should be released.
The government argued that disclosing the material could in future inhibit free discussion within cabinet and proper record-keeping by civil servants.
The Cabinet Office's counsel Gerry Facenna told the hearing that this case had been "considered by senior members of this cabinet of both political parties". He said their view was that issuing the minutes "would eat away at their confidence that they could express their views in cabinet frankly".
He revealed that the case had been adjourned at an earlier stage in June specifically to allow the new ministers time to assess whether they wanted to maintain the previous government's stance of resisting disclosure. The First-Tier Tribunal (Information Rights) hears appeals against the commissioner's decisions.
The case stems from a freedom of information request I made to the Cabinet Office back in March 2005. Most of the delay since then has been caused by the fact that the Information Commissioner's Office took over four years to reach a conclusion.
Mr Heseltine's sudden resignation as defence secretary followed a bitter row with his Prime Minister Margaret Thatcher over the future of the Westland helicopter company. It stunned the political world, nearly terminated her premiership and was one of the key incidents in the life of the Thatcher government.
The tribunal heard evidence from Robin Fellgett, deputy head of the economic and domestic secretariat within the Cabinet Office and a senior civil servant who has given evidence to tribunal hearings on a number of previous occasions. He also attends cabinet as a note-taker.
Dr Fellgett told the tribunal:
"My experience of attending cabinet meetings and cabinet committees, and talking one-to-one with senior ministers of all parties, is that their view and the way they behave, which I observe, is that if things which have conventionally been kept confidential were disclosed, they would be more cautious in the way they had debates."
He also said that "ministers would ask us to keep less complete records".
However he accepted that in this case confidentiality had already been partly undermined by the fact that several ministers present had since published memoirs with their own account of the meeting in question.
Dr Fellgett asserted that there was concern within government about a combination of three factors that were making it harder to have frank discussion - freedom of information, leaks and memoirs - which he said were of roughly equal importance.
The memoirs of former government insiders are meant to be vetted by the Cabinet Office prior to publication, but Dr Fellgett informed the hearing that he knew that the Cabinet Secretary Sir Gus O'Donnell did not feel that this current system of checking memoirs was "fully effective".
Mr Facenna argued on behalf of the Cabinet Office that the substantive content of the minutes at issue was already in the public domain, through the memoirs and Margaret Thatcher's statement about Mr Heseltine's resignation in the House of Commons. He maintained that disclosure would not increase public understanding of the Westland affair to any significant degree.
However, Timothy Pitt-Payne, counsel for the Information Commissioner, said he did not accept that the minutes would add nothing of any value. He insisted that the "neutral and objective" minutes prepared by officials (as opposed to ministerial memoirs or statements to Parliament) were an essential source in trying to understand how the affair developed.
He argued that factors which would normally require secrecy for cabinet minutes were reduced in the circumstances of this case, owing to the passage of time.
As normal, parts of the hearing occurred in closed session. I assume this involved more detailed argument about the implications of what the minutes actually do or do not say.
Nevertheless, in open session it was stated by the barristers that the minutes gave no evidence of a cabinet split beyond Mr Heseltine's opposition to Mrs Thatcher.
This is the only second case to reach the tribunal which concerns an FOI request for cabinet minutes. The first case in 2008 involved records of cabinet meetings prior to the Iraq war. The tribunal ruled that these should be published but this was blocked by the then Justice Secretary Jack Straw, who used the ministerial right of veto for the first time to overrule the tribunal.
The tribunal was told yesterday that the Cabinet Office receives under a dozen FOI requests annually for cabinet minutes and in no case yet has it reached the conclusion that the public interest favours disclosure.
Although Parliament has passed a law which would reduce the standard 30-year rule for the public release of most cabinet papers to 20 years, ministers have not yet brought this into force. The change in the law followed last year's Dacre review of the 30 year rule.
Coincidentally the only member of the Westland affair cabinet from 1986 who is still active in front-line party politics is the current Justice Secretary Ken Clarke, who thus has oversight of the government's freedom of information policy. He opposed a shortening of the 30-year rule in his personal evidence to the Dacre committee [48Kb PDF].
The judge chairing the tribunal, David Farrer, said that he and his colleagues were "profoundly concerned" about the long delays in the case, which he described as "a pretty sorry story".
The ICO ruling blamed its four-year duration on changes in staffing, an excuse which Mr Farrer described as "quite extraordinary". On behalf of the commissioner, Mr Pitt-Payne said that the government had insisted that cabinet minutes could only be inspected by ICO officials who had been through the security clearance process of developed vetting, of which the organisation only had a limited pool. But nevertheless he agreed that the delay was inordinate.
Although the case arose from my FOI application I was not a party to the appeal and played no part in the proceedings, which were an argument between the Cabinet Office and the Information Commissioner's Office.
When I submitted the request in March 2005, I did not envisage that over five years later I would be sitting in a smallish, spartan room with a stained ceiling, listening to lawyers and officials debate the public interest in disclosure as they struggled to recall some of the political details of the 1980s.
For most of the day there were 13 people in the room, of whom three of us had to file out when the hearing went into closed session and examined the material the release of which is at issue.
The other 10 - from the tribunal, the ICO and the Cabinet Office - had the privilege of access to this document. The tribunal's decision is expected in September. Whether I (and you) get to share in that privilege may, or may not, be settled then.
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What do you think you will achieve by pursuing this? All governments have internal disagreements: it's right that these should be frankly debated. But the media are constantly waiting to pounce on signs of a "split": "You don't really support the Government's collective line, do you?" So it's essential if the Government is to maintain its credibility that contrary views expressed in advance of reaching a decision should be kept private. If you win this case, this will be achieved by other means: Cabinet minutes will record only the eventual decision, not the debate, and will be of far less value to subsequent historians. Indeed this suppression is already happening.
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I agree with ex-Mandarin. What a waste of time and money you have involved us license-payers in. Aside from you, trying to refight some long-forgotten battle against Thatcherism, who gives a damn?
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Same! This is due to be released in 6 years anyway, what's the rush? What difference does it make?
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Another self-serving, job-creating, money-wasting utterly pointless media quest. Governments should be accountable for their actions not for their internal discussions. Who cares what was said? It is of absolutly no consequence in the real world. Certainly a story can be created out of it to make a journalist feel self-important. But that does not make it worth doing.
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The information commissioner is dealing with several complaints of my own, but is massively backlogged. No wonder when you guys are digging up old dirt. I have important current issues that need addressing and have been waiting for nearly a year for the investigations to commence becuase they are overwhealmed. The Information Commissioner is not there to serve journalists. Dropt it so they can deal with real people's issues
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Agreed - total waste of time this. I for one would like my government to have full and frank discussions behind closed doors to reach the decisions they have to make. If they were in fear of being reported on, then these discussions would have to be watered down which would lead to a less strong government.
Just leave it alone please.
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Martin, it's Phil, one of the licence paying public who you are accountable. Hope you are well, and keeping productive.
Re the Heseltine / Westland meeting in 1986. I have zero interest, but understand your own curiosity. Suggest you proceed on your own time, perhaps at your own expense. Slightly depressed that you are tying up so much resource, maybe a direct question to Heseltine would be more expedient. I understand he is not dead, and has commented on this before.
Would like to agree that bureaucracy is indeed bureaucratic, am stunned that you needed to find this out in such a particular manor.
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It is disappointing you have received so many critical comments, Martin. They smack both of a failure to understand the process and of self-interest. The laudable aim of the Freedom of Information Act was to open up public sector decision-making to much greater scrutiny. Of course, senior civil servants do not like it because it shines a bright light on their dark arts. And politicians do not like it because it causes them embarrassment.
In this case, the true cause of the cost and delay is not your worthy efforts, but it is the refusal of these quarters to release that which they should have released at the outset. Their willingness to fight tooth and nail to hide materials from a generation ago does them no credit.
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Afraid I agree with Ex Mandarin.
Consider also what happens when we do get information such as that relating to the tens of thousands of files released on "Wikileaks" recently.
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If I may raise a slightly off topic issue. The term coalition government (as used above) seems to becoming more and more common. The fact that the government is made up of a coalition is not really the point, it is and should remain Her Majesty's Government and should be recorded as such. The use of coalition in this context seems to imply some sort of lack of collective responsibility which should not be the case
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I have to agree with most of the above. While I wholeheartedly support freedom of imformation it seems the system is being abused by journalists engaging in 'fishing expeditions'. It costs public money for central and local government to process FOI requests, even those that are not contested. Its even worse when the BBC is making the request at the expense of licence fee payers (and I support funding the BBC by the licence fee!).
The Westland affair is history, and can be written about when the cabinet papers are published in the normal way, leave FOI requests for things that affect people's live today.
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Reading the other posters comments, they seem to apply the rule, I'm not interested, so drop it.
I did not realise that the FOI act was past solely for their benefit only.
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I am interested in the outcome of this for numerous reasons; however this is overshadowed by the comments regarding the consequences to the keeping of detailed, accurate minutes if these were to made made public; can someone explain therefore what point is there of keeping detailed and accurate records if there is to be no access to them?
Correct me if I am wrong but is it not the purpose of minutes to be available to show a true record of the meeting?
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Who was it that said, "If you have nothing to hide, you have nothing to fear?"
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@12 - My comments were not as a result of self interest. The point is that we all know in reality members of any given cabinet will have strongly apposing views. These views will be debated out behind closed doors until a decision is made.
Given the state of journalism today where they are looking for any sign of disagreement to create a story of 'government split' I do not think it is a good idea that these internal discussions should be made public within the already agreed time periods. All ministers should be allowed to have their opinion and debate it with others without fear that it could cause embarasment to the government. Should a minister voice his opinion in a public forum then that is fair game.
@14 - Nothing to hide, nothing to fear - well that's fair enough, but unfortunately our press do not report it that way. Can you imagine what the press would do if they had documentary evidence of every internal disagreement.
I have had many a storming barny with members of my team with relation to a project and how it should be done, but always at the end of day consensus is reached and a united front is presented to the client. It would be in no-ones interest for the client to know about the occaisional heated disagreement.
I am not against the FOI act in general, but it must be used with common sense.
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I find it interesting (but unsurprising) that other requests which have taken well over four years to be decided upon by the ICO and which involve the Cabinet Office and have been before the First Tier Tribunal (Information Rights) for over six months don't merit a mention here...
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12. At 4:51pm on 03 Aug 2010, Peter Gibbs wrote:
"Reading the other posters comments, they seem to apply the rule, I'm not interested, so drop it."
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Not at all. I'm very interested in the Westland affair and I look forward to reading about it when the minutes are released under the 30 year rule. Had there been a FOI Act in 1986, I'd have seen some point in applying for their early release but there wasn't.
The FOI act wasn't designed for my sole benefit but neither was it designed to satisfy idle curiosity.
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Did any of those complaining so vociferously about "self-serving, job-creating, money-wasting utterly pointless media quests" etc actually read the whole story?
Maybe the bit where the writer clearly states "When I submitted the request in March 2005, I did not envisage that over five years later I would be sitting in a smallish, spartan room with a stained ceiling, listening to lawyers and officials debate the public interest in disclosure as they struggled to recall some of the political details of the 1980s."
Or, for those who couldn't make it that far, when he also says "Although the case arose from my FOI application I was not a party to the appeal and played no part in the proceedings, which were an argument between the Cabinet Office and the Information Commissioner's Office."
I'm beginning to wonder if my web browser is playing tricks on me and I'm actually on the Daily Mail website...
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I'm a licence fee payer and tax payer. I'd not want to see money wasted. It is of course only common sense that discussion in cabinet be frank and conducted with discretion. And, of course, it is a long time ago and it will all come out eventually. But there is a factor that seems to exert a powerful and unquantified influence over some of the stranger foreign policy decisions; the US-UK 'special relationship'. US help in Britain's successful Falklands campaign is well-acknowledged, even if its full extent may never be known. Prime Minister Thatcher's decision to over-rule Heseltine and back a US military helicopter manufacturer rather than a European one apparently flew in the face of military and political logic, as did Prime Minister Blair's decision to back the US and not Europe over Iraq. Both events seemed to be influenced by factors unseen and unacknowledged, and both were accompanied by irregular actions by Civil Servants, apparently under pressure from politicians; dodgy dossiers from Number Ten in the latter case, and, in the former, the issuing of instructions by Civil Servant Colette M'Bow, that may or may not have been authorized by the PM. (it's a cruel irony that helicopters, or rather their malfunctioning US-made radar, should play a part in another deadly and murky event, precipitating strange actions by Civil Servants and Government Ministers; the Mull Of Kintyre crash, that killed so many British security personnel and culminated in the unprecedented scapegoating of the two dead pilots.) It is hard to avoid the suspicion that this is indeed a special relationship like no other. Thus - pace all wise Mandarins and right thinking licence fee payers - some of the less well informed among us would like to know just how special the relationship is, and we'd like to know while we still care. As to the expense, well - get on with it, then.
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I have to agree with Ex-mandarin and would like to draw everybody's attention to what has been called 'empty-archive-syndrome'. This is happening in Sweden, the first country worldwide to introduce a type of FOI legislation as early as the 18th century. Cabinet minutes are no longer written down for exactly the reasons that have been given here. While I agree that FOI is a good thing, caution is probably advisable and a happy medium between the current status and the threat of empty-archive-syndrome should ideally be found.
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Stories have been written, books have been written and this is a poorly kept secret. The fact that political insiders might personally benefit form deals being made is hardly anything new, illegal, but not new. Do you think they seek these positions out of a sense of noble obliges?
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good luck-I hope the minutes are released. FOI is the foundation of a democracy. the delays in this request demonstrate how difficult it is to obtain information because it is in the governments interest.
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The point of this blog is that the Information Commissioners (set up by Parliament) have reached a conclusion that the information requested is in the public interest and should be published.
The only possible reason for the Government of the day not to publish is because it may embarras a currently serving MP or Lord.
When bloggers here talk about costs involved, would they point out which part of the minutes were not paid for by taxpayers?
To suggest that by dropping this case, their FOI requests will be more speedily dealt with is risable.
The CENTRAL point is this, we have Commissioners who take a balanced man in the street viewpoint. They (and there are many different ones) cannot perform their function because of Government self interest or because the matter under investigation is referred to the Law Courts where different standards apply.
Maybe we need to disband all of the appeals commissioners, save hundreds of millions of pounds in costs of their organisations, and accept that there is no justice in the world (and there never was).
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Hello Martin. I was just about to drift through but caught the first few posts on this thread?
Oh dear. But better say no more. But dear oh dear! There - I said too much.
Just thought I say hello, Martin.
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Care to elaborate, steelpulse? Why 'oh dear' and again 'oh dear'. No arguments?
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Exactly, AnneMarieMcG. No arguments. I am out of them. But the "Oh dears"? Those I will explain.
But I trust tactfully. And can I just say – I am quoting from some of the above posts - below. I have been here before.
i) What do you think you will achieve by pursuing all this?
Aside from you, trying to refight some long-forgotten battle against Thatcherism, who gives a damn? Same!
This is due to be released in 6 years anyway, what's the rush? What difference does it make?
Here before - many years ago – on mostly another, personal Open Secrets matter. Heck - I was a regular on this site.
Freedom Of Information and Information Commissioners – all encountered and under my real name and then another Web name – I asked myself all these questions above and came up with the following answers.
i) Clarification of half a family history story
ii) I once cared and these self same barriers - you cannot have it - were always up and STILL ARE. Years on. I didn’t know it then but it was a second fight to get full information about my one known family member. My late mother. So fight hass unknowingly been on for two decades. No. No arguments left.
iii) Do NOT be so sure it - Westland or whatever - will be released in 6 years. My information as I said is still held and the records now 60 years old and shows no sign of being let loose into the wild. Some of it – records - might be even older. Do not trust 30 year rules or whatever.
The thing about Westland is that so many versions have been privately released – it would be very nice to know whose account is nearest the truth of it. But there is I suggest another reason it is so difficult to get at and seeing web names like Ex-mandarin hardly warm me to whatever that poster is going to say on this site. No offence Ex-mandarin.
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So the Cabinet will not record minutes if people are allowed to see them. What is the point of writing them down if no one is allowed to see them?
Is the secrecy to protect a UK-US special relationship based on playing the constant yes man in the hope of receiving some crumbs? If the crumbs were the latest air-to-air missiles for use in the Falklands, they were justified anyway and, furthermore, a responsible Government would have already had them in stock.
However, as other comments have suggested, there may be more important items for your attention. Today, 22 August, the BBC report "Pathologist says David Kelly's death a 'textbook suicide'". Here, the secrecy is allegedly to protect the family. Surely, to bring everything into the open and end the speculation will be in the interest of the family. It should also be preferable for all innocent parties, whether they be Tony Blair and his Government, the pathologists involved, Lord Hutton the Security Service, the Freemasons, or any other Cluedo suspects.
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Don't get me wrong, I am very much in favour of the FOI Act; it is a good instrument for finding out the truth about many government decisions. But the problem is that it CAN lead to even greater secrecy - don't you understand the problem? All I'm advocating is a better balance to prevent things like empty-archive-syndrome from happening here. That would serve the public interest even less than what happens right now.
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I think it is quite interesting that the BBC should bang on about suppression of information, when for the last month they have prevented anyone blogging on Scottish politics on the "Scottish" politics section of the BBC website. The BBC should take a look at themselves before commenting on suppression of information and free speech. The problem is of course that in Scotland nationalist sympathisers and politicians are more outspoken than the other parties and unionist bloggers are rare. Come on BBC re open the debates on Scottish politics!
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