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Tribunal hearing for Westland FOI case

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Martin Rosenbaum | 09:25 UK time, Tuesday, 3 August 2010


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.

Michael Heseltin leaving 10 Downing St

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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