Tag Archive for Ministerial Veto

Will FOI be humbled?

The Cabinet Office

FOIMan gazes into his crystal ball to see what will result from the government’s response to the House of Commons’ Humble Address.

Amongst everything else that happened this very unusual week (although aren’t they all lately), the House of Commons made a ‘humble address’ to the Government requesting access to a document outlining plans for a no-deal Brexit, and perhaps more controversially, communications between certain named civil servants and special advisers relating to the prorogation of Parliament. These communications were to include those in private email accounts, WhatsApp, text messages and various other cited forums.

Late on Wednesday, Michael Gove in his capacity as Chancellor of the Duchy of Lancaster (and therefore in charge of the Cabinet Office and no-deal planning – and come to that, government FOI policy), wrote to the instigator of the humble address, Dominic Grieve, refusing to provide the communications. He argued that it was an improper use of the humble address mechanism to seek such communications of officials. He further suggested that this information would be exempt under FOI, mentioning section 35 (formulation of government policy) and section 36 (specifically maintenance of ministerial collective responsibility), and concerns about breaching the Data Protection Act (as others have pointed out, it would be the General Data Protection Regulation that would potentially be breached, but that’s an academic point in this regard).

A humble address is not an FOI request. And with Parliament prorogued, it is difficult to know what Dominic Grieve and colleagues can do about the Government’s effective partial refusal. So what happens next? And is it going to prove possible for the communications to be disclosed? I’ve polished my crystal ball to gaze into the future. A caveat – all of the following assumes that a political deus ex machina fails to come to the rescue. And assumptions in the current climate are, of course, hugely dangerous… But excepting a change in government or similar that results in a more sympathetic ear to this request, here are my predictions.

First, even if Dominic Grieve hasn’t followed up with an FOI request for the refused communications, I’m sure that the Cabinet Office is right now receiving a deluge of almost identical requests asking for them.

Second, the Cabinet Office will (eventually, as they will almost certainly delay responding to after the 20th working day) refuse these requests claiming variably that they are vexatious (poor harassed Dominic Cummings); exceed the cost limit;  and claiming a) the communications are not held, and b) that even if they were, they are exempt under s.35 and/or s.36, or that disclosure would breach data protection laws so they are exempt under s.40(2) of FOIA. It is very easy to challenge the arguments that they will use (see below), but that won’t stop them.

Third, several requestors will (having had no luck with an internal review), complain to the Information Commissioner. The Information Commissioner will discard the vexatious argument (as long as you haven’t been too rude) and the cost argument. We’ve seen before what happens when Michael Gove’s officials use private channels to communicate about their work – so the Information Commissioner would rule that the communications were held as long as they related to government business (which the discussion of prorogation clearly is). Anything not related to the conduct of government business would be excluded so many of the privacy concerns raised by Mr Gove will not be at issue (Gove suggests in his letter that compliance with the humble address would require some sort of intrusive intervention, but as the Commissioner indicated in the decision I’ve alluded to here, and in her guidance, such a search would merely involve asking the individual concerned to supply relevant correspondence – there is no question of anyone else searching through their private communications).

In respect of the communications which are judged to be ‘held’ for the purposes of the request, it is certainly the case that communications will be or contain personal data of the individuals listed in the humble address. However, data protection laws do not prevent disclosure of personal data in all circumstances. Public authorities are expected to consider if there is a legitimate interest in disclosure of the requested data (in this case, Michael Gove himself alludes to the ‘legitimate desire from Parliamentarians on all sides to understand the impact that leaving the EU without a deal would have’ and there is an obvious legitimate interest given the controversy around prorogation of Parliament, including accusations that the Prime Minister lied to the monarch, in the public being able to find out for themselves what the truth of these allegations may be); whether disclosure is necessary to meet that interest (there isn’t another way to find out how and why this decision was reached); and whether the rights and interests of affected individuals override the identified legitimate interest (highly unlikely – these are senior high profile officials who should expect to have their work scrutinised – it’s part of the job). It therefore seems unlikely that disclosure of the requested communications would breach GDPR, so the Commissioner will rule that the personal data exemption does not apply to some (at least) of the communications. The arguments in favour of s.35 and/or s.36 will probably be harder to discount. The exemptions are relatively easy for a determined government department to apply – s.35 is phrased so broadly that it is easy to show that communications fall within its scope. The use of s.36 turns on the opinion of a Minister being ‘reasonable’ – something which whilst it’s easy to snigger at, is easier to demonstrate in law. However, both s.35 and 36 are subject to a public interest test. In the circumstances (and for pretty much the same reasons as there is a legitimate interest in disclosure of personal data), it seems likely that the Commissioner would plump for disclosure of at least some of the communications described. The Commissioner will issue a decision notice to this effect.

There is a risk during this period that the communications are deleted, the officials concerned claiming that they didn’t realise they were subject to FOI. This would put them at risk of prosecution under s.77 for deliberately destroying information which is subject to a current request. However, it is very difficult to successfully prosecute under this provision as the Commissioner would have to demonstrate that the deletions were a deliberate act, designed to thwart the FOI requests, within 6 months of them happening. Despite undertaking several times to make it easier for the Commissioner to prosecute, the government has failed to make this change.

Assuming the Cabinet Office doesn’t suddenly claim that the communications have mysteriously disappeared, their next step will be to veto disclosure. Of course they could just appeal to the First-Tier Tribunal (FTT), but following the Independent Commission on FOI’s report in 2016, the government (in the guise of Matt Hancock at that time) undertook to only use the veto after the Commissioner had ruled, and before any Tribunal involvement, so that the executive would not be seen to be overruling the judiciary.

Beyond this, if anyone still cares (which they might on a point of principle), there may be a judicial review of the use of the veto. Given the ruling of the Supreme Court in the ‘Black Spider Memos’ case in 2015, it would not be surprising if the government lost. Several times. Those who can think back that far will recall that the Supreme Court’s ruling resulted from an appeal against the application of the ministerial veto by the then Attorney General, a certain…Dominic Grieve. Ironically then, Dominic Grieve’s defeat in the past may well help him win in the future. It’s like something from science fiction.

By now, the Cabinet Office (or Boris’s feted SPADs) will be calculating, the year is 2025 (at least). In this dystopian future, nobody gives two hoots whether Nikki da Costa (or whoever) thought closing Parliament for five weeks 6 years before was once considered a sensible option.

It may well be that in this scenario, Parliament and the Freedom of Information Act have been shown to be toothless in their scrutiny of the government. I’m hoping someone sees a flaw in my reasoning above and there is a way to force the Cabinet Office to provide these communications whilst they are still useful to ongoing debate. By rights it seems they should be disclosed – at least in part – but by the time anyone is able to enforce that on a reluctant government, it will in all probability be too late to help anyone save historians of these ‘interesting times’.

Charles’ Letters: Will Dominic Grieve?

FOIMan reflects on last week’s long-awaited publication of correspondence between the Prince of Wales and government ministers.

UK Supreme Court

UK Supreme Court

FOI stories are like buses. You wait ages, decide to walk, and then three or four drive past you. Last week I took a long-planned week’s holiday only for the new(ish) government to make significant appointments, the Court of Appeal to rule on vexatious requests, and of course for a 2005 series of FOI requests to finally achieve the disclosure they sought.

Consequently pretty much everything there is to say about Prince Charles’ letters to ministers in the Labour government back in 2004 has already been said. But I’m going to try and squeeze a few more drops of juice from the pith nonetheless.

Two points struck me. The first was the reaction to the letters. A panellist on Have I Got News For You? described them as “boring”. And that just about sums up everybody’s comments on them. Far from the skies falling in, or crowds storming Clarence House or Buckingham Palace calling for a republic, the letters confirmed what we already knew – Charles has strong views on certain subjects such as architecture and agriculture. He has expressed most if not all of those views publicly in the past, so all we now know is that he has said the same things to government ministers. Although, like many, I would prefer Royalty to keep its distance from government in anything other than a symbolic way, there’s no suggestion from this correspondence of anything improper.

Some people will argue that the Guardian’s campaign to procure this release was therefore a waste of time and money. It really isn’t. Evidence that there isn’t a problem is still valuable.

What was a waste of time and money was the government’s determined efforts to prevent release. Time and again we see these long battles to prevent disclosure of correspondence. And very often the offending missives are released and turn out not to be of the remotest interest.

Public bodies continue to battle to protect principles and conventions. This is despite the fact that their own FOI Officers, legal advisers, the Information Commissioner, the Tribunals and the courts constantly repeat that FOI exemptions are not designed to protect abstract traditions. To apply exemptions successfully you need to demonstrate that meaningful harm will be caused by the specific disclosure. Breaking conventions does not automatically cause meaningful harm – it may cause change, but that’s what FOI was meant to do.

All of this has been said before, and it leads me to my second point. The Supreme Court decision which led to this disclosure overturned the use of the ministerial veto by the then Attorney General Dominic Grieve. When Mr Grieve issued the veto, his explanation was that the letters were “particularly frank” and disclosure “could seriously undermine the Prince’s ability to fulfil his duties when he becomes King.” Now that we’ve had chance to read these letters, these statements – particularly the latter – appear ridiculous. How does this square with what we know about Mr Grieve?

Whatever your political persuasion, Dominic Grieve appears to be a sensible and rational man. He is a barrister, and especially since leaving office last year has not been shy to criticise government plans to replace the Human Rights Act with a Bill of Rights. When he gave evidence to the Justice Select Committee in 2012, he was invited to give his views on the introduction of an absolute exemption for cabinet minutes. He gave a reasoned explanation as to why that might not be a good change to make. Mr Grieve is not one of those politicians who opposes transparency on principle. He is thoughtful and considered on these matters.

An examination of s.53

FOIMan examines the offending section of FOIA

So why was his justification of the veto so hyperbolic? I think I know this. Perhaps it isn’t very insightful but I think that it illustrates something of the position in which FOI Officers often find themselves. My guess is that Mr Grieve did not feel very strongly about Prince Charles’ letters. I suspect he came under pressure from others – Clarence House? Fellow Cabinet members? The Prime Minister? FOI Officers sometimes find themselves in disagreement with senior colleagues, and ultimately have to do what they’re told. Mr Grieve of course was a senior Minister, but may have found himself in a similar position nonetheless. We all have our seniors, and we all have to choose our battles. In the circumstances, I can understand why Mr Grieve may have felt this was not a resignation issue. He may well not even have bothered arguing.

When I was an FOI Officer and found myself in this position, I had to come up with arguments to justify the use of exemptions – even though I didn’t think they were justified. My arguments in such situations were undoubtedly weak and often exercised hyperbole. If challenged (which they rarely were), they would have fallen apart spectacularly. Perhaps this is how Dominic Grieve came to advance some uncharacteristically poor arguments in his explanation of the veto. He may well not have believed in them wholeheartedly from the start. So perhaps Dominic will not grieve his veto being overturned after all.

Prince Charles’ letters and the Veto

FOIMan explains why the ruling of the Supreme Court in relation to Prince Charles’ “black spider memos” is so significant – and why FOI campaigners should be cautious in their celebrations.

logoshirtOn 1 January 2005, FOI came into force. Later that same year, the Guardian’s Rob Evans made Freedom of Information requests to government departments for correspondence with Prince Charles, the heir to the throne. Ten years later, the Supreme Court has finally ruled that those letters (or many of them at least) must be disclosed. The full story of those ten years – together with many of the key court decisions – can be read in Matt Burgess’s excellent piece on the FOI Directory site.

This ruling is important – and for me, pleasantly surprising. After the Court of Appeal considered this case last year, I gave my analysis on this blog, and it turns out I was wrong. Though not entirely. My prediction was that the Supreme Court would rule that the veto was legitimate in relation to information subject to FOI, but that the European law that underpins the Environmental Information Regulations (EIR) would lead to a ruling that the veto cannot apply to environmental information. As it turns out, the Court ruled that the veto was not legitimate in either case, though there was more support from the Justices for the veto not applying to EIR (6:1 as opposed to a 5:2 ruling on the use of the veto in relation to FOI).

Huge congratulations are due to Rob Evans and the Guardian. Rob and the Guardian have been persistent in pursuing the release of the letters, even when all around (or many of us) were sceptical of their success. But I now want to consider the implications of this judgment for FOI and EIR.

Firstly, what does this mean in terms of the release of correspondence between members of the Royal Family and public bodies? One of the reasons that this case is so important is that it is now pretty much the last chance any of us will get to see what is said in correspondence like this, unless it is leaked (or relates to environmental matters – see below). This is because FOI was amended in 2010 – during the wash-up of the last government – to make the exemption covering relations with the monarch and their two nearest heirs absolute. This means that the government and other public bodies will be able to refuse all future requests for correspondence with Prince Charles under FOI. This ruling will not change that. But at the time of Rob Evans’ request, the exemption was subject to a public interest test, and that is how we have reached this point. If the correspondence is released, then that will be the last FOI disclosure of Prince Charles’ letters.

That said, the ruling is significant in terms of environmental information. Given the Prince’s known interest in environmental matters, it is likely that public bodies will hold many letters from the heir that would fall under the EIR. All the exceptions (the EIR equivalent of exemptions) under EIR are subject to a public interest test, and this judgment makes clear that Ministers cannot exercise the veto in relation to any decision to disclose information falling under EIR. So we may well see future disclosures of correspondence from Prince Charles relating to environmental issues.

But in many ways, the most important implication of this ruling has nothing to do with the Royal Family. The point of this appeal was to consider whether the Attorney General was entitled to exercise the controversial veto at section 53 of FOI. And the judgment says some pretty important things about the veto.

It says that it is not enough for government ministers to disagree with Commissioner, Tribunal and Court rulings on FOI – the use of the veto has to be justified:

“…it appears to me that there is a very strong case for saying that the accountable person cannot justify issuing a section 53 certificate simply on the ground that, having considered the issue with the benefit of the same facts and arguments as the Upper Tribunal, he has reached a different conclusion from that of the Upper Tribunal on a section 57 appeal.” para. 68 of the judgment

But it also confirms the view expressed by the Lord Chief Justice in the High Court decision on this case that the veto itself is “a constitutional aberration”. The ability of the executive to overturn the decision of a court of law:

“…would be unique in the laws of the United Kingdom and would cut across two constitutional principles which are fundamental components of the rule of law, namely that a decision of a court is binding between the parties and cannot be set aside, and that decisions and actions of the executive are reviewable by the courts, and not vice versa.” Press Summary

So the effect of this ruling is to call into question almost all use of the veto, certainly up to this point, and potentially in the future. This is a huge defeat for the government.

Without wanting to pour cold water on well-deserved celebrations, that is exactly the reason why I think we need to be cautious. Governments don’t like huge defeats. And the veto has been used by both the last two governments. David Cameron has already released a statement saying that the law will need to be amended to reinforce the veto and make its future use clear and unassailable. Speaking at 11KBW’s Information Law Conference last week, barrister Tim Pitt-Payne, who has represented the Commissioner as well as government departments in FOI cases, expressed his view that if this ruling went against the government, it was likely to reopen the question of the application of the section 35 exemption for policy formulation. When the Justice Select Committee examined FOI three years ago, it decided that section 35 didn’t need to be strengthened, as the veto provided a backstop for government if it needed to protect internal discussions.

Today’s ruling will lead to another period of reevaluation of FOI by government, and may well provoke attempts to provide more protection for government information. FOI campaigners and others will need to be vigilant.

 

 

The defeat of the Mysterious Veto?

FOIMan thinks it may be too soon to start celebrating yesterday’s ruling by the Court of Appeal that Prince Charles’ letters to Ministers should be disclosed, but argues that interpretation of European law may yet prove crucial in this case and for others.

An examination of s.53

FOIMan examines the offending section of FOIA

Yesterday’s judgment by the Court of Appeal, apparently overturning the use of the section 53 veto for the first time, was immediately welcomed by FOI campaigners, supporters and of course, journalists. And it is a victory – for now – for Rob Evans of the Guardian who has pursued the disclosure of letters from Prince Charles to Government ministers for 9 years.

Personally I would be very happy if this decision stuck. The ability of Ministers to overturn the considered decisions of the Information Commissioner, information tribunals, and ultimately the courts, is in my view as well as the Lord Chief Justice’s “a constitutional aberration” (para 2). But…I can’t help feeling that this decision is not the end of the road on this case.

Firstly, that’s a matter of fact. The Attorney General has been granted leave to appeal to the Supreme Court. And he’s already indicated that he intends to.

Secondly, as Jon Baines has already pointed out, the decision in relation to FOI seems at odds with the intention of Parliament. The reason for the veto was to allow ministers to overturn FOI decisions that they didn’t like. That was why the government of the day proposed the veto, and that was what Parliament voted for. That in the end was what Charles’ own mum gave assent to. The Master of the Rolls says that s.53 is “a remarkable provision”,

“because it seriously undermines the efficacy of the rights of appeal accorded by sections 57 and 58 of the FOIA.” (para. 39)

To which the answer is, well, yes, that was the point. Jack Straw, the Home Secretary who was responsible for taking FOIA through Parliament, told the Justice Select Committee (para 169) two years ago:

“Without the veto, we would have dropped the Bill. We had to have some backstop to protect Government.”

In its report at the conclusion of the post-legislative scrutiny, the Committee appeared to fully support the use of the veto in this way, and indeed suggested that its use ought not to be considered “exceptional”.

So my hunch – and I hope I’m wrong – is that the decision in relation to FOI will be overturned by the Supreme Court. Even if it isn’t, I could easily see an amendment to FOIA being passed with little opposition whatever party is in power to plug the gap. Celebrations of the death of the FOIA veto are likely to be short-lived.

However, I don’t think it’s all doom and gloom from this end of the bar. The Court of Appeal also ruled that the application of the veto to environmental information was unlawful. That seems to me a much stronger argument. The Environmental Information Regulations 2004 (EIR) are the UK government’s implementation of a European Union Directive. Article 6 of the Directive requires that:

“Member States shall ensure that an applicant has access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final…”

It is hard to see how the veto is compatible with that. And there would be little the government could do to change the law, short of leaving Europe altogether (which of course is possible but not in the immediate future).

The implications of that are several. First, many of Prince Charles’ letters apparently related to environmental issues, so if the Supreme Court quashes the Court of Appeal’s ruling on the FOI veto but upholds the ruling on EIR, then there may still be a significant disclosure of correspondence in this case. Second, there will be implications for another veto decision. Only at the end of January, the Transport Secretary vetoed the disclosure of a report on HS2. The report was viewed to constitute environmental information, so it is likely that if the Supreme Court upholds the Court of Appeal’s position on the veto and EIR, then that decision will be viewed as unlawful as well. Thirdly, it reinforces the already strong impression that EIR can be more effective at achieving disclosure than FOI (though of course this is only useful if you want to access environmental information – but that’s an increasingly broad spectrum of information thanks to case law).

Even in respect of my primary argument above, there is hope if the Supreme Court agrees that the veto is incompatible with European law. It was successfully argued in the Court of Appeal (paras 74-80) that the Attorney General had failed to consider in his certificate how the public interest in disclosure of non-environmental information would be affected if the environmental information had to be disclosed. If the Supreme Court does order the disclosure of the environmental information, it may therefore decide that the Attorney General’s veto certificate is flawed more generally – and rule that the rest of the letters must be disclosed as a result.

We’ll have to wait and see what the Supreme Court decides, so we have yet to hear the fat lady finish her scales let alone receive the rapturous applause of a satisfied audience. And as this particular battle for correspondence has so far taken 9 years, it appears a somewhat extreme example of the point I made in my last post. Getting access to correspondence is unlikely to be an easy – or quick – exercise.

The Mysterious Veto Returns

FOIMan comments on the latest application of the Section 53 veto.

Last year, Lord Judge, the Lord Chief Justice, said the following of the ministerial veto which is set out at section 53 of the Freedom of Information Act:

“The possibility that a minister of the crown may lawfully override the decision of a superior court of record involves what appears to be a constitutional aberration. ” (The Guardian, 9 July 2013)

Nonetheless, The Guardian, whose attempts to overrule the use of the veto in relation to Prince Charles’ letters to ministers had led to this comment, failed in their attempt to have the veto overturned. And now the veto has been applied again, this time by the Transport Secretary, Patrick McLoughlin, to prevent access to a report about HS2.

What strikes me first of all in this case is that the Cabinet Office (who originally received and dealt with the request) haven’t even troubled those “superior court[s]”. It looks as though the veto has been applied before the case has even been considered by any kind of Tribunal. So no court – just the Information Commissioner – has been overruled in this case.

The Government has published its reasons for applying the veto. It disagrees with the Information Commissioner on two significant points:

  • it doesn’t agree that the report is “environmental information”, and therefore that the request should be handled under the Environmental Information Regulations (which place an explicit obligation on public authorities to apply a presumption of disclosure when considering whether or not to disclose information)
  • it doesn’t agree that the public interest is in favour of disclosure.

The Information Commissioner’s fundamental argument in this case is that this report relates to an earlier decision, already announced to Parliament. Whilst HS2 work is obviously still ongoing, this work is the result of the findings of the report – the phase of work that the report belonged to finished when the HS2 proposals were announced. The timing of the request – 7 months after the announcement – is therefore a major argument in favour of disclosure.

This argument will be familiar to long-term FOI watchers, as it was a similar point in dispute when the Government opposed the disclosure of the NHS risk registers a couple of years ago. On that occasion, they also applied the veto, but after hearing the view of the First Tier Tribunal.

This may explain why Mr McLoughlin and his Cabinet colleagues have chosen to go straight for the veto this time. But it is sad that the Government appears to have decided that instead of testing their arguments in court, it is better to wield the veto. If this becomes standard practice, then FOI and the law are the weaker for it.