As we know from the recent controversy over HS 2 and Charles’ ‘black ink’ letters, if the government doesn’t want to release something under FOI, it can use its veto to block a decision from the appeal system. Under section 53 of the Act it can just say no (the only other veto is held by the head of both Houses of Parliament)-see this BBC overview.
Since 2005 the veto has been used seven times. Seven times too many, argue campaigners but use is rather sparing compared with other countries. Does it really matter if the veto is used?
The first reason veto use matters is because it has been used on some of the truly ‘sensitive’ issues. Vetoed or blocked requests include
- the Cabinet minutes where the war in Iraq was discussed
- letters from the heir to the throne to government ministers
- background decisions relating to Scottish devolution (not too sensitive normally but right now a bit more so)
- The business case for HS2
See this House of Commons Library Note for an overview. All these are sensitive political issues: from Iraq to HS2 they are controversies that can severely damage reputations and policies. They also touch on sensitive areas of government and ‘constitutional issues’ such as the Monarchy or keeping cabinet discussion confidential. Government nervousness is shown by past attempts to totally exempt cabinet documents or extend the veto use (see page 17 of the government’s response to the post-legislative scrutiny of FOI).
There is a very large element of crocodile tears here-Cabinet confidentiality is a very important part of how government works-except when Ministers need to leak. Former Cabinet Secretary Gus O’ Donnell’s concern over FOI ‘taking away’ confidentiality was based on two examples he gave-one a very unusual situation (Coalition negotiations) and one a hypothetical example that never happened.
There’s a bit of a dilemma for politicians: the more the veto is used, the less attention it will attract. Truly cynical governments should (and have) used it more often. The Australian government used it 48 times in the first four years of its own FOI Act. The result? Everyone stopped noticing (see page 6 of this report and this CFOI briefing).
|Country||Use of the Executive Veto in first four years|
The second reason it matters is that the veto sends a ‘negative signal’ out to the system, telling everyone else that the government in charge doesn’t think the system is working as it should. It’s a vote of no confidence in FOI as a whole. Like any other veto it tells us that something, somewhere is not working very well.
The third reason is the effect on the public. FOI was designed to bring openness and confidence or at least reassure those who fear government secrecy. If government chooses to block something suspicion almost always follows, especially on such sensitive issues. To take the example of the FOI requests for the Iraq war minutes, few, I think, would believe it was vetoed due to the importance of preserving collective cabinet secrecy. They would believe that the government did not want us to see what the minutes did (or did not) say. Similarly there may be the suspicion with the letters from Charles that blushes are being saved (though whose I don’t know).
So the conundrum for government is whether to use it a lot or not at all. Use it a lot and hope no one will notice it-but you might get a reputation as secretive and the system as whole will suffer. Use it not at all and expose all sorts of difficult issues. No wonder Tony Blair saw FOI as one of his two biggest mistakes (the other was banning fox hunting with dogs).