Research on Open Data and Transparency

To Block or Not To Block: Background on the FOI veto

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Following the publication of the Black Spider Memos and discussion over amendments to the FOI veto, here’s a bit of background on FOI and the veto.

When Can and Does the Government Use It?

The revised FOI Veto guidance of 2009 sets out when government can use the section 53 veto:

The Government considers that the veto should only be used in exceptional circumstances and only following a collective decision of the Cabinet. This policy is in line with the commitment made by the previous administration during the passage of the Freedom of Information Bill that the veto power would only be used in exceptional circumstances, and on then following collective Cabinet agreement.

This includes the following situations

  • Release of the information would damage Cabinet Government; and/or
  • It would damage the constitutional doctrine of collective responsibility; and
  • The public interest in release, taking account as appropriate of information in the public domain, is outweighed by the public interest in good Cabinet government and/or the maintenance of collective responsibility.

The lobby briefing today hinted it could be extended to cover new areas-extending their ‘self-denying’ ordinance, as it were.

How often has it been used?

In fact, in the UK, use has been relatively slight and covered ‘exceptional’ circumstances above-mostly around sensitive areas-see my post here.

Country Use of the Executive Veto in first four years
Australia 48
New Zealand 14
Ireland 2
UK 1

See this CFOI briefing paper

However, as we said ‘While use has been relatively restrained by international standards, each use is seen as signalling lack of faith in the system ’ and probably attracts attention to an issue you want to hide. Those of a Machiavellian persuasion may see a pattern-use it a lot so it’s not noticed or don’t use it at all.

The government has been minded to change it for some time

In 2012 the government suggested it would revise how the veto could be used, potentially extending it beyond just collective responsibility (see page 19-20 of the response to the post-legislative scrutiny of FOI).

The veto policy also currently focuses directly on the protection of information which relates to the doctrine of collective responsibility in Cabinet. Although it explicitly does not preclude the use of the veto in the case of other information, the policy is not easily adaptable to apply outside that context given its focus. For example, the criteria to be used in deciding whether to apply the veto set out in the policy relate strongly to collective responsibility but less clearly to other information.

The Government is minded to review and, as appropriate, revise the policy on the use of the veto. As part of that review, we propose to consider how the veto policy can be adapted both in terms of the process involved in its use and to offer greater clarity and reassurance n its ability to offer appropriate protection in addition to that which it provides in the context of information relating to collective Cabinet responsibility.

The recent ruling that weakened the ‘absolute’ nature of the veto makes this more likely.

This may be an interesting test of the new Parliament…

The proposal to bring forward a cross party proposal to protect Royal correspondence may be an interesting test of consensus across the parties in the new Parliament. The changes made to the Royal family [passed by the Labour government not the Coalition though they cam einto force in 2011] in the Constitutional Reform Act went through largely [but not wholly] without protest. Will it be the same this time round? Would the Lib-Dems or new block of SNP MPs settle for a change or could they make political capital out of it?

FOI and the Monarchy

On a side note, FOI has also demolished the idea that the Monarchy is only a symbolic body-an FOI request also revealed they have their own veto. My apologies to my decade long classes of politics students who I smugly told that the Monarchy has no power.

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