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

veto

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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Black Spider Blues: Opening Up The Monarchy

 

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The Supreme Court has ruled on Prince Charles’ memos clearing the way for release.

In a majority 5:2 ruling on the FOI the Court argued:

Lord Neuberger (with whom Lord Kerr and Lord Reed agree) concludes that section 53 FOIA 2000 does not permit the Attorney General to override a decision of a judicial tribunal or court by issuing a certificate merely because he, a member of the executive, considering the same facts and arguments, takes a different view from that taken by the tribunal or court. This 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 [52]. Clear words must be used if the statute is to have that effect, and section 53 is a very long way from being clear enough [58-59].

In ruling on the EIR

Lord Neuberger and Lord Mance (with whom Lady Hale, Lord Kerr, Lord Reed and Lord Hughes agree) point out that article 6.1 requires that, following a refusal by a public authority of a request for environmental information, the refusal must “be reconsidered … or reviewed administratively”, article 6.2 requires that thereafter the applicant has “access to a review procedure before a court of law or [similar] body] … whose decisions may become final”…in light of these provisions, they consider that it would be impermissible for the executive to have another attempt at preventing disclosure…however, this conclusion would only apply to the environmental information [111].

I am not at lawyer but I think there are a number of interesting political issues potentially raised.

1. For the Monarchy, what will the memos say and will they damage Charles’ reputation for impartiality? Unless there is something very inflammatory it is unlikely to resonate with the public. However, the long fight has generated publicity. One of the ironies is that this comes nearly five years after the Monarch and heir were removed from the scope of FOI.  On 19 January 2011

‘…exemptions for communications with the Sovereign, communications with the heir or second in line to the Throne, and communications with a person who has subsequently become heir or second in line to the throne, have, since 19 January 2011, become absolute exemptions‘ [i.e. not accessible] see this background noteFOI Monarchy

2. For the Executive, will this limit their veto power? I’m not sure on how significant the ruling is in limiting the UK government’s use of the section 53 veto (which they mulled over extending in 2012). The final words in the FOI section above appear to be calling for some reform.Actually the veto is little used but the symbolic effect on ministers, already lukewarm on FOI and nervous of the protections around ‘safe space’, may be disproportionate to the legal consequences. If this (or the next) government think the veto has weakened, will a new FOI panic set in?