opendatastudy

Research on Open Data and Transparency


Leave a comment

The power to just say no: Corbyn, Freedom of Information and the Ministerial Veto

 

Vetoes are there in the hope they will not be needed, but their mere existence reassures. In no case is this truer than section 53 of the UK FOI Act,  which allows the government the ultimate power to block requests. Amongst a number of radical proposals in his recent speech on the media, Jeremy Corbyn suggested that he would ‘look at ending the ministerial veto to prevent the Information Commissioner being overruled’, thereby abolishing the government’s FOI veto.

Some sort of veto, or ultimate backstop, is common across many FOI regimes. The US stands as an exception due to the separation of powers (though this didn’t stop President Johnson trying to insert a thoroughly unconstitutional one into the original bill). In some senses, the veto is symbolic for supporters and critics alike, offering a final reassurance or a last line of ultimate secrecy, depending on your point of view.  The idea to abolish it has been around for some time, and the Liberal Democrats promised to do so in their 2017 election manifesto.

In the UK, whether the Freedom of Information Act 2000 (FOIA) had a veto in it or not was a key sticking point, and an indicator of the shifting radicalism of the policy as it made its turbulent way onto the statute book. The terrifying lack of a veto in the original White Paper sent a shiver through Whitehall (a veto would, it argued, ‘erode public confidence in the Act’). The later draft bill, which emerged after much retreating and agony, had a veto so wide it could be used not only by government ministers but also potentially local councillors. In this form, it was a veto that could be seen, as it were, from Huddersfield. Removed from the White Paper and re-inserted into the draft Bill, the final FOIA gave government a veto to prevent the release of information, even if the appeal system ruled in favour, in situations where the public interest had been weighed and ‘exceptional circumstances’ existed. So far so clear. But there are some complexities that only, perhaps, Corbyn’s proposal would resolve.

Complexity number one is that the veto is rarely used. Jack Straw, who was Home Secretary at the time the FOIA was passed, later claimed that the veto was a deal breaker for himself and Blair – the final line of defence for an increasingly anxious and unhappy Cabinet.  Looking across the last decade or more, the UK veto has been rarely used, especially when compared with other FOI regimes. In the first few years, in fact, it looked it wasn’t used at all.

Comparative veto use in the first four years of FOI systems

Jurisdiction Veto use in first four years
Australia 48
New Zealand 14
Ireland 2
UK 0

It did however eventually get deployed, ironically by Jack Straw himself, in 2009. According to this House of Commons briefing, it was used in total on seven occasions over the next five years, at various levels of the FOI appeal system, in relation to the following topics:

  • Legal advice on hostilities in Iraq (2009)
  • Devolution Cabinet minutes (2009)
  • Devolution Cabinet minutes (2012)
  • NHS risk registers (2012)
  • Hostilities against Iraq (2003)
  • Correspondence from Prince Charles to government ministers (2012): this veto was declared unlawful by the Supreme Court (see below)
  • Documents related to HS2 (2014)

Corbyn, unsurprisingly, emphasized the two vetoes related to the war in Iraq as the reason for his new policy.

But why so few? This may be as a result of the successful functioning of exemptions elsewhere lower down the system. However, it may also be political. Jack Straw argued before the Justice Committee in 2012 that there would be a natural brake through a ‘political reluctance’ to use what is the ‘ultimate’ power. The veto has a clear ‘backlash potential’ as it naturally draws attention to the particular topic, generating headlines and making the government appear secretive’. Straw was accused of a ‘cover-up’ over the devolution veto and Andrew Lansley, one better, was conducting a ‘cover up of epic proportions’ over the NHS risk register.

Complexity number two is that, more than a decade after FOI came into force, no one is really clear how the veto works. The mystery produced a mini-constitutional crisis in 2015–2016, a great illustration of the unintended consequences of transparency reforms (Blair also probably didn’t expect his FOI legislation would lead to the mass resignation of a parish council who claimed FOI answering costs would mean no Christmas decorations either).

A request by Guardian journalist Rob Evans to see pre-2010 correspondence between the Prince of Wales and government departments (the so-called ‘Black Spider memos’) was vetoed following a case at the Upper Tribunal. It left the status in limbo (for a detailed legal explanation, see this article by Mark Elliott).

The requester’s appeal was eventually upheld by the Supreme Court after a six-year court battle in the case of R (Evans) v Attorney General. The complex case hinged upon the ‘constitutional dubiousness of the override power’, whether a court could ‘strike down a government decision under power granted by Parliament’ and whether a government could ‘overturn an independent judicial tribunal’ rather than the ICO. In a ‘radical’ majority verdict, the Supreme Court upheld the decision of the Court of Appeal. By a 3-2 majority, it ruled that the use of the veto cut across two constitutional principles and 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.

The executive could have such a power only with clear legislation, and ‘section 53 is a very long way from being clear’. As well as kick-starting a detailed and controversial review of the law, the ruling became, according to Mark Elliot, one of the ‘landmark public-law cases of the early twenty-first century’, raising ‘fundamental’ questions around the rule of law, sovereignty of parliament and the separation of powers and illuminating the ‘complex constitutional environment FOI inhabits’. Interestingly, the actual memos (read them here) showed Prince Charles doing all sorts of reasonable things like lobbying over the quality of equipment in Iraq.

The Independent FOI Commission created in the wake of the Black Spider ruling (also known as the Burns Commission), created by David Cameron to cut back on the pesky FOI, actually ended up supporting it. The commission also argued that the veto needed to be rewritten for clarity and used more narrowly only after Information Commissioner decisions. It also added a note of caution:

In making this recommendation we recognise that by forcing the government to exercise the veto earlier or not at all, the veto may be used more frequently than previously. However, we would hope that the veto is held in reserve for the most serious cases, and that it continues to be exercised relatively rarely.

The government ducked any legal change and just promised a dollop of self-denying ordinance:

The government agrees with the Commission’s analysis that parliament intended the executive to be able to have the final say as to whether information should be released under the Act. In line with the Commission’s thinking, the government will in future only deploy the veto after an Information Commissioner decision. On the basis that this approach proves effective, we will not bring forward legislation at this stage.

So what if, as Corbyn wishes, the veto is abolished? Evidence from other Westminster systems seems to show it won’t affect much. New Zealand effectively removed its veto power in 1987 and Australia similarly abolished their equivalent in 2009. Former NZ Prime Minister Geoffrey Palmer felt the veto change in New Zealand had no effect at all. Not having a veto might make things awkward and difficult, but isn’t making things awkward and difficult what FOI is supposed to do for politicians anyway?

I’d point to some quotidian problems that are more worrying than any veto. Looking across the last few years, the IFG’s Whitehall Monitor shows a clear slowdown in responses at central government level: ‘Since 2010, departments have become less open in response to FOI requests’: while 39% of requests were ‘fully or partially withheld’ in 2010 a full 52% were ‘fully or partially withheld’ in 2017.

Moreover, there are signs of growing resistance and avoidance at the top with politicians fighting, hiding and avoiding FOI. In June 2018, following complaints by Scottish journalists, a report by the Scottish Information Commissioner concluded that the Scottish government had sought to create a ‘two-tier’ system delaying journalists or politically sensitive requests. At the same time, Northern Ireland’s most senior civil servant, David Sterling, informed the RHI inquiry that records had not been kept of certain sensitive political meetings. The BBC quoted him as saying that ‘Ministers liked to have a safe space where they could think the unthinkable and not necessarily have it all recorded’, and the ‘DUP and Sinn Féin were sensitive to criticism and in that context, senior civil servants had “got into the habit” of not recording all meetings’. He said this was done on the basis that it was sometimes safer not to have a record which might be released under Freedom of Information rules.

Corbyn spoke of how his party ‘should be more ambitious’ in terms of FOI. For any government, abolishing the veto would send a clear signal of its commitment to transparency. However, the debate over the veto is a smokescreen which can distract from some of the seemingly lesser issues of delay and interference that are potentially more deadly.

Advertisements


Leave a comment

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.


Leave a comment

To Block or Not to Block: Does Veto Use Matter?

index

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 
Australia 48
New Zealand 14
Ireland 2
UK 1

 

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).