Justice committee’s report on FOIA – Commentary on the ss.35 & 36 recommendations

Posted on | by Anya Proops KC

As Tim Pitt-Payne QC commented in his post on the report earlier today, the Committee’s report has not landed a bombshell in the middle of the FOIA landscape. To a very large extent, the report endorses the current structure and content of the legislation, something which the Commissioner clearly welcomes (see his recently published statement here). However, whilst the Committee has largely resisted calls for FOIA to be amended, it has commented fairly extensively on how the Act should be applied in practice. This commentary is doubtless going to influence the evolution of FOIA case-law for the foreseeable future.

Perhaps most notable in this context is the Committee’s commentary on the application of the ‘safe space’ exemptions afforded under ss. 35 and 36 FOIA. As regular readers of Panopticon will know, the question of whether the qualified exemptions provided for under ss. 35 and 36 are fit for purpose in terms of creating the necessary safe, confidential space within which sensitive government policies can be openly and frankly debated has been a political hot potato for some time. The former Prime Minister, Tony Blair, the current Prime Minister, David Cameron, and those who have operated at the highest level of the Civil Service, including the former Cabinet Secretary, Gus O’Donnell, have all voiced concerns to the effect that the application of FOIA is having a ‘chilling effect’ on the operation of government. The nub of the argument here is that ss. 35 and 36 do not allow for a clearly delineated and consistently protected ‘safe space’ for high level policy discussions, including cabinet discussions. It has been suggested that this undermines the operation of government in three ways. First, it leads to participants in policy discussions not expressing themselves openly and frankly. Second, it leads to participants avoiding recording their discussions (e.g. communicating by telephone rather than by email). Third, it deters third party stakeholders from contributing to policy discussions. These concerns have led to questions being posed as to whether FOIA should be amended so as to create an absolute class-based exemption in respect of information relating to high level policy discussions.

In his evidence to the Committee, the Commissioner resisted calls for FOIA to be amended so as to create such an exemption. His position has consistently been that FOIA already amply accommodates the need to create a safe space for policy discussions and that, as currently formulated, the Act allows for a proper balance to be struck between the need to create a safe space for policy discussions and the need to create a meaningful level of transparency and accountability around such discussions. The Commissioner has also specifically challenged the notion that FOIA has, in practice, had any chilling effect on the way in which government functions.

The following is a summary of the Committee’s conclusions on the ‘safe space’ issue:

  • on the available evidence, it was difficult to say whether FOIA, as currently formulated and applied, was having a chilling effect on the operation of government. A central difficulty here was that, if civil servants and others were erring on the side of not recording their discussions, there would be no paper trail evidencing this behaviour (paras. 154, 190 and 200).

 

  • Whilst there were numerous decisions by the Commissioner and the Tribunal which recognised the need for a safe space, the fact that there was a risk in individual cases that policy information may be disclosed could be sufficient to create ‘unwelcome behavioural changes’ on the part of policy-makers (para. 166).

 

  • However, the power to issue a ministerial veto created under s. 53 FOIA was an important backstop which could be used to protect highly sensitive policy information. Thus, ‘the veto is an appropriate mechanism, where necessary, to protect policy development at the highest levels’ (para. 179). Moreover, ‘if the most senior officials in Government are concerned about the effect of the Act on the ability to provide frank advice they should state explicitly that the Act already provides a safe space, and that the Government is prepared to use the ministerial veto to protect that space if necessary’ (para. 198).

 

  • It would not be appropriate to amend FOIA so as to include an absolute class-based exemption in respect of high level policy discussions. This is particularly because the creation of such an exemption would cut across the principle of open government in a way that could not be justified, not least in view of the lack of any reliable evidence as to chilling effect (para. 200).

 

  • However, everyone involved in using or determining the ‘safe space’ should be reminded that ‘the Act was intended to protect high-level policy discussions’. Moreover, ‘the realities of Government mean that the ministerial veto will have to be used from time to time to protect that space’ (para. 201).

 

With respect to the latter point, the Committee highlighted a potential difficulty with the current published policy on the use of the veto. That policy suggests that the veto would only be used in ‘exceptional’ circumstances. However, the Committee’s view was that: ‘if the veto is to be used to maintain protection for cabinet discussions or other high-level policy discussions rather than to deal with genuinely exceptional circumstances then it would be better for the Statement of Policy on the use of the ministerial veto to be revised to provide clarity for all concerned’ (para. 179).

It is hard to read the report as containing anything other than an open invitation to the Government to deploy its powers of veto more regularly than has hitherto been the case, particularly in respect of information relating to high level policy discussions. However, if the Government does move in this direction it will potentially engender a number of new problems. First, regular deployment of the veto will doubtless raise questions about whether the Government is effectively using its powers of veto to create an absolute exemption ‘by the back-door’. Second, unless the veto is used at an early stage of the process, it will create a situation in which significant time and costs will have been wasted on appeals to the tribunal; an unattractive scenario in the current age of austerity. Third, regular use of the veto potentially risks fomenting distrust on the part of the public that the Government is using the veto not so as to protect the integrity of government decision-making but rather so as to insulate the Government against justified criticisms of its policies. Of course, regular use of the veto may itself set further litigation hares running as it will no doubt encourage those in favour of open government to challenge use of the veto by means of judicial review. It follows that the litigation focus relating to FOIA requests concerning high level policy discussions may ultimately shift away from tribunal litigation towards litigation conducted in the administrative court.

Further panopticon posts on other aspects of the report will be published over the coming days.

Anya Proops