Only smarties have the answer – collective cabinet responsibility and the sale of Rowntree Mackintosh

The question of whether the convention on collective cabinet responsibility operates, in effect, as a trump card in the FOIA context has been considered in a number of tribunal cases (see further for example the Lamb case concerning a request for disclosure of the Iraq war cabinet minutes and the Cabinet Office case concerning cabinet discussions over the Westland takeover (“the Westland case”)). Last week, in Cabinet Office v IC, the First-Tier Tribunal handed down a decision in which it reconfirmed the principle that the convention, whilst undoubtedly an important consideration in the FOIA context, does not create any absolute bar against disclosure.

The facts of the Cabinet office case were as follows. In 1988, Rowntree Mackintosh, the well-known UK confectionary group, was acquired by Nestlé. The takeover was hugely controversial at the time. The decision to approve the takeover and not to refer it to the Monopolies Commission was taken by Lord Young, then Secretary of State for Trade and Industry. In 2008, a request was made by a Mr Aitcheson (A) for disclosure of all documents held by the Cabinet Office (CO) relating to the takeover dated between April and August 2008. That request was largely refused by the CO on an application of ss. 35(1)(a) and (1)(b) (respectively the government policy exemption and the ministerial communications exemption). In September 2010, the tribunal handed down its decision in the Westland case. In that case, the tribunal decided that the convention on collective cabinet responsibility did not operate so as to prevent disclosure of the minutes of the meeting of the cabinet in 1986, in which Michael Heseltine resigned due to his disagreement with colleagues over whether the government should intervene in the investment by an American company in the British helicopter manufacturer Westland plc. That decision was not vetoed by the Government (cf. the Lamb decision which was vetoed by the government). In light of the decision in the Westland case, A resubmitted his request to the CO for disclosure of information relating to the Rowntree takeover. The request was again refused. On this occasion the CO took the position that there were five documents which were exempt from disclosure under ss. 35(1)(a) and (b). It also refused to confirm or deny whether it held information revealing cabinet discussions of the takeover on an application of s. 35(3)).

The Commissioner concluded that, whilst the five documents fell within the ambit of the exemptions provided for under s. 35, the public interest balance fell in favour of disclosure. He also concluded that, whilst the CO had been entitled to conclude that s. 35(3) was engaged, the public interest balance weighed in favour of the CO being compelled to confirm or deny whether it held information revealing cabinet discussions of the takeover. The CO appealed against the Commissioner’s decision. It did so particularly on the basis that the decision failed to give due weight to the very strong public interest in upholding the convention on collective cabinet responsibility.

The CO’s appeal was unsuccessful. The Tribunal (chaired by Judge Angel) agreed with the Commissioner that both under s. 35(1) and under s. 35(3)  the public interest balance weighed in favour of disclosure. In reaching this conclusion, the Tribunal relied in particular on the following considerations:

–       the age of the information – the decision in question was now more than 20 years old

–       the move to a ’20 year rule’ – at the time of the request, the government had already made a policy decision to amend existing legislation so as to reduce the 30 year rule for historical records to be transferred to the National Archive to 20 years and the age of the requested information should be considered in that context

–       key characters had left the political stage – Lord Young was no longer in government at the time of the request and whilst he continued act as an adviser to the government he did so in relation to policy issues which were unrelated to takeover issues; he was not even performing that advisory role by the time of the internal review

–       ‘chilling effect’ unlikely – the CO’s arguments that disclosure would have a chilling effect on Cabinet discussions could not be accepted. This was particularly given the age of the information in issue. (The Tribunal was no doubt influenced on this issue by the fact that the disclosure in the Westland case had not apparently had any notably chilling effect on subsequent cabinet discussions)

–       diminished need for a ‘safe space’ – the CO’s  arguments that it needed to preserve a ‘safe space’ for cabinet discussions were in any event weakened by the fact that the regime governing takeovers had fundamentally changed by the time of the request. Thus, there was no live policy debate within government which required protection

–       strong public interests in disclosure – there were particularly strong public interests in favour of disclosure. Relevant here was not only the particularly controversial nature of the Rowntree takeover but also the fact that Lord Young had been exercising a ‘quasi-judicial’ role in respect of the takeover. Given his quasi-judicial role, there was a particularly strong public interest in revealing information which showed whether or not his decision had been compromised by improper political or other pressure.

It remains to be seen whether the government will now exercise its powers of veto to prevent the information being disclosed. 11KBW’s James Cornwell acted for the CO. Robin Hopkins acted for the Commissioner.

Anya Proops