After a very slow start to the use of the veto under section 53 FOIA, the Coalition Government has rather picked up speed on its use following a flurry in 2012. In one year there were vetoes for the NHS Transitional Risk Register, Iraq war Cabinet minutes, and of course, the correspondence of the Prince of Wales. The last of these is the subject of the first judicial review of a veto decision.
On 30 January 2014 the Secretary of State for Transport announced that he was vetoing the order of the Information Commissioner in decision notice FER0467548 that the Cabinet Office (to whom the request was made) disclose the Project Assessment Review (“PAR”) report concerning High Speed Two (“HS2”), the project for a high-speed rail link between London, Birmingham, the East Midlands, Sheffield, Leeds and Manchester.
In accordance with the legislation, the Secretary of State has published an eleven page Statement of Reasons. They are detailed and specific, and will not be set out in this post. Readers who are interested can see them here. The Secretary of State doubted whether the PAR was environmental information at all, but exercised the veto under both FOIA and the EIR. The ability to do the latter is of course an aspect of the forthcoming appeal in R (Evans) v HM Attorney General (on which see Robin’s analysis here, and my own comment at (2013) 38 LQR 130). The Secretary of State considered that the balance of the public interest favoured non-disclosure. He then gave three reasons for his exceptional use of the veto power: “(1) The exceptional importance of the HS2 project; (2) The extremely strong public interest in ensuring that public expenditure for HS2 is properly and robustly overseen and controlled; (3) The short timeframe between the production of the PAR report and the request for information, and the timing of the request at this particular stage of policy development within the HS2 project.”
The background to the veto decision is short but messy. It is unusual for the veto to be used before the Tribunal have considered the Government’s arguments. In the HS2 case, the Cabinet Office withdrew its appeal against the decision notice the day before the hearing, when the Daily Mail published a leaked letter from the Secretary of State and the Minister for Cabinet Office to the Prime Minister referring to negative legal advice the Department had received. That letter suggested the early use of the veto instead, and that is indeed what has occurred.
It will be interesting to see whether, having acquired a taste for it, 2014 proves to be as profitable as 2012 was for veto fans.
11KBW’s Julian Milford was acting for the Secretary of State & the Cabinet Office; Robin Hopkins was acting for the ICO.