Yesterday the Government issued a second veto preventing the disclosure of minutes which recorded Cabinet discussions in 2003 on the Attorney General’s advice concerning military action against Iraq. The first veto which was issued in respect of this information was issued by Jack Straw MP in 2009 (see my post on the veto here). The second veto relates to a more recent request for disclosure of the same minutes, namely a request in March 2011. This more recent request was refused by the Government on an application of s. 35 FOIA (exemption in respect of policy formulation). The Commissioner accepted that s. 35 was engaged in respect of the minutes but found that the public interest balance weighed in favour of disclosure, particularly in view of the extremely strong public interests in creating transparency and accountability around the Labour Government’s decision to go to war in Iraq and the passage of time and changed circumstances since the Cabinet discussions took place (you can find his decision notice no. FS50417514 here). The Attorney General, as the person responsible for the advice which was being discussed in cabinet, assumed responsibility for issuing the veto certificate under s. 53. It appears that he consulted his colleagues in the Cabinet, the Commissioner and the Leader of the Opposition prior to issuing the veto.

In his Statement of Reasons for issuing the veto (which you can find here), the Attorney General notes that there were extremely strong public interests in the disclosure of the minutes. However, his position is that the need to protect a ‘safe space’ for Cabinet discussions relating to such highly sensitive matters was just as acute in 2011 as it had been when the first request for disclosure was made in December 2006. This was so, in his view, notwithstanding that the Cabinet discussions were, as at 2011, nearly a decade old; that there had since been a change of Government and, further, that UK forces were no longer engaged in combat in Iraq. The Attorney General’s view was that, irrespective of their age and the changed circumstances, disclosure of the minutes would have had a seriosuly chilling effect on Cabinet discussions in future. This was particularly because ‘the issue of Iraq was still live’ and most of the individuals involved in the discussions ‘are still Members of Parliament or otherwise active in public life’. The Attorney General also stated that, in assessing the public interest in disclosure, he had taken into account: ‘the very substantial amount of information which the public already has about the decision to use armed force in Iraq. That decision has arguably been subject to greater scrutiny than any other decision of the previous administration…’. He went on to refer in this context to the Hutton Inquiry, the Butler report and the more recent Chilcott Inquiry, which has still yet to issue its report. It is also clear that principle of upholding the convention of collective cabinet responsibility also weighed heavily in the Attorney General’s assessment of the public interest in maintaining the exemption.

Notably, the Attorney General was at pains to make clear that he had issued the veto because this was an ‘exceptional’ case and, as such, fell within the four corners of the Government’s existing policy in issuing vetoes. As I indicated in my earlier post on the Justice Committee’s report on FOIA (which you can find here), there is now a live question as to whether the Government’s policy will in any event be watered down so that it can also apply in non-exceptional cases.

Anya Proops

The Electoral Registration Data Schemes Order 2012, SI 2012/1944 (“the Order”), made and coming into force on 17 July 2012, pursuant to Sections 35 and 36 of the Political Parties and Elections Act 2009 (“the 2009 Act”), gives effect to proposals for local Electoral Registration Officers (“EROs”) to run data matching pilot schemes.

It allows EROs in 17 areas in England, Wales and Scotland to use data sets kept by the  DWP to enable EROs to improve the accuracy and completeness of their electoral registers. It is intended that one way in which this will be done is by EROs comparing those registers against the data held by DWP to confirm existing electors who appear on those registers. Depending on the outcome of these pilot schemes, the Government intends that this process of data matching will be used by EROs throughout Great Britain to ease the transition to Individual Electoral Registration in 2014. The Order also sets the date by which the Electoral Commission must evaluate the pilot schemes.

Sections 30 to 34 of the 2009 Act make provision for the introduction of Individual Electoral Registration.

Section 35 provides for the Secretary of State  (“the SoS”) to make an order providing for schemes for the provision of information to EROs by other public authorities. The schemes are intended to support the wider work of ensuring and improving the completeness and accuracy of electoral registers as part of the overall transition to Individual Electoral Registration. The schemes will also build on and advance the work begun in 2011 to identify whether and how access to public authority data sets might assist EROs in meeting their duty under Sections 9 and 9A of the Representation of the People Act 1983, primarily by comparing electoral registers against other data sets.

Section 36 of the 2009 Act required the SoS to consult the Electoral Commission, the Information Commissioner and the public authorities holding the data sets before making the Order. It also requires the Electoral Commission to assess and report on the outcomes of the data matching pilot schemes.

The Government has made a commitment to introduce legislation, and has now introduced legislation, to speed up the implementation of Individual Electoral Registration. Current legislation allows Individual Electoral Registration to be brought into force on a voluntary basis in this Parliament and on a compulsory basis from late 2015 at the earliest.  The Government intends to amend this position so that electors will be asked to register individually from 2014 in order to modernise the electoral registration system and tackle fraud. Electors will be asked to provide identifying information which will be checked before they are added to the electoral register. The process will replace the existing system of household registration.

From June to November 2011 EROs ran 22 data matching schemes, enabled by the Electoral Registration Data Schemes Order 2011 (S.I. 2011/1466), to see if existing public authority databases could be used to improve the accuracy and completeness of the electoral register. The schemes were designed to identify individuals not on the electoral register who were entitled to be registered, as well as to show up false, duplicate and inaccurate registrations. EROs were able to review entries that appeared to be fraudulent or inaccurate, and remove them from the register following the review if appropriate. They were also able to identify eligible but unregistered individuals and invite them to apply to register.

Separate evaluations of the 2011 schemes were subsequently carried out by the Electoral Commission and the Cabinet Office. Both concluded that data matching might have the potential to supplement activity by EROs and assist in the transition to Individual Electoral Registration, but that further, well-constructed trials were needed in order to better evaluate that potential. Consequently, a further set of pilot schemes aimed at identifying potential electors missing from the register is being planned for late 2012 and early 2013.

In the course of the 2011 pilots an additional potential use was identified for data matching, namely as a mechanism for confirming existing electors for the purposes of Individual Electoral Registration. This would allow individuals whose details could be matched against trusted public databases to be “passported” on to the new individual electoral registration register without the need to make a new application for registration.  In the Government Response to pre-legislative scrutiny and public consultation on Individual Electoral Registration and amendment to Electoral Registration law (February 2012, Cm 8245) the Government announced that, subject to further testing this year, it was minded to use data matching to simplify the transition to Individual Electoral Registration for the majority of electors. The Order will enable that testing to take place during 2012.

EROs and the DWP will agree the arrangements for the transfer, storage, destruction and security of data during the schemes as required by Article 4 of the Order.

An overarching privacy impact assessment of the data schemes is Annex A of the Explanatory Memorandum for the Order. A privacy impact assessment will also be prepared for each scheme as it involves the processing of personal data of individuals.

James Goudie QC

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

The House of Commons Justice Committee’s Report on its post-legislative scrutiny of the Freedom of Information Act 2000 is published today and is available online.

We will be analysing the Report more fully in the coming days, but in general it is clear that the Report has not opted to recommend any radical change to the FOIA regime.  The Committee suggests that there should be a modest reduction (in the region of 2 hours) to the time that public authorities are required to spend in answering requests.  They do not suggest any expansion in the range of activities that are taken into account in applying the costs limit.

There is no recommendation for any additional exemption to preserve the “safe space” for policy formation and Cabinet discussion.  But there is a clear signal from the Committee that the exemptions in FOIA section 35 are intended to give some protection to high-level policy discussions, and that the use of the ministerial veto may sometimes be required.

About a quarter of the written responses to the Committee’s call for evidence were from the university sector. The Committee recommends a Scottish-style exemption for unpublished research information, but rejects the suggestion that universities should be taken out of FOIA altogether.

The Committee recommends that the effect of public sector outsourcing on the operation of FOIA should be kept under review.

Yesterday’s Guardian reported that the Cabinet will shortly be considering whether a ministerial veto should be issued in respect of the Plowden decision (see the Guardian article here and see also Tim Pitt-Payne QC’s post on Plowden). If the Government does veto the Plowden decision, it will be the third time it has vetoed an order to disclose information under FOIA in the space of six months (see further my post on the recent veto in respect of the NHS risk register case). Prior to February of this year, the veto had only been deployed twice (once in February 2009 and once in December 2009). The question which is likely to arise if a third veto is issued is whether the increasing deployment of the veto powers by the Government reflects a growing desire to insulate Government from the effects of FOIA (see further my earlier post today on tensions between the Commissioner and the Government over the latter’s commitment to FOIA). On this point, it is worth noting a recent paper by Oonagh Gay (Head of the Parliament and Constitution Centre in the House of Commons) which provides a helpful overview of how the Government has to date used the ministerial veto. In her paper, Ms Gay notes that, in 2009, Australia legislated so as to remove the power of veto from relevant foi legislation (you can find the paper here). It appears that our own government may be moving in a rather different direction. 11KBW’s Julian Milford and Robin Hopkins both appeared in Plowden.

Anya Proops

In September 2010, I blogged about an article in the Guardian with the former Prime Minister, Tony Blair, in which Mr Blair commented that he only had two regrets about his time in office: the ban on fox-hunting and the introduction of FOIA (see my post here). Mr Blair’s public lament about the introduction of FOIA was more recently echoed by Gus O’Donnell who, in November 2011, complained to the House of Commons Public Administration Select Committee that the Act was having a chilling effect on government (see further this Guardian article on his comments). The Information Commissioner has previously fought back against this negative commentary on the operation of the Act. Most notably, in his February 2012 submissions to the Justice Select Committee, which is currently undertaking post-legislative scrutiny of the Act, the Commissioner made clear that, in his view, the Act was generally working well. He specifically rejected the suggestion the exemption afforded under s. 35 (government policy) failed to afford the government a sufficiently roomy ‘safe space’ within which to conduct its business (you can find his written submissions here and see also Tim Pitt-Payne QC’s paper on the wider scrutiny process here). In his oral submissions to the Justice Select Committee in March 2012, the Commissioner reinforced these points, asserting that the claims that FOIA was having a chilling effect on government were ‘ greatly overdone’ (see further this Telegraph article on his evidence). In March 2012, the current Prime Minister stepped into the fray, complaining that FOIA requests ‘fur up’ the arteries of government.

This week, the Commissioner has once again gone on the offensive by highlighting within the media his concerns that, despite the Coalition Government’s earlier expressions of commitment to openness and transparency, there is now a pervasive culture within Government of seeking to evade the application of FOIA. See further this interview with the Commissioner in Monday’s Guardian. In the course of his interview, the Commissioner commented that the criticisms of the Act by people such as Tony Blair, Gus O’Donnell and David Cameron were ‘encouraging the use of unofficial, private email addresses and verbal briefings, which would in turn make government less accountable’. Of course, the use of private email accounts is a real hot potato at the moment as the Government is currently appealing a decision of the Commissioner that an email sent by Michael Gove MP through a private email address fell to be disclosed under FOIA (see further the analysis on this case set out in my paper here. My colleagues, Tim Pitt-Payne, Julian Milford and Robin Hopkins are all acting in the Gove appeal).

The Commissioner’s comments are of course particularly timely as the Justice Select Committee is on the cusp of publishing its first report on the post-legislative scrutiny (publication is due on 26 July 2012 and will no doubt be commented on in detail by Panopticon). It will be very interesting to see what line the Committee takes on this now extremely politicised issue.

Anya Proops