Hillsborough papers may not wait for 20-year rule

The 1989 Hillsborough disaster

Starting 2013, we will have to wait less for the publication of secret government documents, but the July order to release secret Cabinet conversations on the 1989 Hillsborough disaster already mentions the new policy.

Starting in January 2013, two years’ worth of classified files will be published each year. This means that by 2023, the records will be only 20 years behind the date of the event rather than 30. The files regarding the human crush at a Sheffield football stadium, in which 96 Liverpool fans died, would have already be published sooner than previously expected – 2016.

But a July 20 Information Commissioner ruling has pegged the date at August 24, 2011, instead – much to the chagrin of the Cabinet Office, which has been contesting the release of files for more than two years.

Commissioner Christopher Graham noted the reduced release time for classified archives when ordering the release. The new rules, however, have not yet gone into effect.

“Although this is not directly relevant here as … the Act continues to define an historical record as 30 or more years old… there is a diminishing case for withholding information over 20 years old,” he said.

The ICO decision concerned a freedom of information request sent by the BBC, asking for correspondence and briefings between Thatcher and her cabinet and the record of a Cabinet meeting dated April 20, 1989, five days after the disaster in Sheffield.

The documents are controversial. Families of the deceased accused Thatcher’s government of covering up the police’s involvement in the crush.

A  report showed the South Yorkshire authorities had neglected security procedures at the stadium, but family members of the deceased and the media pushed for more information. They wanted to know what Margaret Thatcher had to say.

“Twenty-two years ago, when Mrs. Thatcher came to Liverpool Cathedral, my husband asked her face-to-face if there was going to be a cover-up, and she said: ‘Mr Joynes, there will be no cover-up.’ But there has been a cover-up which has persisted ever since,” Pat Joynes, who lost her son Nicholas in the tragedy told the BBC.

The BBC request had been refused by the Cabinet Office, and the case was taken to the ICO.

The Cabinet’s main arguments are that the documents fall within the Act’s exemptions on ministerial communications (Article 35 of the FOI Act) and that releasing them would undermine the convention of collective Cabinet responsibility, whereby every cabinet member is responsible for the final policy decision, even if they disagreed with it in private discussions.

“The public authority has argued that disclosure would impact negatively upon the freedom with which Ministers believe they can engage in free and frank discussions with colleagues and upon the maintenance of collective Cabinet responsibility,” the decision stated.

The principle of collective responsibility argues that if ministers don’t have the freedom to discuss matters privately before issuing a joint statement – i.e. their opinions during the discussions are scrutinised before the fact – this will produce a “chilling effect” and damage policy-making.

Though Commissioner agreed the information fit within the parameters of the exemption – which relates to the formulation or development of government policy, Ministerial communications, and the operation of any Ministerial private office – he concluded the exemption did not withstand the test of time.

“The age of the information has a wider significance in that it is necessary to consider how likely the harmful impacts of disclosure predicted by the public authority are given the age of this information. Having considered the information and the wider context this argument would not be sustainable given the passage of time and multiple changes in government since this information was recorded,” he said.

The Cabinet Office has 28 days from the decision to lodge an appeal with the courts, or comply with the order in 35 days.

A veto is also possible, but it has only been used twice – in February 2009 over the cabinet minutes of the 2003 Iraq war, and in December 2009 over the 1997 devolution of Scotland.

Information Commissioner Christopher Graham, who had been appointed in June 2009 said he was concerned that the veto was being used too lightly.

The veto has not been used since 2009, and the Cabinet Office has not given any indication it plans to use it again. Still, the 2009 cases have some similarities to Thatcher’s Hillsborough papers: the three involve cabinet minutes and arguments against disclosure include collective Cabinet responsibility.

You can see a summary of the events and links to related documents in the Constitution Unit’s archive of Monthly Updates for 2009.

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