The power to just say no: Corbyn, Freedom of Information and the Ministerial Veto

image_previewJeremy Corbyn recently used a speech on what a Labour government would seek to change in the media sector to confirm that the party will seek to abolish the ministerial power to veto decisions to release government papers under the Freedom of Information Act. Ben Worthy argues that the idea is neither new, or the best means of increasing transparency.

Vetoes are there in the hope they will not be needed, but their mere existence reassures. In no case is this truer than section 53 of the UK FOI Act,  which allows the government the ultimate power to block requests. Amongst a number of radical proposals in his recent speech on the media, Jeremy Corbyn suggested that he would ‘look at ending the ministerial veto to prevent the Information Commissioner being overruled’, thereby abolishing the government’s FOI veto.

Some sort of veto, or ultimate backstop, is common across many FOI regimes. The US stands as an exception due to the separation of powers (though this didn’t stop President Johnson trying to insert a thoroughly unconstitutional one into the original bill). In some senses, the veto is symbolic for supporters and critics alike, offering a final reassurance or a last line of ultimate secrecy, depending on your point of view.  The idea to abolish it has been around for some time, and the Liberal Democrats promised to do so in their 2017 election manifesto.

In the UK, whether the Freedom of Information Act 2000 (FOIA) had a veto in it or not was a key sticking point, and an indicator of the shifting radicalism of the policy as it made its turbulent way onto the statute book. The terrifying lack of a veto in the original White Paper sent a shiver through Whitehall (a veto would, it argued, ‘erode public confidence in the Act’). The later draft bill, which emerged after much retreating and agony, had a veto so wide it could be used not only by government ministers but also potentially local councillors. In this form, it was a veto that could be seen, as it were, from Huddersfield. Removed from the White Paper and re-inserted into the draft Bill, the final FOIA gave government a veto to prevent the release of information, even if the appeal system ruled in favour, in situations where the public interest had been weighed and ‘exceptional circumstances’ existed. So far so clear. But there are some complexities that only, perhaps, Corbyn’s proposal would resolve.

Complexity number one is that the veto is rarely used. Jack Straw, who was Home Secretary at the time the FOIA was passed, later claimed that the veto was a deal breaker for himself and Blair – the final line of defence for an increasingly anxious and unhappy Cabinet.  Looking across the last decade or more, the UK veto has been rarely used, especially when compared with other FOI regimes. In the first few years, in fact, it looked it wasn’t used at all.

Comparative veto use in the first four years of FOI systems

Jurisdiction Veto use in first four years
Australia 48
New Zealand 14
Ireland 2
UK 0

It did however eventually get deployed, ironically by Jack Straw himself, in 2009. According to this House of Commons briefing, it was used in total on seven occasions over the next five years, at various levels of the FOI appeal system, in relation to the following topics:

  • Legal advice on hostilities in Iraq (2009)
  • Devolution Cabinet minutes (2009)  
  • Devolution Cabinet minutes (2012)
  • NHS risk registers (2012)
  • Hostilities against Iraq (2003)  
  • Correspondence from Prince Charles to government ministers (2012): this veto was declared unlawful by the Supreme Court (see below)
  • Documents related to HS2 (2014)

Corbyn, unsurprisingly, emphasized the two vetoes related to the war in Iraq as the reason for his new policy.

But why so few? This may be as a result of the successful functioning of exemptions elsewhere lower down the system. However, it may also be political. Jack Straw argued before the Justice Committee in 2012 that there would be a natural brake through a ‘political reluctance’ to use what is the ‘ultimate’ power. The veto has a clear ‘backlash potential’ as it naturally draws attention to the particular topic, generating headlines and making the government appear secretive’. Straw was accused of a ‘cover-up’ over the devolution veto and Andrew Lansley, one better, was conducting a ‘cover up of epic proportions’ over the NHS risk register.

Complexity number two is that, more than a decade after FOI came into force, no one is really clear how the veto works. The mystery produced a mini-constitutional crisis in 2015–2016, a great illustration of the unintended consequences of transparency reforms (Blair also probably didn’t expect his FOI legislation would lead to the mass resignation of a parish council who claimed FOI answering costs would mean no Christmas decorations either).

A request by Guardian journalist Rob Evans to see pre-2010 correspondence between the Prince of Wales and government departments (the so-called ‘Black Spider memos’) was vetoed following a case at the Upper Tribunal. It left the status in limbo (for a detailed legal explanation, see this article by Mark Elliott).

The requester’s appeal was eventually upheld by the Supreme Court after a six-year court battle in the case of R (Evans) v Attorney General. The complex case hinged upon the ‘constitutional dubiousness of the override power’, whether a court could ‘strike down a government decision under power granted by Parliament’ and whether a government could ‘overturn an independent judicial tribunal’ rather than the ICO. In a ‘radical’ majority verdict, the Supreme Court upheld the decision of the Court of Appeal. By a 3-2 majority, it ruled that the use of the veto cut across two constitutional principles and fundamental components of the rule of law, namely that a decision of a court is binding between the parties and cannot be set aside, and that decisions and actions of the executive are reviewable by the courts, and not vice versa.

The executive could have such a power only with clear legislation, and ‘section 53 is a very long way from being clear’. As well as kick-starting a detailed and controversial review of the law, the ruling became, according to Mark Elliot, one of the ‘landmark public-law cases of the early twenty-first century’, raising ‘fundamental’ questions around the rule of law, sovereignty of parliament and the separation of powers and illuminating the ‘complex constitutional environment FOI inhabits’. Interestingly, the actual memos (read them here) showed Prince Charles doing all sorts of reasonable things like lobbying over the quality of equipment in Iraq.

The Independent FOI Commission created in the wake of the Black Spider ruling (also known as the Burns Commission), created by David Cameron to cut back on the pesky FOI, actually ended up supporting it. The commission also argued that the veto needed to be rewritten for clarity and used more narrowly only after Information Commissioner decisions. It also added a note of caution:

In making this recommendation we recognise that by forcing the government to exercise the veto earlier or not at all, the veto may be used more frequently than previously. However, we would hope that the veto is held in reserve for the most serious cases, and that it continues to be exercised relatively rarely.

The government ducked any legal change and just promised a dollop of self-denying ordinance:

The government agrees with the Commission’s analysis that parliament intended the executive to be able to have the final say as to whether information should be released under the Act. In line with the Commission’s thinking, the government will in future only deploy the veto after an Information Commissioner decision. On the basis that this approach proves effective, we will not bring forward legislation at this stage.

So what if, as Corbyn wishes, the veto is abolished? Evidence from other Westminster systems seems to show it won’t affect much. New Zealand effectively removed its veto power in 1987 and Australia similarly abolished their equivalent in 2009. Former NZ Prime Minister Geoffrey Palmer felt the veto change in New Zealand had no effect at all. Not having a veto might make things awkward and difficult, but isn’t making things awkward and difficult what FOI is supposed to do for politicians anyway?

I’d point to some quotidian problems that are more worrying than any veto. Looking across the last few years, the IFG’s Whitehall Monitor shows a clear slowdown in responses at central government level: ‘Since 2010, departments have become less open in response to FOI requests’: while 39% of requests were ‘fully or partially withheld’ in 2010 a full 52% were ‘fully or partially withheld’ in 2017.

Moreover, there are signs of growing resistance and avoidance at the top with politicians fighting, hiding and avoiding FOI. In June 2018, following complaints by Scottish journalists, a report by the Scottish Information Commissioner concluded that the Scottish government had sought to create a ‘two-tier’ system delaying journalists or politically sensitive requests. At the same time, Northern Ireland’s most senior civil servant, David Sterling, informed the RHI inquiry that records had not been kept of certain sensitive political meetings. The BBC quoted him as saying that ‘Ministers liked to have a safe space where they could think the unthinkable and not necessarily have it all recorded’, and the ‘DUP and Sinn Féin were sensitive to criticism and in that context, senior civil servants had “got into the habit” of not recording all meetings’. He said this was done on the basis that it was sometimes safer not to have a record which might be released under Freedom of Information rules.

Corbyn spoke of how his party ‘should be more ambitious’ in terms of FOI. For any government, abolishing the veto would send a clear signal of its commitment to transparency. However, the debate over the veto is a smokescreen which can distract from some of the seemingly lesser issues of delay and interference that are potentially more deadly.

About the author

Ben Worthy is a Lecturer in Politics based at Birkbeck College, University of London. His book, The Politics of Freedom of Information: How and why governments pass laws that threaten their power was published last year by Manchester University Press and can be bought here. Chapter 1 can be read for free here.

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