Out-Law Analysis 4 min. read

'Black Spiders' case shows need for guidance on FOI veto powers

FOCUS: The UK government must give new guidance to public authorities on when government ministers can exercise powers of veto to prevent the disclosure of information under freedom of information (FOI) laws.

The guidance is necessary because the authorities, together with people requesting the release of information under the FOI regime, deserve to know when the government could intervene to block disclosure and because there is currently uncertainty on when the veto powers can be exercised.

Existing guidelines issued by the government on the veto powers are vague and the Supreme Court did not clear up the matter when it ruled earlier this year that the so-called 'Black Spiders' letters written by Prince Charles to government ministers should be disclosed.

A spokesperson for prime minister David Cameron has said the government will "consider carefully and thoroughly" the ministerial veto powers in light of the Supreme Court ruling. The government must seize the opportunity to clarify the law so that public bodies and information requesters can better understand how the veto powers might impact them.

The Freedom of Information Act veto powers

People generally have the right to access information held by public authorities in the UK under either the FOI Act or FOI (Scotland) Act, unless the information qualifies as personal data, is commercially sensitive or falls within the scope of a number of other exemptions whereby that information can sometimes be justifiably withheld from disclosure.

If public authorities refuse to disclose information but then lose an appeal against that decision before either the Information Commissioner's Office (ICO) or the Information Tribunal then it becomes possible for government ministers to intervene to prevent disclosure.

To put the veto into effect, the cabinet minister or attorney general must issue a certificate to this effect to the ICO. A certificate can only be issued where they have, on reasonable grounds, formed the opinion that there was no failure by the public authority to comply with the general duty to provide information. The power can be used only when the ICO or Tribunal has decided in favour of disclosure on public interest grounds; it is not available where the information is not covered by an exemption.

The Ministry of Justice has said that government policy on the use of this "executive override" is that the veto should only be used in "exceptional circumstances" and following consultation and agreement across the cabinet.

'Exceptional circumstances' referred to include where the release of the information would damage cabinet government; where it would damage the constitutional doctrine of collective responsibility; or where the public interest in release is outweighed by the public interest in good cabinet government and/or the maintenance of collective responsibility.

However, the effect of the veto power is that two separate bodies – the court and the government – are able, by law, to determine the outcome of the same case. It is unclear, however, when government ministers are within their right to override a decision by the courts.

In its post-legislative review of the FOI Act, the Justice Select Committee at the UK parliament concluded that the veto power is necessary in order to protect highly sensitive information. However, it acknowledged that the policy that the power can only be exercised in "exceptional circumstances" was confusing.

Historical use of the veto

The veto powers have been used in seven cases. They were first exercised in 2009 when then lord chancellor Jack Straw tried to prevent the publication of minutes from a cabinet meeting relating to the war in Iraq.

The veto was also used to block the release of the NHS Transitional Risk Register and extracts from cabinet minutes on the military action against Iraq in 2003.

The information commissioner once described its use as "effectively usurping the role of the Tribunal", raising questions about whether the government should be able to reverse decisions taken by the judiciary and indeed whether it is right that the veto powers should override a requester's right to appeal a decision by the ICO.

The 'Black Spiders' case

The use of the FOI veto powers came in for most scrutiny during the long running legal battle between the government and the Guardian newspaper over the Guardian's attempts to obtain copies of the letters exchanged between Prince Charles and government departments on matters of policy making.

In 2012 the attorney general vetoed the disclosure of the letters after an information rights tribunal said they should be published on public interest grounds. The attorney general Dominic Grieve claimed publication “could damage the Prince of Wales’ ability to perform his duties when he becomes king". Some criticised this use, claiming that the Attorney General has confused protecting the public interest with protecting the Prince of Wales’ appearance of political neutrality.

In March the Supreme Court ordered the letters to be disclosed. In its judgment, the Court ruled that government ministers cannot use the power of veto under the FOI Act to reverse decisions of the courts if they merely disagree with their decision after assessing "the same facts and arguments".

The Court said that the power of veto has "a very narrow range of potential application" but suggested it could be applied where there has been a material change of circumstances since a court's decision on the matter or if the decision was "demonstrably flawed in law or fact".

The government's guidance

The Supreme Court's ruling provides a useful starting point for more substantial guidance to be issued on the circumstances in which the veto powers will be exercised.

The fact that some of the most senior judges in the UK rejected the way the veto powers had been exercised in such a high profile case means that now is an appropriate time for the government to conduct a review of these powers and seek to clarify the ambiguity that surrounds their use.

The government has been clear in its support for the ministerial veto to remain and the Supreme Court's judgment showed that there can be a place for it under the FOI regime.

Clarifying the circumstances when it can be used could help ensure that court time and public money is not wasted and that there is a balance struck between transparency and the risk of disclosure of highly sensitive information. The guidance should clearly define not just the circumstances in which ministers may use the veto, but the justifications on which such use must rest.

Marc Dautlich and David Matheson are information law experts at Pinsent Masons, the law firm behind Out-Law.com

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