Submitted by the Ministry of Agriculture,
Fisheries and Food
Thank you for your letter to Brian Bender dated 9
June. Apologies for missing your deadline of 5 July, but I gather
officials have spoken to your office about the reason for the
Please find attached the more detailed explanations requested.
10 July 2000
The refusal to publish the minutes is covered by Part II of
the Code of Practice on Access to Government Information. Specifically
the minutes were a record of 'internal discussion and advice (Exemption
2) and consideration of 'law enforcement and legal proceedings'
(Exemption 4). In particular, the minutes recorded discussion
of how the Forestry Commission should react if individuals broke
the Commission's bylaws, when the Commission should take legal
action and how the Commission should enforce its licences. In
addition, the minutes recorded internal advice, recommendations,
consultation and deliberation.
The convention to which the answer refers requires little
explanation. The refusal to release details of legislative proposals
is covered by Exemption 10 of the Code of Practice.
There is a long-standing convention that once a public inquiry
has been launched Ministers treat its work as if it were sub
judice. The Prime Minister wrote to colleagues on 22 December
1997, the day that this Inquiry was announced, making this point
and stating that Ministers should avoid any comment on evidence
presented to the Inquiry until the Report had been published.
There had been press reports in February 1999 relating to a draft
internal report written by a MAFF official covering the handling
by MAFF of BSE, which had just been passed to the Inquiry and
put into the public domain. Passages in this internal document
could be read as implying that some surveillance reports were
missing from MAFF records. The press suggested that the Ministry
had shredded incriminating evidence.
All the material facts and all the departmental papers relevant
to this issue had been passed to the Inquiry. The Inquiry would
be making judgements on the completeness of the record from contemporary
papers and witness statements and would be making their own decisions
about what should be made public. In the context of the convention
that Ministers do not comment on the evidence before a public
inquiry it was inappropriate for the Minister to comment on the
papers that had been sent to the Inquiry. Paragraph 4c of Part
II of the Code of Practice on Access to Government Information
The Salmon letter process is used by a public Inquiry to notify
individual witnesses of potential criticisms that have been made
of them in relation to their involvement in the issue under consideration.
The name derives from Lord Justice Salmon, Chairman of he 1996
Royal Commission on Tribunals of Inquiry whose report, amongst
other things, set out principles of fairness to which public inquiries
should seek to adhere. The BSE Inquiry made it clear that the
contents and recipients of the letters were confidential and as
a result the Ministry was not in a position to answer the question.
Paragraph 4c of Part II of the Code of Practice on Access to Government
Information is relevant.
The European Standing Committee 'A' held a scrutiny debate
on Reform of the Common Agricultural Policy on 15 February 1999.
Both the Minister (Mr Brown) and the then Minister of State (Mr
Rooker) attended that debate and made the UK's opening position
clear, for the Agriculture Council of 22/23 February 1999 know
to the Committee. To reveal prematurely points where there is
flexibility in the UK's position would almost certainly severely
compromise the UK's negotiating stance. This approach is in accordance
with the Code of Practice on Access to Government Information,
Part II, paragraph 1 (Defence, security and international relations)
which states that the Government is exempt from disclosing "information
whose disclosure would harm the conduct of international relations
or affairs". The Code also states that harm, in this context,
also includes "reasonable expectation of harm".
The Original answer made it clear that refusal was under the
terms of the Code of Practice. In particular Part II Exemption
The Code of Practice provides an exemption for information
covered by legal professional privilege (Exemption 4d) and is
important where disclosure of information could impede the ability
of government legal advisers to communicate fully and frankly
with their clients. The White Paper on Open Government commented
on the justification for confidentiality of government legal advice
'The right of Government
and public authorities to receive legal advice in confidence is
usually protected in access legislation. There will be occasions
when such advice can and will be published, but Government and
public authorities would be significantly handicapped both in
litigation and in their day-to-day conduct if they were unable
to seek and obtain legal advice in confidence."
PQ 91712 and 91707
In the course of 1999 the Government's
badger culling trial was subject to interference by animal rights
activists, which took the form of threats and harassment of MAFF
field staff, and significant damage to public and private property.
The Minister took the view that, in the interests of staff safety
and the efficient conduct of the trials, it would not disclose
details of the location, timing and operational procedures of
its field operations. In the Ministry's view, this approach is
consistent with the exemptions in Section 4 of Part II of the
Code of Practice (Law enforcement and legal proceedings).