Examination of Witnesses (Question Numbers
200-206)
CHRISTOPHER GRAHAM
AND STEPHEN
MCCARTNEY
5 JANUARY 2010
Q200 Julie Morgan: Why do you think
Jack Straw used the section 53 veto on the release of Cabinet
papers relating to devolution?
Christopher Graham: The Secretary
of State has the right under the Freedom of Information Act to
substitute his judgment for the Commissioner's under certain circumstances.
He set out his reasons in the decision notice. If you wanted to
go further I think you would have to ask the Secretary of State
himself. I am on the record as saying I think it was unfortunate
for three reasons, if I can just summarise. The first is that
the issue should have gone to the Information Tribunal. There
was a date set, 25 January I think, and basically the decision
notice from the Secretary of State says no more than the pleadings
to the Information Tribunal. I think the Secretary of State, for
whatever reasons he has, has jumped the gun. Secondly, I think
the Information Tribunal might well have tidied up the decision
notice. It might well have been that some minutes of some meetings
were felt to be too sensitive to release and perhaps some parts
of some minutes might have been redacted. I was not expecting
that we would get 100%. I think it would have been better if it
had gone to the Tribunal for a less blanket approach to emerge.
My third concern is what is supposed to be exceptional is in danger
of becoming routine. This is the second veto we have had in less
than a year around Cabinet minutes and I cannot see from the Secretary
of State's argument where the exceptional point arises. The law
is what the law is. There is not an absolute protection of Cabinet
committee minutes. I know there is some suggestion that there
should be but until Parliament changes the law, the law is what
I am administering. We were in the slightly surreal situation
of a Secretary of State's certificate to me being accompanied
by the Government policy statement of the circumstances in which
the veto might be applied and the policy statement says of course
this has never happened. Well it had. It happened back in February
and it was happening again. The argument is all about how this
is deeply exceptional and it really will not happen, and here
it has happened twice within a year. So I have continued the precedent
set by my predecessor of making a formal report to Parliament
when the veto is exercised. And I felt it was particularly important
to flag something which the Secretary of State did not mention
in his stated reasons, that the issue had not even gone to the
Tribunal.
Q201 Chairman: I did ask Mr Straw
this afternoon in the House what was exceptional about this case,
or in his other phrase "particularly pressing", trying
to get at whether there was something in the content which made
it different in character from other Cabinet committee minutes.
I have to say he did not answer that question. Is it apparent
to you from your knowledge of the circumstances—and I am
not asking you to disclose any content—that there is some
area within the content that might merit the "exceptional"
designation?
Christopher Graham: I cannot see
it and if I had been able to see it we would not have come to
that decision. It was a decision of my predecessor but I entirely
support it. The argument that the Secretary of State makes very
strongly in favour of collective Cabinet responsibility is of
course one of the factors that we took into account. That particular
section of the Act says the Information Commissioner has to make
a judgment about where the balance of public interest lies, and
I am not infallible, that is what the Information Tribunal is
for. But the argument the Secretary of State makes about the convention
of collective Cabinet responsibility makes it almost seem as if
the convention only works provided nobody believes that there
was ever any disagreement. I cannot believe that is what any sensible
person thinks. We all know that grown-up politicians debate things
and have disagreements. My understanding of the convention is
that once a decision has been taken everyone sticks to it or they
get out of the Government. I cannot myself see the problem with
publishing those minutes. It is now 12 years after the event.
Admittedly, we took a long time to arrive at our decision so let
us say you have to take a view about what the damage would have
been in 2005. But, even so, the legislation is through, the National
Assembly of Wales is up and running, the Scottish Parliament is
up and running. I cannot see it.
Q202 Chairman: Just to clarify something,
is it apparent from the minutes themselves what views individuals
held or are the minutes that you looked at written in such a way
that they do not do that?
Christopher Graham: As I say,
it was a decision of my predecessor but I believe that views are
attributed to named individuals. I suppose the Information Tribunal
might have said we want some names redacted or those particular
minutes should not be published. This is a whole series of minutes.
It is all the proceedings of the committee for 1997. And then
very late in the day, after the decision notice had been issued
but in preparation for the Information Tribunal hearing that was
to take place on 25 January, the Cabinet Office suddenly discovered
a whole load more minutes from 1998. They were not of course covered
by the decision notice because we did not know they existed. The
Cabinet Office had not told us about them. I really believe this
is something that should have been sorted out at the Information
Tribunal but it was not to be.
Q203 Mr Heath: Even if one were to
accept—and I am not sure that I do but I am not party to
the contents of the papers—that there are reasonable grounds
for the Secretary of State to apply the section 53 veto to certain
contents, would it be your view that to use it as a blanket veto
on all of the information is consistent with the spirit of the
legislation which I had a part in passing?
Christopher Graham: I think we
are getting a bit muddled between the legislation as it is and
the legislation that the Government might wish it to be, in view
of the fact that there is some business in train at the moment,
following the Dacre Review, where the Prime Minister has said
that he feels there should be stronger protection for correspondence
involving the Royal Family and some Cabinet material, however
defined. I feel as if ministers very much have what they would
like to be the case in view when they are looking at decisions
like this because I simply cannot get to the justification for
exceptional intervention from the material that we have seen and
the law as it now stands.
Q204 Mr Heath: So is it your view
that it would be the act of a reasonable Secretary of State to
apply a blanket veto to all of the information even if there were
an argument for some of it under section 53 as it stands?
Christopher Graham: I simply say
that the Information Tribunal was established by Parliament in
its role in relation to the Freedom of Information Act specifically
to deal with matters like this. I am disappointed that the Information
Tribunal did not have a look.
Q205 Chairman: One final area we
wanted to cover in the shortened session this afternoon is the
backlog. One of our colleagues, Gordon Prentice, had an adjournment
debate about that the other day. It is an issue that we raised
with you in your appointment hearing and you indicated at the
time that you would not be happy to take on the post if you were
not satisfied that resources were going to be available to clear
the backlog. You quote a one-third reduction in the number of
cases which have waited more than a year as being progress and
obviously it is, but is it not still an unacceptable backlog?
Christopher Graham: We are dealing
with a very heavy caseload. I was very careful at my previous
appearance not to say that I would not take up the job unless
I got the resources because, if you remember, I said I did not
know enough about the operation of the Information Commissioner's
Office to understand what the problem was. Over the past six months
we have put great priority on clearing the backlog and the figures
are more encouraging than the figures that the Minister quoted
in the debate simply because the thing is accelerating like a
train so the latest figures are better. If I can help the Committee,
despite the fact that receipts of appeals to the Information Commissioner's
Office are markedly up over the same period last year, in the
period April to December 2009 compared with 2008 we have had a
21% increase in business, at the same time we have had a 43% increase
in closures. We have been issuing decision notices and clearing
up cases. We have already closed more cases in the first nine
months of the financial year than in the whole of 2008-09. Overall
since April our caseload has dropped by 30% and the cases over
a year old are now down by 52%. The very old cases, which is what
we prioritised to get rid of, those cases over two years old are
down by 70% and when perhaps later on I am able to come and talk
about our Annual Report I think I will have an even more encouraging
picture to show. I do not say that it is satisfactory that we
are in the position that we are in, but we are making great strides
in clearing the backlog which I said to the Committee was a priority
because, if you remember, I said unless we can demonstrate that
we are an effective body we will not be listened to on any other
issue.
Q206 Chairman: In a letter you sent
to me you indicated that of course some of the problems are not
caused by your office; they are caused by repeatedly having to
go back to departments to get information but there is a more
robust attitude—I paraphrase slightly—to that process
which might assist in speeding up the outcomes. Have you had any
success in indicating to partners they have got to get a move
on?
Christopher Graham: Yes. I think
public authorities in general have got the message that the Information
Commissioner's Office is speeding up and we are on to their case.
If I can give you an example of a decision notice we took about
land acquisitions for the Olympics, the London Development Agency
understood from us that unless they could answer our questions
and put up their best case we would take a decision based on the
information we had to hand and that is what we did. I think that
message gets across. I have been invited to address permanent
secretaries at Sir Gus O'Donnell's Wednesday meeting on 20 January
and the message that I will be putting is that we are generally
being a tougher partner to deal with. As we wire through the backlog,
we are getting on to cases more quickly, I think the message will
get across and we should be able to speed up generally. I think
it is very important to recognise that it is not just whether
or not the Information Commissioner's Office is getting through
the work. It is whether the public authorities are responding
promptly enough either in the first place to freedom of information
enquiries or to our enquiries in the course of an investigation.
Chairman: I think, Mr Graham, we would
probably like to put in a freedom of information request for the
minutes of that meeting of the permanent secretaries, but on the
basis of undertakings I have given to Members I would draw the
meeting to a close at that point and thank you very much for the
trouble you have taken today.
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