House of Commons - Post-legislative scrutiny of the Freedom of Information Act 2000

Post-legislative scrutiny of the Freedom of Information Act 2000 - Justice Committee Contents

6 Policy formulation, safe spaces and the chilling effect

Introduction

141. Good government requires: Ministers to be provided with full, frank advice from officials about the possible impact of proposed policy, even—or especially—where that advice acknowledges risks; Ministers and officials to be able to discuss and test those proposed policies in a comprehensive and honest way; and the records of those discussions and the decisions which flow from them to be accurate and sufficiently full.

142. Various impediments threaten such good government. For example, leaks of discussions or correspondence between Ministers corrode their confidence that they can have honest disagreements about policy without these appearing in the media, often viewed through the prism of personal clashes between individual Ministers, with consequential political damage. There may be a 'chilling effect' if politicians or civil servants attempt to avoid political embarrassment or other adverse consequences of disclosure by seeking to avoid holding formal discussions, based on written advice, with proper records. For these and other reasons, it is generally accepted that a 'safe space' is needed within which policy can be formulated and recorded with a degree of confidentiality.

143. For that reason the Act contains safeguards, namely exemptions to the right of access in certain circumstances and the ministerial veto. (Exemptions are also designed for other purposes, but our concern here is with the policy-making process at the highest echelons of central Government.) In this chapter we consider: why a safe space is needed and what impact a chilling effect would have; how the safeguards in the Act operate; what impact the Act has had on the policy making process; and whether the Act needs amending.

144. It must be acknowledged in this context that public authorities do not always welcome the release of information following a freedom of information request. Data may prove to be politically embarrassing and lead to bad publicity for the public body concerned. One of the principal benefits of openness and transparency is that it encourages public authorities to act in manner that would not embarrass them should it enter the public domain. However, inevitably this is not necessarily convenient for the body concerned. The Rt Hon Francis Maude MP acknowledged this when he told us:

One of my constant mantras on transparency is that all Oppositions favour maximum transparency but that Governments tend to favour it for the first 12 months while all they are exposing are their predecessors' mistakes. It gets more uncomfortable after the first 12 months [...][286]

Evidence of a 'chilling effect' must be carefully interrogated, therefore, as creating new exemptions to compensate for such an impact on public life weakens the right of access to information, and consequently the benefits of transparency.

The 'chilling effect'

145. The Constitution Unit—which, as we note below, is sceptical about the existence of a chilling effect—has defined it as "a shift towards keeping things off paper where they cannot be disclosed" and notes that those who fear the effect say it can take three forms: a reduction in the frankness of advice to ministers; weakening of the quality of the official record; and a diminution in the supply of information to government from third parties.[287]

146. The requirement for frank advice to Ministers was highlighted in the debate about disclosure of the NHS risk register (see below), although it applies more widely. The argument is predicated on the incontrovertible assertion that effective decision making requires an acknowledgement of the risks and downsides of any potential policy, as well as its putative benefits; but in the media context where bad news will always crowd out good, risks presented out of context, and without consideration of the steps which might be taken to mitigate them, can appear sufficiently alarming to encourage Government to be overly risk averse. This may lead to the exclusion of policy options. Speaking about risk registers generally, rather than the NHS risk register in particular, Rt Hon Jack Straw MP told us that "it has to be possible for officials to say to Ministers that there are these risks without these going public. Given the assiduity of the British press, if you publish a raw risk register without any more information, you will set all sorts of hares running, but the document was not designed or prepared in that way. You have to say 'We think that we could be at risk here. We think we could be at risk there. Have you thought about this?' In my view, that sort of information must be protected."[288]

147. The dangers of weakening the quality of the official record are obvious. Lord Armstrong of Ilminster, a former Cabinet Secretary, told the House of Lords, in relation to Cabinet minutes, that "Those minutes are not a verbatim record; they are none the less a comprehensive and accurate account of what the Cabinet decides and why. They are a valuable tool of administration. Their value depends upon their comprehensiveness and their accuracy. Their value would be diminished—they could even be misleading—if they had to be edited or bowdlerised to minimise risks of unacceptable disclosure under the Freedom of Information Act".[289] Not only are the minutes a "valuable tool of administration", they also serve, on eventual disclosure, as important historical records.

148. The potential risks of a chilling effect—if it is a reality—go beyond a bowdlerising or editing of the records; it is that no record exists, because Ministers may avoid holding formal meetings entirely. As Lord O'Donnell, the recently retired Cabinet Secretary, put it to us: "Tony Blair thought it was a problem. Therefore, how do you avoid this problem arising? You basically find a medium which is not covered by FOI. The cost of mobile phone bills goes up between Ministers. They are going to find ways around it. Things are not going to be written down. That, to me, makes for worse government and it makes it impossible for [historians] to try to recreate accurately what has gone on when there are no records."[290]

149. The dangers of formulating policy other than by the recognised one of the collective cabinet process (where policies are agreed in Cabinet, or in cabinet committees, or via formal correspondence between Ministers on such committees, based on policy papers prepared to that end) were highlighted in the 'Butler Report'. While the Report was looking at specific issues relating to weapons of mass destruction in Iraq, its conclusions might be said to have more general application:

[...] we are concerned that the informality and circumscribed character of the Government's procedures which we saw in the context of policy-making towards Iraq risks reducing the scope for informed collective political judgement.[291]

150. That Report also commented that, where Cabinet did discuss the relevant issues, it did so on the basis of oral briefings, rather than papers:

Excellent quality papers were written by officials, but these were not discussed in Cabinet or in Cabinet Committee. Without papers circulated in advance, it remains possible but is obviously much more difficult for members of the Cabinet outside the small circle directly involved to bring their political judgement and experience to bear on the major decisions for which the Cabinet as a whole must carry responsibility.[292]

The deficiencies described in the Butler Report had complex causes and cannot be ascribed to the Freedom of Information Act. However, if critics of that Act are correct, the impact of the chilling effect might well be similar to that described by Butler.

151. The Constitution Unit described the third facet of any chilling effect as "a reduction in the willingness of third parties to supply information to Government. This could be pernicious if true, given the extent to which Government must work with stakeholders in an increasingly variegated and fragmented policy process. Although this point of view was not put forward forcefully during the passage of the Act, it has been argued strongly since (see Department for Business, Enterprise, and Regulatory Reform v Information Commissioner and Friends of the Earth)". In the case referred to, the Tribunal found that "Senior officials of both the government departments and lobbyists attending meetings and communicating with each other can have no expectation of privacy" and that "Recorded comments attributed to such officials at meetings should similarly have no expectation of privacy or secrecy".[293]

152. A related aspect of any chilling effect might be damage to the Government's relationship with other governments. The Rt Hon Francis Maude MP, the Cabinet Office Minister, told the Committee that "we must also protect communications particularly between different Governments, because those need to be conducted in a way where both sides have absolute confidence that they can be very candid with each other, otherwise the process of fast informal diplomacy becomes much more difficult to conduct."[294] Therefore, for those who fear the impact of a chilling effect caused by the Act, that chill extends not just to Ministers and civil servants, but to the reluctance of British stakeholders and overseas governments to share information which they might not want to see in the public domain.

153. A factor related to the chilling effect, for those concerned about the impact of FOI on good government, is that it could weaken the system of collective Cabinet responsibility, by making publicly available details of disagreements between Ministers when formulating policy. The importance of collective responsibility is set out in the Government's statement of policy of how it will use the Ministerial veto:

The Cabinet is the supreme decision-making body of Government. Cabinet Government is designed to reconcile Ministers' individual interests with their collective responsibilities. The fact that any Minister requires the collective consent of other Ministers to speak on behalf of Government is an essential safeguard of the legitimacy of Government decisions. This constitutional convention serves very strong public interests connected with the effective governance of the country. Our constitutional arrangements help to ensure that the differing views from Ministers— which may arise as a result of departmental priorities, their own personal opinions, or other factors—are reconciled in a coherent set of Government decisions which all Ministers have a duty to support in Parliament and beyond. Cabinet Committee business, sub-Committee business, and Ministerial correspondence are all subject to the same principles of collective responsibility.

The risk from premature disclosure of this type of information is that it could ultimately destroy the principle and practice whereby Ministers are free to dissent, put their competing views, and reach a collective decision. It is therefore a risk to effective Government and good decision-making regardless of the political colour of an administration.[295]

Such a 'risk of premature disclosure' arises, for some, from the application of the FOI Act.

154. Freedom of Information brings many benefits, but it also entails risks. The ability for officials to provide frank advice to Ministers, the opportunity for Ministers and officials to discuss policy honestly and comprehensively, the requirement for full and accurate records to be kept and the convention of collective Cabinet responsibility, at the heart of our system of Government, might all be threatened if an FOI regime allowed premature or inappropriate disclosure of information. One of the difficulties we have faced in this inquiry is assessing how real those threats are given the safeguards provided under the current FOI legislation and what, if any, amendments are required to ensure the existence of a 'safe space' for policy making.

The safe space, exemptions and the ministerial veto

155. Fear of the chilling effect has led to calls for a 'safe space' to be delineated in which policy can be formulated without fear that the discussions, papers or minutes involved will be made public in the short to medium term. The Act already describes a safe space, through its provisions for exemptions and the ministerial veto. The question is whether that safe space is adequate.

Exemptions

156. Section 1(1) of the Act states that any person making a request for information to a public authority is entitled to be informed whether the authority holds that information; and, if so, to have that information communicated to him. However, the Act contains a range of exemptions, which set out the circumstances in which authorities do not have a duty to confirm or deny that they hold the information sought, or to supply that information. Some of those exemptions, in whole or in part, are absolute—i.e., they can be invoked without the public authority having to consider arguments about the public interest—namely:

Section 21 (information accessible by other means);
Section 23 (information provided by or related to specified public bodies);
Section 32 (information held as part of a court record);
Section 34 (information exempt due to parliamentary privilege);
Section 36 (information prejudicial to the effective conduct of public affairs - but only so far as relating to information held by the House of Commons or the House of Lords);
Section 37 (1)(a)-(ab) (information relating to communications with certain members of the Royal Family);
Section 41 (where disclosure would involve an actionable breach of confidence);
Section 44 (disclosure prohibited by other enactments, EU obligations or rules on contempt of court).

Section 40 (personal data) serves as an absolute exemption where someone asks for their own personal data or where disclosure to a third party would breach the data protection principles enunciated in the Data Protection Act.

157. The other exemptions in the Act are qualified; i.e., they may only be used where the public authority has conducted a public interest test and has concluded that the public interest in maintaining the exemption outweighs the public interest in disclosure. The MoJ's memorandum explains that "qualified exemptions fall into two categories: those which are class based, and those which are subject to a prejudice test. Class based exemptions exempt from disclosure, subject to the application of the public interest test, information falling within particular categories, without any need to show that disclosure would cause any particular type of harm." The class based exemptions are:

Section 22 (information intended for future publication);
Section 24 (national security);
Section 30 (investigations and proceedings);
Section 35 (formulation and development of government policy);
Section 37 (communications with the Royal Family and Household, and honours);
Section 39 (environmental information);
Section 42 (legal professional privilege); and
Section 43(1) (trade secrets).[296]

158. Prejudice based exemptions, the MoJ's memorandum states, "can only apply, subject to the public interest test, where it is first demonstrated that disclosure of information would be likely to be, or would be, prejudicial to the purposes which the exemption is designed to protect." The prejudice based exemptions are:

Section 26 (defence);
Section 27 (international relations);
Section 28 (relations within the UK);
Section 29 (the economy);
Section 31 (law enforcement);
Section 33 (audit functions);
Section 36 (prejudice to the effective conduct of public affairs);
Section 38 (health and safety); and
Section 43(2) (commercial interests).[297]

159. The exemptions designed to protect the safe space of policy formulation—sections 35 and 36—are therefore qualified, meaning that a judgment has to be made as to whether it is in the public interest for the information requested to be released. Jack Straw, one of the architects of the Act, told us that "the way that sections 35 and 36 have been interpreted [is] not what was intended. It is unsatisfactory and produces consequences that tend towards less openness rather than more", and that "some people in other Government Departments went in for unminuted meetings because they were anxious that there should not be a trail of accountability",[298] presumably because of fears that if the information was requested, the Information Commissioner or the Tribunal might consider the public interest to be on the side of disclosure. Mr Straw also said that he and Ministers "sort of believed that in section 35 we were establishing a class exemption, but that has not turned out to be the case because of the way it has been interpreted by the courts. It has also led to, frankly, some rather extraordinary decisions by the Freedom of Information Tribunal, in which they suggested that it can apply only while policy was in the process of development but not at any time thereafter. That is crazy and it is not remotely what was intended."[299]

160. The Campaign for Freedom of Information queried Mr Straw's recollection of events. It told us that the Government was responsible for the shape of section 35 and it had not been altered by the Tribunal or the Information Commissioner:

When the FOI Bill was introduced into Parliament, the public interest test was purely voluntary: the Information Commissioner would have been able to recommend but not order disclosure on public interest grounds. This attracted particular criticism. It meant that an authority which had made serious errors would be the final judge as to whether it was in the public interest to reveal those errors. As a result of this criticism the government amended the bill to make the public interest test binding - but subject to a ministerial veto. Mr Straw himself set out the rationale for this change during the bill's Commons report stage:

Originally under [clause 2] we proposed that the commissioner would have a power to make a recommendation for disclosure, but not an ability to order it [...]. As a result of many representations…I recognised the concern in the House about the fact that in the scheme of a statutory right to know it looked slightly odd that there should be provision only for the commissioner to make a recommendation. It was up to the public authority whether to accept it [...]

As a result of the representations, we have in many ways fundamentally changed the structure of [clause 2], except in one respect. We have strengthened the tests—that is a matter for another debate in respect of factual information—but we have made it a duty, not a discretion, on the public authority to consider whether the public interest in disclosure outweighs the public interest in the matter not being disclosed. Where the public authority decides that the balance of public interest is in favour of disclosure, it is under a duty to disclose. If it comes to a contrary view, the matter can go to the commissioner and he can order disclosure. That is the scheme of the Bill. (emphasis added)

At Lords report stage the public interest test itself was amended so that instead of applying where the public interest in disclosure outweighed the public interest in maintaining the exemption, the onus was reversed. Information must be disclosed unless the public interest in maintaining the exemption outweighs the public interest in disclosure. Lord Falconer explained that these amendments:

[...] will put beyond doubt the Government's resolve that information must be disclosed except where there is an overriding public interest in keeping specific information confidential. Perhaps I may repeat that: information must be disclosed except where there is an overriding public interest in keeping specific information confidential.

It is clear that the government intended, as a result of its own amendments, that information about the formulation of policy should be disclosed unless there was an overriding public interest in withholding it.[300]

161. However, in his account of the campaign to introduce the Act, Des Wilson quotes from a campaign document of 1983 which stated: "The Campaign accepts that an element of confidentiality remains necessary, and that in particular this campaign will not seek the disclosure of information that would [...] (g) breach the confidentiality of advice, opinion or recommendations tendered for the purpose of policy-making (this does not include expert scientific or technical advice or background factual information.)"[301]

162. The Commissioner was at pains to tell us, however, that he was alert to the need for policy makers to have a safe space:

[...] the evidence shows time and time again that the Information Commissioner and the Information Tribunal have supported the principle that there should be a safe space for the development of policy. Cabinet minutes are not routinely outed. The only ones you get to hear about are the ones where the Information Commissioner or the Information Tribunal have ruled in favour of publication. Nobody is interested in the vast majority of cases, when we look at the balance of interests and say, "No; we think that the principle of collective Cabinet responsibility trumps any other argument."[302]

163. As the case law relating to FOI has developed, it is possible to identify a number of decisions by the Commissioner which have protected Cabinet papers - advice to ministers, or the record of discussions - from disclosure. For example, the Commissioner decided that: minutes of a Cabinet Committee on data sharing within the public sector should be withheld, as the policy was still live and the public interest in maintaining collective responsibility outweighed the benefits of disclosure;[303] and minutes of Cabinet meetings since 1997 on reform of mental health legislation should be withheld, because it was necessary to protect the ability of ministers to have frank discussions.[304] The Constitution Unit has given further examples relating to minutes of meeting which were not Cabinet meetings, but which involved policy formulation and where the Commissioner upheld decisions which protected the safe space, namely:

The Cabinet Office's decision not to release minutes of meetings between the Prime Minister and Lord Birt because the greater public interest lay in the PM being able to receive advice and exercise judgement freely (FS50088745, 29 June 2008);

The MOJ's decision not to release minutes of the Cross-party Group on House of Lords reform because of the nature of the group and the unresolved state of the policy (FS50196977, 30 September 2008) [305]

164. However, decisions are taken on a case by case basis and there are numerous instances where the Commissioner and the Tribunal have ordered the disclosure of certain documents which are related to policy formulation, once the policy in question is no longer under "formulation and development". For example, the Constitution Unit lists some examples of policy submissions to Ministers where disclosure has been ordered:

DFES policy (but not legal) advice dating from the 1980s on corporal punishment in schools and the Society of Teachers Opposed to Physical Punishment (FS50085945, 22 May 2007);

Scotland Office submissions relating to the 1999 Scottish Adjacent Water Boundaries Order, a decision which was overturned by the Tribunal (FS50091442, 28 June 2007; EA/2007/0070);

MoD advice from 2004 on powers to stop up and create replacement rights of way (FS50107135, 25 February 2008);

DCMS submissions to ministers on their role in commercial transactions in the sports sector, in the context of the acquisition of Manchester United Football club (FS50121684, 3 December 2007).[306]

Examples are also given of orders to disclose minutes of meetings between officials, or with outside bodies:

Minutes of DFES senior management board meetings from 2002-05, ordered to be disclosed by the ICO and IT (FS50074589, 4 January 2006; EA/2006/0006, 19 February 2007);

Minutes of 2004-2005 meetings between DEFRA, Tesco and Asda, ordered to be partially disclosed by the ICO, mainly under the EIRs (FER0098306/7, 24 August 2006);

165. The Government itself acknowledges that there are circumstances in which the public interest in disclosing information about policy formulation outweighs the public interest in withholding it, pointing out that "Cabinet committee correspondence from the mid-1980s was released in 2006 when the Department for Children, Schools and Families withdrew an appeal to the Tribunal in relation to information relating to corporal punishment. The Cabinet Office also released Cabinet minutes from 1986 relating to the Westland Affair following a decision by the Information Tribunal in 2010."[307]

166. It is evident that numerous decisions of the Commissioner and the Tribunal have recognised the need for a 'safe space'. However, equally evident is the fact that in some cases their decision that information should be disclosed has challenged the extent of that safe space. We accept that for the 'chilling effect' of FOI to be a reality, the mere risk that information might be disclosed could be enough to create unwelcome behavioural change by policy makers. We accept that case law is not sufficiently developed for policy makers to be sure of what space is safe and what is not.

167. More controversial than these decisions however, have been the decisions of the Commissioner and Tribunal that certain Cabinet minutes and the NHS Transition Risk Register should be disclosed. Those decisions led to the use of the ministerial veto which we will now consider.

THE MINISTERIAL VETO

168. Section 53 of the Act provides for a ministerial veto, whereby a decision notice by the ICO or a court requiring the release of information can cease to be effective following the presentation of a certificate to the Information Commissioner to that effect by a Minister attending Cabinet, the First Minister and Deputy First Minister of Northern Ireland acting jointly, the Welsh Assembly First Minister or the Attorney General, Advocate General for Scotland or the Attorney General for Northern Ireland.

169. Jack Straw, who as Home Secretary was responsible for the Freedom of Information Bill during its passage through the House, told us about the then Government's intentions about the use of the veto:

The inclusion of the veto was something that I pursued vigorously, with the full support of Mr Blair. Without the veto, we would have dropped the Bill. We had to have some backstop to protect Government.

During the course of the Bill, when we got round to redrafting it to meet the concerns of all sides and secure some sort of majority for it, a deal was struck: basically, it was going to be a strong Act, but you had to have the veto. However, while it was going through Parliament, undertakings were given in the Commons, and also by Lord Falconer in the Lords, about the way in which the veto would be used. It was to be used sparingly and it would not be done simply on the fiat of an individual Minister; instead, these decisions would be subject to proper discussion in Cabinet. There was a political reluctance to use it.[308]

170. To date, the veto has been used four times: in February 2009, when Jack Straw, as Lord Chancellor, vetoed the disclosure of Cabinet minutes and records relating to meetings held in March 2003, concerning the Attorney-General's legal advice about military action against Iraq; in December 2009, when Jack Straw vetoed disclosure of minutes of the Cabinet Sub-Committee on Devolution, Scotland, Wales and the Regions; in February 2012, when the Attorney General, Dominic Grieve, vetoed the disclosure of minutes of the same Sub-Committee; and in May 2012, when the Health Secretary, Andrew Lansley, vetoed disclosure of the NHS transitional risk register.

171. The Government's statement of policy on the use of the veto as it relates to information falling within the scope of section 35 (1) (formulation and development of Government policy) says that:

The 'accountable person' exercising the veto will, where possible, be the Cabinet Minister with responsibility for the policy area in question or, in cases involving papers of a previous administration, the Attorney General;
The veto should only be used in exceptional circumstances and only following a collective decision of the Cabinet;
In cases involving a previous administration only the Attorney General will have access to the information being considered and he will consult former ministers and the opposition;
Each section 35 case must be considered on its individual merits;
The Government will not routinely use the power under section 53 simply because it considers the public interest in withholding the information outweighs that in disclosure;
The Government is minded to consider the use of the veto if: release of the information would damage Cabinet Government and/or the constitutional doctrine of collective responsibility; and the public interest in release is outweighed by the public interest in good Cabinet Government and/or the maintenance of collective responsibility;
The relevant matters to be considered include: whether the information reveals the substance of policy discussion or merely the process for such discussion; whether the issue was at the time a significant matter and whether it remains significant; the extent to which views of different ministers are identifiable; whether the ministers concerned are still active in public life; the views of ministers and former ministers (or the Opposition) engaged at the time; and whether any other exemptions apply.[309]

172. On each occasion when the veto has been used, the Information Commissioner has exercised his right to report to Parliament, reacting to the use of the section 53 provisions. One of the main themes which emerges from the first three cases, relating to minutes, is the tension between the benefits of openness in disclosing the minutes, and the damage which might be caused to the principle of collective Cabinet responsibility which might be caused as a result of disclosure. In his reports to Parliament the Commissioner re-iterates his approach to this issue when making his decision about disclosure:

In his first such report, relating to the decision to use the veto with respect to the request for information about the Cabinet discussion about the Attorney-General's advice with regard to Iraq, the Commissioner says that "whilst the Commissioner accepted that the protection of the convention of collective Cabinet responsibility was in general terms a strong factor favouring the withholding of Cabinet minutes, he did not consider the disclosure of these particular Minutes would in itself be likely to significantly undermine that convention";[310]
The Commissioner used identical wording in his second such report, relating to Cabinet consideration of devolution issues;[311]
In the third such report, also relating to minutes about devolution, the Commissioner "recognised the validity and weight of the argument against disclosure on the grounds of preserving the convention of collective Cabinet responsibility" and concluded that "this factor tipped the balance of the public interest in favour of maintaining the exemptions in relation to the specific content which either identified individual Ministers or which could be fairly characterised as dealing with the more sensitive areas of policy" discussed in the minutes. The Commissioner specified in a confidential annex to the Cabinet Office the material he considered to come into these two categories, where he considered it was proper to withhold the information. With regard to the remainder of the minutes, the Commissioner "considered that its disclosure would not be likely to result in harm to the convention of collective Cabinet responsibility, particularly given the passage of time. The Commissioner further considered that there was a specific public interest in disclosure in order to inform current and future debate about devolution, together with the public interest in transparency and openness in decision-making".[312]

173. The main issue at stake in the case which led to the fourth and most recent use of the veto was not primarily the maintenance of collective Cabinet responsibility, but the protection of a safe space for decision-making, within which officials can proffer frank advice, the public disclosure of which might, arguably, inhibit Government's ability to pursue its policies and, in the longer term, result in a move away from putting such advice on paper (one aspect of the "chilling effect"). In his Statement of Reasons for using the veto, the Health Secretary noted that:

Risk registers are designed to identify all the main risks, however serious and however unlikely, and should be expressed in clear, and if necessary trenchant, language;
They are developing documents and, particularly at an early stage, might not have had mitigating steps developed alongside serious risks;
A safe space is needed so officials can prepare frank risk registers. If registers are regularly disclosed, it is likely that the form and content will change, to make them more anodyne and strip out or downplay controversial issues and "they would be drafted as public facing documents designed to manage the public perception of risk; not as frank internal working tools". This would be to the detriment of good government;
These general arguments are supplemented by specific arguments about the transition risk register (TRR): the timing was acutely sensitive; the TRR was frank and not designed for publication; its publication would have resulted in sensationalised reporting and debate; the need to respond to and deal with the reaction to disclosure of the TRR could have distracted from progressing the proposals; disclosure of the TRR carried the risk of increasing the likelihood of some of the risks identified being realised.[313]

174. In his response to the Secretary of State's Statement of Reasons, the Information Commissioner said that, in reaching their decisions that the TRR should be disclosed, both he and the Tribunal had recognised and considered the importance of a safe space for policy formulation. He also did not accept that disclosure of the TRR would affect the "frankness and candour" of future risk registers and, while noting Lord O'Donnell's views about a likely chilling effect, found that there was no actual evidence of such an effect. Further, the Commissioner did not accept his decisions and those of the Tribunal set a precedent for the general disclosure of future risk registers, noted that there would be circumstances in which it would be proper to withhold risk registers, and said that the disclosure of earlier risk registers, such as that relating to the proposed expansion of Heathrow Airport, had not caused the damage identified by the Secretary of State. The Commissioner also stated that the Tribunal found the Secretary of State's reason that disclosure would increase the likelihood of the risks identified in the register materialising and that policy makers would be distracted from their task as a result of the debate to be merely "conjecture"; and that it did not accept his arguments that disclosure would lead to sensationalised reporting and debate.[314]

175. A more general concern expressed by the Information Commissioner about the TRR veto, as well as the earlier use of the veto regarding minutes, was that the cases in question were not genuinely exceptional, as the Government's own policy statement requires. He argued, in the case of the TRR veto, that "none of the criteria for 'exceptional cases' in the Statement of Policy are met in the present case. Furthermore, the Commissioner does not consider that sufficient reasons have been given as to why this case is considered to be exceptional, particularly in light of the Tribunal's decisions dismissing the Department's appeal".[315] Indeed, rather than being exceptional, the Commissioner's contention is that the Secretary of State's "arguments are deployed in support of what is in fact the direct opposite of the exceptional - a generally less qualified, and therefore more predictable, 'safe space'. As such, the Government's approach in this matter appears to have most to do with how the law might be changed to apply differently in future" and he observes that such a policy change falls to us to consider as part of this exercise in post-legislative scrutiny.[316]

176. The Commissioner has made a similar point about the use of the veto in the case of Cabinet minutes. He told us in evidence that he:

[...] would question the extent to which genuine "exceptional circumstances" applied. Rather there appears to be a point of principle over the status of Cabinet minutes [...].

Therefore, if Parliament is of the view that Cabinet minutes should never be disclosed under FOIA, then the appropriate course of action would be to amend the exemption so as to make Cabinet minutes themselves subject to an absolute exemption, excluding the consideration of the public interest test. The Commissioner is not recommending this. It is a matter for Government and for Parliament. However, it is not in the public interest for requesters of information to believe that Cabinet minutes may be accessible under FOIA if in reality they are not and Parliament never intended that they should be. Not inconsiderable amounts of public money have been spent on those cases where ultimately the Ministerial veto has been used to block disclosure.[317]

While he says that a decision to apply an absolute exemption to Cabinet minutes is a matter for Government and Parliament, the Commissioner does argue that "in all other respects [...] the exemption provided by section 35 should continue to be subject to the public interest test. Extending an absolute exemption to all material relating to the formulation and development of public policy would seriously curtail the reach of FOIA, which itself would be contrary to the public interest".[318]

177. Professor Robert Hazell, of the UCL Constitution Unit, agreed with the Commissioner that the appropriate course of action, if the Government was minded to use the ministerial veto whenever an application was made for Cabinet minutes, was to create a new exemption. Otherwise such a regular deployment of the veto, which the Government is committed to using only in "exceptional circumstances"[319] would be in effect an "abuse", leading to the executive "playing cat and mouse with requestors [...] and the Information Commissioner."[320] It should also be noted that such an approach would not have been scrutinised by Parliament. Professor Hazell submitted that the approach in Australia, where 'Cabinet documents' are subject to an absolute exemption, was one model which could be followed. It is noteworthy that guidance on the use of the Australian exemption has been the subject of a number of legal challenges on what is included within the term 'Cabinet documents.'[321]

178. It should be noted in the context of discussion about the ministerial veto that the legislative framework requires that the veto may be used where the "accountable person" "has on reasonable grounds formed the opinion that, in respect of the request or requests concerned" the public authority has not failed to comply with its duty to disclose, in other words, the public interest in publication is outweighed by other factors.[322] The confining of the use of the veto to "exceptional circumstances" arises from the Statement of Policy and is not contained in the Act, which only requires that the accountable person identifies "reasonable grounds" and gives reasons for the decision to exercise the veto.[323]

179. While we believe the power to exercise the ministerial veto is a necessary backstop to protect highly sensitive material, the use of the word exceptional when applying section 53 is confusing in this context. If the veto is to be used to maintain protection for cabinet discussions or other high-level policy discussions rather than to deal with genuinely exceptional circumstances then it would be better for the Statement of Policy on the use of the ministerial veto to be revised to provide clarity for all concerned. We have considered other solutions to this problem but, given that the Act has provided one of the most open regimes in the world for access to information at the top of Government, we believe that the veto is an appropriate mechanism, where necessary, to protect policy development at the highest levels.

HOW CHILLING IS THE CHILLING EFFECT? DOES THE SAFE SPACE NEED TO BE SAFER?

180. In considering whether the law should be amended so as to introduce a class exemption for certain documents relating to policy formulation, or otherwise raise the bar for disclosure, we need first to assess whether the chilling effect is in reality a problem and whether the current safe space, as delineated by the exemptions in the Act and the section 53 veto, is adequate.

181. One of the difficulties we have encountered during this inquiry has been amassing evidence about the chilling effect. If the chilling effect is a real phenomenon, current policy-makers—politicians and officials—are unlikely to want to say in evidence that they commission and produce anodyne policy submissions, avoid frank discussions in formal meetings and fudge records. Those would be career-limiting admissions. As the Information Commissioner put it to us, "it is in the nature of a chilling effect that we would not get to know about it; we only get to see what is in the evidence trail".[324] As we shall see, there is to some degree a tension between the research-based evidence, and the practical experience and fears of those who have recently served in the highest echelons of Government, whether as Ministers or officials.

182. The largest body of research on the impact of FOI is the work carried out by the Constitution Unit between 2007 and 2009, looking at its effect on central Government, local government and Parliament. As the most important research-based source of evidence on FOI, it is worth considering in some detail. The Unit's research methods included: interviews with 56 officials in eight central Government departments, 90 officials and others across 16 local authorities, 30 MPs, peers and officials at Westminster, as well as journalists, requesters and campaigners; an online survey of FOI requesters; analysis of press articles using FOI; analysis of FOI case law; and analysis of disclosure logs. The Unit's written evidence to us notes that "finding hard evidence for such an effect [the chilling effect] is very difficult as it requires proving a negative and asking interviewees to admit unprofessional conduct".[325] The Unit's work looks at the potential for the chilling effect to be felt in three ways: in the quality of advice to Ministers; in the quality of the record; and in the provision of information by third parties.

183. In terms of the quality of advice, the Unit's overall conclusion was that FOI had not affected submissions and advice to Ministers. Officials interviewed by the Unit were quoted as saying, for example, "the principles of good submissions are the same [...] you still have to use all the information necessary to make your case".[326] However, some of the interviewees quoted by the Unit do suggest that there has been a move away from putting some advice on paper. The Unit noted that "those few officials who admitted 'hand on heart' to not being as frank in submissions since FOI did not think that the transmission of information was hampered, despite finite ministerial time, because ministers could be briefed orally, or their private office could be telephoned: 'the same factors end up getting taken into account, it's just they're not on the paper'".[327] The Unit also notes that care about the information put into submissions was "linked as much to leaking as FOI", quoting one official as saying, "I consciously think 'do I really want to write to the Minister saying that' because either it's going to be leaked, which we're bad at in this department, or it's open to freedom of information".[328]

184. Overall, on the quality of advice, the Unit's conclusion was "that there has been no negative impact of FOI on the quality of advice. No official told us that the advice for the minister to base his or her decision on had been reduced. Even those who confessed to changing their own submissions emphasised that the relevant information was still getting through. However, as so few officials did admit to this change in their behaviour, the overwhelming impression is of submissions continuing more or less as before, with changes at the margins due both to FOI and other factors, notably leaks." The one caveat to this conclusion related to the comment of one civil servant that, "as long as you have advice to ministers 100 per cent protected, nothing is going to have changed."[329] As such advice is not 100 per cent protected, this leaves open the possibility (although the Constitution Unit evidently does not believe this to be the case) that things have changed. Another point to make about the Unit's conclusion is that while an individual minister might still receive sensitive briefing orally, in the absence of it being put on paper, if groups of ministers are taking decisions without the arguments fully set out in writing, the type of deleterious effects noted by the Butler Report can materialise.

185. In assessing the effect of FOI on the quality of the record, the Unit considered: meetings and their minutes, emails and "a more catch-all category of the 'audit trail'."[330] Here they found that minutes had become shorter (although that was not necessarily a bad thing and was not, in any event, evidently because of FOI). They found also that while there was an awareness of FOI at meetings, with civil servants admitting to hearing comments like "we'll have to be careful what we write", such references were often taken to be tongue-in-cheek. The Unit did speak to interviewees, however, who "could point to specific attenuation of minutes as a result of FOI. This was in areas where fingers had been burnt, such as high-profile Information Commissioner or Tribunal cases", with one interviewee saying:

In that instance it is FOI. I spoke to a private secretary who said they had a discursive note, then a senior private secretary said shorten it. Absolute reaction to FOI.[331]

186. The Unit also found some evidence that meetings were taking place in informal settings, and this was thought "inevitable" as a result of FOI by one civil servant. Another civil servant also referred to face-to-face conversations, rather than committing material to paper, but the Unit said that this concern was rarely raised and where it was there was no consensus it was caused by FOI. The Unit concluded that "although the jokes about FOI indicate nervousness, and there are isolated cases of changes in notes of meetings due to burnt fingers, the interview evidence suggests that notes of meeting and their formality or otherwise have been subject to changes which predate FOI, and which, in the case of the style of minutes in particular, is perceived overall as positive."[332] In relation to email use, the Unit found that "there is a roughly even divide between those who see no change in the use of email, and those who see a definite change due to the fear of disclosure. But of those who do see a definite change, very few see it as due to FOI."[333] In terms of the audit trail more generally, the Unit concluded that "the impact of FOI on the audit trail seem slight [...]. A very small number of officials could trace a direct and negative change back to FOI. Others dismissed the argument or the extent of change, and a small number thought any change that had come about was mainly positive".[334]

187. In considering the impact of FOI on the provision of information by third parties, the Constitution Unit looked at: relationships between departments; intergovernmental and international relations; and the input of interest groups, trade bodies, and suppliers. Some of its key findings were that:

FOI has had no impact on the way Government departments work together;
Some officials sensed 'nervousness' on the part of overseas allies or a marginal tendency to telephone rather than email, but this was the exception rather than the rule;
Suppliers had been nervous at the onset of FOI, and officials felt that stakeholders were now less willing to give out information because guarantees about non-disclosure could no longer be given; however, interviews with a small number of stakeholders and suppliers did not turn up evidence of significant levels of concern and provision of information was thought to continue as before;
Overall, interviewees seemed unperturbed by the advent of FOI.[335]

188. The Constitution Unit did find that there had been a degree of altered behaviour as a result of FOI and that this was particularly discernible in "areas where officials had had their fingers burnt as a result of a particularly high-profile case".[336] However, they cautioned against overstating this and pointed out that a larger number of officials either noted no substantive change, or no overwhelming influence of FOI. They also pointed out that some of the change ascribed to FOI is actually influenced by a range of other drivers, including: time and resource pressure; technology, news media and electronic communication; increasing numbers of civil servants from private sector backgrounds; leaks; the longstanding front-page test [caution about expressing something on paper which would be embarrassing to read in a newspaper, which pre-dated FOI]; more informal workspace; and other accountability and access mechanisms, such as select committee inquiries or judge-led inquiries.[337]

189. In terms of the chilling effect overall, the Unit concluded that "government decision making and effectiveness has not been significantly affected either positively or negatively. The adverse impact of FOI seems negligible to marginal. The dominant view was that nothing has changed, with a minority describing a slight positive alteration." The Unit contrasts this conclusion with the "received wisdom about FOI" and "anecdotal evidence", also noting that there is "significant anti-FOI feeling in the upper reaches of Whitehall".[338]

190. The Constitution Unit's research on FOI is the first major piece of research of its kind and is a valuable contribution to the debate around FOI. In its consideration of the chilling effect, the Unit broadly concluded that the effect of FOI appeared negligible to marginal. We note this finding and have taken it into account in our deliberations. However, we have also been cognisant of two related points: while respecting the overall conclusions, we note that the research did feature a number of interviews with participants which suggested behaviour had changed, at least in part because of FOI; secondly, as the Unit itself notes, if the chilling effect does exist it would, by its nature, be very difficult to find hard, objective evidence of it. That is why, on this subject, it is necessary at least to consider anecdotes and impressions, albeit they might lack the academic rigour on which we would ideally like to base conclusions.

191. The Constitution Unit's conclusions are certainly not shared by some of those who have been at the heart of policy formulation as ministers or officials. Lord O'Donnell, Cabinet Secretary between 2005 and 2011, said that the problem with FOI was the uncertainty caused by qualified exemptions. He told us that:

The problem about these things is that we need some principles. At the moment the great cost from FOI is uncertainty. Nobody knows whether a piece of paper—something that is going to be written down—is going to be public or not. There will be a panel of people who may never have worked closely with Ministers or in central Government who make this decision. That is what worries me. It is the uncertainty element. We need to have clarity. Get rid of the grey areas. This is either exempt or it is not. You can decide where you want to put the line, but, for goodness sake, that is where all the cost comes from and that is where all the judgment and senior time come up.[339]

192. Lord O'Donnell gave examples (one real-life, two hypothetical) of where FOI might have an impact, both in terms of the quality of the record, the avoidance of official meetings and the provision of frank advice:

I have a real anecdote about the coalition. The Conservatives and the Lib Dems coming together to meet in the Cabinet Office during those five days in May had to decide whether to have a civil servant in the room to record the negotiations. One of the members of the negotiating team said to me, "So, if we did this and the civil servant wrote something down, would it be FOI-able?" My answer was, "We haven't got a clue because there is a public interest test to everything and you just don't know." The net result was that there was no civil servant in the room.[340]

[...] with regard to some conversations that might well have taken place in a more formal setting with Ministers and officials, Ministers might well decide to have those conversations on their own, on their mobile phones. By definition, there are no officials at those sorts of things.[341]

I have encouraged civil servants to be very explicit about risk registers, to think the unthinkable, to put it in very vivid language and to think about the unusual outcome that might happen. We have been too narrow. If you look at the financial crisis, we just did not think about what might happen if liquidity dried up. We did not think enough about what would be thought of as quite unlikely outcomes before the event. Will future risk registers be as open? There is going to be a real chilling effect there on risk registers. Ministers are going to say, "Okay, I am very aware that a risk register is now a potentially public document. I do not want you to go into these extreme things. If necessary, we can have a conversation about that, but could you kindly just stick to the more likely outcomes?"[342]

193. The Rt Hon Jack Straw MP made a related point. Noting that he preferred to make decisions through the process of the written word, he said however that "I know that people in other Government Departments went in for unminuted meetings because they were anxious that there should not be a trail of accountability".[343] The Attorney General also believed that there was evidence that the chilling effect had been felt:

[...] the minutes ought to be a fairly authoritative record of what was said and done, and people who participate in collective decision making are entitled to enjoy that protection. As I said, the real risk—this is not just a hypothetical risk because I hear it suggested that it has become a real risk; it is actually happening, or happened certainly under the last Administration—is that you end up getting decisions made that are not recorded. People are so worried that everything that is said will go out into the public domain at an early stage that they may not express their views.[344]

On the other hand, a civil servant who was concerned to make sure that important advice was considered might well wish to ensure that the record made clear such advice had been given.

194. Concerns about the behavioural effects of the legislation led Lord O'Donnell and Jack Straw to call for the removal of the grey areas caused by the public interest test by covering information relating to policy formulation or information relating to the retention of collective cabinet responsibility with an absolute exemption. Jack Straw told us that:

The law certainly needs to be clarified and we need to change the public interest here. My view is that we need a class exemption, full stop, that exempts information if it relates to the formulation or development of Government policy, ministerial communications and so on. However, we also need a class exemption in respect of matters covering section 36—the maintenance of conventional collective responsibility of the Crown and the provision of free and frank advice.[345]

195. Lord O'Donnell advocated a route guided by two principles: the maintenance of collective Cabinet responsibility; and the protection of the ability of the civil service to give frank advice without fear or favour.[346] This led him to argue that the grey areas produced by the application of the public interest test were damaging and that greater clarity was required by having more clear-cut areas which were either absolutely exempt or not. When questioned, he supported the concept of being able to label a meeting as a policy discussion, which would then attract an absolute exemption, so that participants would know they were operating within a safe space.[347]

196. The Rt Hon Francis Maude MP, comparing the situation now to his experience of Government "around 20 years and more ago" considered whether frank advice was put on paper to the same extent now as then, and concluded:

It is hard to calibrate or measure. My feeling is that it is less so because of exactly this [i.e. FOI] concern. It is not that there is obviously a certainty; you know that under the Act as it is nearly all of the stuff will not be public, but it is the question mark that hangs over it—whether things are FOI-able. The Information Commissioner and the Tribunal might make a decision that the public interest in disclosure outweighs the public interest in them being private and protected. It is just flying in the face of certainly my experience and common sense to maintain that it has made absolutely no difference.[348]

197. In considering the potential danger FOI poses to the safe space, it is necessary not just to consider the direct impact to it of disclosure of one piece of information, but (more importantly) the message such individual decisions about disclosure send to officials and ministers about future decisions of the Commissioner or the Tribunal. This point was made by Lord Turnbull, Cabinet Secretary from 2002 to 2005, in the House of Lords:

Section 35 does not confer an absolute exemption but requires a balancing public interest test. In applying that test, however, the commissioners and the tribunal have tended to focus narrowly on the information sought in the request, not the wider signal that the disclosure produces. Any release contains two forms of information: that inherent in the document, and that which provides signals about how the commissioner/tribunal are expected to respond in future cases. There will be cases where the information itself may cause little harm but where releases of similar documents could have a big effect on the behaviour of Ministers and officials. The commissioners and the tribunal appear to place little weight on this wider impact despite the advice of many distinguished people."[349]

198. If the most senior officials in Government are concerned about the effect of the Act on the ability to provide frank advice they should state explicitly that the Act already provides a safe space, and that the Government is prepared to use the ministerial veto to protect that space if necessary.

199. Since the passing of the Act other ways in which minutes and records are likely to be made public have developed which are likely to lead to greater publicity for the information disclosed than if it had been published under the right to access information. The establishment of public inquiries into matters of public concern used to be relatively infrequent; between 1921 and 1978 there were twenty investigations which could be described as public inquiries after which the use of such inquiries "virtually fell into abeyance" until the late 1990s.[350] Since 1996, however, there have been at least twenty-four inquiries, under the Tribunals of Inquiry (Evidence) Act 1921, its successor, the Inquiries Act 2005, other legislative provisions, such as the investigation into the death of Rosemary Nelson which was held under the Police (Northern Ireland) Act 1998 as well as non-statutory inquiries. Several of these inquiries have been very high-profile, in particular the 'Bloody Sunday' inquiry,[351] the Chilcot inquiry into the Iraq war[352] and the ongoing inquiry into press standards chaired by Lord Leveson.[353] Such inquiries can lead to the disclosure of documents which might not otherwise have entered the public domain as Lord Hennessy told us:

[...] if you look back to the Hutton inquiry into Dr David Kelly's death, if it had not been done quickly, those e-mails that were so crucial to reconstructing it would not have been there. I do not think they would have been retrievable.[354]

It is unclear whether those emails would have been released under the Act. Any analysis of the chilling effect must therefore acknowledge that the release of documents is not necessarily a consequence, or even most frequently the result of, a freedom of information request.

200. We are not able to conclude, with any certainty, that a chilling effect has resulted from the FOI Act. On the one hand, the Constitution Unit's research—the most in-depth available—suggests it has only a marginal effect. On the other hand, a range of distinguished participants who are, or who have been recently, at the heart of the policy-making process attest that it is a problem. We see no reason why former senior ministers and officials in particular would flag this up as a concern if they did not genuinely believe it to be so, and we think their views are of value. However, so too of value is the increased openness introduced by the Act and, especially, the power of individuals to exercise their right to information proactively, rather than having public authorities decide what they will disclose, when and to whom, even when acting with the best intentions. Equally, there are other reasons why some officials and politicians may be increasingly reluctant to create paper records, not least the increasing possibility that some form of public inquiry may lead to the subsequent publication of minutes and records. That is why we are cautious about restricting the rights conferred in the Act in the absence of more substantial evidence.

201. Given the uncertainty of the evidence we do not recommend any major diminution of the openness created by the Freedom of Information Act, but, given the clear intention of Parliament in passing the legislation that it should allow a "safe space" for policy formation and Cabinet discussion, we remind everyone involved in both using and determining that space that the Act was intended to protect high-level policy discussions. We also recognise that the realities of Government mean that the ministerial veto will have to be used from time to time to protect that space.

286 Q 514 Back

287 Robert Hazell, Ben Worthy and Mark Glover, The impact of the Freedom of Information Act on Central Government in the UK, Does FOI Work?, (London 2010), p162 Back

288 Q 352 Back

289 HL Deb, 17 January 2012, col 538 Back

290 Q 252 Back

291 Report of a Committee of Privy Counsellors, Session 2003-04, Review of Intelligence on Weapons of Mass Destruction, HC 898, para 611. Back

292 Ibid. Back

293 Right to privacy vs the public's right to know, Law Society Gazette, 3 July 2008. EA/2007/0072, case summary. Back

294 Q 525 Back

295 Statement of HMG Policy: Use of the Executive Override under the Freedom of Information Act 2000 as it relates to information falling within the scope of section 35 (1), annexed to Ministerial veto on disclosure of the Department of Health's Transition Risk Register: Information Commissioner's Report to Parliament, HC 77, May 2012 Back

296 Memo, p29 Back

297 Ibid. Back