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Two wins for government secrecy

Government secrecy has prevailed over expression and information rights twice in the last week, in a Supreme Court decision and in Jack Straw’s use of the ministerial veto over a Freedom of Information request.

In the Supreme Court decision – R (on the application of A) v B – a former member of the security services wanted to publish a memoir. When the security services refused to grant permission for the publication of certain parts of the book, the applicant sought to challenge that decision on the grounds that it violated his right to freedom of expression under Article 10 of the ECHR. The question for the court was whether such a claim could be heard in the ordinary courts or whether it had to be heard in the Investigatory Powers Tribunal (in the latter, hearings are secret and the applicant will not see all the evidence of the opposing case). The decision of the Supreme Court did not look at the merits of the freedom of expression arguments. Instead, much turned on the interpretation of a section of the Regulation of Investigatory Powers Act  2000. The effects of the decision are still important, as requiring claims to go through the Investigatory Powers Tribunal may affect the chances of such a freedom of expression case succeeding and also deter people in the same position as the applicant making a legal challenge in future.

The second government secrecy issue arose on Thursday. Jack Straw used the ministerial veto to stop the minutes of a Cabinet sub-committee on devolution (from 1997) being released under the Freedom of Information Act 2000. The decision has already caused controversy among campaigners, such as Maurice Frankel on the Freedom of Information Blog.  The decision came about after the Information Commissioner ordered the release of the sub-committee minutes in June, having found that the public interest was in favour of disclosure. The Commissioner found the minutes were no longer related to a ‘live’ issue (as devolution had already been enacted) and the  minutes did not provide any insight that would undermine the convention of collective responsibility. Despite this, the Lord Chancellor used his legal power to veto the Commissioner’s order. In doing so, Straw emphasised the need to protect collective responsibility and told the House of Commons:

As an integral part of our system of Government the maintenance of the convention is strongly in the public interest and must be given appropriate weight when deciding where the balance of the public interest lies.

Given that the minutes are over a decade old and the amount of information that is already out there about the differences between Cabinet members from that time, you might ask whether such a policy of protection is really necessary.

This is the second time that the veto has been used (the first was in relation to Cabinet minutes before the war in Iraq). The veto wasn’t the only option open to the government. The Information Commissioner’s decision could have been appealed to the Information Tribunal, which would have heard the arguments about the harms and benefits of disclosure. Rather than argue the merits of the case, the use of the veto allowed the government to assert what it regards to be in the public interest (without the risk of an adverse finding in the courts). Given some of the high-profile decisions that have gone against the government in the past, the willingness to use the veto possibility shows a change in the government’s strategy to protect certain types of information and avoid the risks of litigation.

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