This is the week the Freedom of Information Act 2000 finally bit: politicians and the public now know it’s not simply a joke but can force previously confidential information to be released. There have been two important rulings: the Information Tribunal’s decision that details of MPs’s expenses should be disclosed; and the Information Commissioner’s decision that Cabinet minutes from March 2003 relating to the decision to invade Iraq should be released.
I’ll say nothing about the expenses decision, except that I think it’s amazing MPs could think this information could or should be private. I’m with Libby Purves on this, and am glad the Commissioner and the Tribunal have forced MPs into the real world.
But I’m troubled by the Iraq Cabinet minutes decision, which I think shows the folly of the principle under the Act that there should be no “class” exemptions: i.e. that no category of information, whether information relating to the Cabinet or legally privileged information, should be exempt from disclosure. In order to be withheld the government must explain the specific harm that would result if the information requested were not released. In this case, the government has argued that release of Cabinet minutes would undermine good government and collective ministerial responsibility – but the Commissioner says in effect that those arguments are in the nature of a class exemption: the government has not justified the keeping secret of these particular Cabinet minutes in terms of the harm disclosure would do.
I accept that the Commissioner is in a difficult position, since the Act clearly precludes him from accepting an effective class exemption for Cabinet papers. I think that’s a serious problem with the Act, because in reality that means the abolition of any rule or presumption that Cabinet deliberations are confidential: they only are if their contents would be harmful, if known. I’d have preferred at least a presumption that Cabinet minutes should be confidential.
But even in that framework I don’t think the Commissioner was obliged to decided as he did, and I’m not sure he’s got it right. A health warning: he’s seen the minutes, and there may be something in them which cries out for public disclosure – evidence, for instance, that the government’s explanation for the war was a lie, say. I don’t imagine they do show that, but if they did, I’d agree that the public interest in knowing that outweighed the public interest in good and collective government.
But if not, then surely this decision means it’s open season on Cabinet minutes from now on, whatever the Commissioner says about it not being a precedent. Of course it is. Applying the principles he lays down here, the only Cabinet minutes I can see uncontroversially qualifying for non-disclosure are those relating to national security, international negotiations and perhaps price-sensitive economic policy. What possible harm could result from release of information about education policy, pensions policy, employment law policy, tax policy, environment policy or health policy – except harm to the process of government itself?
This is I fear a recipe for hole-in-the-wall, sofa government, with decisions taken not according to a sensible, recorded procedure, but instead taken in unminuted secret meetings so that the official disclosable record can be kept squeaky clean, with no sign of ministerial doubt or dissent. Not even historians would be able to access a true record after thirty years. I thought we were trying to move away from that; and I hope the government will appeal. Surely it will.
Despite the Information Tribunal’s apparent rectitude the cycnic in me wonders whether they are not simply playing the game. Perhaps that is unfair, but the Tribunal’s initial comment seems to provide substantial means of exoneration of previous misdeeds, in that it refers to ‘confusion’, the conflict between the Green Book and actual practice etc.
The Cabinet Minutes will doubtless be very much an edited and anodyne description of the discussions. No one should believe that the official record will be very much more than a careful writing of history. It was ever thus. And all Ministers in Cabinet speak with one eye on Posterity.