An away win for freedom of information

28 Jan 09 | Uncategorized

This is a guest post by Chris Ames

Yesterday’s ruling that pre-Iraq war cabinet minutes must be released is a vindication for Labour’s Freedom of Information (FOI) Act, although whether the government will see it that way is another matter. It shows that the most sensitive and controversial discussions at the heart of government are potentially open to public scrutiny – a lot earlier than many ministers may find comfortable.

It’s a momentous decision from the Information Tribunal that reflects the even more momentous decision — cabinet approval for the war — that lies at its heart. In this case we can celebrate an advance for transparency without worrying that anything too catastrophic will result.

The ruling makes clear that the FOI Act has fundamentally shifted the balance between government secrecy and transparency. Sitting through most of the tribunal’s hearing of the case in November, it struck me how much the Cabinet Office had failed to grasp this. Their counsel, Jonathan Swift QC, repeatedly argued as if cabinet confidentiality and collective cabinet responsibility were so fundamental to the workings of government that they could never be challenged by FOI.

Essentially, the information commissioner, whose decision was being challenged at the tribunal, won the case by pointing out that the exemptions under the Act relied on by the government were not absolute, but ‘qualified’, that the public interest in disclosure could triumph.

So any comfort zone that politicians thought they had no longer exists, and ministers will probably change the way they talk behind the scenes. The possibility of disclosure in the not too distant future, which already existed, is now crystal clear.

But a decision that is justified as ‘exceptional’ clearly doesn’t mean that absolutely everything politicians say will now be disclosed.

Ministers will be relieved that it leaves them free to mislead the public about what they really think, as the doctrine of collective cabinet responsibility requires. As the commissioner put it, disclosure of these minutes will cause little damage because ‘no member of the Cabinet will be placed in the embarrassing position of being seen to have opposed in private a decision that he or she subsequently supported in public’.

The tribunal has again shown that it is swayed by claims, citing Section 27 of the Act, that some things should be concealed for fear of damaging international relations. It has allowed redactions to be made from the minutes on these grounds. So if, as has been alleged, Gordon Brown and Jack Straw were rude about alleged French intransigence over attempts to get a new UN resolution, their blushes will be spared.

The decision is also a triumph for the man who requested the minutes, who, I understand, is an ordinary citizen rather than a journalist. He has shown that FOI opens up possibilities that the rest of us never imagined.

So it goes down as an away win, albeit a close run thing. Perhaps, reflecting the split in the panel that made the decision, I would score it two to one. But it’s a significant advance for the cause of transparency all the same.