The Mysterious Veto Returns

FOIMan comments on the latest application of the Section 53 veto.

Last year, Lord Judge, the Lord Chief Justice, said the following of the ministerial veto which is set out at section 53 of the Freedom of Information Act:

“The possibility that a minister of the crown may lawfully override the decision of a superior court of record involves what appears to be a constitutional aberration. ” (The Guardian, 9 July 2013)

Nonetheless, The Guardian, whose attempts to overrule the use of the veto in relation to Prince Charles’ letters to ministers had led to this comment, failed in their attempt to have the veto overturned. And now the veto has been applied again, this time by the Transport Secretary, Patrick McLoughlin, to prevent access to a report about HS2.

What strikes me first of all in this case is that the Cabinet Office (who originally received and dealt with the request) haven’t even troubled those “superior court[s]”. It looks as though the veto has been applied before the case has even been considered by any kind of Tribunal. So no court – just the Information Commissioner – has been overruled in this case.

The Government has published its reasons for applying the veto. It disagrees with the Information Commissioner on two significant points:

• it doesn’t agree that the report is “environmental information”, and therefore that the request should be handled under the Environmental Information Regulations (which place an explicit obligation on public authorities to apply a presumption of disclosure when considering whether or not to disclose information)
• it doesn’t agree that the public interest is in favour of disclosure.

The Information Commissioner’s fundamental argument in this case is that this report relates to an earlier decision, already announced to Parliament. Whilst HS2 work is obviously still ongoing, this work is the result of the findings of the report – the phase of work that the report belonged to finished when the HS2 proposals were announced. The timing of the request – 7 months after the announcement – is therefore a major argument in favour of disclosure.

This argument will be familiar to long-term FOI watchers, as it was a similar point in dispute when the Government opposed the disclosure of the NHS risk registers a couple of years ago. On that occasion, they also applied the veto, but after hearing the view of the First Tier Tribunal.

This may explain why Mr McLoughlin and his Cabinet colleagues have chosen to go straight for the veto this time. But it is sad that the Government appears to have decided that instead of testing their arguments in court, it is better to wield the veto. If this becomes standard practice, then FOI and the law are the weaker for it.