For the first time since the Freedom of Information Act (the ''Act'') came into force in 2005, Government ministers have taken the decision to use a ministerial right to veto a public interest ruling made by the Information Tribunal.
Instead of opting to appeal the decision of the Tribunal in the High Court (and possibly lose again), Justice Secretary Jack Straw, with the approval of the Cabinet, decided to use the power to overrule a decision made by the Information Tribunal which had ordered the release of minutes of cabinet meetings which took place in the lead up to the Iraq war in 2003. Under normal circumstances minutes would not be released until 30 years after the meeting took place; however, the Information Commissioner had decided that there were 'exceptional circumstances' and that it was in the public interest that the information should be released now for public scrutiny. The Commissioner's decision was backed up by the Tribunal on appeal.
The 'right to veto' is provided for under Section 53 of the Act which sets out a procedure whereby a government minister can issue a certificate to the Information Commissioner, along with a Statement of Reasons, in order to prevent information being released at the order of the Information Commissioner or the Information Tribunal. However, before the Act came into force, the Information Commissioner issued a warning that this power should only be used in exceptional circumstances and with 'very good reason'. As the Commissioner pointed out, this right should be limited to exceptional circumstances as the whole point of Freedom of Information was to increase 'openness and transparency'.
With the prospect of a public inquiry into the Iraq war and deliberation over its legality, the decision to use this special procedure may be seen by some as an effort to hide what really went on at cabinet meetings where issues, such as the legality of the proposed military action, were discussed. However, Mr Straw, who argued that the damage that disclosure would cause to the government outweighed the public interest in release of the information, stressed that the reason for preventing publication was an effort to maintain 'aspects of our structure of democratic government' and ensure the exchange of free and frank ministerial discussions of controversial issues in the future, and not to prevent political embarrassment.
Whilst the Conservative Party has recognised the need to secure an environment where ministers can freely discuss controversial issues, the Scottish Nationalist and the Liberal Democratic Parties have been quick to view the use of the right to veto as a measure to cover up the Labour Government's 'embarrassing' foreign policy decisions.
The Information Commissioner had anticipated that Ministers would be 'slow to use the so-called veto' and whilst the Act has been in force for over four years, there are now concerns, especially from Freedom of Information Campaigners that, having used it once, Ministers will have set a precedent and will be more likely to use it again in the future to overrule decisions that have been made by the Tribunal or the Commissioner in the public interest. Perhaps in relation to current economic affairs?
The Commissioner has in the past, stressed that the right of veto was not to 'become common practice' and has made a commitment to uphold transparency. He will shortly be issuing his report on Mr Straw's controversial decision to Parliament.