ICO: Use of the ministerial veto should be reserved for genuinely exceptional cases

The Information Commissioner, Christopher Graham, has in his recent report to Parliament, expressed his concern for the government’s use of its veto power in FOIA cases. The government has used its veto power on three previous occasions, all of which have related to the disclosure of Cabinet material under FOIA. The ICO points out that a recent case extends the use of the veto into other areas of the policy process, and ‘represents a departure from the position adopted in the Statement of Policy and therefore marks a significant step in the government’s approach to freedom of information.’

The ICO’s report stems from the case of the Ministerial veto against disclosure of the Department of Health’s Transition Risk Register. The Transition Risk Register relates to the coalition government’s proposals for modernising the NHS under the Health and Social Care Bill. The ICO’s decision was vetoed under section 53(2) FOIA on the basis that the disclosure would not be in the public interest.

The Commissioner said that the use of the veto should be considered by the Justice Committee’s current post-legislative scrutiny of the Act. Giving evidence to this committee on 16 May, Dominic Grieve QC MP, Attorney General, said that Cabinet minutes have been released in one case. “If we move to a blanketing exemption system, then of course that sort of opportunity would not arise.” The issues have to be looked at a case by case basis. There are strong arguments as to why Cabinet minutes should enjoy a high level of protection. The chilling effect of routinely publishing Cabinet minutes would be a real issue, he said.

The ICO’s report was published on 15 May 2012.