Freedom of Information Rules

The Campaign for Freedom of Information in Scotland has welcomed the Supreme Court’s ruling on the ministerial veto in Prince Charles case.

Today’s Supreme Court ruling means that ministers cannot veto decisions of the Tribunal that deals with UK FOI cases merely because they disagree with them.  The judgment followed the Attorney General’s attempt to block disclosure of Prince Charles’ correspondence with government departments. The Upper Tribunal had ordered disclosure after Guardian journalist Rob Evans had requested it. The correspondence will now have to be disclosed. 

The Supreme Court ruled by a majority of 5-2 that the veto had been unlawfully used in this case. But the implications go far beyond that. Three of the five Supreme Court judges who found against the government held that the veto can only be used if ministers can show that the facts or circumstances have changed substantially since the Tribunal’s decision. The other two of the five held that the veto could be used but only where there was the ‘clearest possible justification’ which did not exist in this case.
The Supreme Court also ruled that decisions under the Environmental Information Regulations cannot be vetoed at all, because the veto is not permitted by the underlying European legislation.

The Campaign had intervened in the case in support of disclosure.  Its director Maurice Frankel said:  “This is a critical decision which strengthens the FOI Act. It says the courts not ministers normally have the last word.  If the government disagrees with a ruling on good grounds it should appeal. The veto is not a trump card to be slipped out of a minister’s sleeve to block any embarrassing  disclosure.  Minister will now have to argue their case not impose it.”

The Prime Minister has suggested the government will amend the FOI Act to restore the veto to the role which Parliament originally intended.  But Mr Frankel said “Parliament never intended the veto to be used against the Tribunal or courts – that possibility was not mentioned at all let alone debated during the Bill’s passage. The veto was seen as available only in relation to the Information Commissioner’s decisions.”  

In his judgment today Lord Neuberger said  ministers   should normally be expected to appeal against the Commissioner’s decisions, not veto them.The Campaign pointed out that the veto had been used to block the release of the risk register produced during the English NHS reforms and disclosure of an assessment of the financial viability of the HS2 rail project noting that “both are cases  where the prevention of embarrassment to ministers would have been key considerations.”

The Campaign said the UK FOI Act was amended in 2010 to prevent the release of the monarch’s correspondence with a public authority or that of the next two in line to the throne. No future FOI request for Prince Charles’ correspondence will now succeed, despite today’s ruling, the Campaign said. 
However Mr Frankel pointed out that this change did not affect disclosure under the Environmental Information  Regulations which apply across UK, in various formats. “The government cannot amend these to strengthen the veto, because European law does not allow for a veto  at  all” he said.
The rules in Scotland are different as the Scottish Government declined to similarly amend the Freedom of Information (Scotland) Act 2002.

The Campaign has provided the following links: