Editorial Tuesday 15 May 2012: Imprisoning information

Patrick McGoohan's 'The Prisoner' was one of the classics of British narcissist / paranoid television.

In the opening credits, the titular Prisoner 'Number Six' had a dialogue with 'Number Two' (in charge of The Village whence the Prisoner sought in vain to escape).

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The dialogue went (in part)
6: "What do you want?"
2: "We want information. Information. Information!"
6: "You won't get it."
2: "By hook or by crook, we will!"

Today, the Information Commissioner published its response to the Cabinet decision to veto its successful co-appeal to the Information Tribunal over publishing the NHS reform risk register with former shadow health secretary John Healey.

It is a fascinating document, in many ways.

The Information Commissioner makes it clear that, following receipt of a letter from SOS Lansley notifying of his intending to use the (legally-permitted) veto:
• No indication had been given as to why the Secretary of State was considering exercising the veto in this case.
• An assurance had been given to Parliament, during passage of the Freedom of Information Bill, that the veto would only be used in exceptional circumstances.
• No exceptional circumstances had been identified in the Secretary of State’s letter.
• The Commissioner’s view remained that there were specific aspects of the circumstances of this case that swayed the balance of public interests towards disclosure.
• The fact that the Transition Risk Register related to a major piece of legislation with far-reaching consequences for the entire nation was a very significant public interest in favour of disclosure.
• That this public interest in disclosure could not be met by other sources of information in the public domain.

That is pretty clear.

The document also points out that "whilst the Tribunal noted Lord O’Donnell’s own views of the likely chilling effect, it found that there was no actual evidence of such an effect. The Tribunal noted that independent research carried out by the Constitution Unit at the University College London had concluded that there was little evidence of disclosure under FOIA leading to a chilling effect. It also noted that there was no evidence of a chilling effect arising from a previous decision of the Commissioner requiring the Office of Government Commerce to disclose Gateway Reviews relating to the introduction of identity cards".

Ouch. That was a most effective kick in the policy nuts.

The point is reinforced as the document continues, "the Commissioner does not accept that his Decision Notice, or the Tribunal’s decision, set any sort of precedent for the disclosure of risk registers generally. He recognises the importance of considering each request for information on a case-by-case basis.

"He accepts that there will be cases in which it is entirely proper to refuse to disclose a risk register under FOIA. He also notes that other risk registers, including for example the risk register relating to the proposed expansion of Heathrow Airport, and those prepared by the National Institute for Health and the Clinical Excellence and the Care Quality Commission, have been disclosed in the past without any evidence that disclosure has caused the sort of damage to good government identified by the Secretary of State".

Basic competence
The document also notes Mr Lansley's view that "disclosure of the Transition Risk Register would give rise to sensationalised reporting and debate in light of its form and content. However, the Tribunal did not accept the Department’s evidence to this effect, noting that the Transition Risk Register simply 'identified the sort of risks one would expect to see in such a register from a competent Department'."

It goes on to outline the three given 'exceptional circumstances' offered by the existing legislation and Statement of Policy for Cabinet use of the veto:
(a) Release of the information would damage Cabinet Government; and/or
(b) It would damage the constitutional doctrine of collective responsibility; and
(c) The public interest in release, taking account as appropriate of information in the public domain, is outweighed by the public interest in good Cabinet Government and/or the maintenance of collective responsibility.

The document states simply, "The Commissioner notes that none of the criteria for “exceptional cases” in the Statement of Policy are met in the present case. Furthermore, the Commissioner does not consider that sufficient reasons have been given as to why this case is considered to be exceptional, particularly in light of the Tribunal’s decision dismissing
the Department’s appeal.

"The Commissioner notes that much of the argument advanced as to why the case is considered to be exceptional merely repeats the arguments previously made to
Commissioner and the Tribunal and which were in part dismissed by the Tribunal".

The document's conclusion hammers the point home thus: "Laying this report is an indication of the Commissioner’s concern to ensure that the exercise of the veto does not go unnoticed by Parliament and, it is hoped, will serve to underline the Commissioner’s view that the exercise of the ministerial veto in any future case should be genuinely exceptional.

"The previous three occasions on which the veto has been exercised related to the disclosure of Cabinet material under FOIA. The Commissioner would wish to record his concern that the exercise of the veto in this case extends its use into other areas of the policy process. It 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.".

It goes on with a coded, but hard-hitting rejoinder to the Cabinet and to Mr Lansley that "The Commissioner’s Decision Notice and the Tribunal’s judgment addressed the provisions of the Act as they are, and not as they might be".

That is, in civil service-speak, pretty robust, but Mr Graham (who is clearly not looking for any honours in the immediate future) continues, "The arguments employed by the Department at the Tribunal and by the Secretary of State in explanation of the subsequent veto, both in the Statement of Reasons and in exchanges in the House of Commons around the Ministerial Statement, certainly use the language of ‘exceptional circumstances’ and ‘matter of principle’. But the arguments are deployed in support of what is in fact the direct opposite of the exceptional – a generally less qualified, and therefore more predictable, ‘safe space’. As such, the Government’s approach in this matter appears to have most to do
with how the law might be changed to apply differently in future. This question falls naturally to consideration by the Justice Committee who have been undertaking post-legislative scrutiny of the Act".

In other words, it ain't over yet.

At one level, there is an argument that since the Act is a fact, the continued debate over the risk register is a red herring.

Well, maybe. The Commissioner - who has, we must remember, actually read the document in question - notes (as quoted above) that it does not seem apt to be sensationalised, as Mr Lansley frets; and is simply a risk register such as one would expect from "a competent department".

Equally, the Information Commissioner makes the very fair point that the given reasons for the Cabinet veto do not fit the available categories for withholding release. There does indeed appear to be 'mission creep'.

Risk registers have been released previously, and the 'safe space' in Government must be presumed to still exist. The arguments that the scale and scope of the NHS reform programme were adequately outlined - in either Government party's manifesto, or indeed in the Coalition Agreement - are specious.

Whether the Justice Select Committee will take up cudgels on this, as Christopher Graham hints, remains to be seen. They do, interestingly, have a forthcoming final evidence session on just this topic - tomorrow morning at 9.30.