Freedom of Information
House of Lords
Lord Alton of Liverpool (Crossbench)
To ask Her Majesty's Government, further to the Written Answer by Baroness Wilcox on 1 November 2011 (WA 251), on what basis information relating to internal discussion and advice is not disclosed; when such a policy was first instigated and on what authority; what consideration they have given to the provisions of the Freedom of Information Act 2000 in deciding the policy; and what is their definition of "internal discussion and advice".
Baroness Wilcox (Conservative)
First, I would like to offer my apologies to the noble Lord for not making the reasons clear in my previous Answer to him on this issue. I will now answer as fully as I can to explain the reasons why such information is not normally disclosed.
The decision not to disclose information, whether in full or in part, which is requested in a Parliamentary Question, is in accordance with Minister's obligations to Parliament, which are set out in the Ministerial Code. The relevant extract from the code states: "Ministers should be as open as possible with Parliament and the public, refusing to provide information only when disclosure would not be in the public interest".
The Ministerial Code also states that, "Collective responsibility requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. This in turn requires that the privacy of opinions expressed in Cabinet and Ministerial Committees, including in correspondence, should be maintained".
Guidance concerning access to government information (including that issued by the Cabinet Office, the Ministry of Justice and the Information Commissioner's Office) states that ministerial communications in general and proceedings of the Cabinet and its committees in particular are explicitly identified as deserving of protection from disclosure, subject to the operation of the public interest test.
Cabinet government, and the confidential nature of Cabinet proceedings, are long-standing and fundamental conventions of the United Kingdom's constitution. Protecting collective responsibility is in the public interest as it allows for the maintenance of space to formulate, develop and refine policy. This space also allows for all options to be considered.
If Ministers thought that their policy discussions in Cabinet, with colleagues or with officials, would be revealed publicly, the nature of those discussions would be very different. It might deter Ministers and officials from raising radical or controversial options and having free and frank discussions about all available possibilities in relation to a given policy or idea. This would have a detrimental effect on both the process of collective government and the quality of the decisions made at the highest level, undermining good government.
If policy disagreements within government were to be revealed, the Government would be unable convincingly to put forward a united front and properly accept collective responsibility for their decisions.
Inappropriate disclosure has the potential not only to limit discussion of policy between Ministers, but may also distort public perceptions of the advice provided by officials. The prospect of early disclosure could affect the impartiality of advice provided by leading to less candid and robust discussions and provision of advice about policy. Ultimately, the quality of government policy-making could be undermined.
Many of the public interest considerations outlined here were deemed by the High Court to be at the heart of public interest considerations surrounding this class of information. It found that cases in which it will, "not be appropriate to give any weight to [such] considerations will, if they exist at all, be few and far between".
The Government have considered the provisions of the Freedom of Information Act 2000 in accordance with Cabinet Office guidance on answering PQs, which states that:
"If [government departments] conclude that material information must be withheld and the PQ cannot be fully answered as a result' the answer should make this clear and should explain in terms similar to those in the Freedom of Information Act (without resorting to explicit reference to the Act itself or to section numbers) the reason for the refusal".
Lastly, the Government's definition of "internal discussion and advice" is in line with Freedom of Information guidance issued by the Ministry of Justice which covers Section 35 (Formulation of Government Policy) and I refer the noble Lord to this guidance, particularly the section that covers, "The general definition of 'Ministerial communications' and that which covers 'Cabinet proceedings'", which is available to view at http://www.justice.gov.uk/downloads/guidance/freedom-and-rights/foi-exemption-s35.pdf.