Freedom of information: access denied by ministerial veto

Not since September 2012 when the Attorney General exercised powers under section 53(2) of the Freedom of Information Act 2000 (FOIA) blocking the release of correspondence between Prince Charles and seven government departments has there been a matter likely to attract attention to the use of the ministerial veto.

Exercise of the executive override under section 53 is rare but its use has increased over the last two years.  It has been used 6 times since 2009 in relation to cabinet discussions on the legal merits of going to war with Iraq, on devolution matters, on government plans to reform the NHS and, most recently, in relation to High Speed Two (HS2). 

On 30 January 2014 transport secretary Patrick McCloughlin used this veto power to override the Information Commissioner's decision that it is in the public interest to disclose a report prepared by the Major Projects Authority about the plan to develop HS2.

Section 53 of the FOIA allows a decision by the Information Commissioner that the public interest balance weighs in favour of disclosure to be overridden.  In justifying the use of this executive override power, the transport secretary took the view that the exceptional importance of the HS2 project; the extremely strong public interest in ensuring that the public expenditure for HS2 is properly and robustly overseen and controlled; the timeframe between the publication of the report and the request for information and the particular stage of policy development within the HS2 project meant that, in his view, the public interest balance weighed in favour of non-disclosure.

The ministerial veto is a powerful tool not to be used lightly.  The very existence of the FOIA is intended to encourage greater openness, transparency and accountability to enable scrutiny over the delivery of public services and provide greater access to official information.  It is a fine balance between determining where the public interest lies in whether to disclose or withhold information.  However, it is even more of a sensitive balancing act in deciding whether to use the veto power to provide a 'safe-haven' for discussions upon which policies and funding may be based against a determination by the Information Commission that such information should be disclosed.

It will be interesting to see whether this veto power will continue to be exercised more frequently or whether government will take heed in the knowledge that to do so may undermine the underlying purpose of the FOIA, the authority of the Information Commissioner and public confidence in government decision making.