Line to take - LTT170 - Government Policy can be produced in many ways
- FOI/EIR: FOI, EIR
- Section/Regulation: s35(1)(a), reg 12(4)(c)
- Issue: Government Policy can be produced in many ways
- Source: Policy Team
- Details: n/a
- Related Lines to Take: LTT62
- Related Documents: Understanding the Formulation and Development of Government Policy in the Context of FOI — UCL Report
- Contact: RM
- Date: 24/02/2010
- Policy Reference LTT170
- © Copyright Information Commissioner's Office, re-used with permission
- Original source linked from here: LTT
Line to take
The following processes can all involve the formulation or development of government policy. This list is not exhaustive;
- White papers, bills and the legislative process
- Initiatives to amend existing policy
- Reaction to external events
- Decisions on implementation requiring political judgement
- Answering questions — what does the government think about x?
It remains difficult to define exactly what constitutes the formulation or development of government policy and decisions still need to be made on a case by case basis, however consideration of the following factors should assist case workers;
- The intention of the government to make changes in the real world is a strong indicator of policy making,
- The need for the political judgement of ministers when making the final decision as to the approach to be taken is indicative of policy making,
- The wider the consequences of the decision the more likely it is that the process will involve policy making,
- The greater the political sensitivity of the decision the more likely it is that the process will involve policy making.
This line is informed by the UCL report "Understanding the Formulation and Development of Government Policy in the Context of FOI". Chapter 3, ‘How is Policy Defined’, is of particular interest. The full report is available on the ICO website. Also a summary of the report can be accessed from the section 35 page of the Knowledge Base.
Defining government ‘policy’ is not easy. However it is useful to think about it as involving “... the process by which governments translate their political vision into programmes and action to deliver “outcomes”, desired changes in the real world”. (Modernising Government White Paper 1999, see UCL report para 3.4)
The UCL report has broadened our approach to, and understanding of, how government policy is created. The formulation and development of such policy can occur in a number of ways and through a range of activities as the government pursues its political objectives or responds to events. It not only refers to the process of turning manifesto pledges into legislation via the classic process of the production of White Papers, and the drafting of Bills, but can also occur when Ministers draft speeches, or when the government has to react to external events, such as the recent banking crisis.
The following are examples of the processes that can involve the formulation or development of policy. However the list is not exhaustive. The intention is simply to alert case officers of the potential for policy making to take place outside the classic process of producing a White Paper and turning this into legislation. Please note it is not the purpose of this line to identify stages of policy formulation or development at which the sensitivity of the information may wane.
1) White Paper — Legislation (UCL report paras 3.13 — 3.16)
The classic and most formal policy process involves the government setting out the overview of its approach to a major issue in a White Paper, i.e. what it wants to do. The White Paper may also include details of the practical measures required to achieve those aims, the “how to do it”. The publication of the White Paper usually marks the start of a consultation exercise after which draft legislation is produced in the form of a Bill which is then presented to Parliament. It can be argued that detailed measures on how to achieve the high level policy aims of the government, the ‘how to do it’ thinking, should be seen as the start of the implementation of that policy. However the Commissioner accepts that whilst the policy is still in the process of being turned into legislation the policy development is still ongoing. This can extend up to the Bill gaining Royal Assent and becoming legislation.
For example in DN case ref 245725, a request had been made to HM Treasury for information on a change in the tax liability for a certain category of people. The request was made in June 2008 and the policy was to be implemented by the Finance Act 2008 which only received Royal Assent in July 2008. The DN acknowledged that, although at a very late stage, the policy formulation was still ongoing. In this particular case it was possible to refer to Hansard for the record of the debates which established the policy issue which was the subject of the request was still being debated at the time the request was made.
It is important to remember however even where policy making process is still ongoing, this does not rule out the possibility that significant landmarks in that process have been passed and that the sensitivity of the information has started to wane, e.g. the publication of the White Paper.
2) One-off initiatives (UCL report paras 3.17—3.18)
Even once a policy has been decided and is being implemented, Ministers may wish to improve the effectiveness of that policy. This can be a difficult area in terms of FOI and the application of s35(1)(a). It may not always be clear whether such improvements are more to do with fine tuning the delivery of a policy or whether it amounts to actual policy development. This will have to be decided on the facts of each case. However the purpose of this line is simply to flag up the fact that Ministers can and do seek to improve existing policies and that this can amount to policy development.
The UCL report refers to this as being a “...continuous improvement approach, with existing policies and government interventions being continuously scrutinised for their effectiveness and amended and developed further.” This is very close to accepting the seamless web type arguments rejected by the Commissioner and the Tribunal. Whilst it may be true that Ministers and officials are continuously alert to the need or opportunity to improve an existing policy it will only be at the point that this leads to the active re-consideration of the policy that we would accept policy development is taking place.
3) Speeches. (UCL report para 3.19))
Speeches of cabinet ministers whether in the Commons or when addressing other audiences can be used to set out the government’s latest political thinking on an issue. As prime minister, Tony Blair often used speeches in this way. The drafting of those speeches therefore formed part of the policy formulation process and could form a significant workload for officials. The speech and information produced as part of the drafting process could therefore all fall within the exemption provided by 35(1)(a). However once the speech has been delivered this can have an impact on the need to preserve safe space.
4) Action Taken in response to external events (UCL report para 3.20)
1 to 3 above describe situations where the government takes the initiative in formulating or developing policies but the government also has to develop policies in response to external events, for example the foot and mouth outbreaks, or public concern over the regulation of doctors following the Harold Shipman case. There will be times where the need to react rapidly to a problem such as the recent banking crisis places time constraints on the policy making process. As a result the process is less likely to follow a measured or formal approach when compared with say the White Paper to legislation approach described above.
5) Operational Issues requiring political judgement. (UCL report para 3.21)
Even once a policy has been formulated, its implementation may raise issues that are politically sensitive and so require the decisions of ministers on how to proceed.
Difficult operational issues do not only arise from implementing policies. The example given in the UCL report relates to the Coal Health schemes. Following legal action by miners the courts required British Coal to establish schemes to compensate miners for the health problems caused by their work, the liability for the schemes later passed to the government. Although the broad parameters of the schemes were set out by the courts, the details are the subject of negotiation between the government and miners’ representatives and can be politically sensitive. MPs from mining areas regularly lobby the government, which also has to consider whether decisions taken in respect of these schemes could set precedents for the future. So although much of the negotiations can be seen as simply implementing the courts’ directions, other decisions require the political judgement of ministers and these can be considered to be policy formulation or development.
In such situations it is less clear whether the decision making process amounts to policy development and it is hard to set out firm guidance on what is and isn’t policy making. In practice each case will have to be judged on its merits. However the more wide ranging the consequences of the ministerial decision and the more politically sensitive the decision is, the more likely it is that we would accept it to be policy making.
6) Answering questions - What does the govt think about X? (UCL report para 3.22)
Ministers can face questions or receive correspondence from journalists or the public seeking their views on any topic under the sun. As the UCL report identifies, some questions may be quite trivial but others will relate to existing government policy and still others may raise new issues or demonstrate a ground swell of opinion on an issue which triggers policy development. Clearly though we have to be careful not to simply accept every response by a Minister to a question to be an act of policy formulation or development. The point is we need to be aware of the possibility that it could be.
In case ref 83726 a request had been made to the government for information relating to its rebuttal of claims in the Lancet that civilian deaths in Iraq were far higher than previously thought. The DN rejected the government’s application of s35(1)(a) in respect of some of the disputed information i.e. that relating to the Foreign Secretary’s comments to the media and the Prime Minister’s statements in parliament given as immediate responses to the Lancet article. At para 62 the DN states that:
- "…the Commissioner does not accept that this decision making process [i.e. how to respond] is one which constitutes policy formulation or development. Rather this process is simply the Government’s consideration of, and reaction to, a particular press article. Simply because this information reflects decision making within government departments, this does not mean that it must relate to government policy making. If the Commissioner were to accept that such information fell within the scope of section 35(1)(a) then a consequence of this approach would be that every time the government prepared and reacted to some negative (or indeed positive) comment in the media then such a process would constitute the formulation or development of government policy...”
However other elements of the disputed information related to, and debated, the steps that were needed to ensure that the government’s own estimates of civilian casualties were in fact accurate and capable of properly informing diplomatic and military strategies. Although a fine call, this information was found to relate to government policy and so was exempt under s35(1)(a).
In another, currently ongoing, case, ref 2209070, the request was for all information on the government’s approach to the use corporal punishment over a specified period. By way of background, the use of corporal punishment is illegal in schools, however it came to light that it was still used in a particular establishment and it became apparent that there was a potential loophole in the legislation in that it did not cover situations where only a very small number of pupils were being taught or where children were being taught at home. Part of the disputed information related to an internal debate on how to respond to a query from a group representing home learners. It has not yet been established whether it was this query that highlighted the potential loophole or not. However it is clear that once the loophole was identified the government considered whether it was appropriate to take steps to close it, including amending the Education & Skills Bill that was being drafted at the time. This case illustrates how responding to a query can relate to government development because of the potential for the query itself to trigger a policy review or because the query relates to a policy already under review.
Whether a response to a query involves the formulation or development of government policy may well involve difficult judgement calls. Many responses can be characterised as PR exercises or simply the provision of information. Such responses will not in themselves involve the formulation or development of policy. However where responding to the query triggers a change in approach to an issue, either by identifying a concern that needs to be responded to or requiring a re-examination of an existing policy then the thinking process involved in responding may constitute the formulation and development of government policy.
So what can we take from all this?
We can’t hide from the fact that it’s difficult to provide a tight definition of what constitutes the formulation or development govt policy. Policy making may follow more formal processes, e.g. the publication of white papers and the drafting of bills etc and this will make it easier to recognise policy formulation. However policy making can also be unstructured, made on the hoof and even be a form of crisis management.
Therefore case officers will need to weigh the arguments presented by government departments as to why something should be accepted as relating to formulation or development of government policy on a case by case basis. The need for the political judgement of ministers when making the final decisions on the approach to be adopted is a strong indicator that the matter under consideration is a policy issue. The wider the consequences of the decisions taken and the greater its political sensitivity may also indicate that the matter under consideration is a policy issue. However not all political thinking will amount to the formulation or development of government policy as demonstrated by the example of the government’s response to queries on civilian casualties in Iraq. The thinking and decision making must relate to policy which, in crude terms, is about the government deciding how to make changes in the real world.