Line to take - LTT132 - Public Interest in protecting collective Cabinet responsibility
- FOI/EIR: FOI, EIR
- Section/Regulation: s35, reg 12(4)(e)
- Issue: Public Interest in protecting collective Cabinet responsibility
- Source: Information Tribunal
- Details: Scotland Office (08 August 2008); Scotland Office (05 August 2008); O’Brien/ BERR (7 October 2008); Cabinet Office / Lamb (27 January 2009)
- Related Lines to Take: LTT127, LTT129, LTT130
- Related Documents: EA/2007/0070 (Scotland Office), EA/2007/0128 (Scotland Office), EA/2008/0011 (O’Brien); EA/2008/0024 & EA/2008/0029 (Lamb); Ministerial Code
- Contact: LA
- Date: 03/11/2008
- Policy Reference: LTT132
- © Copyright Information Commissioner's Office, re-used with permission
- Original source linked from here: LTT
Line to take
Preserving the convention of Collective Cabinet Responsibility allows the Government to be able to engage in free and frank debate in order to reach a collective position, and to present a united front after a decision has been made.
There is a public interest in allowing free and frank debate in order to agree a collective position, in that it serves to improve the quality of the final decision.
There is a public interest in the Government being able to present a united front, as this prevents valuable government time from being spent publicly debating and defending views that have only ever been individual views rather than Government positions, and in commenting on the meaning and implications of a divided Cabinet.
“Factors such as the context of the information, whether it deals with issues that are still “live”, the extent of public interest and debate in those issues, the specific views of different Ministers it reveals, the extent to which the Ministers are identified, whether those Ministers are still in office or in politics, as was well as the wider political context are all matters that are likely to have a bearing on the assessment of the public interest.” (Scotland Office v the Information Commissioner (EA/2007/0070)), although these factors should not be considered to be an exhaustive list.
The concept of Collective Cabinet responsibility will be most relevant to cases considered under section 35(1)(b), the exemption for “ministerial communications”. However, see also LTT127 for further discussion on the extent to which the convention of Collective Responsibility may span both s35(1)(a) and s35(1)(b). It may also be relevant in certain EIR Regulation 12(4)(e) cases (see also LTT104 — information caught by Regulation 12(4)(e)).
Collective Cabinet responsibility was described by the IT in Scotland Office v The Information Commissioner (EA/2007/0070) as “the long standing convention that Ministers are collectively accountable for the decisions of the Cabinet and are bound to promote that position to Parliament and the general public, regardless of their individual views. During the course of meetings of the Cabinet or of Cabinet Committees or through correspondence, Ministers may express divergent views, but once a decision is taken, the convention dictates that they must support it fully. When decisions are announced as Government policy, the fact that a particular Minister may have opposed it in Cabinet is not disclosed" (para 82).
Although not all Ministers are Cabinet members, all Ministers are bound by the ministerial code to promote Cabinet positions to Parliament and the general public. Therefore the convention of collective responsibility can extend beyond immediate members of the Cabinet to all Ministers.
Cabinet Office v the Information Commissioner & Lamb provides some useful background on the concept of collective Cabinet responsibility and its development through history at paragraphs 38 to 49
Tribunal comments on the importance of preserving the convention of collective Cabinet responsibility:
Scotland Office (EA1200710070)
The IT in the Scotland office case considered the convention in relation to s35(1)(b) and recognised its importance as follows “The Appellant has referred us to a number of texts explaining the convention and its history, and underlining its constitutional importance in government decision making and more broadly, its significance in our system of parliamentary democracy. We fully accept the importance of the convention, and we also accept that detriment can arise to the public interest from disclosure of information concerning the formulation of Government policy at cabinet level.” (para 83)
The Tribunal was clear, however, that the convention did not act to elevate section 35(1)(b) to the equivalent of an absolute exemption for information which engages collective cabinet responsibility (see also LTT42). It commented that “Even where Ministerial communication engages the collective responsibility of Ministers that does not itself mean that the public interest against disclosure (*) will inevitably be weighty. The maintenance of the convention of collective Cabinet responsibility is a public interest like any other, in the sense that the weight h be accorded to it must depend on the particular circumstances of the case. (para 86). It also made the point that not all information falling under section 35(1)(b) will even engage the convention of collective cabinet responsibility (see also LTT127 for further discussion on this point).
It did, however state that “We accept that where collective responsibility of Ministers is engaged, there will nearly always be a public interest in maintaining the exemption.”
The Tribunal also commented (para 88) that “as with formulation of government policy under section 35(1)(a), timing is likely to be of paramount importance. Where the Ministerial communication is in relation to an issue that was “live” when the request was made, the public interest in preserving a “safe space” for Ministers to have a full and open debate, and the public interest in the Government being able to come together successfully to determine what may, in reality, have been a contentious policy issue, may weigh the balance in favour of maintaining the exemption. However, that does not detract from the need to assess each case on its own circumstances.”
The Tribunal did not expand upon what it meant by a “live” issue, and this will always need to be considered in the context of the case. However, the Commissioner considers that in addition to ongoing policy making issues, this may also cover situations such as agreeing a government response to an unforeseen world event or deciding how to counter critical press coverage.
Scotland Office (EA/2007/0128)
In another case Scotland Office v The Information Commissioner (EA/2007/0128), the Tribunal again considered the convention in relation to the exemption at s35(1)(b). The Tribunal again recognised the importance of maintaining the convention, whilst still making it clear that “It is not possible to raise the exemption to a de facto absolute one simply because the information relates to, or is, ministerial communications” (para 78).
It further commented however that “We do see some force however in the argument advance by the Scotland Office that the factors in favour of maintaining the exemption for some types of information in this category will, almost always be strong and that “very cogent and compelling reasons for disclosure would need to be advanced before the balance tips in favour of disclosure in those situations. This is not to turn the public interest around, or to say that just because the exemption is engaged that is a factor weighing against disclosure, but recognises the weight that should be given to the public interest factors for maintaining the exemption.”
The Commissioner’s view on the nature of the public interest in maintaining the convention of collective Cabinet responsibility:
The Commissioner considers that the Tribunal comments above cover two separate, although related public interest arguments:
- the public interest in protecting the safe space required to engage in frank and candid debate and reach a collective position (As the Commissioner considers this to be a “safe space” argument it is discussed in the LTT129).
- the separate public interest in allowing the Cabinet to promote and defend an agreed position without revealing divergent individual views.
The Commissioner’s view is that regardless of the need for a “safe space” to reach a collective position (see LTT129), there is also a separate public interest in the Government being able to present a united front and not reveal divergent individual ministerial views. This is because not allowing this would potentially result in valuable government time being spent publicly debating views that have only ever been individual views, rather than government positions, and in commenting on the meaning and implications of a divided Cabinet.
Whilst it is acknowledged that increased accountability and transparency count in the public interest, it could also be argued that it would not be in the public interest for FOI disclosures to undermine confidence in the Government of the day to the extent that it is unable to devote sufficient attention to the process and business of governing. Whilst this is a debatable point (as some might argue that if confidence is undermined, forcing a general election, then this is just the proper operation of a democracy) the Commissioner’s view is that there is some public interest in not allowing FOI disclosures to result in a ‘paralysed’ Government.
The Commissioner considers that the existence of this public interest — together with the public interest in preserving a “safe space” in order to reach a collective position (see LTT129) - is recognised in the Tribunals’ comments above, that where collective Cabinet responsibility is engaged “there will nearly always be a public interest in maintaining the exemption” and “the factors in favour of maintaining the exemption for some types of information in this category will almost always be strong.”
Whilst recognising the above, as regards the balancing of the Public Interest Test, the Commissioners position remains as set out in LTT42, that there is no inherent public interest in maintaining the exemptions at section 35, nor any presumption against disclosure in such cases.
The Commissioner’s view on the balancing of the Public Interest Test
How much weight the public interest in maintaining the convention of collective Cabinet responsibility will carry in any individual case, will vary depending on the specific circumstances of the case and the public interest in disclosure.
Although, as acknowledged above, the convention of collective responsibility may extend beyond immediate members of the Cabinet, the Commissioner considers the Cabinet to be the hub of Government decision making and debate. Therefore the public interest in protecting the convention of collective responsibility is likely to be stronger in relation to information that reveals the workings of the Cabinet itself, than in relation to information further removed from the Cabinet.
The Commissioner would also comment that the public interest in maintaining the convention 0 collective Cabinet responsibility may diminish with changes to the Cabinet, Government restructures or the formation of a new Parliament (a new Parliament is formed following a general election) . This would be on the basis that there may be less potential harm (of the kind detailed above) from revealing that a Cabinet that no longer exists were in disagreement, than there might be in revealing that the current Cabinet has divergent views.
This view is supported by the Tribunal’s comments in the Scotland Office case EA/2007/0070 (para 87) that “Factors such as the context of the information, whether it deals with issues that are still “live”, the extent of public interest and debate in those issues, the specific views of different Ministers it reveals, the extent to which the Ministers are identified, whether those Ministers are still in office or in politics, was well as the wider political context are all matters that are likely to have a bearing on the assessment of the public interest.”
Case officers should always take these factors into account when considering the public interest in maintaining the convention of collective Cabinet responsibility, although this should not be considered to be an exhaustive list.
It may be useful to consider the impact of the election of a new Government in this context. Disclosure of information which relates to the policy promises included in the current Government’s manifesto may do more to undermine the convention of collective Cabinet responsibility then information relating to the policy commitments of previous Parliaments. This may apply even if there hasn’t been a change in the governing party, because each newly elected Government has a fresh mandate and a new manifesto for which it is accountable to the public. At this point it could be argued that the previous manifesto, although it may still retain some relevance, becomes somewhat historic. Case Officers should however, always consider the relevance of such changes in the circumstances of the case as the complexity of these issues does easily not lend itself to a ‘blanket’ approach.
Of course not all information that engages the convention of collective Cabinet responsibility will relate to manifesto promises. Governments also react to changing circumstances and world events and there may be issues which retain their sensitivity regardless of the factors above, and where the release of information would undermine the collective responsibility of the current Cabinet, even though the information related to the workings of a previous Cabinet. For example releasing information about the Iraq war might be seen to undermine the collective responsibility of the current Cabinet even though a different Cabinet was in existence when the relevant decisions were made. This would be because the same party and some of the same Ministers were involved, and because the earlier decisions continue to impact on current policy. Similarly there may be economic issues that retain their sensitivity and potential effect on the convention of collective Cabinet responsibility over more than one Parliament.
Again this should not be taken to mean that the convention of collective responsibility acts to elevate section 35 to the equivalent of an absolute exemption in such sensitive cases. Although there may be a higher public interest in protecting the convention of collective cabinet responsibility in such circumstances there may equally be a heightened public interest in disclosure which would need to be taken into account.
In O’Brien v the Information Commissioner and BERR, Mr Hilton, a witness for the public authority conceded in cross-examination that “the need for confidentiality would inevitably depend on all the facts including whether relevant ministers had left the Government, whether there had been a change in administration or in policy or the wider political context, the gravity of the issues on which any divisions had arisen and the time that had passed before the information in question was requested”. (Para 35)
It should also be remembered that if what actually makes the information in question sensitive is not so much the potential effect on collective responsibility but some other issue that is protected by / inherent in another exemption, then it may be the other exemption that is most relevant. For example information where the public interest test under section 35 would favour disclosure might be legitimately withheld under section 27, because of the public interest in protecting international relations. In these circumstances the Commissioner would encourage case officers to consider the most relevant exemption and should be sceptical of section 35 being used an all-encompassing central Government exemption.
(*) As per LTTXX [sic] the ICO position is that it is the public interest in maintaining the exemption in question, not the public interest against disclosure that should be considered in the Public Interest Test.