Weapons of Mass Deference

The defining issue of the Tony Blair era is almost certainly the Iraq War, and I suspect that when most people think of him and his sidekick Alistair Campbell, it’s WMDs and dodgy dossiers that come to mind.  So when the First Tier Tribunal issued a decision recently on a journalist’s attempt to dig into the Blair government’s internal discussions, I was surprised to see that the subject matter was nothing to do with the war, but another subject which makes the pair unpopular: the EU. I was also surprised by the content of the decision, as it is one of the worst I have ever read.

A journalist made an FOI request to the Cabinet Office asking for correspondence in a short period in 2003 between Blair and Campbell, and between Blair and Gordon Brown, on the subject of whether there should be a referendum on the UK joining the Euro. In a world where we have exited the EU, this may seem redundant, but the request was made in April 2019, when the debate about the outcome of the Brexit vote was still very much alive, with Blair and Campbell very active participants in it. We should all be concerned that the glacial pace of the process can turn a refused request into a relic.

But that’s not the only problem here. It’s a complacent, lazy decision that shouldn’t be possible this far into FOI’s existence. One problem is the carelessness with which the decision is put together. Sentences trail off or are badly punctuated. The passage which introduces Sir Alexander Allan as a witness (later sycophantically described as “a public servant of great experience and the highest integrity”) includes the sentence “In this role, I am responsible for advising Ministers on how to comply with the Ministerial Code and investigating alleged breaches of the Code.” This is clearly Allan describing himself; the sentence must have been pasted from a document written by Allan and Judge Chris Hughes hasn’t bothered to change it to third person (or proof-read the words afterwards). Another obvious error is that paragraph 20 is repeated in its entirety in paragraph 27. These might be superficial problems, but they suggest that neither Hughes nor anyone else cared enough to check this legal decision properly. And it gets worse.

FOI decisions on internal government discussions often seem weirdly truncated. Every other part of the public sector has to use S36 to hide this kind of material, and the process is complicated. They have to demonstrate that disclosure will inhibit the free and frank exchange of advice or views, the qualified person (always a very senior officer of the public authority) must then be of the reasonable opinion that the exemption applies, and finally they have to put forward a public interest argument for withholding the information. Though he recanted its creation later, Blair’s FOI Act gives central government a huge advantage. S35 applies only to the formulation of government policy – it applies automatically to any internal policy discussion, and the only test is the public interest. This, therefore, is what the decision should be about. It isn’t.

Hughes shows little respect for basic FOI principles – he describes the twin notions of FOI being applicant and motive blind as ‘pieties’, preferring instead to argue that “the value of any request can best be seen in the context of the request, including understanding the reason why the requester believes the information is valuable”. I begin every FOI training course by saying that the worst thing you can do with an FOI request is to get hung up on who the applicant is and why they want the information. It’s far better to look at the information objectively and decide whether there’s a good reason not to give it out. He seems to think there’s something odd about the applicant specifically focussing on discussions between Blair and Brown or Campbell, rather than wanting to see material discussed with other officials or ministers. 

If I was to play Hughes’ game, I would say there are two good reasons to do this. First, it means that the request has a smaller scope, so the Cabinet Office have less excuse to refuse it on the grounds of cost, and second, the applicant is a journalist. The Blair / Brown psychodrama and the role of Campbell in government were dominant themes in the 2000s – if you were digging around that time period, wouldn’t you go for the juiciest material? I have no idea whether such communications existed, but I can’t imagine that there’s a ready market for stories about Blair’s conversations about the EU with Geoff Hoon.

But I don’t want to play that game and Hughes shouldn’t either. This decision should be a straight public interest balance between arguments in favour of disclosure and arguments against, so dragging the applicant’s motivation into it is a red herring. 

Great weight is placed on Allan’s evidence. His contention is that ministers would have expected that their deliberations would not be released until the old thirty (now twenty) year rule would come into force, and that early disclosure of the information, despite its age, would lead ministers to be less frank with one another, to record less data, and to conduct more meetings face to face. They would expect FOI to offer “significant protection” to their views, despite the fact that these particular ministers had just passed the FOI Act. They couldn’t possibly have expected that their deliberations would always be kept secret. Although there was a closed session where Allan commented on the specifics of the case, this is an essentially generic and old-fashioned argument that in effect would make S35 an absolute exemption. FOI exists then and now, and the ministers and mandarins have had long enough to evolve. Hughes describes ministerial secrecy as an “significant constitutional principle” that must be protected, but in the context of a government which had just changed that principle forever by passing an FOI Act with no absolute exemptions for internal discussions. Blair’s regrets on this are a matter of public record (it’s one of the many reasons I hate him) but it’s not as if he was unaware of the implications.

Hughes doesn’t seem interested in the public interest arguments in favour of disclosure. The decision argues that because there was a debate in Parliament in 2003, the public interest is already well served, dismissing the question of whether Blair and Campbell’s role in 2019 is consistent with their position in 2003. Bizarrely, Hughes goes on to suggest that what the applicant wants to know is “close to” being in the public domain. This is hard to understand – the decision is simultaneously suggesting that we pretty much know what the requested information is, but to disclose it would change the way government is conducted forever and for the worse.

I’m not normally one to defend the ICO, but Hughes’ dismissal of their position is outrageous. The ICO makes the case that the public have a right to expect that ministers will continue to do their jobs and maintain proper records despite possible disclosures. I wholeheartedly agree; this is what FOI demands. Clinging to the old world where we only find out what ministers think when they’re retired or dead is pre-FOI thinking.

But for Hughes this is an ‘Aunt Sally’; all it takes are the warm words of Allan to persuade him that disclosure would have a “tangible negative effect”. Allan is a career civil servant, a company man whose professional life has been as a government insider, including at the Cabinet Office itself. His defence of government secrecy should be scrutinised and tested in the context; if anything, it should be treated with scepticism. He is not an unbiased observer, but a member of the government team. To give his views so much weight and to dismiss the FOI regulator and basic concepts that support the legislation so casually is an abdication of responsibility. If it wasn’t for the fact that Hughes has been working on FOI cases for some years, I would wonder if he even understands what FOI is for.

First Tier Tribunal decisions are not binding, thankfully, so hopefully this poorly-argued and regressive decision won’t have a wide impact. But the Cabinet Office has fought a long and determined war against FOI and transparency, and it will be music to their ears. I can only hope that the next time their secretive culture is challenged, they don’t get such an uncritical hearing.