Public Law for Everyone

It is reported in the Guardian today that:

An explosive transcript of one of Tony Blair’s final conversations with George Bush before the invasion of Iraq may be suppressed by the coalition government, Whitehall sources have confirmed.

How will the Government do this, given that the Information Tribunal has already ruled that the transcript should be released under the Freedom of Information Act 2000? Normally, when a court or tribunal rules against the government, that’s that: the rule of law requires that everyone – including, indeed especially, the government – must respect the judiciary’s decision on the matter. But the Freedom of Information Act – in section 53 – contains a “ministerial override” power, which allows the Government to refuse to release information even if it has been ordered to do so.

Take, for instance, the Bush-Blair transcript case. The Government argued that the Freedom of Information Act did not require the transcript to be released. It relied, in part, on section 27, which says:

Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice—
(a) relations between the United Kingdom and any other State,
(b) relations between the United Kingdom and any international organisation or international court.

As the Information Tribunal explained, this raises two essential questions:

(i) would disclosure of the information be likely to prejudice international relations;
(ii) if so, does the public interest in maintaining the exemption outweigh the public interest in disclosing it.

The Tribunal, following careful consideration of the matter, concluded that the public interest in releasing the information narrowly outweighed the public interest in keeping it serret. But in such circumstances it is, as explained above, open to the Government to refuse to disclose the information if it believes that it has “reasonable grounds” to disagree with the Tribunal.

In his memoirs, Tony Blair – whose government introduced the Freedom of Information Act – says (revealing an apparent inability to count):

Freedom of Information Act. Three harmless words. I look at those words as I write them, and feel like shaking my head ’til it drops off. You idiot. You naive, foolish, irresponsible nincompoop. There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it.

Like most politicians, then, Blair realised – too late – that freedom of information serves opposition parties better than governing ones. But the existence of the ministerial veto provides some comfort to the latter. Whether a “Freedom of Information Act” with a built-in power of government override is a contradiction in terms is, however, another matter.