“How many times has the Reducing Regulation Committee met since it was established?”
“ In May 2010 the current coalition government published a document entitled “the Coalition: our programme for government”
“17. ………………..He suggested that, against a background of transparency and engagement with the public, the number of times the RRC had met would not reveal anything significant and might well be misleading about the Government’s priorities on reducing regulation and/or ministerial engagement with the process. Dr Baldwin explained that Ministers and their advisers engaged with policy issues in many different ways, including correspondence and informal discussions, so that the number of formal meetings provided a potentially misleading impression of their commitment to reducing regulation. 18. Dr Baldwin feared that disclosure of the requested information would cause Ministers to focus on procedural issues, rather than the policy outcome. His context was the twin constitutional principles of, first ministerial accountability to Parliament for decision making and, secondly, the requirement for members of the government to support official policy, once adopted, even if the individual had argued against it during its development. The consequence, he said, was that Ministers needed to have confidence in the method and process adopted for policy development and in the secrecy of debate on the topic. Maintaining the confidence necessitated keeping secret both the detailed discussions and the timing and frequency of those discussions. 19. A further concern of Dr Baldwin was that, although the requested information might appear anodyne, its disclosure would cause the public to base its interpretation of ministers’ commitment to reducing regulation on the number of RRC meetings and to ignore the other elements of the decision-making process. This misleading impression would run counter to both the spirit and practice of democratic accountability underpinning government in the UK. Disclosure would also undermine ministerial accountability. If a Minister is to be accountable for a decision then he or she needs to have full control over the process for reaching the decisions. It would be counter-productive if informal rules were to be developed as to the number and frequency of meetings as this would undermine flexibility in determining the best way to reach a decision.”
“27. It follows from what we have said that we regard the Cabinet office’s case on the harm likely to result from disclosure to be weak and incapable of carrying significant weight in the public interest balancing test.”
“ 28. The Cabinet Office acknowledged that there was a public interest in improving public understanding of the development of government policy and the way Cabinet government operates more generally. However, it argued that disclosure of the withheld information would not contribute materially to public understanding, particularly in the light of the information that had already been made publicly available. The argument depended, to some extent, on the fear that the information would not be understood, which we have already dealt with. If it were properly understood, possibly assisted by being accompanied by an appropriate explanation of its context, it would add to the public information on the decision-making process on this issue. Without the withheld information the process described in “Reducing Regulation Made Simple” might be described as rather formulaic and theoretical. But when information is provided about the number of meetings, the process may be seen by the public as having practical application. The information may not be as informative in that respect as, for example, the number of opinions submitted to the RRC by the RPC (which has been put into the public domain) but it does have some value, in our view.”
“29. In light of our analysis of the factors for and against disclosure, we have concluded that the public interest in maintaining the exemption is so weak that it does not equal, let alone outweigh, the, admittedly light, public interest in disclosure.”
“21. General Approach The Information Commissioner placed weight on the fact that the exemption relied upon is a class-based one. It arises if, as is conceded on this appeal, the information “relates to” policy development or Ministerial communications. Its engagement does not depend on any particular prejudice likely to arise from the disclosure sought. It was argued that the starting point for the public interest balancing test under FOIA section 2(2)(b) was therefore that both sides of the scales are to be treated as empty at the start – there is no question of the mere fact of engagement contributing any inherent weight in favour of maintaining the exemption. If, therefore, a public authority is unable to identify any harmful consequence resulting from disclosure then disclosure should be ordered because, even if there were no public interest in disclosure, the empty pan on the side of the scale in favour of maintaining the exemption would not “outweigh” the equally empty scale on the other side. The Information Commissioner relied in this respect on the judgment of Stanley Burnton J in OGC v Information Commissioner[2008] EWHC 774 (Admin) approving the decision of a differently constituted panel of this Tribunal in The Department for Education and Skills v Information Commissioner and the Evening Standard , Appeal No EA/2006/0006, BAILII: [2007] UKIT EA_2006_0006 . The point was not challenged by the Cabinet Office and we believe that it represents the correct approach to adopt.”
“ 76. [Counsel for OGC] submitted that if information is within section 35, there is necessarily a public interest in maintaining the exemption, i.e. in non-disclosure. [Counsel for the Commissioner] disagreed: he submitted that the effect of section 35 is to require the public authority in question (in the first place) to consider whether there is a public interest in its not being disclosed, and only if it concludes that there is such does the public interest test required by section 2 come into play. 78. Having considered the effect of section 2(2)(b), I think that this issue under section 35 is always likely to be arid. Once it has been decided that information is subject to section 35, if the information is not already in the public domain the authority will have to weigh up the public interest in disclosure against the public interest in maintaining the exemption. If it is unable to identify a significant public interest in maintaining the exemption, application of the public interest test in section 2(2)(b) will lead to disclosure. If it is able to identify that public interest, and it is substantial, it will consider the public interest in disclosure and decide whether the former outweighs the latter. 79. Be that as it may, if it is interpreted literally I do not think that section 35 creates a presumption of a public interest in non-disclosure. It is true that section 2 refers to “the public interest in maintaining the exemption”, which suggests that there is a public interest in retaining the confidentiality of all information within the scope of the exemption. However, section 35 is in very wide terms, and interpreted literally it covers information that cannot possibly be confidential. For example, a report of the Law Commission being considered by the Government with a view to deciding whether to implement its proposals would be or include information relating to “the formulation or development of government policy”, yet there could be no public interest in its non-disclosure. It would therefore be unreasonable to attribute to Parliament an intention to create a presumption of a public interest against disclosure. I therefore agree with the view expressed by the Information Tribunal in DFES v IC (EA/2006/0006, BAILII: [2007] UKIT EA_2006_0006 ) at paras 60 to 63. I reject the ground of appeal at para. 20(c) above.”
“The Appellant’s position, however, is that different considerations arise in relation to section 35(1)(b). It says that disclosure of Ministerial communications risks undermining the convention of collective Cabinet responsibility and that this principle is of such great constitutional importance that Ministerial communications should not be disclosed “unless a compelling public interest in disclosure is found to exist.”
“82. We note that collective Cabinet responsibility is 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. 83. 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. 84. However, the Appellant’s submissions and evidence has, at times, come close to suggesting that the threshold to be met before such information can be disclosed should be so high as to amount, almost, to an absolute exemption. There is nothing in the wording of section 35, or in the case law, to support such an interpretation. 85. To the extent that the Appellant is suggesting that because of the importance of the convention, there is some form of presumption against disclosure of such information implicit in that exemption, or that the public interest in maintaining the exemption under section 35(1)(b) is inherently weighty, we must disagree. The notion that there is a public interest against disclosure inherent in section 35(1)(a) because of the status of any such information, was rejected in both the DFES and DWP cases. It was also rejected by the High Court in OGC (which we note was not limited to section 35(1)(a)), and we see no justification for a different finding in relation to section 35(1)(b). Furthermore, not all information coming within the scope of section 35(1)(b) will bring the convention of collective Cabinet responsibility into play. Some communication may be completely anodyne or may deal with process rather than policy issues. Communications may also be purely for information purposes, such as when reports are circulated. The very fact that certain information constitutes Ministerial communication does not, therefore, mean that there is a public interest in non-disclosure, and indeed we note that the Appellant has itself taken the view that certain Ministerial communication (for example, document (3)) is not exempt (see paragraph 22 above)). 86. Even where Ministerial communication engages the collective responsibility of Ministers (where, for example, it reveals actual deliberations and exchanges of views), that itself does not 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 to be accorded to it must depend on the particular circumstances of the case. This is by no means to undervalue the importance of the convention or the consequences that could flow from disclosure, nor to ignore the public interest in maintaining the confidentiality of communications that may result in a government decision or policy. We accept that where collective responsibility of Ministers is engaged, there will nearly always be a public interest in maintaining the exemption. However, the Tribunal is required, by the wording of section 2(2)(b), to consider the information in issue in the context of all the circumstances, to accord the different factors the weight that is appropriate in the circumstances of that particular case, and then to see where the public interest balance lies. 87. Where Ministerial communication does engage the convention of collective responsibility, it is necessary, in particular, to assess whether and to what extent, the collective responsibility of Ministers would be undermined by disclosure. Factors such as the content 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 well as the wider political context, are all matters that are likely to have bearing on the assessment of the public interest balance. 88. Also, 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.”
“ (i) By failing to conclude that Parliament intended real weight should continue to be afforded to this aspect of the law officers’ convention. (ii) By failing to conclude that the general considerations of good government underlining the history and nature of the convention were capable of affording weight to the interest in maintaining an exemption even in the absence of particular damage.”
“38. Although obiter to the decision in the case, I give substantial weight to the reasoning of an experienced judge on this statute. However, the context of the decision in the [ OGC case ] and the present is very different. The statutory exemption relating to the formation of government policy appears to have been so wide that any reliance on the words of the statute as an indication as to the weight to be attached in a particular case was likely to have little or no value. 39. By contrast, the ground of exemption here relied upon is very specific. Parliament has identified as exempt the issue as to whether or not the law officers have given their advice. As the tribunal itself accurately noted ….., this was statutory language intending to reflect the substance of the law officers’ convention itself, a long-standing rule adopted by the executive for the promotion of good government. A consideration adopted by the draftsman as a ground for exemption without having to prove specific prejudice naturally fits into a regime where there is an assumption of a good reason against disclosure. The strength of the assumption and the weight to be attached to it in the light of the strength of competing considerations fall for determination by the public authority in the first instance and the Information Commissioner and the tribunal thereafter. 40. Closely related to this question, I consider there is substance in the Treasury’s complaint that the tribunal erred in concluding that the convention and the code had now been somehow displaced by FOIA. In my judgment the operation of FOIA with its concomitant public interest in disclosure in the interests of transparency fell to be applied against the structure of the various classes of exemption set out elsewhere in the statute. …..” ………………………………………………………………………………… 43. ….If Parliament had intended material of this kind to only enter the process of weighing the strength of rival public interests on proof of prejudice, it would have said so. It expressly did not. Moreover, a number of decisions of judicial bodies applying the FOIA have recognised precisely the weight to be attached to general considerations.”
“49. …………….I acknowledge that legal professional privilege is a statutorily discrete topic where a long-standing and very high public interest in public confidentiality is reflected. The observations of Wyn Williams J cannot therefore be transported across to apply to all classes of section 35 claims without more. …….. 51. In any event, given the confined nature of the law officers’ convention reflected in section 35(1)(c) of FOIA, I consider that the observations of Wyn Williams J. ….. have general supportive resonance in the present. The statute assumes that the case for exemption is a substantial one. All this is subject to the act of weighing the comparative public interests in the case, which is certainly fact-specific, and considering whether either presumptions or general considerations will necessarily determine the outcome.”
“ 145. [Counsel for the FCO] argues that Blake J’s reasoning applies, by analogy, to s.35(1)(b) and (d). As Blake J said, where the ground of exemption is very specific, and no prejudice is required to be proved, it “naturally fits into a regime where there is an assumption of a good reason against disclosure.” [Counsel] continues that the s.35(1)(b) exemption for Ministerial communications is very specific, unlike the broader s.35(1)(a) exemption. So too is the exemption in respect of the operation of any Ministerial private office. The Tribunal should, she argues, acknowledge the strength of the general public interest in enabling Ministers to communicate confidentially with each other and to operate their private offices on a confidential basis. 146. We can agree with the latter proposition but should we elevate ss. 35(1)(b) and (d) to having the same inherent weight in favour of maintaining the exemptions as that of s.35(1)(c) which reflects a long standing Convention? We consider Blake J was referring to the combination of specificity and convention as establishing a strong weight in favour of maintaining the Law Officer exemption and both of these factors are not present together for subsections (b) and (d).
“ 58 While the general guidance in those decisions is plainly helpful here, I regard both those cases as similar special cases where the courts respected and upheld the considerable importance of different forms of legal professional privilege – the right of a lawyer and client to deal with advice about problems without any fear that others may become privy to those discussions. Further, both parties to legal communications are entitled to and are protected by the privilege, the lawyer and the client, and they are protected from the courts as well as others without the assistance of FOIA. It is also, in my view, difficult to imagine anything other than the rarest case where legal professional privilege should be waived in favour of public disclosure without the consent of the two parties to it. As the drafting of FOIA reflects, those are specific concerns with specific justifications. At the same time there are other ways for third parties to challenge any action taken on legal advice that is seen as having adverse consequences, including in the case of actions of government the process of judicial review. 59 While I have no hesitation in agreeing with the views expressed in these cases about those exemptions, I do not consider that it follows that the same approach is to be followed in the wider exemptions in issue in this case not least because of both the specific importance of legal privilege and the point about other remedies. These were matters considered by the First-tier Tribunal in [the APPGER case ]. This was the case concerning requests by APPGER for information about rendition involving the United Kingdom authorities. Most of the appeals before the First-tier Tribunal were dismissed. There were plainly security issues involved in that case involving section 23 of FOIA which do not arise here, and that part of the decision need not be referred to further.”
“61 Mr Cornwell put a parallel argument to that to me in this case, arguing that while the basis of the exemption under section 35(1)(b) was less weighty than that applying under section 35(1)(c) it was of more weight than that under section 35(1)(a). Mr Hopkins reminded me that my task was to ensure that the Tribunal had considered these arguments about weight and taken them into account in balancing interests. None of the exemptions in issue were absolute exemptions so a balance taking into account the specific facts was required in each case. 62 I agree with Mr Hopkins and resist the temptation to put into the jurisprudence any sort of sliding scale of relative weights of the factors behind one of the exemptions in FOIA as compared with others, even in the context of those in section 35(1). I agree that specificity is important but, as the tribunal in the APPGER case itself accepted, there were external factors in operation with regard to both section 35(1)(c) and section 42, both of which are exemptions confined to two aspects of the lawyer-client relationship. The exemption in section 35(1)(d) is not in issue here so I say nothing further about it. The exemption in section 35(1)(b) is focussed but covers a variety of widely different situations from those where discussion is about wide government policy decisions and others where a task is given, and given only, to a single minister and where it is at least arguable that there should be no ministerial communications outside the private office of the minister charged with the task. That being so, I do not consider that it can be said that there is “a” weight to be attached to the public interest favouring maintaining the exemption under section 35(1)(b) as a matter of law. Similarly, I see no basis for establishing as a matter of law – which must be as an interpretation of the relevant language in FOIA – that “a” weight applies to the maintenance of the exemption for Cabinet and Ministerial committee minutes or other information.”
“27. The proper application of these exemptions depends upon the nature of the connection intended by the use of the statutory phrase ‘relates to’. The Department referred us to the discussion of this phrase in the context of FOIA s23 by a First-tier Tribunal (of which Mr Randall was a member) in [the APPGER case] at [62], [64]-[65], [67]-[68]. 28. The phrase ‘relates to’, read literally, is capable of indicating a very remote relationship. But in s35, as in s23, the function of the phrase ‘relates to ...’ is to demarcate the boundary of a FOIA exemption. It is clear, therefore, that it should not be read with uncritical literalism as extending to the furthest stretch of its indeterminacy, but instead must be read in a more limited sense so as to provide an intelligible boundary, suitable to the statutory context. 29. In APPGER [2012] at [68] the First-tier Tribunal decided that in s23 the phrase ‘relates to’ was directed to the contents of the information – what the information was about; a less direct relationship would not qualify. While s35 differs from s23, we consider that this conclusion is equally applicable to s35. A merely incidental connection between the information and a matter specified in a sub-paragraph of s35(1) would not bring the exemption into play; it is the content of the information that must relate to the matter specified in the sub-paragraph.
“33. .....section 35(1)(b) has inherent weight because there are good reasons why information relating to Ministerial communications should not generally be disclosable. The disclosure of such information is liable to offend against the principle of Cabinet collective responsibility, which is also a longstanding convention enshrined in the Ministerial Code. 34. In particular, there are two reasons why information as to the number of meetings held by a Cabinet committee or sub-committee should not generally be disclosed, in the absence of some specific and countervailing interest. 35. First, such information allows the public to identify the internal process through which a decision was made and the level of committee by which a decision is taken. This is a direct contravention of §2.3 of the Ministerial Code on cabinet collective responsibility (“ The internal process through which a decision has been made, or the level of Committee by which it was taken should not be disclosed”) . If the number of such meetings were disclosable, the public could tie decisions to meetings and thereby identify the internal process by which the decision was made and the level of committee by which it was taken. This would undermine the principle of cabinet collective responsibility. 36. Secondly, such information is liable to change the behaviour of government in a way that is inimical to good government. ...................................... 37. .............................................. disclosure of the requested information in relation to the RRC would not provide the public with any information it does not already have as to “the level of Committee by which [a decision] was taken”. (see §2.3 of the Ministerial Code). However, even so, disclosure would, or might, ‘reveal the internal process through which a decision has been made’ (see §2.3 of the Ministerial Code). Not all decisions of the RRC are taken after a meeting. Some decisions are taken by internal correspondence. If the period of the request had been shorter it might have revealed whether a decision of the RRC was made after a meeting or by way of correspondence. However, the CO accepts that, in this particular case, because of the long period with which the request was concerned, disclosure of the requested information was unlikely to reveal anything about the process by which any decisions of the RRC were taken. 38. The Tribunal, in its reasoning, does not expressly engage with these points. The Tribunal does not analyse whether disclosure of the requested information would reveal the internal process through which decisions by the RRC have been taken. If and in so far as the Tribunal dismissed the argument on collective cabinet responsibility because of the unusually public nature of the RRC’s role in decision making, and the long period of time with which the request was concerned, the CO does not disagree with it.”
“24. In the longer term ministers and their advisers would attempt to forestall possible misunderstanding about the process by which a decision was reached. In this context it would not matter whether public comment generally approved or generally disapproved of the number of meetings disclosed. Ministers would consider in advance how they would defend the process by which they arrived at a decision as well as the decision itself. This would undermine ministers’ freedom to determine, on the basis of their leadership of the process of policy formulation, how frequently they need to meet to make progress in any particular case. The ‘rules’ aired by observers of the constitution from their position exterior to the policy making process would be bound to influence the thinking of those involved in the actuality of policy formulation and development. 25. The ‘rules’ that emerge from this process would bear little relationship to the actual needs of policy development. Abstracted from the process of specific policy making, they are also likely to be insufficiently flexible to meet the concrete circumstances in each of the many different areas in which governments make policy. Inflexibility is a lesser fault, however. The paramount fault with such an approach is that it runs counter to both the spirit and practice of democratic accountability which underpins government in the United Kingdom.”
“18. Ministers might feel that they have to hold meetings or discuss certain subjects in specific forums, if this information is made public. Reducing regulation matters can be discussed in many different meetings, including at Cabinet, in other Committee meetings and at bi-lateral Ministerial meetings. If the number of meetings held is made public, Ministers are likely to feel pressurised into holding meetings and using these to formulate policy on reducing regulation – this may not be the most appropriate forum to do so, and lead to other considerations which are normally raised through other channels being excluded. ............................................................................... 21. Disclosing the requested information might also undermine Ministerial communications (as protected by regulation 35(1)(b)) as Cabinet Committee meetings are a major way in which Ministers communicate and develop policy. In addition, Ministers might be less willing to resolve matters via correspondence if the number of times which a Committee met were made public. This is because they might seek to hold more meetings to be able to report that fact, and thus would discuss matters in person instead of via letters. Letters are sometimes the most appropriate way of agreeing issues, and can allow more detailed discussion of complex issues.”
“Ministers might become less willing to address policy matters in detailed correspondence, preferring to do so only during RRC meetings. They might feel that, although less conducive to a thorough and detailed dialogue, this would enable them to record the fact that meetings had in fact taken place. The [Commissioner] considered that the public had a right to expect Ministers to be more robust in determining the best way of working, regardless of public perception.”
“24. ..... the Information Commissioner argued that disclosure posed no threat to good government. The Cabinet Office argued (in addition to the risk of misunderstanding considered above) that disclosure would damage the convention of collective decision making and would create a risk of Ministers removing decision-making from formal Cabinet committee meetings. We deal with each argument in turn. 25. Collective responsibility: The parties were in agreement that there is a strong public interest in protecting the convention of collective decision making but the Information Commissioner did not accept the Cabinet Office contentions that the protection would be undermined because, for the reasons put forward by Dr Baldwin, release of the withheld information would disclose details about the processes followed by Ministers in relation to Cabinet sub-committee decision making. He argued that the integrity and confidentiality of how those who agreed to take responsibility for a particular decision reached [it] would not be impaired in any way by the disclosure of the number of meetings that took place. We think that is correct. And we do not accept the argument put forward by [counsel for the CO], to the effect that disclosure of this information would set a trend, representing a first step on a slippery slope that would lead to the release of increasing quantities of information. The protection against that happening lies in the process for controlling the release of information in response to future FOIA requests, of which this Tribunal’s procedure forms a part. 26. “ Behaviour change: The Cabinet Office argued that if Ministers knew that the number of Cabinet sub-committee meetings would be made public, they would fear that the information would be taken out of context and misinterpreted by the public. They might then take steps to avoid that happening by, for example, fixing a set number of meetings each year and arranging for issues arising between meetings to be decided more informally, thereby removing the process from the established Cabinet structure of minuted meetings. This might preserve “safe space” for Ministers to make decisions but would undermine the concept of responsibility for decision making. The Information Commissioner accepted the broad concept of Ministers having such safe space for decision making but did not think that the disclosure of information about the procedure set up for decision making would impose on it, particularly as Ministers’ freedom to set their own procedures have already been severely limited by the release into the public domain of a great deal of information about how the reducing regulation process operated. On this point we agree with the Information Commissioner – we do not accept that Ministers will, or should, adjust the processes by which they make decisions in order to manipulate the freedom of information processes to avoid openness and transparency.”