Former attorney general Dominic Grieve yesterday called for the ministerial veto on Freedom of Information disclosures to be strengthened.
He said the veto had effectively been destroyed by last year’s Supreme Court decision allowing for the release of Prince Charles’s letters to ministers to The Guardian.
The release of the Charles letters was initially blocked by the Government in a decision that was upheld by the Information Commissioner. That decision was overturned by the Information Tribunal, prompting Grieve to impose a veto.
His veto was overturned by the Supreme Court in March last year which ruled that it was unconstitutional for a government minister to overturn the decision of a court.
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Grieve suggested the law should be changed and ministers should impose their veto earlier in the process – after an Information Commissioner ruling – and only be subject to judicial review.
Defending his decision to block the release of the Charles letters, Grieve said: "I don't regret the decision I made at all. If I had to make the decision again today I would make it in exactly the same terms as I made it at the time."
He said the heir the throne was in a unique position because he has access to government papers and also goes around the country to many public functions “where people impart information to him”. He said it was in the public interest for him to communicate "what he has learned from his own activities" to ministers.
He said: “He can't do that unless it is within a degree of confidentiality because the very nature of his role means that he shouldn't be taking a partisan approach in public but he is perfectly entitled to impart his own ideas, as well as passing on the concerns of others, in correspondence that he might wish to have with ministers.”
He noted that the rules have since changed ensuring that Prince of Wales’s correspondence are now protected.
Grieve said there was concern about the situation where a minister could veto a court.
He said he was "not unsympathetic to the Supreme Court's view that it is not the happiest place to be" and added: "It seems to me, therefore, that if we are to restore the ministerial veto – because it has effectively been destroyed by that judgment – then it would probably be sensible to do it in a way which perhaps puts the question as to the way the Government wishes to approach this back to an earlier stage, so that we don't have a situation where we have ministers exercising ministerial vetoes which override the decisions of superior courts or record."
He said ministers were not "gung-ho" about the use of the veto, but had tended to exhaust the tribunal process first to "take a bit of the heat" out of the issue.
He added: "I myself don't feel at all uncomfortable with the idea of ministers being faced with having to make this choice perhaps a little bit earlier and then facing up to the consequence."
Grieve suggested that protection should remain in place for the legal advice offered by the attorney general and solicitor general to ministers.
"I have always been of the view that if the law officers are to provide full and frank advice to government, then it is necessary that unless the government, as a client, wishes to waive their privilege – in a sense their legal professional privilege – it is desirable that advice should be provided privately."
He added that the current public interest test in the FoI Act was not "difficult to deal with".
"It's not unworkable. Before one starts to slate the Freedom of Information Act too much – some people say it has cost too much money to run – but when you look at the problems associated with it, it has had some very good positives to it as well," he said.
"I know that Tony Blair said he regretted very much having done it, but I don't think that I personally as a politician looking back on it 15 years later think it was the wrong direction of travel at all."
Ministerial veto has been used seven times since the FoI Act was passed ten years ago.
Former chairman of the House of Commons justice committee Lord Beith said he could see no case for changing the act and strengthening the ministerial veto.
He said: “Most of us have experienced the inconvenience of exposure and then have to provide explanations of things that are discussed. But that’s accountability.”
Talking about the disclosures that have been made under FoI of government discussions, he said: “They have not brought the sky in, the sun has continued to shine, public administration has not collapsed.”
Beith said the argument that FoI harmed the “safe space” where politicians and civil servants could hold confidential discussions did not hold water because there were so many other threats to this, such as leaks and political memoirs.
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