Parliamentary Health Service Ombudsman / Special Reports / Access to Official Information / A.33 Report Session 2002

Lord Lester asked the Lord Chancellor's Department (LCD), which is now known as the Department for Constitutional Affairs, and the Home Office to provide him with copies of documents relating to the development of policy leading up to the making of the Human Rights Act 1998. The Lord Chancellor refused, citing Exemption 2 of the Code and saying that there were no public interest grounds for overriding the exemption. The Home Secretary agreed with the Lord Chancellor. In his comments on the complaint the Permanent Secretary of LCD, replying on behalf of LCD and the Home Office, said that the policy development leading to the 1998 Act was done through collective discussion in a Cabinet Committee; the papers in question had been prepared by officials on Ministers’ instructions before they became Cabinet papers and were either misleading or identical to the Cabinet papers; and that, in his view it would be impossible to provide meaningful access without revealing the views of Ministers and potentially undermining collective responsibility. He thought the use of Exemption 2 was justified. The Permanent Secretary gave the Ombudsman's staff access to relevant policy files but said that he was seeking a Cabinet Secretary's certificate, to withhold from the Ombudsman Cabinet papers and documents relating to those papers, in accordance with section 8(4) of the Parliamentary Commissioner Act 1967. The Ombudsman's staff nevertheless closely examined 69 files of documentation. The Ombudsman concluded that, while some of the information they contained was in the public domain, Exemption 2 applied in principle to much of the remaining information which fell within the terms of the information request. However, in practice, there still remained a substantial amount of information which could be released because the public interest in doing so would outweigh any harm. While recognising that the Code only gives a right to information and not documents, the Ombudsman nevertheless recommended that edited versions of the documents listed at Annex A to the report be released to Lord Lester. The Ombudsman welcomed the agreement of the Permanent Secretary of LCD to provide that information to Lord Lester and saw that as a satisfactory outcome to a partially justified complaint.

1. Lord Lester complained that the Lord Chancellor’s Department (LCD) and the Home Office refused to provide him with information which he was entitled to receive under the Code of Practice on Access to Government Information (the Code). I have not put into this report every detail investigated by my staff, but I am satisfied that no matter of significance has been overlooked.

The Code and the role of the Ombudsman

2. In July 1993 the then Government published a White Paper entitled
‘Open Government,’ as part of the Citizen’s Charter programme. The White Paper contained proposals for, among other things, the creation of the Code: it also stated that the then Ombudsman had agreed that complaints that departments and other bodies within his jurisdiction had failed to comply with the Code could be investigated by him, if referred by a Member of Parliament. When the Code came into force, on 4 April 1994, the Ombudsman wrote personally to the permanent heads of the bodies within his jurisdiction about his new role to explain how, in accordance with arrangements already made with the Select Committee on Public Administration, he intended to operate under the new Code.

3. Since the Code came into force, the Ombudsman has been able to consider complaints that, in breach of the Code, bodies which are listed in Schedule 2 to the Parliamentary Commissioner Act 1967 as being within the Ombudsman’s jurisdiction have refused to provide information which is held by them. LCD and the Home Office are so listed. Refusal to supply information might be justified if the information falls within one or more of the exemptions listed in Part II of the Code (see paragraphs 4 and 5). The Code gives no right of access to documents: the right, subject to exemption, is only to information. Both of my predecessors, however, took the view that the release of the actual documents was often the best way of making available information which the Ombudsman recommended should be disclosed. In accordance with paragraph 4.19 of the White Paper, they also accepted that refusal to release information which should have been released was sufficient to found a complaint to the Ombudsman. I can see no reason to depart from these established practices.

Exemptions

4. Part II of the Code states:

‘… Reasons for confidentiality

The following categories of information are exempt from the commitments to provide information in this Code. In those categories which refer to harm or prejudice, the presumption remains that information should be disclosed unless the harm likely to arise from disclosure would outweigh the public interest in making the information available.

‘References to harm or prejudice include both actual harm or prejudice and risk or reasonable expectation of harm or prejudice. In such cases it should be considered whether any harm or prejudice arising from disclosure is outweighed by the public interest in making information available …’.

5. Exemption 2 is headed ‘Internal discussion and advice’ and reads:

‘Information whose disclosure would harm the frankness and candour of internal discussion, including:

proceedings of Cabinet and Cabinet committees;
internal opinion, advice, recommendation, consultation and deliberation;
projections and assumptions relating to internal policy analysis; analysis of alternative policy options and information relating to rejected policy options;
confidential communications between departments, public bodies and regulatory bodies.’

The Human Rights Act 1998

6. The present Government, in its election manifesto, included a commitment to give further effect in domestic law to the European Convention on Human Rights. As a result, the Human Rights Bill was introduced in October 1997, and a White Paper entitled ‘Your Rights Brought Home’ was published at the same time. The Human Rights Act 1998 (the 1998 Act) received Royal Assent in November 1998. Among other provisions, the 1998 Act enables citizens to argue in courts in the United Kingdom that their rights under the Convention have been breached, without the need - as before - to apply to the European Commission and Court. It gives effect to the Convention rights through two main provisions:

all legislation, whenever enacted, is to be interpreted, as far as possible, in accordance with the Convention rights. Where that cannot be done, the higher courts will be able to make a declaration of incompatibility in respect of the provisions of primary legislation. In such cases, the Act provides a fast-track procedure which will enable the government, with the approval of Parliament, to amend by order the incompatible provisions in question; and
public authorities are, with limited exceptions, required to act in a way which is compatible with the Convention rights. Individuals are able to challenge any actions of such authorities which they believe have infringed their rights. If a court or tribunal finds that a public authority has acted unlawfully, it may grant such relief or remedy as it considers just and appropriate to the victim(s) of that act.

Background to the complaint

7. On 6 March 2001 Lord Lester wrote to the Lord Chancellor and to the Home Secretary, requesting information about the making of the 1998 Act in connection with a book he intended to write. He sought access, in particular, to documents on the development of policy between May 1997 and Royal Assent in
November 1998. He expressed willingness to postpone publication of the book for five years, and said that he was content to submit the manuscript to officials to verify its accuracy.

8. On 16 March the Lord Chancellor replied to Lord Lester, saying that it would not be appropriate to accede to his request because many of the documents in question belonged to the Cabinet Committee CRP (EC) (the Ministerial Sub-Committee on the European Convention on Human Rights). He explained that successive governments had taken the view that it would be detrimental to the workings of Cabinet Government, and collective responsibility, if such papers were to be made available while related policy issues were still developing, and the people involved were still active in politics. The Lord Chancellor cited Exemption 2 of the Code (see paragraph 5). He said that there were no overwhelming public interest grounds for overriding the exemption.

9. On 19 March Lord Lester replied to the Lord Chancellor, expressing disappointment. He asked if the Lord Chancellor would be willing to give him access to papers that did not include CRP(EC) deliberations - for example studies by officials which did not reveal the views of Ministers, either individually or collectively. Lord Lester said that he believed that there was a public interest in the matter. He copied his letter to the Home Secretary.

10. On 26 March the Home Secretary wrote to Lord Lester, saying that he agreed with the Lord Chancellor’s letter of 16 March. On the same day the Lord Chancellor replied to Lord Lester’s letter of 19 March. He said that the policy development of the Human Rights Act had taken place through collective discussion in CRP(EC) on the basis of papers drafted by officials, and that it would be impossible to allow access to those papers without also revealing the views of Ministers, both collectively and individually. The Lord Chancellor said that, to the extent that any papers such as Lord Lester had described did exist, they would be held by the Home Office.

11. On 29 March Lord Lester replied to the Lord Chancellor, stating ‘… I am entirely willing to enter into binding legal obligations that would prevent my publishing any information that would reveal the views of Ministers either collectively or individually. I am also entirely willing to have access to censored documents that would not reveal the views of Ministers, either collectively or individually. And I am entirely willing to submit any manuscript to the Cabinet Secretary for approval before it is published …’. He also wrote in similar terms to the Home Secretary.

12. On 10 April the Lord Chancellor replied, confirming his earlier decision; and on 3 May the Home Secretary confirmed that he had nothing to add to the
Lord Chancellor’s letter.

13. On 7 December Lord Lester wrote again to both the Lord Chancellor and to the Home Secretary, asking them to reconsider. On 11 February 2002 the
Lord Chancellor replied, saying that although he had reconsidered the matter carefully, the answer remained unchanged. He again expressed the view that the information requested fell within Exemption 2.

The Permanent Secretary’s comments

14. In his formal response to my predecessor about the complaint (paragraph 1) the Permanent Secretary of LCD explained that, following changes announced in June 2001, the Human Rights Division of the Home Office, which had supported the Cabinet Sub-Committee CRP(EC) in the policy development of the 1998 Act, had transferred to LCD. He was responding on behalf of LCD and the Home Office.

15. The Permanent Secretary explained that, at the time of Lord Lester’s request for access to documents in March 2001, the Home Office had lead responsibility for human rights. Since the Lord Chancellor chaired the Cabinet Sub-Committee CRP (EC), correspondence to him on this matter was treated as coming to him in that capacity rather than as a departmental minister.

16. The Permanent Secretary confirmed that the policy on human rights was derived directly from “Bringing Rights Home”, a consultation document which had been prepared by the Labour Party while in opposition (paragraph 6). Within six weeks of the Government being elected in May 1997, the detailed policy on the Human Rights Bill was taken forward in the Cabinet Sub-Committee CRP (EC) by Ministers rather than officials: this was not, therefore, a case of a department conducting policy studies, formulating policy, and then bringing it to Ministers for their endorsement. The policy development leading to the 1998 Act was done through collective discussion in CRP (EC).

17. The Permanent Secretary confirmed that the papers which had been held by the Human Rights Division of the Home Office (and now by LCD) had been prepared by officials, on Ministers’ instructions, before they became CRP (EC) papers. These papers were either misleading (because they were subsequently changed and a different instruction for the Bill was issued) or identical to the Cabinet papers. In his view, it would be impossible to provide meaningful access without revealing the views of Ministers and potentially undermining collective responsibility. On that basis he thought that the use of Exemption 2 was justified.

18. The Permanent Secretary added that he was prepared to allow my staff access to the policy files. However, he would not allow them access to the Cabinet Sub-Committee papers, copies of submissions from officials to Ministers about the papers, or to copies of correspondence between Ministers about the meetings and the papers. In accordance with section 8(4) of the Parliamentary Commissioner Act 1967, he sought a Cabinet Secretary’s certificate to withhold those papers. This was issued on 10 September 2002. (Note: section 8(4) provides that: "No person shall be required or authorised by virtue of this Act to furnish any information or answer any question relating to proceedings of the Cabinet or of any committee of the Cabinet or to produce so much of any document as relates to such proceedings; and for the purposes of this subsection a certificate issued by the Secretary of the Cabinet with the approval of the Prime Minister and certifying that any information, question, document or part of a document so relates shall be conclusive".)

Investigation

19. Lord Lester’s complaint is that he has been denied access to copies of documents on the development of policy relating to the 1998 Act. LCD provided my Office with 72 policy files. Three covered the period after Royal Assent was granted and were therefore outside the scope of the investigation. The remaining files contained information which fell within the scope of Lord Lester’s request, in that it related to the development of the 1998 Act - for example, briefing and position papers - including commissioned studies from external bodies; internal minutes; correspondence between government departments; legal opinions; and copies of draft speeches and notes of presentations.

Assessment

20. I have considered in this report both the general way in which Lord Lester’s request was handled and the substantive issue of the release of the requested information.

21. LCD and the Home Office replied promptly to Lord Lester’s original requests. LCD refused to provide the information, and the Home Office supported that decision. However, when information has been refused, the possibility of a review under the Code should be made known to the person requesting the information. The right to make a complaint to the Ombudsman following any such review process should also be explained. In this case, after the initial information request was refused, there was a further exchange of correspondence. LCD, however, maintained their refusal. Lord Lester took up the matter again some months later, but received a similar response. It was only at that stage that the possibility of a reference to my Office was made known. In the circumstances, I consider that it would have been helpful if that had been drawn to Lord Lester’s attention during the initial exchange of correspondence. In reply both LCD and the Home Office accepted that the possibility of recourse to the Ombudsman should have been explained at an early stage, and said that this had been made clear to their staff as part of the awareness seminars which were being held in preparation for the Freedom of Information Act. I welcome that.

22. In refusing to provide Lord Lester with information, LCD and the Home Office have relied on Exemption 2. The purpose of this exemption is to allow government departments the opportunity to consider matters – particularly those which are likely to prove complex and contentious – on the understanding that their thinking will not be exposed in a manner likely to inhibit the frank expression of opinion. The Permanent Secretary of LCD has argued that the papers, held first by the Home Office and then by LCD, would either be misleading because they were subsequently changed and different instructions for the Bill issued, or were precisely the same as the Cabinet papers (in which case I assume that they have now been covered by the Cabinet Secretary’s certificate). He said that, in either event, Ministers’ views would have to be revealed in order to make the content of the papers meaningful; and that that could undermine collective Cabinet responsibility.

23. I accept that revealing the views of Ministers about a matter which is still in the public domain could have an impact of the kind described by the Permanent Secretary. However, exemptions to the Code cannot be used as justification for not releasing information which is already in the public domain such as that given in speeches by Ministers and officials to external bodies. Also, Lord Lester had made it plain that he was prepared to receive information on qualified terms (see, for example, paragraphs 9 and 11). I am not persuaded that either LCD or the Home Office fully evaluated the matter in the light of that. I have seen no evidence, for example, that they carefully considered all the papers not covered by the Cabinet Secretary’s certificate, to ascertain whether any information might reasonably be provided to Lord Lester under the Code, even on a censored basis. Fundamentally, I have also seen no evidence that they properly assessed the implications of the ‘harm test’ (paragraph 4), which requires that the harm that could arise from disclosure of such information should be balanced against the public interest in making the information available. I consider that, throughout, they adopted a somewhat blanket and over-restrictive approach.

24. The incorporation of the European Convention on Human Rights into domestic law formed part of the Government election manifesto commitment: it was accepted that this could potentially affect and influence many aspects of public life in this country. Clearly, there is considerable public interest in the 1998 Act; and I find it difficult to envisage a convincing argument against the principle of providing information which might help public understanding of how it evolved and the issues which were under consideration during its legislative passage. It should also be borne in mind that much of the information is over four years old and is unlikely to be as sensitive now as it was when it was first produced. The Code also makes it clear (see paragraph 4) that in those categories which refer to harm and prejudice, the presumption remains that information should be disclosed unless the harm likely to arise from disclosure would outweigh the public interest in making the information available.

25. Against this background, my staff examined all of the documents in the
69 relevant files which were submitted (see paragraph 19). Most relate to matters which do not fall within the scope of Lord Lester’s information request (for example, correspondence with outside organisations and discussion relating to individual rather than general aspects of the proposed legislation). Others, however, contain information such as the text of speeches and notes of presentations which is already in the public domain and can, therefore, be readily disclosed. In the event I accept that, in regard to the remaining information, it is reasonable to argue that Exemption 2 does apply: and, in some instances, I am satisfied that the harm arising from its disclosure could outweigh the public interest in making it available. This applies in particular to any information in documents which reflects the views of Ministers. Nonetheless, in my view, there remains a substantial amount of information which, although covered by Exemption 2, should be disclosed because the balance of the ‘harm test’ does not similarly apply - especially taking account of the issues set out in paragraph 24 above.

26. With these considerations in mind, I have identified information – set out in Annex A – which I consider could be provided to Lord Lester. While continuing to recognise the general principle that information covered by Exemption 2 should be protected, the fundamental question I have had to address is whether or not the release of this information would affect the confidentiality of future discussions: I fail to see how it could. In my opinion, the public interest in making it available significantly outweighs any perceived ‘harm’ that is likely to arise from disclosure.

27. How might this information best be presented to Lord Lester? As I explained in paragraph 3, the Code requires the release of information rather than specific documents. However, successive Ombudsmen have taken the view that the release of actual documents is often the best and simplest way of making available information that is recommended for disclosure. I believe that it would be most helpful for Lord Lester to have an edited version of the documents listed in Annex A with the withheld information simply blocked out and I so recommended to LCD, who are now the custodians of the documents in question.

28. In reply, the Permanent Secretary to LCD said that they had looked again at all the documents. He accepted that the passage of time had decreased the sensitivity of the information contained within certain documents and of some of the information contained within others and, on that basis LCD were willing to agree to their release, subject to redactions where appropriate.

Conclusion

29. I found that, under Exemption 2 of the Code, LCD and the Home Office were justified in refusing to provide some of the information sought by Lord Lester. However, I saw no reason why the information in the documents listed at Annex A (edited as appropriate) should not be released to him, and I welcome LCD’s agreement to accept my recommendation. I regard this as a satisfactory outcome to a partly justified complaint.

ANNEX A

Parliamentary Commissioner Act 1967

Case A. 33/02

Information recommended for disclosure

1. Briefing paper dated April 1997 on Incorporation of ECHR in UK Law.

2. Paper and attachments and covering letter dated 14 May 1997 from the Home Office to the Cabinet Office, on “ECHR Incorporation: the New Zealand Model”.

3. Paper and covering letter dated 14 May 1997 prepared by the Institute for Public Policy Research (IPPR), setting out the options for a UK Human Rights Commission, with costings from an earlier paper.

4. Internal Home Office minute dated 23 June 1997 and paper entitled “Government Scrutiny of Measures for Compliance with ECHR”.

5. Draft Home Office brief dated 24 June 1997 on the death penalty.

6. Paper dated 24 June 1997 from the School of Law at Kings College London, entitled “Briefing on Incorporation of the European Convention on Human Rights into UK Law: the ‘British Model’ “.

7. Internal Home Office minute dated 25 June 1997 and re-draft of Chapter
10 of the White Paper, headed “A Human Rights Commission?”

8. Letter dated 30 June 1997 from LCD and paper prepared by them entitled “Adequacy of Procedural Arrangements for dealing with questions of inconsistency between UK Legislation and the ECHR” and attachments.

9. Letter dated 30 June 1997 from the Home Office to LCD headed “Human Rights Commission and Legal Aid”.

10. Draft speech for the Lord Chancellor to give on 4 July 1997 to the Bill of Rights Conference at University College, London.

11. Note dated 15 July 1997, and attachments, setting out issues for discussion at meeting on ECHR incorporation.

12. Internal minute dated July 1997 entitled “Parliamentary Scrutiny”.

13. Internal minute dated 14 August 1997 and a draft paper headed “Scheme for Establishing a Human Rights Commission”.

14. Internal minute dated 15 September 1997 entitled “1997 Bar Conference” setting out lines to take on ECHR incorporation.

15. Draft Speech for Lord Justice Henry at the Judicial Studies Board Seminar on 29 September 1997.

16. Brief, issued on 6 October 1997, entitled “ECHR: The Government’s Proposals”.

17. Internal e-mail dated 15 October 1997 and briefing on the Human Rights Bill.

18. Extract from the draft White Paper, issued on 20 October 1997, covering the effect of court decisions on legislation and whether there should be a Human Rights Commission.

19. Home Office News Release 291/97 dated 24 October 1997, entitled “Rights Brought Home after 50 Years”.

20. Contribution to the Home Secretary’s speech to the Refugee Council’s AGM on 18 November 1997.

21. Draft position paper dated 26/11/97 entitled “Human Rights Bill; Crown Liability for Acts of Courts and Tribunals”.

22. The Lord Chancellor’s speech to the UK Human Rights Awards presentation on 10 December 1997.

23. “Human Rights: Background brief” (and copy of speech given by the Foreign Secretary in July 1997) provided on 30 January 1998 for the Home Secretary’s visit to Washington.

24. “The Human Rights Bill: the Legislative Perspective” – speaking note of a talk given by a Home Office official at Charles Russell on 3 February 1998.

25. Human Rights Bill - Draft third reading speech (dated in manuscript 4/2/97 but should be 4 February 1998).

26. Draft Explanatory and Financial Memorandum for the Human Rights Bill and comments from LCD dated 4 February 1998.

27. Briefing dated 16 February 1998 from the IPPR on the appointment of a Human Rights Commissioner.

28. Questions and answers on the Human Rights Bill (e-mailed on
17 February 1998).

29. Contribution on the Human Rights Bill, and question and answer briefing on the Bill, prepared on 30 April 1998, for a Home Office Minister’s speech at the Conference of the European Heads of Police Training.

30. Speaking notes for Ministerial speeches to Magistrates’ Associations and question and answer briefing on Court Procedures and Costs and Resource Implications of the Human Rights Bill, prepared on 14 July 1998.

31. Covering letter dated 9 September 1998 and draft of a speech for the Solicitor General to give to the Justices’ Clerks Society on 10 September.

32. Question and Answer briefing, prepared for Amnesty’s Human Rights Festival in October 1998, headed “Human Rights Bill” and “Review of Human Rights Instruments”.

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Last updated: 4 April 2005