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Parliamentary Commissioner for Administration

Second Report Session 1998-99

Volume 2 - ACCESS TO OFFICIAL INFORMATION

WELSH OFFICE

Case No. A.2/98

Refusal to release details of an internal review of the Cardiff Bay Barrage project

An interest group asked the Welsh Office to release the facts and analysis of the facts which the government considered relevant to the decision not to prevent the Cardiff Bay Barrage project from proceeding. The Welsh Office said the review of the project involved confidential internal discussions and advice (including legal advice); and they withheld the information under Exemption 2 (Internal discussion and advice) and Exemption 4(d) (Information covered by legal professional privilege) in Part II of the Code. The Ombudsman found that the Secretary of State for Wales had already disclosed much of the information requested when he spoke about the review to a delegation which included a representative of the interest group. The Ombudsman said that the Welsh Office, by refusing the interest group's information request outright, created an impression of secrecy; they could have pointed out to the interest group, instead, that the relevant information had already been given to them. At the Ombudsman's suggestion, the Welsh Office released a small amount of residual factual information which was contained in the review but which had not been included in the Secretary of State's statement. The Ombudsman commented that (i) the internal opinion and advice, including some detailed analysis, and (ii) the legal advice (none of which the interest group had specifically asked to see) could be withheld under Exemption 2 and Exemption 4(d) respectively. He partially upheld the complaint.

8.1. Ms C complained on behalf of an interest group that the Welsh Office had refused to disclose information which should be made available under the Code of Practice on Access to Government Information (the Code). My investigation began in April 1998 after I had received comments from the Permanent Secretary of the Welsh Office.

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Background

8.2. Cardiff Bay, which encompasses the estuaries of the Rivers Taff and Ely, has one of the greatest tidal ranges in the world. At low tide it is a vast area of mudflats, which form a habitat for wading birds. As part of a programme to regenerate the area, a barrage is being constructed across the mouth of Cardiff Bay. By impounding the waters of the two rivers, the barrage will create a permanent freshwater lake. Once the barrage is built, the mudflats will no longer be exposed, and the bird habitat will disappear.

8.3. Two pieces of European Community legislation are relevant to the effect of the barrage on the wading birds' habitat. A directive of the Council of the European Communities, issued in 1979 (the Birds Directive), requires member states to take measures to preserve a sufficient diversity of habitats for all species of wild birds occurring naturally within their territories. They are required to specify special protection areas to ensure the survival and reproduction of rare species and regularly occurring migratory species which need protection, paying particular attention to the preservation of wetlands. In 1991, the then Secretary of State for Wales decided, on legal advice, that Cardiff Bay need not be included in the special protection area which it was proposed to establish (and which subsequently was established) in the lower Severn estuary. A further directive, issued in 1992 (the Habitats Directive), provides for the conservation of natural habitats of wild plants and creatures, and for compensatory measures to be taken where plans or projects carried out for reasons of overriding public interest result in impairment of habitats.

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8.4. In May 1997, the Secretary of State for Wales decided to review the barrage project. He considered the financial, economic and environmental implications of completing and, alternatively, of discontinuing it; and also sought advice on the legal status of the 1991 decision to exclude Cardiff Bay from the special protection area. On 4 July, he announced the outcome of the review in a Parliamentary Written Answer:

'I have undertaken a thorough review of the Cardiff Bay Barrage project. In the course of this review I have received and considered legal opinion and an analysis of the economic impact of the Barrage. In the light of their advice I have concluded that the Barrage should be completed.'

'My conclusion was that, whatever the merits of the original decision, to abandon the Barrage construction would have been difficult to justify.

- substantial costs would not be recovered - over £140m had already been committed; and there would have been at least a further £30m comprising contract penalties and dismantling the Barrage;

- there would be criticism for wasting public money;

- businesses having invested heavily in the area in the expectation that the regeneration of South Cardiff would include the Barrage project, could have considered legal action.'

8.6. On 22 December, the interest group wrote, citing the Code, to the Secretary of State. They asked to be given the facts and the analysis of the facts which the government considered relevant to the decision not to prevent the barrage project from proceeding. The Welsh Office replied on 9 January 1998. They said that, in their view, information about the review of the project should not be made available under the Code. It was an internal review for the benefit of the Secretary of State, and the details were not available to the public.

8.7. On 28 January, Ms C wrote to the Welsh Office, asking them to review their decision. She said Part I of the Code committed public bodies within my jurisdiction to publish the facts and the analysis of the facts which the government considered relevant and important in framing major policy proposals and decisions. (This is a reference to paragraph 3(i) in Part I of the Code.) The Welsh Office replied on 6 March, maintaining their refusal and saying that the information requested was exempt under Part II of the Code.

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Welsh Office's reasons for refusing access

8.8. Commenting on the complaint, the Permanent Secretary said the government acknowledged that, with the destruction of feeding grounds in Cardiff Bay, compensatory measures would be necessary to take account of nature conservation interests, including obligations to comply with the Birds Directive and the Habitats Directive. She said the Habitats Directive permitted projects which affect sites classified as special protection areas to be carried out for imperative reasons of socio-economic public interest, provided that compensation measures were taken.

8.9. She added that the review of the barrage project consisted of internal discussions, advice from senior officials, legal opinion, and consideration of the history and the facts of the case. Legal advice had been obtained about the nature of the government's obligations under European law; and officials from the Welsh Office had given advice about the financial implications of stopping the barrage project: that information was confidential.

8.10. The Permanent Secretary went on to say that the Welsh Office had considered carefully Ms C's information request, but had concluded that, because the internal review took the form of confidential internal discussions and advice on a particularly sensitive issue, disclosure of the information requested would harm the frankness and candour of future internal discussion. The Welsh Office were satisfied that the information which the interest group had requested could be withheld under Exemption 2 in Part II of the Code; and that the legal advice was also covered by legal professional privilege and could be withheld under Exemption 4(d).

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8.11. 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.'

'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.'

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8.12. Exemption 4 is headed 'Law enforcement and legal proceedings'; paragraph (d) reads:

'Information covered by legal professional privilege.'

• a note of a meeting between the Secretary of State and officials, held on 3 June 1997;
• a note of a conference between Welsh Office officials and legal advisers which took place on 4 June; and
• a submission of 24 June, addressed to the Permanent Secretary and the Secretary of State.

The second and third parts covered: the Parliamentary Question and Answer of 4 July 1997 (paragraph 8.4); a letter from the Secretary of State to a group concerned with the protection of the environment, dated 10 July 1997; the Secretary of State's statement of 1 December; and the exchange of correspondence between the interest group and the Welsh Office.

8.14. My staff obtained these documents. In response to an enquiry from my staff, Ms C confirmed that the Welsh Office had given her a copy of the Secretary of State's statement.

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Assessment

8.15. A study of the papers confirms that the review addressed two largely separate issues: whether to discontinue the barrage project; and the legal status of the 1991 decision not to include Cardiff Bay within the lower Severn estuary special protection area. For the avoidance of doubt, I have treated all the information before the Secretary of State in connection with the review as relevant to his decision on the barrage.

8.16. I examined the Secretary of State's statement of 1 December and found it to contain facts relevant to his decision to proceed with the barrage project, and an analysis of those facts. I then compared the information in the statement with that in the Welsh Office papers. The papers include a considerable amount of legal advice, which I accept is covered by Exemption 4(d). They also contain a small amount of purely factual, non-legal, information additional to what was disclosed in the statement; and some more detailed analysis. I went on to consider whether Exemption 2 applied to this extra information. In general, it does not cover purely factual information: the few possible exceptions (such as proceedings of Cabinet and Cabinet Committees), I do not see as applying here. I concluded, therefore, that the extra facts in the Welsh Office papers (apart from those in the legal advice) could be disclosed. They are:

• that the barrage is due for completion by the end of 1998;
• that work on enclosing the bay is scheduled to take place in the autumn of 1998, with the freshwater lake being created by March 1999;
• that the overall cost of the barrage is £192 million; and
• that there are currently five major projects attracted to the edge of the bay, with a total investment value of £200 million.

8.17. I suggested to the Permanent Secretary that the four pieces of additional information should be supplied to the interest group. She replied that there had been extensive correspondence between the Welsh Office and the interest group about the barrage project; a great deal of factual information had been made publicly available and the Welsh Office had good reason to suppose that this information was well known to the interest group. She said that, against that background, it was not unreasonable of them to suppose that the interest group had requested, in their letters of December 1997 (paragraph 8.6) and January 1998 (paragraph 8.7), information which was not already in the public domain and this was reflected in their replies. I concluded that it would be helpful, in this case, if the Welsh Office released all the additional information in the form that it was set out in the Permanent Secretary's letter to me. One of my deputies asked the Permanent Secretary to write to the interest group in those terms; four weeks later, she confirmed that the information would be released.

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8.18. The undisclosed analysis in the review papers comprises internal opinion, advice, recommendation, consultation and deliberation; and therefore falls within Exemption 2. It might nevertheless be disclosable if the public interest in disclosure outweighed the harm or risk of harm to the frankness and candour of internal discussion. The public interest in disclosure is always important, but I decided that the condition was not met in this case. The Secretary of State's statement gives an accurate outline of the reasoning behind his decision: the public interest in having access to the additional (relatively small) amount of analytical detail was not therefore strong enough to outweigh the harm to the frankness of discussion which might result from disclosure.

8.19. I found it surprising that, having almost entirely met the interest group's request in advance, the Welsh Office should then have sent such unhelpful replies to their letters of 22 December 1997 and 28 January 1998 (paragraphs 8.6 and 8.7). Instead of considering what information had already been provided and whether any more could be provided, they gave a blanket refusal, which they maintained when the interest group asked them to reconsider their decision. I cannot escape the conclusion that they refused the interest group's request without giving it proper consideration, particularly as the request confined itself to facts and the analysis of those facts. As a result, they created an impression of secretiveness, despite the fact that they had earlier provided a good summary of the facts and analysis relevant to the Secretary of State's decision. I suggested to the Permanent Secretary that Welsh Office staff should be reminded of the need to consider all information requests with due care. She said that the Welsh Office would remind staff of the need to consider information requests under the Code with due care.

Conclusion

8.20. I concluded that most of the information the interest group had asked for had in fact already been given to them before they made their information request. Of the remaining information, some was covered by Exemption 4(d) and some by Exemption 2, but a small amount of additional purely factual information could be disclosed. I suggested to the Permanent Secretary that that should be done. She said she would arrange for the information to be released. I welcome that decision.

Total screening and investigation time = 16 weeks

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Last updated: 20 April 2006