Cabinet Office v Lamb and Information Commissioner EA-2008-0024 (26th January 2009)

by Phillip Johnson 03/02/2009

Dr Lamb made a request under the Freedom of Information Act 2000 for disclosure of the cabinet minutes of the meeting where the second opinion of the Attorney-General was given. Dr Lamb's request was initially denied by the Cabinet Office, but upheld by the Information Commissioner subject to the minutes be redacted.

The Cabinet Office unsuccessfully appealed this decision to the Information Tribunal. It suggested that the information should not be disclosed because it would affect relations with foreign nations (FOIA s. 27(1)) and that it related to the formulation or development of government policy and Ministerial communications (FOIA s. 35(1)). Both of these exceptions apply only where in the circumstances of the case, the public interest in maintaining the exemption outweighed the public interest in disclosing the information (FOIA s. 2(2)(b)).

The Tribunal examined the history of the rule protecting the confidentiality of cabinet debates and collective responsibility. It agreed that such responsibility has considerable benefits in terms of good decision making and that confidentiality enables frank and open discussion by ministers. It further thought that those benefits might be lost or severely reduced where minutes of Cabinet discussions were disclosed prematurely or without proper examination of the public interest factors connected to disclosure. The Tribunal believed that in this particular case the public interest in disclosure outweighed the reasons for confidentiality. This was on the basis that the particular decision was momentous both nationally and internationally, was divisive within the Cabinet and that there had been some disclosures of what was said at that meeting by former ministers and during the extensive public inquires. It also felt that the public interest was satisfied because the conclusions of the Attorney-General had been criticised and, more importantly, that the initial advice was not disclosed to the cabinet at the time the decision was made.

The Tribunal's decision is important in terms the continuing debate over the military action in Iraq, but it is unlikely to have a much wider significance. The Tribunal not only made it very clear that although the nature of the cabinet confidentially had evolved, it was still important. In this case, disclosure was appropriate because of the intensive and continuing public debate over this particular cabinet meeting. Few, if any, other meetings are likely to attract similar levels of scrutiny. The Tribunal's decision therefore merely clarifies that cabinet confidentially is not absolute, but this in itself if hardly surprising. After all, what the Tribunal did not (and probably could not) say is that the real threat to collective responsibility and confidentiality is not the Freedom of Information Act 2000, but former Cabinet ministers who are eager to rapidly publish memoirs that are full of juicy revelations about what "really" happened.