Thursday, April 02, 2015

Ministerial vetoes and freedom of information

The Liberal Democrats want to eliminate the Ministerial veto from the UK's Freedom of Information Act:

An end to the ministerial veto that allows the attorney general to over turn decisions of the information tribunal – a veto power that was restricted by the supreme court in its landmark decision in March paving the way for the release of letters written by Prince Charles to ministers in 2004-05. The case took 10 years after the attorney general overruled the information commissioner, the official responsible for arbitrating on decisions concerning the Freedom of Information Act.
Good. As the Supreme Court pointed out, the veto is inconsistent with the rule of law. In the UK, judges decide on releases, and it is constitutionally inappropriate to allow Ministers to overrule them simply because they don't like the decision.

So what about New Zealand? We also have a Ministerial veto, though it hasn't been used since 1987. But we also have a different oversight scheme. The Ombudsman isn't a part of the judiciary, and so the rule of law issue isn't so strong.

Even so, I'd like to see it eliminated. At present, the government wields the threat of the veto to water down Ombudsman's decisions and deter release. Or, as the Law Commission put it, to "moderate decision-making". Ministers (and unelected officials like the Cabinet Secretary) literally say "if you find against us, we will veto". And that's simply not how the system should work. Decisions on the release or withholding of official information should be made on the merits, not because recommending release "might adversely affect the Ombudsmen’s relationship with the Executive", and not because of Ministerial intimidation.