This veto of the Freedom of Information Act has only been used a handful of times, including the blocking of publication of cabinet discussions on the Iraq War, the NHS risk register, and letters from Prince Charles to Cabinet members. This is the first time the veto has been used in relation to a ruling made by the Information Commissioner on environmental grounds.
The document that has been blocked from public scrutiny is a November 2011 report from the Major Projects Authority, which rated HS2 as 'amber-red', meaning “successful delivery of the project is in doubt, with major risks or issues apparent in a number of key areas. Urgent action is needed to ensure these are addressed, and whether resolution is feasible”.
There have since been a further four MPA reports on HS2, and it was expected that if the government was forced to publish the November 2011 report, they would then have to publish the subsequent reports. When the MPA was first set up, it was said that reports would be made available two years after production.
Following a Freedom of Information request, and a lengthy appeal process, the Information Commissioner ruled in June 2013 that these documents should be released in both the public interests, and to comply with Environmental Information Regulations. The government appealed this decision, but just hours before the tribunal was due to take place in December, it withdrew its appeal.
At the time, Mr McLoughlin and Cabinet Office minister Francis Maude wrote to Prime Minister David Cameron, saying: “Continuing with the appeal would create political and presentational difficulties at a crucial point in the HS2 project’s development . . . [therefore we should] exercise the veto now . . . Counsel has advised that we are very likely to lose the appeal. We consider that the importance the government attaches to the successful implementation of the HS2 project . . . justifies the use of the veto in this case as exceptional. Disclosure of such recent information would also have a chilling effect on assessments of other government projects and, indeed, on advice prepared for government ministers on many other subjects. Counsel has advised that it will be better to veto now rather than after an adverse tribunal decision.”
Mr McLoughlin yesterday exercised the veto, preventing even MPs having full knowledge of what they are being asked to vote on as the HS2 Hybrid Bill passes through parliament.
In a statement, Mr McLoughlin said: “I have taken into account the views of Cabinet, Ministers and the Information Commissioner, in considering both the balance of the public interest in disclosure and nondisclosure and whether this is an exceptional case. My view is that the public interest favours nondisclosure. I have also concluded that this constitutes an exceptional case and that the exercise of this power of veto is warranted.
“The public interest in ensuring that projects of this scale, importance and cost are properly controlled and overseen is very high indeed. The assurance of confidentiality is important in the conduct of the review. In my view, there is nothing in the nature or content of this particular report which outweighs that strong public interest against disclosure.”
The government said it was allowed to block publication because it was ‘an internal government communication’. However, during the appeal process the Information Commissioner accepted that because the information contained in the report had be shared with HS2 Ltd, which is an external organisation owned by the Department for Transport, it had ceased to be an internal communication.
Information Commissioner Christopher Graham said: “This is a disappointing decision, and I’ll be studying the secretary of state’s explanation to understand why this has been ruled an exceptional case. There are important legal issues to be considered here, and I’ll be highlighting our view of them in an open letter to the Justice Committee in due course.”
Dr Paul Thornton, who brought the original freedom of information request, said it was likely that this would now go to judicial review. He said: “This is a delaying tactic on the part of government as they know decision is likely to go to judicial review. This should not be necessary as parliament should be scrutinising this arbitrary decision and ensuring that it is overturned, as creates an alarming precedent.”
Stop HS2 campaign manager Joe Rukin said: “It is absolutely disgraceful that the government doesn’t want MPs, who should be fully informed before voting on the colossal expenditure HS2 entails, to actually have all the information about the project. This just proves that there has been, and continues to be an agenda from government to deceive MPs and the public with spin and dismiss any independent information showing just how bad the HS2 project is. It also shows that this governments’ supposed ‘transparency agenda’ is as transparent as a lump of coal. What is the point in having reports on projects if they cannot be used to inform the debate around them?”
“The government know full well that this report wasn’t an internal communication and that the way they have implemented this veto is therefore illegal, but they don’t care. All they want is to make sure this report stays buried for just a little longer so they can con MPs into voting for their white elephant vanity project.”
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