The Department for Education has rejected a fresh freedom of information request by the Gazette to disclose its submission to the Independent Review of Administrative Law – even though the government has now considered the independent review’s final report and published a set of policy proposals.
Earlier this year, Gavin Williamson’s department was one of several departments to reject a request by the Gazette to disclose its submission, claiming the review panel, led by Lord Faulks QC, required a ‘safe space’ to consider the evidence. Once the panel submitted its report, the government would then need to review and consider the report, the department added.
After lord chancellor Robert Buckland published the Faulks report and the government’s response, the Gazette submitted fresh FoI requests to the 14 Whitehall departments – including 10 Downing Street - that made submissions to the review’s call for evidence.
Responding today, the Department for Education said all the information was exempt from disclosure under section 36(2)(a) of the Freedom of Information Act, ‘which protects material relating to the “maintenance of the convention of the collective responsibility of ministers of the Crown” and, given that the submissions were not subject to collective agreement, it applies to the Department for Education’s submission to the Independent Review of Administrative Law’.
The section 36(2)(a) exemption is subject to a public interest test. The department said factors in favour of disclosure - transparency, context for the report and the government’s policy proposals – are outweighed by the arguments in favour of maintaining an exemption.
The DfE said: ‘Collective responsibility is a constitutionally important convention which underpins the system of Cabinet government. The principle requires that ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. The collective responsibility exemption is accorded a particularly high level of importance by the Information Commissioner (ICO) given its constitutional nature.
‘Further, the fact that a summary of the departmental responses is being published addresses the need for transparency.’
The Ministry of Justice published a 21-page summary of anonymised Whitehall submissions three weeks before its consultation on proposed judicial review reforms closes on 29 April.