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Section 35 - Formulation of Government Policy

Chapter 03: When to use the exemption under section 35

Public Interest Test

3.1 Section 35 is not an absolute exemption, but is subject to the public interest test in section 2 of the Act.

Preliminary considerations

3.2 If information falls within this exemption, it will be necessary to take a clear view of the public interest considerations that must be weighed in considering whether or not the information requested should be released. Decisions must be based on good evidence and be documented. To withhold information in reliance on this exemption it is necessary to consider whether or not the public interest in withholding the information requested outweighs the public interest in disclosing it.

3.3 Section 35 is concerned to ensure that the formulation and development of government policy and government decision making can proceed in the self-contained space needed to ensure that it is done well, while enabling proper public participation in policy debates, not least by making available relevant statistical and factual information.

3.3 The application of the public interest balance in relation to this exemption is particularly complex. The public interest both in disclosure of some information and in the withholding of other information lies in what might be broadly described as good government. The balance needs to be struck between disclosing sufficient information to allow informed debate and protecting the space within which ministers are advised and formulate policy.

There is considerable overlap in the public interest considerations in relation to the disclosure or non-disclosure of information falling within this exemption. For example communications between ministers will often be in the context of policy formulation and advice from the law officers may also be part of policy formulation or development. The public interest considerations common to all categories are therefore considered first followed by particular considerations in relation to each category.

General public interest considerations in favour of disclosure

3.4 Considerations which may weigh in favour of a decision to disclose and which will need to be assessed on a case by case basis include:

the general public interest in disclosure;
greater transparency makes government more accountable to the electorate and increases trust;
as knowledge of the way government works increases, the public contribution to the policy making process could become more effective and broadly-based;
the public interest in being able to assess the quality of advice being given to ministers and subsequent decision making;
the greater the impact on the country or on public spending the greater the public interest may be in the decision making process being transparent.

3.5 The disclosure of factual background information will assist in discharging the public interest in disclosure outlined above - it will allow more informed debate, give a wider number of people the opportunity to contribute to that debate and increase trust in the quality of the decision making. The balance provided by this exemption is to provide greater transparency whilst at the same time allowing fully frank discussion of ideas to take place securely.

General public interest considerations in favour of non-disclosure

3.6 Considerations which may weigh against a decision to disclose information include:

good government depends on good decision making and this needs to be based on the best advice available and a full consideration of all the options;
advice should be broad based and there may be a deterrent effect on external experts or stakeholders who might be reluctant to provide advice because it might be disclosed;
the impartiality of the civil service might be undermined if advice was routinely made public as there is a risk that officials could come under political pressure not to challenge ideas in the formulation of policy, thus leading to poorer decision making;
ministers and officials also need to be able to conduct rigorous and candid risk assessments of their policies and programmes including considerations of the pros and cons without there being premature disclosure which might close off better options;[footnote 3]
there needs to be a free space in which it is possible to 'think the unthinkable' and use imagination, without the fear that policy proposals will be held up to ridicule;
the factual information in the public domain, or disclosed after considering the provision in section 35(4) (discussed below), may be sufficient to demonstrate that appropriate factors are or have been taken into account;
disclosure of interdepartmental consideration and communications between ministers may undermine the collective responsibility of the Government.

Unless the considerations embodied in these factors are protected there is likely to be a corrosive effect on the conduct of good government. If the public interests outlined above cannot be protected, there is a risk that decision making will become poorer and will be recorded inadequately. Care should be taken to ensure that the disclosure of an apparently innocuous piece of information does not contribute to this corrosive effect.

Background factual information - special considerations

3.7 Subsection (4) says that regard should be had to the particular public interest in the disclosure of factual information used, or intended to be used, to provide an informed background to decision-taking as far as the formulation and development of government policy is concerned (subsection (1)(a)). The following points about such factual information should be noted:

Subsection (4) does not apply to the factual information used as a background to decision taking covered by the rest of section 35(1), that is in any other ministerial communications, or in relation to the provision of advice by the Law Officers. It does not relate to the operation of a ministerial private office.
In contrast with the specific provision on statistical information, the provision on factual information refers to information 'which is intended to be used' in providing an informed background to decision making. There is no provision that a specific decision must have been taken.
There is no definition of factual information in the Act. Advice from officials to Ministers is not covered by the term 'factual information', although that advice could, and normally should, be supported by evidence which may well fall within the scope of the term. Thus a report submitted by an external body or research commissioned by a government department may be factual information.
Poor quality or inaccurate factual information should be treated the same as any other factual information.

3.8 Assessing the public interest in withholding information, which could be classified as factual background information, requires particularly clear evidence that disclosure would be contrary to the public interest. If it was not in the public interest to release such information it is likely to be for one of two reasons:

because the information is exempt under one of the other sections of the Act, as well as under section 35 (1)(a); or
because the factual information is so intimately integrated in the advice that it forms part of the argument, rather than informed background to the decision-making. This may particularly be the case in relation to information created before the passage of the Freedom of Information Act, when the distinction was less relevant. In the future, advice to Ministers should be constructed so that it is possible to identify clearly relevant background factual information.

Ministerial communications: particular considerations

Public interest in disclosure

3.9 Considerations which may weigh in favour of a decision to disclose include:

the decisions that ministers make have a significant impact on the lives of citizens and there is a public interest in their deliberations being transparent;
it is no secret that there can be differences between ministers - disclosure would merely confirm that decisions are made after healthy debate.

Public interest in non-disclosure

3.10 Considerations which may weigh against a decision to disclose information include:

Collective responsibility is a constitutional convention which is described in the ministerial code as follows: "Collective responsibility requires that ministers should be able to express their views frankly in the expectation that they can argue freely in private while remaining a united front when decisions have been made." If ministers feel inhibited from being frank and candid with one another because of the risk of subsequent disclosure, the quality of debate lying behind the collective decision will be diminished.
Ultimate responsibility for government decisions lies in the Cabinet. Collective responsibility seeks to ensure that decisions do not become personalised.

Law Officers' advice: particular considerations

3.11 The following factors should be considered:

Where the advice of the Law Officers is legal advice, the public interest considerations under section 35 will generally be the same as for section 42. Close reference should be had to the guidance on the section 42 exemption wherever disclosure of legal advice from the Law Officers is concerned; the relevant public interest considerations are discussed in considerable detail in that chapter and is not repeated here.
There is a long-standing convention, followed by successive governments that the government does not disclose either the content of Law Officers' advice nor whether advice has been requested. Departments should not disclose any information about whether the Law Officers have advised, or about the advice itself, without consulting the Law Officers. The principal basis for the long-standing convention on disclosure of Law Officers' advice is that the government is entitled to receive frank and confidential advice from its principal legal adviser.
The Law Officers' particular constitutional position raises special considerations. In particular, it might be detrimental to the effective conduct of its affairs if the government were routinely to confirm or deny that the Law Officers had advised in a particular case.
It would be impossible for the Law Officers to advise on every aspect of government policy having legal implications, bearing in mind the enormous range of legal advice that government requires.
At present, it is a matter for ministers, Departments and the devolved administrations to decide whether to ask the Law Officers for advice. But if the government routinely disclosed the occasions on which the Law Officers had given advice, then that could give rise to questions about why they have not advised in other cases, and create political pressure for them to advise in cases where their involvement is not justified.
That could in turn undermine their constitutional position as principal legal advisers, who advise only on matters that ministers, Departments and the devolved administrations consider to be of particular significance.
It would also undermine the position of Departmental legal advisers. This would not be conducive to the effective conduct of public affairs and given the impracticality of the law officers advising on everything, lead to poorer decision making.

Operation of ministerial private offices: particular considerations

Public interest in disclosure

3.12 Considerations which may weigh in favour of a decision to disclose include:

information caught by this exemption may demonstrate that ministers are complying with their duties under the ministerial code - there is a public interest in scrutiny of this code;
the public interest in ensuring that private offices operate efficiently;
the public interest in ensuring private offices are used appropriately.

Public interest in non-disclosure

3.13 Considerations which may weigh against a decision to disclose information include:

the fact that the private office is an important aspect of the space around ministers which needs to be protected so that good decision making is not threatened;
ministers expect to receive advice from their private office about a range of matters that other officials are not able to give - it sometimes needs to be especially frank.

3.14 There will be occasions where it is the content of the material which determines whether or not it should be disclosed, rather than or as well as considerations about the policy making process. Where this is the case, then other exemptions may well be relevant.

Consultation

3.15 Given the wide range of section 35 there are potentially a large number of bodies that should be consulted. The following general points are relevant:

Requests for information relating to information about the formulation and development of policy should be referred to the department with lead responsibility for the policy.
Requests for information which relates to communications between ministers should be referred to all the departments whose ministers were party to the communications.
If the request relates to sensitive or significant information, or its release might create a precedent for Government, the Department for Constitutional Affairs (DCA) should be consulted.
If the request relates to Cabinet or Cabinet committee proceedings DCA will consult the Cabinet Office so that there can be a consistent approach to such requests across government.
- In the case of requests relating to the proceedings of the Executive Committee of the Northern Ireland Assembly DCA will consult the Office of First Minister and Deputy First Minister.
Likewise DCA will consult the National Assembly of Wales in relation to proceedings of its executive committee.
DCA and Cabinet Office will work closely on the operation of these exemptions given the strong public interests at stake.
Requests relating to the provision of advice by the Law Officers should be referred to the office of the relevant law officer.
Where disclosure of the information would affect the interests of a third party, and it is possible to do so, the views of the third party should be sought to ensure that adequate consideration is given to those interests, and where relevant to avoid the effect disclosure may have on their future co-operation.

Duration of the Exemption; Papers of Previous Administrations

3.16 The public interest in withholding information under this exemption is likely to diminish with the passage of time. In any case, the section 35 exemption cannot be used if the information is in a document or file over 30 years old. (It is of course possible that information contained in the classes of records covered by section 35 will be exempt for longer than 30 years under a different exemption. Accordingly information in a Cabinet minute more than 30 years old cannot be exempt under section 35, but may for instance be exempt under section 27 if its disclosure would damage relations between the United Kingdom and another state.)

3.17 There is an important interaction here with the long-standing convention that governments are not permitted to see Ministers' papers of a previous administration of a different political persuasion. The purpose of this convention is the same as that on collective responsibility: to give Ministers and their officials a secure space in which to develop and document their thinking on policy options. In this case, the particular danger which the convention guards against is the risk of exposing Ministers to improper political attacks by their opponents in the future.

3.18 Requests for papers of a previous administration (within the 30 year period) should therefore be considered on the same public interest principles as papers of the current administration.

3.19 To ensure consistency, the requests should be referred to DCA. Those cases requiring Ministerial intervention will be handled by the Attorney-General. The relevant former Minister should be consulted before a decision is made. As a general principle, the harm to the public interest from disclosure of such documents will need to be weighed with especial care.

Footnotes

An important part of the risk assessment of Government programmes and projects is undertaken as part of the Gateway reviews conducted by (or in accordance with the guidelines of) the Office of Government Commerce. Specific guidance in relation to Gateway reviews can be found annexed to the chapter on section 43.