Chapters: 01 | 02 | 03 |
04 |
Annex A 
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Annex B |
Annex C |
Annex D
2.1 Information falls within the terms of section 36 if its disclosure, in the reasonable opinion of a qualified person, would, or would be likely to, prejudice the maintenance of the convention of the collective responsibility of Ministers of the Crown.
2.2 The convention of collective responsibility is a constitutional convention of long standing. It means that decisions of the Government are just that - decisions of the Government. Those decisions are taken collectively, and each member of the Government is party to the decision and committed to it. A minister who objects to such a decision is expected, once he has made his case, to accept the collective decision about the policy or course of action to be pursued. If he cannot do so he is expected to resign. The maintenance of this convention is fundamental to the continued effectiveness of Cabinet government and the public interest in maintaining it is recognised by its inclusion not only in this exemption but also in the special provision made in section 35 for the protection of information relating to Cabinet proceedings themselves.
2.3 There is a close inter-relationship between privacy of discussion amongst Cabinet members and the convention which requires that Ministers should be able to argue freely in private in the expectation that when decisions have been reached they will present a united front. The public interest factors to be considered are covered later in this chapter.
2.4 Information will fall within this exemption if its disclosure would or would be likely to cause some harm or prejudice to the convention described above. Departments will therefore need to consider what effect disclosure of information would have on the maintenance of collective responsibility. For example:
2.5 The sort of information most likely to come within this provision, therefore, would be that which revealed the positions which individual Ministers had taken or continued to take on issues of Government policy. Information about which ministers were personally involved in a particular decision is also likely to engage the exemption. For example, it may be relevant to correspondence between officials reporting on their Ministers' views on individual policy questions, or submissions to Ministers from their officials reporting the views of other Ministers.
2.6 Information is also exempt if its disclosure would, or would be likely to, in the reasonable opinion of a qualified person, prejudice the work of the Executive Committees of either the Northern Ireland Assembly or the National Assembly for Wales.
2.7 Neither of these bodies could be said to have a 'convention' about collective responsibility. Moreover, the Northern Ireland executive is, under the terms of the Northern Ireland Act 1998, explicitly a power-sharing executive. The Government of Wales Act 1998 originally vested considerable powers in its Assembly, rather than in the Ministers. In those circumstances, where Ministers or the administration may be coming from parties which are known to have differing stances on individual policy issues, the doctrine of collective responsibility is difficult to apply.
2.8 The intended effect of the provision is, however, comparable to the provision made for the protection of collective responsibility of Ministers of the Crown. If disclosure of the information would be likely to undermine the trust and understanding which are necessary to allow the administrations to function properly, then the terms of the exemption would be satisfied.
2.9 Information is exempt if its disclosure would, or would be likely to, in the reasonable opinion of a qualified person, inhibit:
The 'provision of advice' may be internal within the authority (for example the provision of advice by officials to ministers), or external - the authority either receiving advice from outside or itself providing advice to third parties. The 'exchange of views' is limited only by being 'for the purposes of deliberation'. That will include processes of decision-making, opinion-forming or evaluation, but is likely to exclude very casual or trivial exchanges.
The term 'inhibit' is not found elsewhere in the FOI Act exemptions. It suggests a suppressive effect - communications would be less likely to be made, or would be made in a more reticent or circumscribed fashion, or would be less inclusive.
The inclusion of this provision in the exemption explicitly recognises the role free and frank discussion plays in effective government. The public interest considerations which will be considered in more detail later will be very similar to those mentioned in the guidance for section 35.
2.10 As with the collective Ministerial responsibility provision, but unlike section 35, for this exemption to apply an effect adverse to the interests it seeks to protect must arise from disclosure of the information. It is limited to cases where disclosure would or would be likely to 'inhibit' the free and frank provision of advice, or exchange of views for the purposes of deliberation. It is not enough that disclosure would result in someone's temporary embarrassment. Departments will need to consider, in respect of each request for information, what effect disclosure would have on the provision of advice or the exchange of views. For example:
2.11 Section 36 is not limited to particular kinds of information; it works by reference to the effects of disclosure rather than to content. But clearly the disclosure of some kinds of information is more likely to have an inhibiting effect than others. Although advice relating to the formulation of Government policy will fall to be considered under section 35, there are, for example, other areas of advice which Ministers receive which does not relate to formulating or developing policy. Many Departments have extensive management, delivery and operational functions and important decisions have to be taken in the performance of those functions. These decisions will be informed by advice received from officials and third parties. They may also be the result of debate amongst ministers or discussions with stakeholders.
2.12 Information the disclosure of which might have a potentially inhibiting effect may be contained in formal minutes and submissions or recorded in the minutes of a meeting. Likewise the records of meetings will contain the exchange of views that took place in reaching a decision. The provision of advice and the exchange of views protected by this exemption is not limited to government ministers but includes advice and discussion which takes place at official level and within public authorities outside central government departments. The information sought does not need to be the full record of advice or an exchange of views to be capable of having an inhibiting effect; it may merely refer to it indirectly or affect it some other way. For example to disclose a reference to the fact that a confidential meeting has taken place or confidential advice has been given could in some circumstances itself have an inhibiting effect. The information need not even refer to the provision of advice or an exchange of views. It is the effect of disclosure which triggers the application of the exemption. The public interest test will then need to be considered.
2.13 Information can be withheld if, in the reasonable opinion of a qualified person, it would, or would be likely to prejudice the effective conduct of public affairs. As the use of the word 'otherwise' indicates, this provision deals with situations other than those spelled out in the rest of section 36(2) and (because the exemption only applies if section 35 doesn't) section 35. Lord Falconer made it clear, in debates on the Bill (Hansard, HL (series 5) vol 619, col 240 (14 November 2000)) that residual situations might arise, which could not be foreseen, where it was necessary to withhold information in the interests of good government. Because this residual exemption is so broadly expressed, a clear explanation will have to be given in any case in which this provision is relied on (and particularly where it is the only exemption relied on) as to how the conduct of public affairs would be prejudiced by disclosure. Although section 36 cannot be used simultaneously with section 35, it may apply in addition to another exemption under the act. This general prejudice to the conduct of public affairs provision might easily be engaged, for example, alongside the exemption relating to audit functions .
2.14 It should be noted that the 'neither confirm nor deny' provision (section 36(3)) also requires it to be the reasonable opinion of a qualified person that disclosure of whether the public authority held the information would produce one of the effects spelled out in subsection (2).
2.15 Section 36(4) deals with statistical information. In relation to statistical information, there is no requirement for 'the reasonable opinion of a qualified person' to be applied to the prejudice tests which must be undertaken. In other words, the qualified person need not be engaged in the decision-making process; and the test becomes a straightforward and objective one. This provision should be read with section 35(2). Under that section, once a Government policy decision has been made, statistical information used to provide an informed background to that decision is not to be regarded as related to either the formulation of policy advice or ministerial communication. Statistical information of this sort therefore will cease to be exempt information under section 35 (although it may continue to fall under another exemption). It may, however be exempt under section 36, if its disclosure meets the prejudice and inhibition tests in this section.