On how comments made in a party political capacity has led to repeated breaches of the Freedom of Information Act 2000 by Whitehall.
I don’t normally throw accusations around like this lightly. If it were any other political party saying such things, my response would be the same: you cannot use ‘national security’ as a party political weapon. It’s too important an issue.
The Prime Minister’s political Twitter account repeated that claim here, and Conservative politicians followed this through repeating the claims. The really stupid thing is that a few days later, the Prime Minister was shaking hands with said threat to national security.
It’s one thing to say: “Mr Corbyn’s policies would weaken our national security” but it is quite another to say that he is ‘a threat to national security’. Do you see the difference? So naturally, people went onto the Freedom of Information website What Do They Know? and threw one information request after another at Whitehall.
As Mark Thomas said in his talk in Cambridge yesterday, if politicians are going to say stupid & silly things, they are going to get stupid & silly responses that clog up the system. Which is what happened. Whitehall’s response was a standard communications response – the comments were made in a party political context, therefore all enquiries should be sent to Conservative Party Headquarters. The problem with this is that most members of the public neither know nor care about the constitutional difference between David Cameron as Prime Minister and David Cameron as Leader of the Conservative Party. Unfortunately for Whitehall, the Freedom of Information Act 2000 also does not make the distinction between requests for information made following statements made by ministers in a party political capacity vs a ministerial capacity. It is here that Whitehall (in this context, any Government department that has received FoI requests about Corbyn & national security comments by ministers) has potentially broken the law – specifically Section 1(1) of the Freedom of Information Act.
“In what way have they broken the law? This is a very serious allegation!”
Absolutely – one I do not make lightly.
I won an appeal against the Home Office over the release of social media guidance – and in that appeal persuaded the appeals officer to conclude that the Home Office had broken the law in how it handled my original request. Note my appeal for a review here.
“What should Cabinet Office/Number 10 have done?”
It doesn’t matter what the context of ministerial remarks/comments were, what matters is the request for information. The law requires authorities receiving the request ***must*** state whether they hold the information requested (subject to S24 – which I explain below). The copied & pasted text from Number 10 is as follows:
“Thank you for your email of 13 September about a tweet issued by Mr Cameron
in his capacity as Leader of the Conservative Party following the election of Mr
Jeremy Corbyn MP as Leader of the Labour Party.
By not stating whether they hold the information or not, and by not mentioning any exemptions where the duty to confirm or deny does not apply, I conclude that Number 10 is in breach of the Freedom of Information Act 2000.
Therefore, for each request for information about Mr Corbyn and ministerial comments on national security, departments need to respond properly and check their files to confirm that no information as requested by people sending in requests actually exists.
“What if it does exist?”
Then civil servants have to go through the process of assessing the information to see if any of the exemptions apply – in particular Section 24 on national security.
S24 is an interesting exemption because if the release of information held would compromise national security, civil servants can use that exemption and not have to state whether specific pieces of information are held or not. (S24(2)). But as I mentioned above, Number 10 has not done this. They’ve simply pointed people to Conservative Party HQ rather than applying a Section 24 exemption. Note too that a Section 24 exemption also requires a ministerial sign off to confirm that the information concerned would, if released compromise national security. (S24(3)).
“What if no information exists?”
Then we have no evidence that Mr Corbyn is a threat to national security as the Prime Minister and the Defence Secretary state, and accordingly they are playing politics with a very serious issue. Ministers of the Crown of any political party should know better.