MY BATTLE FOR DISCLOSURE OF UK GOV POLLING - THE STORY SO FAR...
They say, that when you find yourself in a hole, you should stop digging. This is advice Michael Gove would be well advised to take in relation to his battle with me over the disclosure of information.
It’s a long story, so bear with me.
Back in the spring of 2019, reports appeared in the press that the UK Government had been undertaking opinion research (polling) in Scotland designed to gauge public attitudes to how the country should be governed. It transpired that such polling had been going on from March 2018 up until May 2019; a lot of it undertaken by Ipsos-Mori. The research was organised and funded by the Cabinet Office.
At the time, I had the parliamentary brief to shadow the Cabinet Office. I took the view – which I hope is not controversial – that since this research was paid for by the taxpayer, then the results of it ought to be in the public domain. A series of written and oral questions to David Lidington, then Minster of State at the Cabinet Office, proved fruitless. The Government simply said no.
On 3rd June 2019, I decided, having been denied a response in Parliament, to exercise my rights under the Freedom of Information Act. On 1 July 2019, the Cabinet Office responded. It refused to provide the requested information, citing section 35(1)(a) FOIA (formulation and development of government policy) as its basis for doing so. I then asked for a review of this decision.
Whilst this was happening, David Lidington resigned his post in anticipation of Boris Johnson becoming Prime Minister, and the swash-buckling Mr Gove took the helm at the Cabinet Office. One of his first acts was to reject my request for a review. I was informed of this on 14th August.
My next step was to complain to the Information Commissioner, which anyone is entitled to do when an FOI request is refused. I did this on 20th August. The Government’s case was that it was undertaking this research to develop policy and therefore it was exempt from FOI. In my appeal to the Commissioner, I pointed out that the Government had no intention of reviewing policy in relation to the union. Indeed, it had gone out of its way to reject any changes to the current constitutional settlement, such as might arise from another referendum or a further devolution act.
Five months later, on 27th January 2020, I got a decision from the Commissioner. To my disappointment she sided with the Government, although in reading her judgement, she seems to have been not wholly convinced of their case and it was very much a decision on points.
I disagreed with the Commissioner’s judgement on whether this research ought to be exempt under the Act and decided to appeal the judgement to the Information Tribunal (a special court established under the 2000 act). It took a quite a while, but six weeks ago on the 14th of June 2021, the Tribunal finally published its judgement. It found in my favour on every point and ordered the Government to release the information within 28 days. On the central point the tribunal, chaired by Stephen Cragg QC, found that “the information relates to the implementation of existing policy rather than to policy development” and the exemption did not apply. It went further and suggested that even if the exemption might have applied it would not have been in the public interest to withhold the information!
The Cabinet Office decided to appeal on Day 28. It has the right to do this, but only if it can show that the process of reaching the judgement was flawed, not simply because it disagrees with it. And this week, Mr Cragg rejected the appeal, pointing out to the Cabinet Office that it had no such grounds to do so.
So, in the legal battle between myself and the Cabinet Office, the score is now 2-0. You’d think that at this point the Government might show some good grace and comply with the direction it has been given. Somehow, I doubt it will. They can now appeal to the Upper Tier Tribunal to overturn the judgement of the First Tier Tribunal. Perhaps even the Supreme Court after that. Their chances of success seem remote, but the delay will achieve its objective of keeping this information hidden from view.
The big question is why?
Can this information really be so sensitive that the Government fears embarrassment or setback from its release. Maybe, maybe not. I suspect the Government’s real fear is about precedent being set under the FOI process. Remember, the request in question only relates to information up to June 2019. But of course, the Government has been squandering public money ever since in researching its campaign against Scottish independence. Including, it seems, using money designated for Covid relief to question Scots about their attitude to Indy.
I have, of course, submitted further FOI requests relating to research since June 2019 up to the present day, and the Government is also stonewalling on those. Once the legal process around the earlier request is exhausted, then it won’t have a leg to stand on in regard to that information either. And that may well be quite embarrassing. That’s why it won’t throw in the towel just yet. It’s also why we will keep pursuing the information.
This, of course, is the opposite of transparent accountable government. It shows a government using public funds for its own political party ends – the sort of thing it is quick to condemn in other parts of the world. And none of this is cheap. Who knows how much of our taxes the Government has now spent, and will continue to spend, trying to keep this information secret? I don’t know, but I’ve submitted another FOI request to find out.