Policy advice

Advice to ministers on a question of policy.

What information does this cover?

Advice to ministers on a question of policy (that is, a submission asking for a decision on a question of policy, outlining an emerging policy, providing advice on ongoing policy work, and so on; as distinct from submissions on routine matters like arrangements for a speech to be delivered).

It is good practice in these circumstances to ensure that the private office of the minister in question is aware of requests for information of this type. Any comments that they give you should be taken on board as part of your decision.

Working assumption

Policy advice, recommendations, suggested options, and opinions: withhold - cite section 35(1)(a) (formulation of government policy) or regulation 12(4)(e) in the case of environmental information. Other exemptions may also apply.

Background factual material and statistical information contained in submissions needs to be treated differently, and can be broken down into two main categories:

Background factual information and statistical information produced during the process of developing new policy, after a specific stage of the policy making process has been reached (Green Paper, White Paper, Bill): release
Background factual material and statistical information generated as part of the day to day policy maintenance process: in general the assumption is to release, except where release could prejudice the policy maintenance process.

Reason for the assumption

Factual background information should generally be released:

because of the general public interest in disclosure
as knowledge of the way government works and the information on which it has based its decisions increases, the public contribution to the policy making process could become more effective and broadly-based
it would 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.

Statistical Information

Once a decision has been taken, the Act specifies that statistical information used to provide background to a decision is no longer considered exempt as contributing to the formulation or development of government policy (although other exemptions may apply).

Advice, recommendations, suggested options, and opinion

There will often be strong public interest considerations in withholding policy advice. The main considerations are set out below. It is in the public interest that:

decision-making is based on the best advice available and a full consideration of all the options
advice should be broadly based - there may be a deterrent effect on experts or stakeholders who might be reluctant to provide advice because it might be disclosed
the impartiality of the Civil Service is protected - it might be undermined if advice was routinely made public as there is a risk that officials could come under political or public pressure not to challenge ideas in the formulation of policy, thus leading to poorer decision-making
Ministers and officials can 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 discussion and the development of better options
there is 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 or public criticism
the collective responsibility of the government is not undermined by disclosure of interdepartmental consideration and views of other ministers (which may reveal disagreement).

The disclosure of such information clearly carries with it a potential element of damage to the public interest: the High Court (in the ECGD decision) thought arguments such as those above to be 'at the heart' of public interest considerations surrounding this type of information. It found that cases in which it will 'not be appropriate to give any weight to [such] considerations will, if they exist at all, be few and far between' (1).

Clearing House continues to work to establish this point in caselaw yet more clearly. Until such time as this changes, the assumption should remain as above. In addition to these process arguments however, departments should continue to highlight the specific damage that could arise from inappropriate disclosure of such material. The facts of a particular case will also be highly relevant to public interest considerations.

Referral points

To the extent that departments intend to handle a request in accordance with this working assumption, referral to the Clearing House will not be necessary. Departments considering any other course of action should first refer the case and seek advice on the most appropriate way forward.

Notes

1. Export Credits Guarantees Department v Friends of the Earth ([2008] EWHC 638 (Admin)), 17th March 2008, at paragraph 38.