David Cameron would like us to believe that he wants the most open and transparent government.


He can have no complaint if his talk of repatriating powers from within the EU is examined as to whether it is spin or substance. In producing our research paperThe Competence Con”, we tried to find any indication that a meaningful return of powers was possible within the EU. We concluded that it was not, and that Britain needs to leave the EU to restore its sovereignty.




In March 2013, a Freedom of Information (FOI) request was lodged with the Foreign and Commonwealth Office (FCO) on what legal advice it had received. The FCO replied that the government had no advice from EU institutions, but some from legal authorities. However it refused to reveal that advice on the grounds that the information was “legal professional privilege” (LPP) that could be maintained in legal proceedings.

In short, this privilege of secrecy is justified for the government feeling confident that it can disclose “all relevant facts” for a legal adviser to provide “sound advice”, without fearing that they will be disclosed to the public.

Apparently the legal advice enables the government to make decisions “in the correct legal context”.




If the context is compliance with British and EU law in considering a process for repatriation of powers, rather than private personal circumstances, then surely this is drawing on law texts such as EU Treaties and Case Law, which are very much “public information”?

Given the current debate on EU membership, and the Prime Minister’s openly-announced intentions for using such a process before giving the people a vote, shouldn’t a disclosure be in the public interest? After all, if it were to be straightforward to take powers back, the government should have nothing to hide on outlining the steps to take?

We are talking about what would be a straightforward government act of negotiation, rather than something relating to a criminal case or national security. There is no way that this information is going to be used in legal proceedings (leaving aside the special case of a judicial review, which is only a faint possibility. This could be independently granted on general acts of public administration, and could incidentally openly examine the legal advice given.)

We responded to the refusal by encouraging the FCO to release its limited information on ‘the process’, but with the names of officials, legal advisers and their organisations taken out, so that nothing could be attributed to any individual. (This rendering is done on other FOI requests to remove the names of civil servants who don’t meet with the public, for instance.)

If the FCO sees sense, the response will be objectively reviewed. However, continuing failure to explain how repatriation of powers might be possible must be construed as something to hide?




In July 2012, Information Commissioner Christopher Graham accused the Prime Minister and others of undermining the Freedom of Information Act, and effectively encouraging civil servants to obscure the government from proper scrutiny.


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This page compiled: 11 April 2013