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Monday, March 15, 2010

The bizarre case of the House of Lords gagging order

The Daily Telegraph has a piece this morning that defies belief. They report that Michael Pownall, the Clerk of the Parliaments, signed a legal gagging order to block the release of his memo explaining his controversial definition of a main home for the purposes of the House of Lords overnight stay allowances.

They say that Mr Pownall certified that the memo was subject to parliamentary privilege and therefore exempt from the Freedom of Information Act (FOIA). Apparently, Section 34 of the Act states information should not be released if this would infringe on Parliament’s “privilege” to “control its own affairs and not have its proceedings questioned”:

Three Labour MPs facing criminal charges are currently using a similar argument to claim that their alleged misuse of parliamentary expenses is not a matter for the courts.

Mr Pownall, for the Lords, and John Bercow, the Commons Speaker, are the sole arbiters of what is covered by this FOIA privilege exemption.

Using logic familiar to readers of Kafka, the Ministry of Justice’s guidance on Section 34 explains that a certificate signed by either of them stating that information is exempt “is conclusive evidence of that fact”.

Documents previously kept secret using the clause include a National Audit Office report into BAE Systems’s controversial arms deal with Saudi Arabia.

It has even been used to prevent disclosures ranging from information relating to the arrest of the shadow immigration minister, Damian Green, to correspondence over the creation of the all-party parliamentary group for the wood panel industry

However it is highly unusual for the clerk to have used the power to block a document written by himself.

Some FOIA exemptions can be challenged on the basis that the release of the information would be in the public interest.

However, the Ministry of Justice document states: “Section 34 is an absolute exemption and not subject to the public interest test.”

Despite all the public anger and controversy it seems that Parliamentary officials have still not learnt anything.
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