Cabinet Office won’t tell us what the lawyers say about the Crown Commercial Service. Why?

I mentioned recently that Cabinet Office seemed to have given up replying to Freedom of Information requests. Well, I finally got a response to a two-part question I asked in early June. The second part of my request seemed  a very innocent, public procurement geek- type question.

Can you enlighten me as to the issue of the Trading Fund status of GPS and what happens if it is “integrated” with other areas in Cabinet Office e.g. procurement policy? Can it maintain that status and has Cabinet Office taken any legal advice on that (and if so, can you share that with me?)

OGC and Government Procurement Service were set up as Trading Funds (a type of government organisation) so that they could act commercially. I was just therefore generally interested in how the new Crown Suppliers – sorry, Crown Commercial  Services – would be set up. I had no particular angle on it, didn’t think it would be something to publish here really, and I certainly didn’t expect this response from Cabinet Office.

No decision has yet been taken on the legal status of the Crown Commercial Service, or exactly what functions it will incorporate from the Cabinet Office. The Cabinet Office holds legal advice on the issue which is being withheld because it is exempt under section 42 of the freedom of information act. There is a general public interest in disclosure of information and we recognise that openness in government may increase public trust in and engagement with the government. There is also a definite public interest in understanding the legal justification for decisions taken by government.

Against this there is a strong public interest in protecting the confidentiality of communications between lawyers and their clients. This confidentiality promotes respect for the rule of law by encouraging clients to seek legal advice and allowing for full and frank exchanges between clients and their lawyers. It is particularly important for the Government to seek legal advice in relation to sensitive and difficult decisions, and for any advice given to be fully informed and fully reasoned.

Without confidentiality, clients might fear that anything they say to their lawyers, however sensitive or potentially damaging, could be revealed later. They might be deterred from seeking legal advice at all, or from disclosing all relevant material to their lawyers. Or the advice given may not be as full and frank as it ought to be. Taking into account all the circumstances of this case, we have determined that the balance of the public interest favours withholding this information”.

 So, this is a case of “sensitive and difficult decisions”, in the same league perhaps as legal advice on going to war with Iraq? Might the government fall if we knew more about the pros and cons of whether GPS becomes a Trading Fund, Agency or  Non-departmental public body? Or are the poor delicate  lawyers frightened of what we might say about their advice?

Very odd, anyway. Is the Crown Commercial Service idea unravelling? Can anyone suggest why this might be so sensitive? I really have no idea.

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Voices (5)

  1. James Cowan:

    Agree with Owen that it looks like a stock form of words used in response to requests about legal advice, which government is always – and understandably – twitchy about revealing (except when it suits them). But Cabinet Office have only addressed one part of your FOI request – rephrasing it along the lines of “all papers relating to the future status of GPS following the decision to integrate it with Cabinet Office” might make it harder for them to hide behind the standard line of not releasing legal advice.

  2. Trevor Black:

    If your identity had been changed on a such a regular basis I can only assume that you will have an identity crisis and all those associated with you will also be confused as to who you are and your purpose in life. Any responses to questions are therefore not going to be delivered with any degree of confidence. It would appear that the rudder has fallen off the ship and who knows where it will end – probably best to sink it and then everyone will know where they are!!

  3. Bill Atthetill:

    Peter, while it is true that the advice given to client by lawyers is privileged and protected to give lawyers a comfort blanket around their PI cover, the subsequent emails, correspondence, meeting notes and anything else sitting on Cabinet Office servers in relation to this topic, won’t be, and are captured under FOI rules. Someone, somewhere in Cabinet Office will have generated a summary – for folk like Bill and Steve Kelly – and now you just need to ask for that information. Simple.

  4. Gordon Murray:

    Seems bizarre amid all the rhetoric of transparency. I just can’t understand the need for the secrecy – will it not need to be made public anyway. One interesting approach,, if you really want to get an answer would be to get your local MP to raise as a question.

  5. Owen Boswarva (@owenboswarva):

    That looks to me like a boilerplate response; I wouldn’t take it personally. Under FOI “sensitive” has a fairly low threshold when it comes to the formulation of government policy. Government departments routinely refuse requests for copies of legal advice and information related to policy decisions that they haven’t yet been announced.

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