Michael Gove loses appeal against ruling ordering release of secret Union polls

It launched the legal challenge earlier this month after it was told to make public the documents within 28 days by a tribunal who backed a request by the SNP MP Tommy Sheppard for the files to be released.

The Cabinet Office, led by Michael Gove, made the decision to appeal on the final deadline day earlier this month arguing that the tribunal's decision to order the release of the information was incorrect.

But in a written judgement, which was published last night, Judge Stephen Cragg QC threw out the government's appeal.

READ MORE: Tories appeal ruling to release secret polling on the Union as deadline expires

Cragg said: "The Cabinet Office has not identified any errors of law (arguable or otherwise), in the Tribunal’s decision. On that basis the application for permission to appeal is refused."

Sheppard, who is his party’s constitutional affairs spokesman at Westminster, described the ruling as "an absolute rejection" of the Cabinet Office's appeal and demanded it release the files, which date back to January 2018, immediately.

"We are demanding the release of these files. We also want to know how much money it has spent on fighting this legal battle," he said.

SNP MP Tommy Sheppard

"The Government ought now to have the decency and good grace to stop this. When in a hole stop digging, stop wasting tax payers' money, stop being cavalier with the freedom of information legislation and stop maintaining this veil of secrecy over research which has been funded by the public purse."

Sheppard said he suspected the Cabinet Office was refusing to release the information as it did not wish to set a precedent.

The files the Cragg ruling relate to are polling from January 2018 to June 2019.

But Sheppard has submitted a second FoI request to get the polling information carried out since then by the Cabinet Office, including controversial studies conducted with Covid contract funds.

The Cabinet Office can now appeal Cragg's decision to a higher tribunal. If they decide not to appeal they have seven days after a new deadline to release the files.

"It is a pyrrhic victory. It is becoming ridiculous that a MP or any private citizen has to go to these lengths to get answers to their questions," said Sheppard.

"I presume they are going to these lengths on this case, which relates to information from a few years ago, because they don't want to establish a precedent that would make them have to release further polling they have done subsequently." 

The ruling is the latest twist in a lengthy battle to obtain the Cabinet Office polls by Sheppard.

The Edinburgh MP first made a freedom of information request in June 2019 to the department to obtain the documents dating back to January 2018. He also asked how much money had been spent on the work.

But the Cabinet Office refused, citing an exemption clause which related to providing a safe space for the development of government policy.

Sheppard responded by asking for reviews of the decision with the matter going to the UK's Information Commissioner's Office (ICO).

In his appeal to the ICO, Sheppard argued that since the UK Government had no stated intention to review or alter policy in respect of the Union, the exemption clause should not apply.  

The ICO upheld the Cabinet Office decision but Sheppard took the matter to a tribunal.

On June 14 this year the tribunal ordered the Cabinet Office to disclose the files.

The First-tier Tribunal (General Regulatory Chamber) Information Rights ruled the information requested “relates to the implementation of existing policy rather than to policy development” and the Cabinet Office must disclose it within 28 days. The Tribunal also indicated that even if the exemption did apply then then the balance of the public interest was in favour of disclosure.

The Cabinet Office launched an appeal on the 28th day, which is has now lost.

It had argued the tribunal had misinterpreted the law and that the exemption still should apply and that the polling information related to implementation of existing policy and not to formulation or development of policy

In his written judgment Cragg was not satisfied that "there was an error of law in the Tribunal’s decision".

He wrote: "I have considered whether the grounds of appeal identified above are arguable. This means that there must be a realistic (as opposed to fanciful) prospect of success....There is nothing in the grounds of appeal which leads me to find that those conclusions contain an arguable error of law by the Tribunal in considering the evidence and information available to it."

He added: "The Cabinet Office’s argument about the relevance of the timing of the request is taken completely out of the context of the rest of paragraph 30 where this issue is discussed at length and does not disclose an arguable error of law."

Polls on independence have varied over the last year, with support reaching 58%. The latest poll put it at 48%.

Sheppard has previously accused the Cabinet Office of acting like a “sore loser” and said the polling surveys should be made public immediately.

The ruling is the latest setback for Gove, who was slammed by a judge earlier this year or a “profound lack of transparency” and was ordered to release internal files shedding light on a secretive unit that handles Freedom of Information requests.

The developments also follow a successful long running freedom of information battle between The National and the Scotland Office in obtaining UK Government files dating back to the planning of the devolution referendum in 1997.

A UK Government spokeswoman said: “The UK Government regularly commissions research in different parts of the UK to understand public attitudes and behaviours to inform our campaigns and policies.

"The Scottish Government also conducts similar research for the same reasons. We will set out our response to this decision in due course”.