Tommy Sheppard: Why is the UK so keen to hide polling on the Union?

Well, it’s still going. The latest chapter in my long-running campaign to get the Government to publish this taxpayer-funded research unfolded last Tuesday. In a smallish windowless room on the first floor of the Royal Courts of Justice off the Strand, the protagonists assembled before the Upper Tribunal under the direction of Judge Stewart Wright.

A quick recap.

Between January 2018 and May 2019, the UK Government spent at least £264,807 hiring polling companies to research public attitudes to the Union. That’s a lot of data. Some 60 MB of documents apparently. When this exercise was reported in the press in the spring of 2019, I asked the Cabinet Office if they would publish the information.

Michael Gove said no. So, in June I then submitted a formal request under the 2000 Freedom of Information (FOI) Act. They refused, citing Section 35 which allows information to be withheld if it relates to the formulation of government policy.

I then asked the Information Commissioner’s Office (ICO) to intervene. Somewhat to my surprise, in January 2020, the ICO sided with the Government. Undeterred, I decided to take the ICO to court and I appealed against its decision to the First-tier Tribunal. Covid happened. Eighteen months passed. I’d almost forgotten about it. Then the tribunal gave its judgment, upholding my appeal in no uncertain terms, and directing the Government to release the information.

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They didn’t. Instead, they first appealed to the tribunal to review its decision. When told where to go, they then launched an action in the Upper Tribunal to get the ruling changed. So, that’s where we got to last Tuesday.

The Government is going to extraordinary lengths and spending a lot of time and money to keep this information secret. And after more than four years it still might not be resolved. Why?

The FOI act does have exemptions – for national security and for live policy formulation. The Cabinet Office argues that Section 35 is designed to create a “safe space” in which ministers and their advisers can knock policy ideas around and that conducting this sort of discussion in public would constrain it. You know what? I agree. It’s not unreasonable for a government to say: “We’re looking at policy options and we’ll publish proposals once we’ve worked them out”.

For that to be valid. though, there would have to be some evidence that a policy was under review. Doesn’t have to be much. A ministerial statement or even a commitment in a speech. Otherwise, you could say pretty much any discussion about anything was covered by this exemption which would render the whole act useless.

From the beginning, I’ve asked exactly which policy is under review when it comes to the Union. After all, the Government has repeatedly ruled out a referendum, further devolution, indeed any change in the Union whatsoever.

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I suspected that the opinion research was more to get a handle on how the Government could promote the Union, not change it. The First-tier Tribunal agreed, saying: “The polling informs and evaluates the policy and the effectiveness of its communication, in a way which ... leads us to the conclusion that the information relates to the implementation of existing policy rather than to policy development”.

The Cabinet Office’s main ground for appeal is that you can have a high-level policy (maintaining the Union) which is not up for review but lots of low-level policies that are. Well, you could, but you’d still have to say what on earth was being reviewed. For the exemption to work, there must be a real-world connection between the research and a policy.

So, what on earth is being reviewed? Perhaps the most annoying thing about this is that we don’t get an answer to that question. After the Government made its case, we were asked to leave, and the court then went into closed session to consider the very information we were asking to see.

The First-tier Tribunal has already seen this and ruled that it doesn’t meet the grounds for exemption. The judge on Tuesday said he was minded to take a different view.

You might be thinking what on earth is so vital that the Government is going to quite extreme lengths to protect? I know I am. At this stage, I can only speculate. Since the work covered the Union as a whole, not just Scotland, maybe there’s some sensitive information relating to Northern Ireland it wishes to keep private.

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Or, more likely, maybe some of the information is just embarrassing. Could it be, for instance, that the polling shows that most people in Scotland don’t have a clue what the Scotland Office is for? Maybe this research offers an explanation for the massive exponential increase in Alister Jack’s public relations budget.

Or could it be that the research showed that there was major public confusion over whether Westminster was in charge of Scotland? Could this be the reason for the muscular Unionism of recent years, and the overturning of Scottish Government decisions? Who knows.

The other key question the tribunal considered last week was that of public interest. The act says that even if a piece of information is exempt under Section 35, the court can still decide it is in the public interest that it be made available. So, it’d be unlikely to rule that detailed information about the deployment of anti-terrorism officers be made public. Opinions on the utility of the Scotland Office, not so much.

I think that since the public paid for this research, they have a right to it. And in a democratic society, surely information should be used by all of us to build and promote an argument? Different people will draw different conclusions from the same data.

The Tory government has a different view. It says the research was designed to inform policy options aimed at strengthening the Union. To quote from its grounds for appeal, “its release would risk research and findings being taken out of context, and lead to public comment which is distracting ... In particular, the disclosure of the information could be deployed to seek to influence public attitudes by those wishing to weaken the Union, undermining the entire purpose of the work”.

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As my young barrister argued cogently and forcefully, this statement makes the case for disclosing the information rather than keeping it secret. Our taxes should not be used to secretly fund what is essentially political campaigning by the Government.

So, what happens next? The Cabinet Office tried to get the judge to refer the whole matter back to the First-tier Tribunal, effectively adding a few more years to the journey towards resolution. We argued that the judge himself could and should rule now on the matter and even if he thinks Section 35 is in play, require the release of the information under the public interest test. Judge Wright did say he would try to decide quickly, so watch this space.

In the meantime, a series of questions need to be asked on just how much has been spent to keep this information secret. We raised nearly £10,000 to fight the court case and I’m grateful for everyone who chipped in. We had an energetic junior counsel and the support of Bindmans, a law firm with a track record in fighting progressive cases.

My guess is the Government has spent 50 times that with its top-flight silks and army of in-house lawyers. I’ll be putting in a Freedom of Information request to check. Whatever it costs, it’s you that will be paying for it.