THE Freedom of Information Act could be rendered “impotent” if the UK Government wins an appeal over its refusal to publish internal polling on the Union, the MP fighting the case has said.

Tommy Sheppard, the SNP MP for Edinburgh East, has been embroiled in a battle with the Tory government over the release of the polling data since he first requested its release in June 2019.

After a lengthy process of appeals and delays, a tribunal in June 2021 ruled the UK Government’s arguments against releasing the information were “not wholly clear”.

The tribunal gave the Cabinet Office – then led by Michael Gove but now by Michael Ellis – 28 days to publish the files, but it once again refused and lodged an appeal against the judgment.

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That appeal is due to be heard in court on Tuesday, May 24, and Sheppard says the ruling has the potential to render Freedom of Information legislation “impotent”.

“The bottom line is: What on earth have they got to hide?” he told The National.

“Why are they spending so much time and money protecting a piece of research that’s now more than three years old?

“It can only be because they are worried that a precedent will be set.

“If they rightly are told they have to put this information in the public domain, when it’s paid for by the public purse, then they will have to do it next time as well.

“They’re basically trying to protect a layer of secrecy.”

The UK Government previously argued, and court submissions suggest it intends to argue again, that the polling is exempt from Freedom of Information laws under Section 35.1.

This says that files do not have to be published if they relate to “the formulation or development of government policy”.

The National: Number 10 is refusing to back down in the FOI caseNumber 10 is refusing to back down in the FOI case

However, the tribunal against which the Tories are appealing found this exemption was not relevant.

As the UK Government had been unable to explain “in what way the main policy [the Union] might be developed or altered as a result”, it could not go ahead.

The previous tribunal further found that, even if the “development of policy” exemption the Cabinet Office had attempted to use had been applicable, the public interest argument would likely have outweighed it.

Sheppard said: “The Government has explicitly said it has no intention of changing policy in respect of the Union.

“In fact, it has gone out of its way to even discuss it.

“How can it be argued that they are formulating policy?

“What they’re trying to do is research public opinion in order to better promote the Union, and that’s an entirely different matter.

“They’re basically trying to argue that black is white.

“If they get away with that, basically the whole freedom of information legislation is rendered useless.

“You could say that about anything.

“It’s quite a facetious defence. They’ve basically said they have a right to keep information collected at taxpayers’ expense to themselves just because they’re the Government.

“I don’t think it’s convincing and I will argue against it, but I’m not a lawyer and they will have a whole team of barristers.”

If Tuesday’s upper tribunal rules in Sheppard’s favour, the Tories will be left with the option of escalating the matter to the Supreme Court, and vice versa.

Asked if he would take the case to such a high level, Sheppard said: “Yes, I’m taking this all the way.

“If the tribunal were to judge in [the UK Government’s favour] they are essentially rendering the whole freedom of information apparatus impotent.”

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The Cabinet Office has previously refused to disclose how much taxpayers’ money it has spent on its dogged refusal to release the information.

Reports in 2020 suggested that James Kanagasooriam, from London-based political insight company Hanbury Strategy, had been handed a government contract worth up to £1 million to conduct the research.

The firm told The National at the time that they were “unable to discuss any confidential client work”, but did not deny having conducted the polls for the Government.

A Cabinet Office spokesperson said: “The UK Government regularly commissions research across the UK to understand public attitudes and behaviours to inform our campaigns, policies and to ensure we are delivering for people and families across the whole of the United Kingdom.

“The Scottish Government also conducts similar research for the same reasons and we maintain that it is in the public interest to preserve a safe space for the development of policy and the provision of advice to ministers.”

The spokesperson said it would be inappropriate to comment further until the appeal has been heard.