Government and Executive Accountability Lecture

I. The Executive and Public Law Powers

The rule of law requires that all be subject to the law, even the government or executive. The authority of the executive comes from Parliamentary legislation and the Crown's Royal Prerogative and common law powers. Most Bills that become law come from the government to permit it to act in line with its policy objectives. A bill normally needs the agreement of both Houses and Royal Assent. The Parliament Acts 1911 and 1949 allow certain Commons bills to receive Royal Assent without the Lords’ agreement. Parliament can therefore prevent a government bill from becoming law. Royal prerogative powers are residual and thus cannot be extended by the Crown.

The executive is comprised, not just of the political executive (or government), but also includes civil servants; legislation can also confer public law powers on other bodies to carry out public functions. Public functions, since the 1980s, have also been contracted out to private contractors. There is now a web of executive agencies that exercise powers on behalf of the government. The "Next Steps" programme, launched in 1988, led to the creation of numerous executive agencies charged with putting public policy initiatives into practice. Executive agencies remain part of government departments. The contracting out of public functions to the private sector makes Parliamentary scrutiny of executive functions even more difficult. There have been Parliamentary reforms in order to adapt to this change in public functions.

II. Mechanisms for Executive Accountability

Three mechanisms for accountability include legal, political and administrative methods. Scrutiny comes from parliament, the judiciary and the electorate.

1. Parliament and its MPs have the responsibility to hold the executive to account and to determine whether they should support government policy and legislative agenda. MPs seek to raise issues that have come to their attention via their constituents and ministers are normally obliged to answer such questions. Although ministers are accountable to Parliament, the answers in practice are often evasive.
2. Judicial scrutiny of the executive is a fundamental principle of the rule of law. The government and public bodies are also accountable through private law. Dicey thought that it was important that the government was judged by the ordinary courts in the same way that citizens are. In England and Wales the Administrative Court of the High Court may scrutinise executive and public policy decisions, actions and omissions. The Court of Session exercises supervisory jurisdiction in Scotland and the High Court hears judicial reviews in Northern Ireland. The executive, public bodies and authorities may be subject to Judicial Review. If the court finds that the executive has acted illegally, irrationally, or procedurally improperly, in breach of the rules of natural justice or the Human Rights Act 1998 (HRA), it may quash the decision. There is also HM Courts and Tribunals Service, established in 2011 as an executive agency of the Ministry of Justice, which administers the reserved unified tribunals across the UK, to which social security and tax disputes, among others, may be brought.
3. The electorate has a legal right to choose parliamentary representatives. Under the Dissolution and Calling of Parliament Act 2022, which repealed the Fixed-term Parliaments Act 2011, a Parliament has a maximum duration of five years, but the Prime Minister can request that the Sovereign dissolve Parliament and call a general election within that period. The Sovereign may refuse in exceptional circumstances. London-based media bring the electorate’s attention to issues, however general elections have become distorted into contests between political parties and their leaders, rather than between local candidates and local issues. The media is focused on the party leaders and their senior team on central party-political messaging. As a result, political parties hire media consultants in order to seek positive media reports to attract the electorate.

III. The Extent to Which Parliament Holds Government Accountable

The Modernisation Committee of the House of Commons, chaired by the Leader of the House, was established by the Commons after the Labour government took power in 1997. Labour had voiced concerns during its time in opposition that the executive had dominated Parliament and that it should be held to account in new ways. The Modernisation Committee carried out a number of reforms between 1997 and 2010, however, there were also criticisms levelled at its composition, its focus and the outcome of its work. The Committee was not re-established following the 2010 general election. On 25 July 2024 the Commons established a new Modernisation Committee to consider its procedures, standards and working practices.

L. Maer, Modernisation of the House of Commons 1997 - 2005 House of Commons, Research Paper 05/46 (London: HMSO, June 2005)

The Select Committee on Modernisation of the House of Commons (Select Committee) was established in 1997 to consider how the practices and procedures of the House of Commons could be modernised. It was chaired by the Leader of the House of Commons. Having a Cabinet Minister on the Committee proved to be a 'double-edged sword', making it appear to be too heavily influenced by the Government, when the aim of the Committee was to achieve government accountability.

Recommendations included increased pre-legislative scrutiny of Bills, the introduction of carry-over for some bills, the programming of legislation and the introduction of deferred divisions, which provided more certainty to the schedule of legislative introductions. There was a reform of Parliamentary questions and an agreement of the core tasks of select committees. A parallel debating chamber was also established. Various initiatives were taken to improve communications, to introduce increased use of technology and encourage parliamentary reporting by the media.

The outcome of the work of the Committee was, however, criticised as not achieving its goal of modernisation, due in part because it was chaired by a Cabinet Minister who steered the agenda and was hence not independent of the Government. Certain changes aimed to make Parliamentary procedure less complex in order for it to be more easily reported by the press. There were also suggestions that the changes made it easier for Parliamentary candidates to spend time with their families and thus making the career of an MP attractive to a greater range of people. Ultimately, the Modernisation Committee was influenced by the chair's view of 'modernisation' and did not necessarily make the Government more accountable.

IV. Pre-legislative and Post-legislative Scrutiny of the Executive

Some Bills are published in draft for pre-legislative scrutiny by a committee of either House or a joint committee of both Houses. At this stage, Parliament can investigate the executive's motives for bringing legislative changes and what additional powers such changes might confer upon the executive. This reform has been welcomed by Parliament and by other commentators.

The Select Committee’s 2006 First Report, The Legislative Process (Session 2005–06, HC 1097), welcomed this change, suggesting that it was one of the most successful parliamentary innovations of the previous decade. The aim was to engage interest groups as well as the Commons and the Lords at the pre-legislative stage in order to create more effective and comprehensive legislation once passed through Parliament. 

Modernisation Committee, The Legislative Process [First Report, Session 1997-1998, HC 190, London: HMSO, July 1997], paras 5-6, "Consultations between Government and those outside Parliament with a legitimate concern in the legislation has also been criticised as patchy and spasmodic".

The number of Bills introduced varies by session. In 2024–26, 295 private members’ bills alone were introduced. The Joint Committee on Human Rights (JCHR) considers public bills and concentrates on those raising significant human rights issues. General committees have a role in scrutinising legislation. Public Bill committees play an important role in considering and agreeing amendments to the text and each public Bill committee is named after the Bill that it considers. This committee system allows Bills to be processed faster and as the committees reflect the political make-up of the House, so the government is likely to have the majority. 

There is occasionally a rebellion by backbench MPs who do not vote for a piece of government legislation and as such do not follow the whip by voting against a government Bill. An example was the Higher Education Bill 2004 which passed its second reading by 316 votes to 311. The guillotine is a technical device which forces outstanding questions on a Bill or a stage of it to be put when the allotted time expires. It can prevent opponents from delaying a Bill through prolonged debate. In the Commons debate of 7 November 2000, MPs recalled three timetabled Bills under Labour between 1946 and 1949, 34 guillotines under the Conservatives in 1979–1990 and more than 20 under Labour since 1997. A programming motion includes a timetable for the passage of the Bill through the process and is similar to the guillotine in effect. The Commons recorded 74 programme motions and no separate guillotine motion in the 2002-03 session. Programming motions have since become the standard method by which government controls the timetabling of legislation.

Further examples of controversial practice affecting the scrutiny and amendment of legislation include:

• At report stage of the Human Fertilisation and Embryology Bill in 2008, the Commons agreed to a programme motion which left new clauses on abortion unreached when time expired;
• The Legislative and Regulatory Reform Act 2006 which allows ministers to amend primary legislation by order for specified purposes, subject to statutory safeguards and parliamentary scrutiny;
• The widespread use of programming motions, which restricts the opportunity for amendments to be debated and voted upon.

The House of Lords has sat through the night to increase debate time on important legislative changes. A notable example was the all-night sitting on the Parliamentary Voting System and Constituencies Bill in January 2011.

Reform of the House of Commons Select Committee, Rebuilding the House [First Report, London: HMSO, November 2009] [The Wright Report], para 109

The single greatest cause of dissatisfaction which we have detected with current scheduling of legislative business in the House arises from the handling of the report stage of government bills - technically the "consideration" stage when a  Bill has been reported back to the House from a public bill committee.

The major problem is that there is insufficient time at the report stage. This makes it very difficult for Parliament to fully debate the issues within the Bills and since the government prioritises Parliament's work, non-government bills frequently have insufficient time for debate at this stage. Post-legislative scrutiny considers how an Act has worked in practice. Normally, three to five years after Royal Assent, the department submits a memorandum to the relevant Commons select committee unless the committee agrees one is unnecessary. The committee decides whether to conduct an inquiry.

V. Parliamentary Scrutiny of Government

The following mechanisms are used to extract information and explanations from government, to debate public policy and to undertake detailed inquiries into government operations.

1. Parliamentary Questions

Parliamentary questions are asked to extract information or to require the government to defend controversial decisions and policies.

2. Oral Questions

Oral questions to Ministers are often Parliament's most recognisable activities. Prime Minister's Questions (PMQs) is televised, takes place for half an hour each sitting Wednesday, and was introduced in 1961. PMQs often shows direct opposition between the PM and leader of the opposition. PMQs aims to highlight the deficits of government policy and the fact that the opposition party would form a better government. PMQs serve the public function of highlighting the ideological differences between the government and the opposition.

Question time for other ministers acts on a rota basis; departments normally answer about once every five sitting weeks on matters for which they are responsible. A question about terrorism policy would be put to the Home Secretary. The asking of oral questions serves little purpose other than at a symbolic level to achieve real scrutiny.

3. Written Questions

MPs can put their questions in writing in order to extract detailed information from government.  Hansard records debates and oral statements in the Chamber. Written questions and answers are published on Parliament’s website. The advantage of the use of written questions is transparency and that the answer is clearly on record.

The government’s advisory disproportionate cost threshold for answering a written parliamentary question is £850. The statutory limits for Freedom of Information requests are separate. Some answers by ministerial departments are unsatisfactory or non-answers and may lead to the need to submit a Freedom of Information request under the Freedom of Information Act 2000. A refusal is not necessarily a breach of the Ministerial Code, which requires that "Ministers give accurate and truthful information to Parliament...[and]...should be as open as possible with Parliament and the public" (formerly [1.3c]-[1.3d], now paras 1.6(c)–(d)).

Governments make formal announcements to Parliament by means of the written ministerial statement. The conception that it is the government's role to inform Parliament of changes in government policy reflects the view, dominant within government, that Parliament's role is a passive one to be informed, rather than to inform legislative policy.

4. Parliamentary Debates

Debates are held in the House of Commons and in Westminster Hall; they are held on particular issues and allow for expression of various points of view. It is a long-standing concern that the government has too much control over the debates within the House of Commons. Standing Order No 14 provides, subject to its exceptions, that 'government business shall have precedence at every sitting'. In each session twenty days are set aside for debates initiated by opposition parties, 13 Fridays are used for the discussion of private members' Bills.  Thirty-five days or their equivalent are allocated to backbench business, at least 27 of them in the Chamber. The business is chosen by the Backbench Business Committee (established in 2010 following the Wright Committee recommendations).

Are debates an effective means to bring about government accountability? Tony Wright in British Politics: A Very Short Introduction (Oxford, 2003) p.85, argues that 'debate' is an odd word to describe events that often involve politicians reading pre-prepared speeches to often-empty chambers. Debates in the House of Commons often possess a ritualistic nature; party considerations have such a strong influence that the debates tend to serve little purpose in swaying the considerations of the MPs who will vote.

5. Select Committees

House of Commons Departmental Select Committees

House of Commons departmental select committees oversee the policy, expenditure and administration of the principal government departments; for example, the House of Commons Health and Social Care Committee oversees the work of the Department of Health and Social Care. Standing Order No 152 lists 20 departmental committees. Most have a maximum of 11 MPs. The Northern Ireland Affairs Committee has a maximum of 13. Following reforms prompted by the Wright Committee in 2010, the chairs of departmental and certain other select committees are elected by the House through secret ballot where contested. The House appoints the other members following nominations from the party groups, replacing the previous system in which party whips controlled appointments.

The formal remit of the select committee is to examine the administration, expenditure and policy of the government department to which it is attached. The committees operate inquiries into areas of policy and administration and seek written and oral evidence from relevant individuals, including Ministers and civil servants. At the end of the inquiry, they produce a report and make recommendations to government.

6. Other Committees

There are a number of other House of Commons committees which transcend departmental boundaries, including the Public Accounts Committee, the Environmental Audit Committee, the Public Administration and Constitutional Affairs Committee (formerly the Public Administration Select Committee) and the Liaison Committee. The House of Lords also has a number of select committees including the Constitution Committee, the Delegated Powers and Regulatory Reform Committee, the Secondary Legislation Scrutiny Committee (formerly the Merits of Statutory Instruments Committee), the International Agreements Committee, the European Affairs Committee, the Science and Technology Committee and the Economic Affairs Committee. There are also Joint Committees of both Houses including the JCHR.

Assessment

Select committees have the following advantages at holding governments to account

The committees provide for more detailed scrutiny than House of Commons debates, since they undertake detailed inquiries and amass evidence from a number of avenues. They are less politically charged methods of scrutiny than the personal point-scoring style which House of Commons questions and debates can take on.

• The ability of select committees to scrutinise government has strengthened over time. Their work has become more focused and effective and is now better resourced and engaged; they have become more systematic in their approach and increased both the breadth and depth of their coverage.
• The committees have also enabled individual MPs to develop their own expertise in particular areas, which enhances the quality of their scrutiny.

Select committees have the following disadvantages at holding governments to account

• The current system of select committees is regarded as operating under various constraints, which has an impact upon their effectiveness at holding the executive to account. Their powers are limited in comparison to legislatures in other countries, since they are able to recommend legislative change but cannot enact it.
• Their reports do not automatically receive time for debate in the House of Commons. The Backbench Business Committee has, however, provided an additional avenue through which select committee reports can be debated.
• There is a lack of resources for committees to be able to carry out their duties adequately. One problem is the availability of MPs' time, which leads to an impact on the scrutiny that they are able to provide. Concerns have been expressed that MPs do not attend committee hearings due to increased demands on their time.
• The broader the remit of the Committee, the less depth of scrutiny they are able to achieve.
• The government is not bound to accept the recommendations of the select committees. It often depends upon whether the relevant department is inclined to accept them. The government is normally expected to respond within two months. Certain select committees have also noted the poor quality of government replies and long delays by departments in providing responses to their reports.

In conclusion, although select committees are important in holding government departments to account, their impact is limited as the government has no obligation to accept their recommendations and the resources allocated to the committees often make their work difficult. Government departments can and frequently do disregard their recommendations without too much difficulty. Any attempt to increase the powers of the select committees has appeared merely cosmetic.

Select committees have a role in relation to pre-appointment hearings. Government Ministers have the responsibility to make appointments to posts in public bodies. In 2007 the government decided that select committees should have a role in ensuring the candidates' suitability for the appointment and the process used for selection. Most such hearings are advisory. An exception is the Budget Responsibility and National Audit Act 2011, Schedule 1, which requires the Treasury Committee’s consent to the appointment of the chair and the two other members of the Budget Responsibility Committee.

VI. Scrutiny through the Courts

Political accountability has a different function to legal accountability through the court process. Courts have a wider remit to ensure that in cases brought before them the public body concerned is acting within the powers it is ascribed by law. Most actions that involve statutory powers or the royal prerogative will be subject to judicial review, if the case has merit and the claimant has standing to bring the case. Certain areas are considered non-justiciable, placing limitations on the ability of the courts to bring the government to account.

E. Barendt, An Introduction to Constitutional Law (OUP, 1998) pp. 143-5

Barendt asks if there are some questions which are too inherently political that the courts should not involve themselves with them. The courts in the US have abstained from determining political questions. In Rahmatullah (No 2) v Ministry of Defence [2017] UKSC 1 the Supreme Court recognised a Crown act of state defence to tort claims arising from certain acts of government policy in military operations abroad. Foreign policy is not generally immune from review. The courts can decide the legal limits of the power of the Crown to make or withdraw from a treaty, as in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.

English courts do not draw a distinct line between justiciable and non-justiciable cases when it comes to judicial review. Judges are hesitant to question the government's economic policy decisions; it would be difficult to conclude that such decisions were irrational, unless the decisions were patently absurd, or clearly taken in bad faith. Where there are human rights considerations the courts have examined administrative decisions on asylum and freedom of speech [e.g. R v Secretary of State for the Home Department, ex p Bugdaycay [1987] AC 514; R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696]. National security may justify a proportionate restriction on a qualified right. It cannot justify torture or inhuman or degrading treatment under Article 3 of the European Convention on Human Rights.

The boundary of justiciability was considered by the Supreme Court in the landmark case of R (Miller) v The Prime Minister [2019] UKSC 41, in which the court held that the Prime Minister's advice to the Queen to prorogue Parliament for five weeks was justiciable and unlawful. The Supreme Court unanimously held that the prorogation was void and of no effect. The advice exceeded the legal limits of the power because, without reasonable justification, it frustrated Parliament’s ability to legislate and hold the executive to account.

Some cases have been considered non-justiciable due to the fact that they are political rather than legal decisions and hence should be decided by politicians and not judges. The court can decide a question of law arising in a political dispute. Disagreement with the merits of a political decision supplies no ground for judicial review. The distinction between justiciable and non-justiciable cases is not always clear. Over time the courts have broadened their review powers, in particular to review cases which affect fundamental human rights and constitutional principles.

How Effective is the Courts' Review of the Executive?

A. Tomkins, Public Law (OUP, 2003) pp.209-10

Tomkins identifies three significant limitations of the court's ability to subject the executive to judicial scrutiny.

1. First, the court's reluctance to deal with certain areas of policy carried out by the government.  Judicial review is concerned with public law functions. Private law claims can be brought in ordinary civil proceedings. Since subsequent governments have used New Public Management (NPM) and market principles to deliver public services, the public-private law divide is becoming less relevant.
2. The potency of the court's remedies is also a limitation. Damages require an independent legal basis and are rarely awarded and an award of damages against the state is unlikely to act as a deterrent to future wrongdoing, since there is no financial loss accruing to individual actors. If a decision is quashed the government may take a fresh decision within its existing powers, or ask Parliament to change the law for the future.
3. Thirdly, Tomkins questions whether judges should desire to hold the democratically elected government to account. Writing in 2003, he noted the lack of diversity in the senior judiciary and asked whether it was for the courts rather than the people to decide matters of public policy. For example, should it be for the people of Leicester and not for the judges to decide whether Leicester City Council could bar a rugby club from a council recreation ground because three of its members had taken part in a tour of South Africa during the apartheid regime (Wheeler v Leicester City Council [1985] AC 1054)? Perhaps Parliament and not judges should decide whether homosexuals should serve in the military? However, there does need to be an avenue of protection for the minority against the majority. (Note: The composition of the senior judiciary has become more diverse since Tomkins wrote, notably with the appointment of Baroness Hale as President of the Supreme Court in 2017, the first woman to hold that office. The ban on homosexuals serving in the armed forces was lifted in 2000. Nevertheless, the underlying constitutional question about the proper role of the judiciary in scrutinising democratic government remains a live debate.)

VII. Reforming Parliamentary Scrutiny

Parliamentary Scrutiny - An Assessment

Parliamentary scrutiny of government may be inadequate, since government is capable of avoiding parliamentary oversight of what it does. It is often sporadic and fleeting, influenced by party-political considerations, limited by time constraints and lack of knowledge amongst MPs. Ministers frequently deflect questions; notorious are the tactics that PMs use at PMQs to deflect questions about controversial policies by carrying out personal attacks against opposition MPs who ask questions. Frequently departments ignore recommendations made by select committees about changes in governmental policy or administration. The outcome of this is that Parliament comes across as having a passive role in government scrutiny rather than an active one.

Parliament's capacity to review governmental actions is not irrelevant however. Governments must still listen to and respond to concerns raised by Parliament. Ministers may give evasive answers to parliamentary questions and may withhold information where disclosure would not be in the public interest. In general, announcements about major changes in government policy should be announced first in Parliament when it is in session; although this principle is not always followed. Parliament can refuse legislation or supply needed for a specific action. It can also influence the government in two ways.

1. Parliament can have the impact of deterrence on government; if opposition parties are able to raise awareness with the public and prompt adverse public reaction, the government may be forced to abandon certain proposals.
2. Parliamentary scrutiny can also have a positive effect by contributing to debates; MPs can bring certain issues to be introduced into the government agenda. MPs can bring specific issues to government which are raised by their constituents and induce a response from a Minister. Since the executive is largely dominant in Parliament, this has a significant influence on its effectiveness.

Parliamentary scrutiny does not have to affect the ability of government to rule. Bernard Crick in The Reform of Parliament (London, 1969) is quoted by the Wright Committee as saying that "Parliamentary control of the executive – rightly conceived – is not the enemy of effective government, but its primary condition" (p.259 in the 1970 edition).

Parliamentary Scrutiny - Reform

There have been a number of recommendations for reform in this area. These include:

• reducing the influence of the whips;
• increasing the powers, role and status of select committees;
• reducing the ability of the government to set Parliament's agenda.

Since no government in power is interested in reducing its own power, these proposals have made little progress under successive government administrations. The fallout from the MPs' expenses scandal in 2009 led to a number of responses to the expenses system. Gordon Brown, who was PM at the time, acknowledged that "the battered reputation of this institution cannot be repaired without fundamental change" (HC Deb, vol. 493, col. 795, 10 June 2009).

Reform of the House of Commons Select Committee, Rebuilding the House [First Report, London: HMSO, November 2009] [The Wright Report].

The Wright Committee was established to consider reforms to parliamentary procedure and published its report in 2009. The report found that public confidence in the House of Commons was low and required fundamental structural and cultural change. 

The Committee found that "We believe that the House of Commons has to become a more vital institution, less sterile in how it operates, better able to reflect public concerns, more transparent, and more vigorous in its task of scrutiny and accountability" (Rebuilding the House, p.7, para 3).

The Committee also noted that MPs work hard and are in closer contact with their constituents, although the House itself was seen as mattering less than it once did.  It suggested giving MPs the ability to set the agenda in Parliament to enable the business of the House to be responsive to public concerns (proposals on scheduling, p.3). Two of the Committee's key proposals were implemented.

One was the recommendation that backbench MPs be given more influence over Commons debates by way of the Backbench Business Committee (established in June 2010), and the election by secret ballot of select committee chairs (first held in June 2010). The Committee also recommended a greater role for the public in the process of drafting legislation and giving individuals the opportunity to have influence in this area. The government introduced an e-petitions system in 2011. The joint government and Parliament petitions system introduced in 2015, under which petitions reaching 100,000 signatures are considered for debate, was a further development in public engagement with Parliamentary business.

VIII. Freedom of Information and Government Scrutiny

In order to hold the government to account it is necessary to have access to accurate information from government.  The Freedom of Information Act 2000 gave any person, from 1 January 2005, a right to request recorded information held by public authorities covered by the Act, within certain parameters. Scottish public authorities are generally covered by the Freedom of Information (Scotland) Act 2002. UK public authorities operating in Scotland remain subject to the 2000 Act. The British government has long been characterised by a culture of secrecy in which access to information has been tightly controlled by Ministers and civil servants.

Calls for freedom of information have long been resisted. A development came in 1993 when the Conservative government proposed a Code of Practice, introduced in April 1994, under which individuals could request information from central government departments. The Freedom of Information Act 2000 was enacted by the Labour government, which had been elected in 1997.

Freedom of Information - Its Rationale

Freedom of Information (FOI) is regarded as a tool which advances transparency and openness in public bodies. If there are abuses of power being carried out, FOI has the ability to reveal these problems. FOI also allows citizens to participate in government decision-making on a fully informed basis. There is an important public interest in FOI, but non-disclosure may at times be in the public interest.

The surveillance information about an individual who is known to be a danger to the public might be required to be kept secret so as to enable the security services to carry out their job without the individual under surveillance finding out about the operation. Thus, there is a balancing act to be achieved between keeping key security information secret from the public and fulfilling the legitimate right of the public to know about government plans and operations, which theoretically are being carried out in the country's interests.

The Freedom of Information Act 2000 (FOIA)

The FOIA creates a broad right of access to information, not only held by government departments but also by public bodies including local authorities, schools, colleges, universities, the health service, the police and other public bodies (FOIA, Section 3, Schedule 1). All public authorities must also adopt and maintain a publication scheme, which is subject to approval by the Information Commission (FOIA, Section 19). The Commissioner’s functions transferred to the Commission on 30 September 2026. A public authority must normally say whether it holds requested information and, if it does, disclose it promptly and within 20 working days, subject to the Act’s exemptions (ss.1 and 10). Environmental information is dealt with under the Environmental Information Regulations 2004 or their Scottish equivalent.

The general right of access to information is subject to significant limitations. There are a number of classes of absolute exemptions to the Act; these include information reasonably accessible to the applicant by other means as well as various other areas which are considered confidential. Among these are information supplied by or relating to listed security bodies (s.23), specified court records (s.32), parliamentary privilege (s.34) and information obtained from another person whose disclosure would be an actionable breach of confidence (s.41). Section 44 covers disclosure prohibited by an enactment, incompatible with an assimilated obligation, or constituting or punishable as contempt of court. There also exist non-absolute public-interest based exemptions. The two-stage test asks whether:

1. The information falls into one of the relevant categories (e.g. FOIA ss. 24, 26, 27, 29 and 35)
2. Whether the public interest in exemption outweighs the public interest in disclosure (FOIA s. 2(2)(b))

The public authority need not comply with a request if the estimated cost of the activities permitted by the regulations exceeds a certain financial limit (FOIA, s.12 and s.13). Under the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004, the limit is currently £600 for public authorities listed in Part I of Schedule 1, including central government departments, and £450 for other public authorities. Section 13 allows fees in cases where the cost limit is exceeded. The authority may count time spent determining whether it holds the information and locating, retrieving or extracting it, at £25 an hour. After an internal review, an applicant can complain to the Information Commission under s.50. A decision notice may be appealed to the First-tier Tribunal under s.57.

The operation of the FOIA has led to many thousands of requests each year being submitted to public bodies. Two particularly high-profile cases in which FOI requests were carried out and led to government scrutiny include: MPs' expenses and the Iraq Cabinet Minutes.

The government exercised its ministerial veto under s.53 FOIA in February 2009 to prevent disclosure of the Cabinet Minutes. The Justice Secretary relied on collective Cabinet responsibility and the need for confidential Cabinet discussion.

However, the scope of the ministerial veto was significantly curtailed by the Supreme Court in R (Evans) v Attorney General [2015] UKSC 21. In that case, the Upper Tribunal had ordered disclosure of correspondence between the Prince of Wales and government ministers. The Attorney General issued a s.53 certificate to override the Tribunal's decision. The Supreme Court held, by a majority, that the Attorney General's certificate was unlawful. Three justices held that mere ministerial disagreement could not displace a judicial decision. Two others found that the Attorney General had not given adequate reasons for departing from the Tribunal’s findings. This decision has effectively rendered the s.53 veto very difficult for government to use in relation to decisions of the Upper Tribunal or courts, significantly strengthening the FOIA regime and the ability of the courts to hold government to account on matters of transparency.

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