This article was published in early 1993 before the debate on
Mark Fisher MP’s Right to Know Bill
In some countries the citizen who asks for information is merely exercising a legal right. In Britain, the same request may be treated as an impertinence. A new private member’s bill, introduced by Mark Fisher MP would change that. Britain would have a freedom of information act if the Right to Know Bill due for second reading in the Commons on February 19 1993, becomes law.
The secrecy over safety problems illustrates why the law is needed. We have no right to know the results of safety tests on new cars, safety assessments on the channel tunnel, or the results of fire inspections at British Rail stations .
It is often possible to obtain more information about Britain under the American Freedom of Information (FOI) Act than from Whitehall. When a cruise liner like the QE2 sails from Southampton to New York its kitchens are inspected at both ports. The British report is secret the US findings freely available. Information on the safety of British food additives, medicines, faults on British cars or hygiene conditions at British poultry plants is also available from Washington – but largely confidential here.
In many of the recent major accidents the authorities – but not the public – knew of the safety problem beforehand. The official report into the fire which killed 31 people at King’s Cross underground station in 1987 found that “Many of the shortcomings…had in fact been identified before by the internal inquiries into escalator fires. They were also highlighted in reports by the fire brigade, police, and Railway Fire Prevention and Fire Safety Standards Committee.” Greater openness offers at the least the possibility that the public would learn about such deficiencies and demand improvements.
What accounts for our secretive culture? In part it is simply administrative convenience: releasing information involves more work than leaving it in the files. But secrecy often has a more specific cause. It protects decision-makers from challenge, shields policies from criticism, conceals mistakes or the arbitrary exercise of power, allows government to pursue objectives which may not enjoy public support and avoids pressure for action which the government wishes to resist.
The nature of our politics encourages this. Government is under constant scrutiny from an opposition whose full time job is to expose ministers’ failings. Ministers in turn devote themselves to denying ammunition to their critics. The frank admission that a mistake has been made or that a policy has failed has become almost unthinkable. In this corrupting atmosphere, concealing the evidence is seen not as dishonesty but as a necessary tool of effective government.
Openness may be difficult, but it has its advantages. Exposing proposals to early scrutiny allows government to draw on expertise beyond Whitehall. There is a greater chance that weak proposals will be questioned and amended – or even thrown out – if the discussion takes place before ministers have finally committed themselves, and can change their minds without loss of face. The fact that proposals have been developed openly may also lead to greater public support.
But a government which hastily commits itself to ill-thought out proposals – to implement an untested doctrine, boost the popularity of a floundering minister, or respond to the latest tabloid outcry – will not easily tolerate scrutiny. The policies may generate still more secrecy, to prevent the lack of analysis, failure to anticipate problems or damaging results becoming apparent.
A classic example was the government’s plan, announced in October 1992, to close 31 coal pits without warning or consultation, making 30,000 miners redundant. The public outrage which followed forced the government into a series of embarrassing retreats. This culminated in a high court ruling that even the revised, less drastic, closure plan was unlawful because British Coal had failed to meet its statutory duty to consult its trade unions.
It was later revealed that the government had commissioned a report from a firm of American mining engineers which reportedly concluded that most of the condemned pits were profitable and able to achieve a further 30 per cent improvement in productivity. Their coal would then be cheaper than the gas and nuclear alternatives favoured by ministers entirely undermining the justification for the closure programme. In January 1993 the government published a different report, by the same company which reviewed many of the same pits but reached markedly more pessimistic conclusions. The original report remains secret.
The arms to Iraq scandal produced an equally disturbing scenario. Documents released during court proceedings showed that, just before the invasion of Kuwait, ministers had relaxed the guidelines on exports of arms equipment to Iraq. But instead of acknowledging and defending the new policy, it was deliberately kept secret. Parliament was told that the original guidelines, drawn up in 1985, had continued to be applied.
Three former executives of the Matrix Churchill company were prosecuted for exporting machine tools used to manufacture armaments. Yet official documents showed that the company had disclosed the military implications to the government and had been encouraged to carry on – and that one defendant was actually working for the intelligence services.
Ministers, senior officials and government lawyers all saw these papers. But instead of stopping the prosecution, ministers signed ‘public interest immunity’ certificates to suppress the evidence. The suggestion that they had no alternative but to do so has been widely challenged.
Perhaps the most shocking aspect is that the court was told that the documents contained nothing which could support the defence case a demonstrable falsehood which could have led to the men’s imprisonment. The implication is that the government used its control of official information to protect itself from embarrassment – regardless of the implications for the defendants’ liberty.
Skoal Bandit or Oral Snuff?
A final example shows how counterproductive secrecy can be. In 1985 an American firm opened a factory in Scotland making a tobacco product known as ‘Skoal Bandits’ or ‘oral snuff’. The government encouraged the venture with an investment grant of nearly £200,000. But the following year an official committee concluded that the product caused cancer and should be banned. Yet no-one told the manufacturer which continued to invest in the new site. It only learnt of the decision 28 months later, when the Department of Health announced the proposed ban. Even then it was not allowed to see the scientific committee’s report. The company challenged the ban by judicial review, and the ban was set aside purely because of the government’s lack of candour. Lord Justice Taylor commented: “all they were told was the conclusion – namely that a ban should be introduced – not the grounds for reaching it…One cannot help feeling that the denial…was due to an in built reluctance to give reasons or disclose advice lest it give opponents fuel for argument”.
“There is no way that I am interested in having umpteen organisations looking into every last detail of all our papers… No, I will not show you the report. I see no reason to show the BBC the report. You know the contents of the report. If you don’t believe me, that is tough luck.”
Social Security minister Anne Widdecombe, telling a BBC Radio programme why she would not release a report which led to a hostel for the homeless being closed at two weeks notice in March 1991.
Mark Fisher’s Bill
The Right to Know Bill would create a right of access to central and local government records. Only information specifically exempted from access could be withheld. Exemptions apply where disclosure would cause “significant damage” to defence, international relations, law enforcement, the economy, the lawful activities of the security services or the lawful commercial interests of an authority or private company. However, even commercially sensitive information could not be withheld if it concerned a serious public hazard. Information affecting personal privacy would be exempt. So would the policy advice offered by officials – but not the factual information on which it was based, the analysis or interpretation of factual information or projections based on it. “Expert advice” on scientific, medical, legal, financial or other specialist issues would also be disclosable. There are a number of other exemptions.
The Bill would be enforced by an independent Commissioner and Tribunal, with power to examine documents and order disclosure. In part, this follows the model of the Data Protection Registrar and Tribunal. It avoids the cost and delay of the courts – and would enable a more rapid development of a consistent body of case law.
In certain circumstances, even exempt information could be disclosed – if there had been significant abuse of authority, negligence, danger to the public, injustice or unauthorised use of public funds. In these circumstances the Commissioner and Tribunal would be able to order disclosure if the public interest in openness outweighed any possible harm. The courts already apply such public interest balancing tests – for example, under the law of confidence or in deciding whether to accept government claims for “public interest immunity”.
The Bill would also repeal the 1989 Official Secrets Act. Information likely to cause “serious damage” to interests such as defence would still be protected. But there would be a new public interest defence. Civil servants would first have to show that they had tried to deal with any wrongdoing under established procedures.
The Bill would also allow access to employment records. And it would require companies to publish more information in their annual reports, including details of their compliance with laws on the environment, health and safety, consumer protection and discrimination.
“I have to say I have not the slightest intention of giving you any information why I reached the decision I did… To sum up, I would please ask in future you direct your inquiries to me personally but I can assure you will certainly not receive any answers.”
The Chief Constable of Merseyside replying to the chairman of the Police Complaints Authority, who had asked why disciplinary proceedings against two police officers involved in an alleged assault had been dropped.
Mark Fisher’s Bill is backed by more than 50 national organisations including leading consumer, environmental, professional and church bodies and by a campaign of local lobbying activities co-ordinated by Charter 88.
The Bill, which has all-party support, may not be easy for the government to oppose. While the opposition parties have long been committed to freedom of information legislation, there is growing Conservative support too. A MORI poll for the Rowntree Reform Trust in January 1991 found that 75 % of Conservative voters supported FOI legislation. In 1990 a report by the Institute of Economic Affairs called for reforms to tackle ‘government traditions of secrecy’; and in December 1992, FOI legislation was called for in a report from another conservative think tank, the European Policy Forum.
The government has responded with the commitment in its 1992 election manifesto “to be less secretive about the workings of government”. A new “open government initiative ” has been announced, under the charge of a cabinet minister, William Waldegrave. It has led to the release of some information. But progress has been limited, sometimes appearing only in response to external pressure.
The approach is to encourage departments to release more information, but not require it. The government says that information will be withheld only where there are “pressing public interest” reasons for secrecy – but there is no mechanism to secure this. Ministers still decide what to release, remaining free to withhold information, without challenge, wherever disclosure would be inconvenient or embarrassing.
Even the policy itself can be abandoned – if it proves unpopular in Whitehall or ministers’ priorities change. This is what happened to the last openness initiative. The “Croham” directive, named after Lord Croham the former head of the civil service, was introduced by the Labour government in 1977, and promised the publication of background papers to decisions.
Few were published and within 18 months the policy had been quietly dropped. Lord Croham himself later came out in favour of a freedom of information act.
Until recently, the official line was that such legislation would undermine parliament by allowing some body other than the House of Commons to compel ministers to release information . The argument has never been particularly convincing. As one commentator (as it happens, Mr Waldegrave himself, before becoming an MP) has observed, the power of the Commons is “exercised almost at the whim of those who control the majority” who “can be whipped into line on virtually any measure”. Mr Waldegrave has recently said that he has no ideological objection to a freedom of information act a notable shift in official emphasis, which may leave the door open for government support at some later stage, though there is no sign of it at present.
The government will find it hard to object to the principle of FOI, since it has recently introduced, in effect, an environmental freedom of information act.
The Environmental Information Regulations 1992, which came into force on 31 December 1992, are the result of a European directive but one which the government claims to have played a leading role in promoting. They give the public a legal right to any environmental information held by public bodies. Only information which the regulations define as “confidential” can be withheld. No specific enforcement mechanism is provided, but an unsupportable failure to disclose could be challenged by judicial review.
The new right is flawed by the sweeping nature of many exemptions. For example, information which third parties including polluters – have supplied ‘voluntarily’ and which the authority has no legal power to demand, cannot be disclosed without the supplier’s consent. An official has acknowledged that as much as 90 per cent of the government’s environmental information could be withheld under this provision alone. And any information about international relations can be withheld – a major loophole now that environmental issues are increasingly dealt with by international treaty or European directive.
But the principle of the legislation is significant. If ministers can accept the case for a broad and (albeit weakly) enforceable right of access to environmental information, why not a similar right for information about, say, safety, public health, consumer protection, education, the NHS, social services – and everything else?
SECRECY… Protects decision makers from challenge, shields policies from criticism, conceals mistakes or the arbitrary exercise of power, allows government to pursue objectives which may not enjoy public support and avoids pressure for action which the government wishes to resist.
Overseas experience demonstrates that such legislation is feasible, and affordable. FOI laws now exist not only in the USA but in Australia, Canada, New Zealand, France, Denmark, Holland, Norway, Sweden and Greece. A potential objection is that disclosure may affect the frankness of civil service advice to ministers. But according to a former Home Office official who has studied the legislation in the three countries – Australia, Canada and New Zealand – with Westminster style parliaments: “In all three countries fears were widely expressed that advice would no longer be put in writing, or that it would be heavily diluted. I looked hard for evidence of this. There is still a belief that it happens, but when I pressed people they could never come up with examples. Of the two permanent secretaries I interviewed in Australia, both said that they had noticed no reduction in the frankness of official advice which flowed across their desk on its way up to the minister. One of them had certainly feared this would happen; but his fears had not been borne out in practice.”
What of the cost? In Australia, some 25,000 freedom of information requests were made in 1990-91 at a cost of around £4.7 million. There were 63,000 requests under the Canadian freedom of information legislation in the same year, costing £11.5 million. Canada’s Information Commissioner has suggested that this figure may substantially overestimate the true costs. Moreover, freedom of information may actually save money. The American freedom of information act has, on numerous occasions, exposed wasteful government spending. Disclosures under the Australian act in 1986 led to the cancellation of a £266 million project. The Australian army had proposed to buy a 2.5 million hectare site in New South Wales for use as a tank training ground. Internal documents obtained by local residents demonstrated that the site was unsuitable: much of the year it was too foggy to be used, and large areas were too mountainous for its purpose. The resulting saving was nearly 40 times the then annual cost of the freedom of information legislation.
The case also illustrates the importance of freedom of information to the individual. The one thing people need in trying to protect themselves-against an overpowering bureaucracy, correct an injustice or bring about change of any kind is information. Without it they are powerless. With it, they can argue their case on something approaching equal terms.