Letter to Roger Freeman MP, Chancellor of the Duchy of Lancaster, about the Government’s failure to introduce promised rights to information.

31 July 1995

I am writing to express the Campaign’s concern at (a) the delay in bringing forward the two new statutory rights to information promised in the ‘Open Government’ white paper of July 1993, and (b) the apparent decision not to introduce a code of practice on access to local authority information and (c) the implications of the proposed amendment to Questions of Procedure for Ministers.

The proposed statutory rights

In the white paper the government undertook to introduce a new legal right of access to health and safety information and a separate legal right of access to manually held personal records. However, although two Queen’s Speeches have since passed, neither piece of legislation has been introduced. The delay in bringing the legislation forward suggests that further progress on open government is now a relatively low priority. It also has two important specific consequences.

First, since neither of the two rights is apparently to apply retrospectively (white paper, paragraphs 5.11 and 6.14) information which is currently being acquired by public bodies may be permanently inaccessible, even after the new legislation is introduced. With every day that passes public authorities accumulate more health and safety information and more personal information which will not be subject to these new rights. This will needlessly deny people access to information to which the government has accepted they should have a right.

Second, the absence of the promised health and safety law contributes to the undermining of the present right of access to environmental information under the Environmental Information Regulations 1992. These regulations contain no proper enforcement mechanism. The only remedy is judicial review, which is too expensive for most applicants and in any case does not permit the review of a decision on its merits. People who have been refused environmental information in contravention of the regulations find that they have no practical means of enforcing their rights. The white paper suggested (para. 6.16) that any new tribunal set up to enforce the proposed health and safety information law would also be given responsibility for enforcement of the Environmental Information Regulations – which would be a significant advance. However, the delay in introducing the legislation has blocked this improvement, contributing to the continuing ineffectiveness of these important regulations.

The delay reinforces the case for applying the legislation retrospectively when it is introduced. This would partially compensate for the failure to legislate promptly. It would also be consistent. The white paper stated that it was intended that the new law should “follow the model of the Environmental Information Regulations. The two rights complement one another, and it is sensible that they should be consistent” (para 6.5). Since the Environmental Information Regulations are retrospective it makes sense for the new legislation to be so too.

The difficulties that may arise if this is not done are readily apparent. There is often no sensible distinction to be made between information about the environment and information about health and safety: the precautions taken to prevent a chemical fire, explosion or leak are taken both to protect human safety and to protect the environment. Allowing retrospective access to a part of this information only will in practice lead to arbitrary decisions involving the withholding of closely related information. This will lead to the suspicion that information about hazards is being suppressed. The white paper itself acknowledges that the “patchiness” about what is disclosed about safety matters “has been a consistent source of frustration” adding “the Government believes it is time for a change” [para.6.3]. If the proposed legislation does not apply retrospectively, the problem will be perpetuated.

Similarly, in relation to personal files, the existing retrospective right of access to computerised personal data under the Data Protection Act reinforces the case for ensuring that any new right to manual records is also consistent.

Moreover, in the absence of the promised legislation, retrospective access to some health and safety information and information from personal files may be obtained under the Code of Practice on Access to Government Information and the Code of Practice on Openness in the NHS. If it is possible to apply these codes retrospectively, it is hard to see why the same principle could not be applied under the proposed legislation.

If the new laws are not to apply with full retrospection then I hope it could be made clear to public authorities that a limited degree of retrospection will apply, extending to any information obtained since the publication of the white paper. Since the white paper gave notice of the impending right of access, a limited degree of retrospection applying to the date of its publication, cannot be objectionable.

Could I therefore ask if you will:

1. seek to ensure that both of the promised items of access legislation are included in the next Queen’s Speech;

2. reconsider the government’s objections to extending these rights retrospectively; and

3. if these new laws are not to be fully retrospective, make clear that when they are introduced they will apply retrospectively at least to the date of the white paper.

Access to local authority information

The white paper stated that the government intended that there should be a code of practice on access to local government information, similar to the codes subsequently introduced for central government and the NHS.

However, it appears that this proposal has been dropped in favour of the ‘Good Practice’ note issued by the local authority associations in June 1995, which recommends that member authorities introduce their own individual policies on access to information.

The Campaign believes that legislation is preferable to codes of practice, but that the ‘good practice’ approach is the least desirable of all.

If individual local authorities decide not to introduce their own policies, no progress will be made. Residents in different areas will therefore have different rights to information about their councils. Even where an authority does introduce a policy, there will be little scope for external review of decisions. The Local Ombudsmen will not be able to intervene, even if the policy has been breached, unless the complainant can show that he or she has suffered “injustice” as a result of the non-disclosure. This requirement will limit redress to those who are seeking information directly affecting their own affairs, and exclude others who are seeking information on issues of wider public interest. In this respect the approach will be inferior to that of both the central government code and the NHS code, where the respective Ombudsmen have said that they will uphold a complaint without requiring specific evidence of injury.

Could I therefore ask, under the terms of the Code of Practice on Access to Government Information:

1. whether the government has decided that there should be no local government code of practice; and if so

2. what are the reasons for this decision; and

3. if we may have access to the submissions received – from the Local Government Commissioners, local authority associations and others – in response to the consultation referred to in the footnote on page 35 of the white paper.

If any of these questions should properly be addressed to the Department of the Environment instead, perhaps you could let me know so that I may redirect them.

Questions of Procedure for Ministers

In its response (Cm 2931) to the Nolan report the government proposed a number of changes to “Questions of Procedure for Ministers” (QPM). One of these is that ministers’ duty to be as open as possible with Parliament and the public is to be subject to the new proviso that information may be withheld “when disclosure would not be in the public interest”.

This new reference to the “public interest” is not explained in the accompanying notes, despite the fact that its potentially controversial nature was highlighted when the proposal was leaked before publication. Its insertion is all the more significant given that the redrafting is said to be based on the recommendations of the Nolan committee. Nolan did not propose this “public interest” exemption.

It raises the question of why the grounds for withholding information should now be described as “the public interest”, and in particular why no reference is made to the Code of Practice on Access to Government Information, which governs disclosure by government to the public. The code does not permit information to be withheld for any reason so broad as “the public interest”. The preamble to the code states that information can be withheld “where disclosure would not be in the public interest as specified in Part II of this Code“. The proposed revision to QPM omits this vital qualification.

The revision – and the failure to make any reference to the code – implies that ministers may withhold information on grounds other than those specified in the code, subject only to their own assessment of “the public interest”. This would be wholly unacceptable. I wonder if you could confirm that this is not the intention.

If the proposed revision is not intended to have this effect, may I suggest that it be amended to make this absolutely clear. Instead of stating:

“[Ministers] must be as open as possible with…the public, withholding information only when disclosure would not be in the public interest”

the text could be revised along following lines:

“[Ministers] must be as open as possible with…the public, in accordance with the provisions of the Code of Practice on Access to Government Information”.

I would be grateful for your observations on this suggestion.

Yours sincerely,

Maurice Frankel

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