This briefing was produced for MPs and the media for a debate on Freedom of Information held in the House of Commons on 6 July 1998. It expresses concern at reports that some of the white paper proposals – which the Campaign had warmly welcomed – were the subject of considerable opposition from within government.
We have been surprised to see from a number of recent press reports that some of the white paper’s fundamental commitments are apparently being challenged by senior ministers and officials. If true, this would be a matter of grave concern.
In particular, it has been suggested that a Freedom of Information (FOI) Bill may not be included in the next Queen’s Speech and that efforts have been made to substantially weaken the powers of the Information Commissioner, who will enforce the proposed legislation.
It is difficult to believe that the FOI proposals could be challenged in such a fundamental way. The white paper, introduced by an emphatic preface from the Prime Minister, was the collective decision of government, approved by cabinet after extensive consideration by a high level ministerial committee. Dr David Clark MP, the Chancellor of the Duchy of Lancaster, stated that it “has the complete and utter endorsement of the Government as a whole….It is the centre of the government’s approach to constitutional reform”.[1] Labour’s promises on this issue, which are described in the enclosed document (‘Labour Commitments to Freedom of Information’) have repeatedly been reaffirmed over the past 25 years. It should be unthinkable for anyone to contemplate delaying or weakening such a long-standing and repeatedly reaffirmed pledge, not least because of the widespread cynicism that any such move would engender.
At the Campaign for Freedom of Information’s annual Awards in March 1996, Tony Blair made it clear that freedom of information was “not some isolated constitutional reform” but “a change that is absolutely fundamental to how we see politics developing in this country”. He added:
“I don’t believe that [an FOI Act’s] impact would simply be in the pure matter of legislation…It would also signal a culture change that would make a dramatic difference to the way that Britain is governed. The very fact of its introduction will signal a new relationship between government and people: a relationship which sees the public as legitimate stakeholders in the running of the country and sees election to serve the public as being given on trust…
I regard it not merely as simply a list of commitments that we give because at some point in time, someone got up and agitated for it…It is genuinely about changing the relationship in politics today.
There is so much disaffection from politics, so much disillusion with it, and one of…the reasons is that we live in a modern and a far better educated and far more open and far more assertive democracy and country and it’s good that people feel in that way. The irony is that the system of government is about fifty, sixty, seventy years behind the actual feelings and sentiments of the broad majority of people. A Freedom of Information Act is not just important in itself. It is part of bringing our politics up to date, of letting politics catch up with the aspirations of people and delivering not just more open but more effective and efficient government for the future.”
A stronger case for early legislation could hardly be made.
The role of the Information Commissioner
The white paper proposed that the FOI Act would be enforced by a new Information Commissioner with the powers order public authorities to disclose information. His decisions would be challengeable by judicial review, but could not be appealed against on their merits.[2] The white paper explained:
“We have decided to take this approach because we believe it to be in the best interests of the FOI applicant. Overseas experience shows that where appeals are allowed to the courts, a public authority which is reluctant to disclose information will often seek leave to appeal simply to delay the implementation of a decision. The cost of making an appeal to the courts would also favour the public authority over the individual applicant”.[3]
We welcome this approach. It would provide the ordinary citizen with a remedy which carries the the power of a court to order disclosure but without the prohibitive costs. Some press reports suggest that there has been discussion of the possibility of permitting the Commissioner to question a department’s decision on judicial review grounds only. Any such move would leave the Commissioner virtually powerless in most cases. Subsequent press reports suggest that this proposal has been rejected, and that the Commissioner’s powers will remain as set out in the white paper. Instead, a new Tribunal will be established to hear appeals against the Commissioner’s orders.
We hope the debate will clarify whether this is in fact the case and, if so, how any Tribunal will be constituted and on what grounds appeals to it can be made. The implications are:
* if public authorities can challenge the Commissioner’s decisions on their merits (and not just on judicial review grounds) there are likely to be more appeals, leading to greater delays in releasing information, especially in contentious cases. The Tribunal’s decisions themselves will inevitably be challengeable in court, adding further to the potential delay;
* companies seeking to block the disclosure of information about their safety and environmental record or consumer products, would also have these additional grounds on which to challenge disclosure decisions;
* parties before the Tribunal are likely to be legally represented, adding to the costs of the appeals mechanism, and favouring government and business in relation to the ordinary individual.
The readiness of some departments to obstruct disclosure should not be underestimated. Reporting on his experience with complaints under the Open Government code of practice, introduced in 1994, the former Ombudsman, Sir William Reid reported:
“there is a tendency in some departments to use every argument that can be mounted, whether legally-based, Code-based or at times simply obstructive, to help justify a past decision that a particular document or piece of information should not be released instead of reappraising the matter in the light of the Code with an open mind. I have found it time-consuming to have to consider a whole series of different defences, even when many of them prove to have no real foundation.”[4]
The new government has adopted a more liberal approach to disclosure under the code. Despite this, problems have continued. The present Ombudsman, Mr Michael Buckley has said that some departments engage in a:
“process of haggling…about the interpretation, whether or not the Code applies…”[5]
“…there are one or two Permanent Secretaries who are in no doubt that we think they and their departments are really just looking for reasons, clutching at straws one might almost say, to avoid the release of information.”[6]
“[they] dispute my interpretation of the Code and the exemptions under it; or dispute my judgment regarding the ‘harm’ test”[7]
“[some departments] adopt a ‘scatter-gun’ approach and pepper their response with a range of Code exemptions many of which are of no relevance to the case”[8]
The solution to such problems should be a Commissioner with strong powers to order disclosure, and measures to minimise any bias against the citizen – for example in terms of cost or delay – from any subsequent right of appeal.
Exclusions
We are concerned at the proposal to exclude a number of bodies and functions from the scope of the Act. The most serious of the proposed exclusions relate to the law enforcement functions of the police, police authorities and government departments such as the Immigration Service. Others include (a) the Security and Intelligence Services (b) the prosecution functions of the Crown Prosecution Service (c) personnel records (d) and legal advice.
These exclusions:
* mean that no information about the body or function will be available even if disclosure would cause no harm at all. No overseas freedom of information law adopts this approach in relation to the police or immigration authorities. Information is always available, unless disclosure is shown to be potentially harmful.
* mean that even where there is an overriding public interest, because of serious misconduct, information cannot be obtained. There are currently a wide range of concerns about the police, for example, relating to their handling of the investigation into the Lawrence murder, the spraying of a pensioner in his car with CS gas, and the Metropolitan Police Commissioner’s acknowledgement that a minority of officers are in his words “corrupt, dishonest, unethical”.[9] However, grave the misconduct, the the proposed Act will provide no access to information about such matters.
* involve removing some existing rights introduced by the former government, for example to immigration information, which has been available under the Open Government code of practice;[10]
* are inconsistent with the white paper’s stated intention of ensuring that decisions are based on the contents of the individual record, and not the class into which it falls;[11]
* may lead to suspicion about the bodies involved, who – unlike the rest of the public sector – will be permitted to keep information secret even where they cannot demonstrate that disclosure would be harmful. This may weaken public confidence in their work.
Further details are given on pages 4-10 of the Campaign’s response to the white paper, and paras 23-39 of the Public Administration Committee report.
The privatised utilities
The white paper proposed that the privatised utilities would be subject to the FOI Act in their own right. However, according to press reports,[12] the utilities are to be dropped from the Act’s scope. Instead, only a limited degree of access – to information which they hold in relation to their statutory functions – will be possible.
The original proposal would provide a welcome response to the widespread concern at the loss of accountability resulting from privatisation of publicly owned utilities. The absence of competition and consumer choice in these essential industries coupled with the complex regulatory structures to which they are subject distinguishes them from conventional private sector bodies. The Public Administration Committee proposed that the Bill should apply “to companies which are monopoly, dominant, or franchised suppliers in one of the regulated ‘utility’ markets”[13] but this proposal appears to have been rejected.
There is widespread support for including the utilities in an FOI Act:
“It is only possible to identify whether regulators are fulfilling their duties if the inter-relationships between the regulated and non-regulated activities of the relevant companies are transparent. Restricting Freedom of Information requirements to the regulated functions of the utility companies will mean consumers cannot access information crucial to interpreting information about core functions. For example, it would be difficult to establish whether cross subsidies were taking place between the different activities through mechanisms such as transfer pricing.” (Sheila McKechnie, Director, Consumers’ Association)
“The privatised utilities – water and electricity for instance – are special and as such have a greater onus to be open about their activities….the services they are providing are essential, they are still broadly monopolies, and should be available to consumers on fair terms. As long as there is no effective competition and the industries continue to be regulated, their regulated activities should be open to scrutiny….the regulatory process itself needs to be more open so that interested parties can contribute effectively to the process and challenge information and assumptions.” (National Consumer Council)
“The privatised utilities are providing essential public services and are natural monopolies. There is an overriding case for openness, especially in areas such as disconnections, debt recovery strategy, the way in which prices are set, and their general approach towards the community and their employees.” (Michael Jeram, Head of Energy, UNISON)
Other matters
We also have a number of other concerns, that:
* charges should not become a deterrent to reasonable requests (see pages 36-42 of the Campaign’s Response)
* people should be able to discover what kinds of information authorities hold (pages 45-46)
* there should be some sanction for authorities which deliberately destroy records in order to prevent their disclosure (pages 49-50).
Campaign for Freedom of Information, July 3, 1998
Endnotes
1. Speech at conference ‘Freedom of Information is Coming’ organised by the Campaign for Freedom of Information, Church House, London SW1, 2.2.98
2. Your Right to Know, paras 5.10-5.19
3. Para 5.16
4. Parliamentary Commissioner for Administration, Annual Report for 1995, page 51
5. Oral Evidence to the Public Administration Committee, 2/12/97, Q.34
6. Oral Evidence to the Public Administration Committee, 2/12/97, Q.19
7. Written Evidence to the Public Administration Committee, January 1998
8. Parliamentary Ombudsman, Annual Report, 1997-98, para 6.13
9. Evidence to the Home Affairs Select Committee, December 1997
10. See page 5 of the Campaign’s ‘Response to the Freedom of Information White Paper‘
11. Para 3.8
12. ‘Information bill faces revision’, Financial Times, 20-21.6.98
13. Paragraph 44