No more secrets, please!

A slightly edited version of this article by the Campaign’s director, Maurice Frankel,
appeared in The Independent on Sunday on 26 July 1998

The next few days will be crucial for one of the government’s longest awaited reforms. Labour has been committed to introducing a Freedom of Information (FOI) Act for almost 25 years. It was first promised in Harold Wilson’s 1974 manifesto but neither he, nor James Callaghan who succeeded him as prime minister, ever expressed the slightest interest in the issue, in or out of office, and the pledge went unfulfilled.

During the long Conservative years the opposition’s commitment to FOI became more substantial. Each time secrecy hit the headlines – Ponting, Tisdall, Spycatcher, Matrix Churchill, cash for questions, BSE – Labour’s pledges became more heartfelt. There is probably no senior Labour figure over the last 15 years who has not gone on the record on behalf of the reform. Before the 1992 election, Neil Kinnock and his front bench introduced their own Bill in the Commons. The then deputy leader and shadow home secretary, Roy Hattersley, declared that he would set parliamentary counsel to work on a draft FOI Bill on his first day in government. John Smith promised FOI to the 1993 Labour conference; Tony Blair did so too the following year. Since then Mr Blair has repeatedly spelled out the central role that FOI plays in new Labour’s politics. The government will not promise what it cannot achieve; the public will be told the truth; there will be a genuine partnership of trust with the people.

So it was a disappointment when FOI failed to win a slot in Labour’s first year programme. Instead, a white paper was promised, but that too was then delayed. Were ministers already losing enthusiasm for openness? The white paper when it did come proved a welcome surprise. Dr David Clark, the Chancellor of the Duchy of Lancaster, backed by Lord Irvine the Lord Chancellor, have proposed a bold piece of legislation that in general compares favourably with overseas FOI laws. Indeed, the British proposals are now seen as a model by some: Canada’s FOI Commissioner recently devoted two pages of his annual report to a glowing review of the UK white paper.

So are we about to enter a parallel universe in which Britain leads the world in openness? Unfortunately, there are already signs of retreat. A draft FOI Bill was promised for consultation by the summer but has now been delayed. Some senior ministers are said to oppose significant elements of the white paper. Most depressing of all, there seems to be concerted ministerial lobbying to keep freedom of information out of the coming Queen’s speech.

Perhaps symbolically, David Clark himself has long topped apparently well-briefed political commentators’ lists as a likely victim of the first reshuffle. This may seem harsh reward for his white paper; but it raises a more important question about the project itself. If any replacement is drawn from the massed ranks of the lukewarm, the chances of early or effective legislation must be poor.

Does it matter if FOI is delayed by another year or two or three? The more used to office ministers become the more plausible the case for caution will seem. New ministers are learning that delivering effective policies with limited resources is difficult; that they too make mistakes or fall short of their goals, that being caught out is unpleasant. Select committees are starting to probe sensitive issues; the press is becoming less admiring and more sceptical; even one or two opposition spokesmen are showing the signs of scoring points. Why arm their enemies just as the pressure is building up?

Ministers should resist this temptation. ‘Whoever you vote for, the government always gets in’ is an old but perceptive slogan. Opposition politicians who spend years hammering their opponents only to revert to type in office are widely resented. The striking reaction to the Derek Draper affair, a relatively modest transgression compared to some of the cash for questions abuses, indicates how easily past scepticism attaches to a new administration.

The signs of backsliding have already caused concern on the Labour backbenches. Last week more than 100 Labour MPs signed a motion tabled by Derek Foster urging the government to move on FOI now. The motion was endorsed by an unprecedented coalition of select committee chairs including the heads of the Public Administration, Home Affairs, Treasury, Defence, Foreign Affairs, Trade and Industry, Health, Social Security, Employment, Environment and Transport committees.

The warning may also reflect concern at the potential for self-inflicted damage. The government no doubt already feels unjustly criticised by accusations that it is run by spin doctors or disregards Parliament. It can still point to its well-received FOI white paper as evidence of an overriding commitment to honest, accountable government. If the proposals are allowed to falter through lack of enthusiasm, how will Labour answer the cynics?

The white paper is ready for implementation, though some areas require improvement as Rhodri Morgan’s Public Administration Committee (PAC) recently demonstrated. But nothing requires another 12 months of contemplation.

Some of the exclusions do need rethinking. The law enforcement functions of the police, immigration service and other bodies are to be removed from the scope of the Act altogether. All FOI laws protect information whose disclosure would harm law enforcement. The UK proposals would deny access even to harmless information about these functions. In April the Home Secretary told a disbelieving PAC that even to reveal the policing arrangements at a football ground after crowd injuries could provide criminals with dangerous information.

The Lawrence inquiry provides a more telling example. The public interest in disclosure, given the staggering evidence of police incompetence, is enormous. The potential harm is zero. As the defendants have already been prosecuted unsuccessfully, and cannot be charged again, there is no danger of prejudicing future proceedings. As for confidential policing techniques, the only secret has been the police’s systematic inability to follow up leads. Yet none of these considerations would permit any questions about the police investigation to be asked under the proposed FOI law.

When a Canadian prisoner applied for details of the locks and bars about to be installed at his maximum security mental hospital his FOI request was turned down, first by the institution and on appeal by the relevant Commissioner, precisely because the disclosure would have been harmful. If harm could not have been demonstrated, he would have got his information. Why is this too risky an approach for a British FOI Act?

There are other exclusions too. Public sector employees will not be able to see their personnel files. The privatised utilities – which were to be covered under the white paper’s original proposals – are to be dropped except in relation to their direct statutory duties. And there is an ever present danger that charges for information may become an obstacle to reasonable requests.

But the white paper gets much right too. It will apply across almost the whole of the public sector, to vast numbers of central and local bodies. Information recorded in the past will be available, including old files awaiting their release under the 30-year rule. Authorities will normally have to show that disclosure would cause “substantial harm” to specified interests, a strict burden of proof, although a lower test of plain “harm” will apply where civil service advice is involved, and perhaps where information could be covered by the Official Secrets Act. Crucially, the Act will have an accessible remedy: complainants will be able to go to a Commissioner with the power of a judge to order disclosure, without the forbidding costs of going to court.

But the longer these proposals are delayed, and the more government signals only limited enthusiasm for the reform, the less likely that a real change in culture will result.

No-one should see this more clearly than the Prime Minister. In March 1996, at the Campaign for Freedom of Information’s annual Awards, Tony Blair said FOI “is not some isolated constitutional reform” but “a change that is absolutely fundamental to how we see politics developing in this country over the next few years”.

He went on: “I hope you understand from what I have said…that 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 and party conference passed a resolution. 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 very clear and simple 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 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.”

The case for eliminating further delay could not have been better made.

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