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Secrets and lies

A version of this article by the Campaign’s director, Maurice Frankel,
appeared in The Guardian on 18 August 1998

Freedom of information is in trouble. The reform has provisionally been dropped from next year’s legislative programme. Responsibility has been transferred to the Home Secretary, Jack Straw, reportedly the leading critic of David Clark’s white paper on the subject. The news suggests that the promised FOI Bill will not just be delayed, but may be substantially watered down.

FOI cannot easily be abandoned. It was in the manifesto and has been a Labour commitment for 25 years. But delay is likely to be damaging. As ministers become more used to office they inevitably become more cautious about creating rights to information that might embarrass them or help their critics.

The first signs of retreat have already been seen. The privatised utilities were going to be covered by the FOI Act, but most of their functions will now be excluded. Ministers have also decided to introduce a new appeals tribunal, making it easier for government and business to challenge unfavourable decisions of the Information Commissioner, who will enforce the proposed act. The white paper had rejected this approach, believing it would encourage delaying tactics by those opposing disclosure.

Sweeping restrictions insisted on by the Home Office meant that the security services, and the law enforcement functions of the police, immigration service and other government departments, were to be excluded from the act altogether, even under the white paper proposals. Now some of its bolder elements are likely to come under pressure. Mr Straw is on record as opposing the proposal that departments could resist disclosure only where it causes “substantial harm”, a much stricter test than the plain “harm” of the current openness code of practice. Removing this test would blunt the bill’s cutting edge at a stroke. How far such changes will go will only become apparent when the Government’s draft FOI Bill, which is to be published for consultation, appears.

By backpedalling on the reform, the Government is inviting a cynical reaction that will harm its public standing. Tony Blair has described FOI as an antidote to public “disaffection from politics”. The reluctance to implement it can only fuel that disillusion. A bold FOI Act would answer those who believe Labour is run by its spin doctors: delaying it strengthens that allegation. Labour has spent 18 years telling us they are different from the Tories, that sleaze, unaccountable government and self-serving secrecy will be things of the past. Now that they are in a position to deliver, their lack of enthusiasm is unmistakable.

Unhappiness on the Labour backbenches is already evident. An early-day motion calling for FOI to be introduced in the next session attracted the support of 194 MPs before the recess, including the chairmen of no fewer than 12 select committees. The Public Administration Committee has called on the Government to go further than its white paper; it is likely to react strongly if the moves are in the opposite direction.

The Shayler case highlights the potential risks. The Government is proposing to charge David Shayler under a section of the Official Secrets Act that Labour criticised in opposition. The act provides no public interest defence, but Shayler is clearly arguing a public interest case. If he comes to trial, the judge will presumably have to instruct the jury to ignore such arguments, and may not even allow them to be put. The prospect of the former MI5 man broadcasting his accusations from the dock of the Old Bailey must terrify ministers, but jailing him without allowing him to speak in his own defence would be worse. Labour would have its own version of the Thatcher secrecy fiascos – Spycatcher and the Clive Ponting and Sarah Tisdall trials. If it is simultaneously seen to be pulling the wings off its own freedom of information proposals, it will face a public relations nightmare.

All of this will also reflect on the Prime Minister, who has described FOI as an expression of his own political beliefs. He told the Campaign for Freedom of Information’s annual awards in 1996 that 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.” It was, Mr Blair added, “genuinely about changing the relationship in politics today”. Why then is it not at the heart of the coming legislative programme?

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