Moving the ministerial mindset

A version of this article by the Campaign’s director, Maurice Frankel,
appeared in the March 2002 edition of Public Service Magazine

It is not some isolated constitutional reform that we are proposing with a Freedom of Information Act. It is a change that is absolutely fundamental to how we see politics developing in this country over the next few years… 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.

That was Tony Blair addressing the Campaign for Freedom of Information’s annual Awards in 1996. The audience had turned up hoping to hear that FOI would be in Labour’s manifesto. They went home delighted that it was part of the prime minister to-be’s credo.

No-one there would have believed that a measure so high in the Prime Minister’s apparent priorities would be delayed until the end of Labour’s second term, nor – as seems to have been the case – that Mr Blair himself would be the one to put it back. The access right will now not come into force until January 2005, more than four years after Royal Assent. This is longer than any of the 30 plus countries which have legislated before us, including former Soviet bloc countries like Hungary, Bulgaria, the Czech Republic and Bosnia and Herzegovina.

If FOI needs four year to implement, surely it must be stupendously complex? Wrong. FOI is an extension of well tested principles not a terrifying leap into the unknown. Whitehall has been covered by an FOI-like regime, the open government code, since 1994. It provides a formal access right, clear exemptions, a public interest “override” and independent enforcement by the Ombudsman. Departments have their own open government staff, internal guidance, monitoring arrangements – and the experience of the Ombudsman’s ruler descending on their knuckles in response to spurious secrecy.

Some of the most frequent FOI requests overseas are for personal files and environmental data. Yet UK authorities have been disclosing both for years, under the 1984 Data Protection Act and the 1992 Environmental Information Regulations. Few countries with FOI laws had so much previous practical experience, or should find the transition so easy.

In some areas the new Act actually relaxes existing standards. Under the code, decision-making materials can only be withheld if disclosure would harm the frankness of internal discussions and there is no overriding public interest in openness. The Act drops the ‘frankness’ part of this test. Even disclosure of the factual background to policy decisions could be resisted on the grounds that the public interest against disclosure outweighed that for it. By contrast, FOI laws in Ireland and Australia simply prohibit the withholding factual information on ‘policy advice’ grounds altogether.

In other areas, the Act will improve things. Under the code, information supplied to an authority in confidence enjoys absolute protection. The Act replaces this with the common law test of confidentiality, which in certain cases may permit disclosure on public interest grounds. A bizarre code exemption for safety and food monitoring data does not feature in the Act. FOI charges for information are likely to be more modest than the code’s. And of course, the Act applies to a vast range of public authorities, including local as well as central government, the NHS, the police and Parliament itself.

The devolved assemblies, however, are consciously aiming for higher standards. The Welsh openness code has been rewritten, so that exemptions apply only where disclosure would cause “substantial harm”, instead of plain “harm” as in the English code. This resuscitates the bold test proposed in David Clarke’s 1997 FOI white paper but later scrapped. More remarkably, the Welsh cabinet minutes are now published on the Internet, 6 weeks after the meetings and more than 29 years ahead of the UK equivalents.

The Scottish FOI Bill, currently before the Edinburgh Parliament, also sets a higher test. Where the UK exemptions refer to “prejudice” Scotland’s Bill has “prejudice substantially” another testament to the white paper. The different approaches can be seen from the UK Act exemption for information which “in the reasonable opinion of a qualified person” would “prejudice the effective conduct of public affairs”. Ministers themselves described this, approvingly, as a “catch-all” exemption. The Scottish equivalent, however, is deliberately narrower. It omits the subjective reference to “opinions” and requires the prejudice to be “substantial”.

In other respects Scotland’s proposals fall short, though this may still change. Scottish authorities can refuse to say whether they even hold exempt information, even if a straight answer would cause no harm. A Scottish body which has no information on a problem because it has ignored it, may find it easier to conceal its inactivity than a UK counterpart.

Both regimes apply a public interest test to most exemptions, an important safeguard. However, any public interest ruling which the UK Commissioner makes against a government department can be vetoed by ministers. There is a Scottish veto too – but it is less extensive.

The two schemes share the same unnecessarily broad “class” exemptions for anything relating to policy formulation, ministers’ communications, ministerial private offices, investigations into possible offences and even routine inspections by safety or consumer authorities. This is where the veto becomes crucial. The public interest test will be the sole basis for any disclosure within these areas. But any public interest order served on ministers, north or south of the border, can be vetoed, allowing ministers to stamp on unwelcome precedents before they take root.

How willing to exercise the veto will ministers be? The veto might serve to reassure politicians as they adapt to the new regime, without ever being used. Unfortunately overseas experience suggests the temptation may be irresistible. A veto under Australia’s 1982 FOI Act was used 55 times in the first 4 years. Fourteen out of 92 formal rulings in New Zealand were vetoed over a similar period.

Ministers here have restrained themselves from “vetoing” the Ombudsman’s code rulings – until last year. Home Office ministers refused to say how often they had declared a possible conflict of interest to their colleagues under the ministerial code. This would breach their privacy and undermine internal discussions, they said. The Ombudsman disagreed, noting that only anonymous statistical data was involved. Delivering a blow to the code, Labour Ministers overruled him, something their Conservative predecessors never did.

Though the access right is still some way off, the Act’s ‘publication scheme’ requirements come into force for central government in November 2002. Departments will have to specify classes of information which they publish or intend to publish; once these schemes are approved by the Information Commissioner they become binding. It is not yet clear whether schemes will just recycle information already available on departments’ web sites – or become a mechanism for ‘declassifying’ undisclosed material. Several pilot schemes now being tested, including those of the Public Record Office and the Department for International Development, feature minutes of previously confidential Management Board and other high level meetings. Such developments suggest that the public might see at least some progress during the long wait for 2005.

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