What does the future hold for Freedom of Information? We’ve been going through the major parties’ election manifestos to see what FOI commitments have been made.
The Lib Dems have made two important commitments. Their manifesto includes a pledge to:
“End the Ministerial veto on release of information under the Freedom of Information Act.”
The veto, in section 53 of the FOI Act, allows ministers to overrule a decision of the Information Commissioner or Tribunal requiring a government department to disclose information on public interest grounds. Its inclusion in the legislation was hugely controversial. Labour’s original white paper on FOI had rejected any veto:
“We have considered this possibility, but decided against it, believing that a government veto would undermine the authority of the Information Commissioner and erode public confidence in the Act.”
Since the FOI Act came into force in 2005 the veto has been used to block the release of: cabinet minutes discussing legal advice on the war in Iraq, cabinet sub-committee minutes on devolution, a risk register on the NHS reforms, a review of the HS2 rail project by the Major Projects Authority and Prince Charles’ correspondence with government departments.
But the veto has become much harder to use, particularly in relation to a Tribunal decision, following the Supreme Court’s recent ruling that its use in the Prince Charles case was unlawful. David Cameron subsequently suggested the government would try to restore the veto, so the Lib Dems’ intention to abolish it altogether is particularly welcome.
Both the Lib Dem and Labour manifestos include commitments to extend the scope of the FOI Act to contractors. The Lib Dem manifesto promises to:
“Extend Freedom of Information laws to cover private companies delivering public services.”
Labour’s manifesto says:
“Our Freedom of Information laws have shone a light into the darker corners of government and are a crucial check on the power of the Executive. We will extend their scope so that public services run by large private companies are included.”
It may be significant that Labour’s promise is expressed in terms of “large” private companies rather than all contractors. An extension to such companies is long overdue, but information held by other public service contractors should also be covered. Labour’s shadow justice secretary, Sadiq Khan, has previously indicated that all contractors including those from the voluntary sector would be covered. But the leading voluntary sector representatives bodies have, unimpressively, resisted this. There appears to be little difference between them and purely commercial contractors on this issue.
FOI rights could be extended not just by bringing the major contractors (eg Serco, G4S) directly under the FOI Act in relation to their public service contracts, but also by providing that information which other contractors hold about their public service contracts is deemed to be held on behalf of the authority concerned. This would automatically bring it within the scope of an FOI request to the authority.
The Campaign advocates both approaches together – though its not clear whether Labour and the Lib Dems are going this far. The Information Commissioner has now endorsed the Campaign’s approach.
The Conservative manifesto does not mention FOI, but says:
“Transparency has also been at the heart of our approach to government. Over the last five years, we have been open about government spending, provided access to taxpayer-funded research, pursued open data and helped establish the Open Government Partnership. We will continue to be the most transparent government in the world.”
“I wish we’d spent more time in opposition thinking about how to declutter government. What I call the buggeration factor, of consulting and consultations and health and safety and judicial review and FOI [the Freedom of Information Act] … Just generally, if you want to do something, build a road, start a new college, launch a programme to encourage people to build more houses – it takes a bloody long time.”
The Green Party, Plaid Cymru and UKIP manifestos all say nothing specifically on Freedom of Information. The SNP manifesto was not available at the time of writing.
No party suggests that it is going to restrict the FOI Act – though this doesn’t mean it isn’t being planned. But the lack of commitments to strengthen the Act in other areas is disappointing. Tighter time limits for responding to requests and better enforcement of them is needed. The Act’s public interest test should be extended to the ‘absolute’ exemptions. The legislation should be extended to additional bodies with public functions, such as housing associations, electoral registration officers and the Housing Ombudsman. And the 6 month time limit within which Information Commissioner can prosecute authorities which deliberately destroy requested records should be extended. The coalition government had agreed to this – but never got round to doing it.
For more on the coalition government and FOI, see our earlier post.
Note: this post has been updated since it was first published.