Briefing paper setting out some of the BSE Inquiry’s findings about secrecy and the implications for the Freedom of Information Bill.
Briefing paper setting out some of the BSE Inquiry’s findings about secrecy and the implications for the Freedom of Information Bill.
Complete set of detailed briefing papers for the Lords committee stage of the Freedom of Information Bill, which ended on 25 October 2000. For a short summary of the key issues see pages 1-5 of the first briefing paper.
Guide to amendments tabled for the Lords committee stage of the Freedom of Information Bill, the first day of which will take place on 17 October.
Lords Committee Stage
Note on Government amendments
Revised 7 September 2000
The government’s amendments for the Lords committee stage of the FOI bill appeared on the Parliament internet site on July 31(*). The amendments themselves provide a number of modest improvements to the bill
But they fail to address the outstanding concerns raised about the bill, expressed in over 200 amendments tabled by peers of all parties. In particular, they do nothing to deal with the many class exemptions, which allow information to be withheld without evidence of harm. The only gesture is to remove ‘statistical information’ about decisions which have been taken from the policy formulation exemption. If anything this merely exacerbates concerns about the exemption, highlighting the fact that it permits the suppression of other factual information, including statistics about forthcoming decisions.
The briefing deals with the Report Stage amendments to the Local Government Bill proposed by an all-party group of MPs. It sets out our concern at the Bill’s approach to access to meetings and information within local government, as well as its creation of unnecessarily wide offences for the disclosure of information. Although the government have announced some improvements to their proposals for access to meetings we are still concerned that many decisions and discussions will be held in private.
The briefing deals with the amendments to the Local Government Bill proposed by Don Foster MP. It sets out our concern at the Bill’s approach to access to meetings and information within local government. Despite some recently published improvements to the government’s proposals on prior access to papers, we are concerned that the new executives will still be able to hold all their meetings in private.
Briefing for Peers for the second reading of the Freedom of Information in the House of Lords on 20 April.
The briefing sets out current access to information rights in local government, how the Bill will weaken them, and the changes we believe are essential to prevent this increase in secrecy.
A joint briefing with the
Local Government Information Unit and Charter 88 on
Access to Information and
the new Local Government Bill
The new Local Government Bill is introducing new political structures such as directly elected mayors into local government. This paper describes our concerns regarding the access to information provisions of the Bill. It sets out:
* The current access to information rights in local government
* How the new Bill would weaken them
* The amendments to the Bill we believe are essential to prevent this increase in secrecy
* What you can do.
The changing legal framework
Current access to information requirements
At present, most important council decisions have to be taken at meetings of the full council or its committees, which are subject to the Local Government (Access to Information) Act 1985, as incorporated into the Local Government Act 1972. This requires meetings to be open to the public and media, although exempt information can be discussed and decided in private session. If the meetings are open to the public, agendas, officers’ reports and background papers must be publicly available at least three days in advance. However, some decisions are taken by officers to whom authority has been delegated by the Council, and these decisions are not subject to the openness provisions of the 1985 Act.
What the Local Government Bill covers
The Local Government Bill, published in November 1999, provides for:
* a new power to promote the economic, social and environmental well-being of the community, develop partnerships and community planning
* changes to political structures introducing mayors and cabinet style executives
* a new ethical framework
* powers to change the timing of local elections
* and a range of other issues.
The Bill applies to England and Wales. The National Assembly for Wales will exercise in respect to Welsh local government the powers the Secretary of State has in England.
The new structures
Once it becomes law, the Local Government Bill will require all councils in England and Wales to introduce one of a range of new political structures. The main options are:
* a leader elected by the council with a cabinet style executive consisting of other councillors,
* a directly elected executive mayor who can appoint other councillors to an executive,
* a directly elected mayor with a ‘council manager’ (organisational head with decision-making powers).
Executive bodies will not be required to reflect the political proportionality of the council (unlike the committee system). Where a single party has majority control of the council, executives are likely to be single party bodies.
The legislation sets out which decisions will be the responsibility of the executive, which the full council and which will be decided by multi-party committees. The council will approve the budget and taxation levels. It will agree statutory plans and strategies such as the Best Value Performance Plan, the Children’s Services Plan, the Community Care Plan, the Development Plan (such as structure or unitary development plans), the Local Transport Plan, the Early Years and Education Development Plan and others.
Within this framework, the executive will take service decisions. These decisions will not have to be ratified by the full council. Executive decisions can be delegated to individual politicians, including the mayor, or to area committees or joint bodies.
Regulatory matters will be in the hands of multi-party committees. These will include planning permission, and licensing.
Multi-party scrutiny and overview committees will review services and policies, but will not make executive decisions about services.
What the Bill would mean for openness
As the Bill stands 1 the following requirements for openness would be placed on authorities:
* The full council and its committees will continue to meet in public, subject to current access to information requirements
* Executive or cabinet bodies will not be required to meet in public, but must publish decisions after they have been taken
* Decisions of mayors or individual executive politicians will not be subject to the provisions of the 1985 Act, but a record of decisions must be published after they have been taken
* Scrutiny bodies will meet in public, subject to current access to information requirements
The consequences of these new structures for openness in local authority decision-making are significant. Many decisions will no longer be taken in public, unless the authority opts to do so. Information about proposed decisions will be unavailable to members of the public until after the decision has been taken – unless the executive or individual decision makers actively choose to make them public beforehand. The fact that mayors and individual politicians will wield considerable power in their own right – their decisions will not have to be ratified by the executive or council – adds to concern about these arrangements. Vital decisions about education, housing, social services, the closure of facilities or the contracting out of services may be taken in far greater secrecy than at present.
The Bill as currently drafted gives the Secretary of State, in England, and the NAW in Wales, powers to make regulations on access to information. The Bill states that this can include provision for executives to meet in private. Draft guidance (for England) has also been published which makes it clear that the executive can meet either in public or private. This also states that the local constitution (approved by the full council) must allow the executive to decide for itself whether to meet in private.
The draft guidance also states that the local authority’s constitution must set out protocols for recording and publishing decisions taken by individual members of the executive, including the executive mayor.
The government’s intention is to leave openness in large areas of decision-making to the discretion of the new executives. It removes the duties on local authorities to take decisions in public, and the public’s right to papers relating to these decisions, which were created by two private members’ Bills: Margaret Thatcher’s Public Bodies (Admission to Meetings) Act 1960, and Robin Squire’s Local Government (Access to Information) Act 1985.
The draft guidance urges the executive to consult widely about important decisions. However, the question of whether consultation takes place at all, its extent, and who is consulted will generally be at the discretion of each authority. The council can introduce provisions to ‘call-in’ and re-examine executive decisions before they are implemented; but they will not be required to do this.
Executives will be required to publish a record of their decisions, and of those delegated to individual executive members, as well as reasons for decisions and background papers. These will have to be made publicly available ‘as soon as is practicable’ after the decision.
The Freedom of Information Bill
The Freedom of Information Bill, which is also before Parliament, would create additional rights to information held by councils. However, the purpose of the FOI Bill is to create rights of access to information, not rights to attend decision-making meetings. The proposed access rights are subject to extremely broad exemptions. For example, information could be withheld if in the authority’s “reasonable opinion” disclosure would be likely to “inhibit the free and frank provision of advice”, or “the free and frank exchange of views for the purposes of deliberation”, or “prejudice the effective conduct of public affairs”. Because the authority’s opinion is given legal weight, decisions will be extremely difficult to challenge even if they are clearly wrong. Authorities will have to consider the discretionary disclosure of such information in the wider public interest. However, the FOI Bill allows authorities themselves, and not the independent Information Commissioner, to have the final say on where the public interest in disclosing the information lies.
In particular under the FOI legislation, information has to be requested rather than being automatically published, and will only have to be available within 20 working days, so long as the authority does not claim the information sought as exempt. In any case this Bill will not give the media and public any right to advance notice of decisions.
Changes which should be made to the Local Government Bill
This section sets out changes we believe should be made to the Local Government Bill.
The Bill’s requirements on access to information need to be strengthened, particularly in relation to forthcoming decisions. The public should know what decisions are about to be taken, and have access to papers relating to that decision in advance. The Bill should maintain the rights of non-executive councillors, press and public, to prior notice of decisions to be made by the executive, and by individuals with executive powers. This would help to build public confidence in new structures.
The changes that are needed will have to reflect the different types of structures that may be adopted.
Meetings of Executives
Local authorities may decide to introduce an executive in which decisions are taken by a ‘cabinet’ of councillors. The Bill should be amended to make their meetings subject to the Local Government (Access to Information) Act 1985. That is, they would have to meet in public, unless particular types of exempt information are involved. This would maintain the current levels of openness, including publication of agendas, officers’ reports and recommendations on proposed decisions and background papers. It may not be possible to prevent members of the executive holding discussions in private (with or without officials present), but the formal decision-making should be subject to the same level of pre-decision disclosure as at present.
If the collective meetings of the executive are not made subject to the 1985 Act, agendas and papers should still be published at least three days in advance. This would be in line with the recommendations of the Joint Parliamentary Committee which examined the draft version of the Bill: ‘We recommend that the agenda of the executive be published in advance, together with all papers relating to items which are on the agenda for decision, and that this should be made clear in regulations.’ 2
Decisions not involving meetings
Mayors are likely to be responsible for many types of decisions which they will effectively take on their own. No formal meeting, as such, will be involved. Individual ‘cabinet members’ may also be given similar powers, and the Bill will also allow for a wider range of decisions to be delegated to council officers. In these cases the Local Government (Access to Information) Act cannot directly apply. However the Bill should be amended so that the public is given equivalent rights to see papers before decisions are taken. That is, reports, recommendations and background papers should be open to the public unless they contain exempt information.
The Bill should also be amended to require a short period of delay (a week has been suggested) before executive decisions can be implemented, with powers for non-executive councillors or a scrutiny committee to ‘call in’ and review the decision. The power for scrutiny committees to ‘call in’ decisions would be in line with recommendations of the Joint Committee that reported on the draft Bill. 3 This ‘call-in’ provision would help to keep decisions within the strategic frameworks decided by the full council, and becomes especially relevant if executive decisions are closed to the public.
The case for changes to the Bill
The above proposals would do no more than maintain current standards of openness in local government. As well as protecting the public’s existing rights, this would help build confidence in the new structures and contribute to their effectiveness. The government’s aim for the Bill is to improve the efficiency of local authority decision-making. Preserving existing standards of openness is entirely compatible with this aim.
Open decision-making is better decision-making.
The quality of decisions will be improved if officials and politicians know they will be questioned on the basis of the full facts and subject to public and media scrutiny. Openness before decisions are taken will encourage clearer and more rigorous advice to councillors. Indeed, as the government’s own draft guidance states, “decision-making will be more effective if it has broad agreement beforehand than if it is constantly challenged afterwards. If executives are not getting their decisions right from the outset, this will lead to inefficient decision-making and subsequent unconstructive challenges.” 4 It is also in line with the Modernising Government programme’s commitment to a more open policy formulation process, with greater involvement of external experts and outside bodies. The internet has great potential to make more widely available agendas and papers published in advance of decisions.
The current openness legislation has made a significant impact on local government. This is supported by an evaluation of the 1985 Act published by the Department of the Environment, which concluded that it had been “effective”, and had “proved to be very important in establishing minimum standards, ensuring consistency and even in challenging attitudes previously in favour of secrecy within authorities.” 5 The Bill cannot be allowed to reverse such progress.
Greater secrecy will undermine public confidence in the new executives.
The new executive structures will be undermined in the eyes of the public and of local media if they are accompanied by a reduction in requirements for openness. Some local newspapers are already reporting concerns about an increase in secrecy by some authorities which have adopted the new arrangements on a trial basis.
The role of ‘backbench’ councillors will be undermined if they do not have advance notice of decisions.
Without this councillors of the majority group may seek to make even greater use of party political meetings to influence decisions. Minority group councillors will be even further excluded from decisions. Prior notice of decisions to be made will lead to smoother decision-making, and less conflict and recrimination.
Openness will help protect against corruption.
The Bill includes measures to improve ethical standards. But if decisions are taken in private, by executives and individual politicians, there will be less scrutiny of whether councillors’ private and financial interests are properly declared, and less oversight of the award of contracts and of appointments to outside bodies. If there is no requirement to publish agendas and papers in advance of decisions this could encourage more informal decision-making. There will be a reduction in opportunities for staff to provide legal advice to politicians, and it will be harder for the monitoring officer to fulfil his/her responsibilities to ensure decision-making is legal and ethical.
‘Transparency’ is not openness.
Government ministers frequently talk about the need for an increase in ‘transparency’. What they mean is that the committee system obscures the reality of how political power is exercised in many councils: by the majority party, or by a small leadership group of that party, acting outside the formal committee structures. Giving executive power to particular politicians is intended to clarify who has decision-making responsibility. However, clarity of responsibility after the event is no substitute for openness prior to decisions being taken, and cannot be a substitute for an open and responsive approach to decision-making, which allows the community to discuss and influence decisions before they are taken.
The government argues that the new scrutiny committees will themselves generate openness. But they will only be effective if they receive informed input from local residents and organisations, especially in those areas where the council’s new scrutiny bodies will be dominated by the council’s majority party.
The executive will no doubt choose to discuss issues in private, but formal decision-making should be in public. This is one of the options the Bill allows authorities to adopt. They should be required to do so.
The present level of openness is practical.
Local government has operated the current access to information legislation for fifteen years and there is no evidence that it is impractical. The evaluation by the Policy Studies Institute for the Department of the Environment in 1995 concluded: the administration of the Act appears to work smoothly… “Overall, it was felt that the Act had introduced more discipline, consistency and rigour in the administration and conduct of local authority business.” 6 Effective local government will not be served by abandoning these gains.
What you can do
The Local Government Bill is being discussed in the House of Lords in February and is likely to move to the Commons in March.
If you are concerned please:
* Find out what your local council proposes
* Support our case for amendment of the Bill
* Contact local MPs, councillors and in Wales your NAW member, and ask them to ensure that the changed structures will not lead to a loss of openness
* Raise the issue with the local and regional press
It would be helpful if you could keep us informed about any action you take on this issue, let us have copies of letters, and so on.
The Local Government Bill and the report of the Joint Committee on the Draft Local Government (Organisation and Standards) Bill are available from the Stationery Office or the Houses of Parliament website: www.parliament.uk.
The draft regulations and guidance, and other information on the Local Government Bill are available from the Department of Environment, Transport and the Regions.
1. As of 8 February 2000, following amendment in Committee by the House of Lords
2. Joint Committee on the draft Local Government (Organisation & Standards) Bill, HL 102-I, HC542-I, July 1999, para 176
3. ibid, para no.150
4. Draft guidance para 13.11
5. Public Access to Information: An evaluation of the Local Government (Access to Information) Act 1985, Jane Steele, pub. Policy Studies Institute & the Department of the Environment, 1995 (ISBN 0 85374 666 4)