Speech by James Cornford, Co-Chairman of the Campaign, presenting a critique of the draft FOI bill.
Speech by James Cornford, Co-Chairman of the Campaign, presenting a critique of the draft FOI bill.
Transcript of a tape recording
Thanks very much Neil. I thought you were going to say we come now to the case for the prosecution.
May I first of all thank the Campaign for Freedom of Information for sustaining their invitation despite an apparent slight difference of emphasis about the reception which ought to be accorded this excellent draft Bill. Also to offer my sincere and genuine congratulations to all of those who received the Awards today, because each of them have shown, in their separate ways, very great tenacity at providing information – as in the case of the Royal Commission and Hampshire County Council – and in obtaining information, as in the case of the other recipients; and in two sets of cases very considerable courage as well in pursuing their goals. I say this with great sincerity, because there are disagreements, and I shall come to those as well.
I would also like, if I may Neil, to repeat what you said by way of your commendation of Maurice Frankel’s work, because although I understand that some of you are not, you know, cheering every single page in this document. The simple truth is that we would not have got, you would not have got this far, without the single mindedness of Maurice Frankel and all those other people associated with your Campaign. I am not saying you are responsible [laughter] for this as a result, Maurice, but it would not have happened without you, so you ought to take credit where it is due.
Now I will come onto, James, your point about – well, I will deal with your point about – the Official Secrets Act straight away really because, as I said when you sat down, I thought you had made an arguable case about the rest but you spoilt it by going completely over the top. To suggest that what is in this document is in any sense comparable to what was in the Official Secrets Act 1911 is sheer nonsense. Those of you who know the history of that, and James touched on it, will know that it was put together in a panic as a result of a scare; that whatever else can be said about this document, and I will say a great deal about it, it is in no sense put together in a panic. It is the result of years and years of debate and discussion, and it remains a draft Bill, and of course, as ever on this as on other issues, we are open to argument.
The Prime Minister, when he was leader of the opposition, made a number of speeches, of which your quotation was taken from one, promising not only to change what government did, but also to change the way in which we as British citizens were governed, and we have set out down that path and we are delivering that. Our manifesto included radical commitments, which many doubted could ever be achieved. I have been in the saloon of disappointments on the left for so many years it is frankly boring and here we are again. Indeed, before the election the Constitution Unit at University College London, and I am glad to see Robert Hazell in the audience, said that we would be making good progress if we brought forward two pieces of Constitutional legislation a year. Well, I am sorry to disappoint everybody, but in fact we made better progress than was suggested at the time. In the first Parliamentary session alone we introduced ten pieces, ten not two, of Constitutional legislation and we are, already in this session, working on House of Lords reform and the establishment of the Greater London Authority. We have already created something which people said that we would never manage to do, though the disappointment brigade was lining up at the time; the Scottish Parliament and the Welsh Assembly to bring decision making closer to peoples lives. We have already passed into law an Act which I suggest in ten, twenty, fifty years, even a hundred years time, will be regarded as the single most important change in the relationship between the citizen and the state probably this century, as well as this Parliament, the Human Rights Act. That is in law, and we have already announced, as well, the date when that will come into full effect.
There is going to be a mayor and assembly for London, and on Thursday the first nationwide proportional representation system to elect the nearly ninety members of the European Parliament. The Bill going through parliament now will remove the right to hereditary peers to sit and vote in the House of Lords, something that has been on the constitutional agenda all this century. There have been a number of efforts to achieve that: In the 1910 Government; again at the end of the First World War; again under the third Labour Government between 1945 and 1951; again under the fourth Labour administration in 1968. Each of those fell even, on many cases, before legislation was through the House of Commons. We are delivering that change and a Royal Commission has been established to propose wider reforms. In the next few months we’ll be publishing draft legislation to clean up the system of party political funding which has remained untouched for so long. We have already legislated, again in this parliament, on Data Protection, better to protect individuals’ privacy and to place on the statute book better protection to individuals’ privacy than was required of us by the terms of the European Union’s Data Protection Act. On any measure this represents a substantial and hugely important set of reforms which is going to modernise and regenerate our Constitution and do what the Prime Minister said we are going to do to: change that relationship to give people a better sense of what it means in this country to be a citizen.
It is in this context that we have done two things. First we have brought forward plans to legislate to implement our long-standing promise for freedom of information legislation. But second we are already seeking to change the culture, not just by our words, but by our deeds. And, James, what profoundly irritates me is this sense which you purvey that Ministers in this Government are simply waiting to betray the principles on which we fought the election. That is what we must have been doing in the last two years, and yet if you are asking us to be judged by our acts, by our deeds, then judge us by the deeds that we already undertaken in the last two years; not a word of you from that. Yet, was I the only one to recognise the paradox of this criticism on the one hand, but on the other hand the fact that, and I have been delighted that there was an Award given to the Royal Commission on Long Term Care – that was a Royal Commission established by a Labour Government. We were delighted that the Royal Commission felt able to publish all its background papers, it did not happen by accident. Or the Award to Inquest. Inquest has been campaigning away for years to get necessary changes in the rights of relatives and friends of people deceased, who are subject to inquest, because the previous arrangements for refusing people information until they got, literally into the well of the court was unacceptable. Well, you mentioned briefly that the Home Office had agreed to change the rules. Yes, we did agree to change the rules. That did not happen by accident, it happened as a result of decisions by ministers that the rules needed changing and we did not wait for legislation. There are many other areas where we have sort to open up the process of decision making. It may come as a surprise for me to mention the consequences for freedom of information of giving the Bank of England the discretion to determine interest rates, but the consequence of that is not only justified in its own terms, in terms of detaching the setting of interest rates within an inflation target from politicians, which I think is an important in terms of improving the quality of government, but it has also provided openness for the first time on the process by which interest rates are set. Now those minutes are published – a very, very important part of information to people concerned, as all of us are indirectly, but many concerned directly, with how those decisions about interest rates are made. In my own area, in the Home Office, one of the very first things which I did was to ensure that the statistical series published by the Home Office, for example on crime, which had often been the subject – the dates of when they were going to be published – had been the subject of great manipulation by ministers, that the publication of those was put at arms length from ministers, detached from ministers, with independence built in. We have established new protocols to ensure that the Inspectorate reports of Her Majesty’s Inspectors of Prisons, supposed to be independent, and is now independent, are published regardless of what ministers or the officials in the Prison Service ultimately think about them. There is now a very short period in which comments are exchanged between the Inspectorate, ministers, and the officials in the Prison Service, and after that the reports are published. When I came to office there were, I think, a dozen reports of the Inspectorate of Prisons sitting on the Secretary of State’s desk, some of which had been produced 16 months before. Well I happen to believe that this process of placing ministers under obligations in advance to publish reports like that is indeed an exercise in openness.
One of the crucial things, however, about this Bill is that the things I have described have happened as a result of discretionary decisions by ministers, and what we are proposing in this, is that for the first time every citizen will have a legal right of access to information held by bodies across the public sector. There will be a duty on public authorities to adopt a scheme for the publication of information about their work, a positive duty on authorities – I will come back to this point because James made much of it – even when they are not obliged to provide such information, to consider disclosure on public interest grounds.
A new Information Commissioner, together with a new Information Tribunal, to enforce the rights created. And under the provisions of the Bill there will be a requirement, for example, for police forces to give out information about the conduct of enquiries provided it does not prejudice law enforcement. But if you think for a moment, we are not dealing here with just one variable. There are three or more interests which we have to balance. On the one hand, the public interest in disclosure, on the other, individuals interests in the privacy of their own information, and on the third the public interest in there not – either sometimes being disclosure ever – but in many cases, its not being premature disclosure. And if, as a result, and it is almost a banal point to have to make, but I make it because it is necessary in the context of this meeting, if as a result of freedom of information legislation, criminals, suspects under investigation, could require the police to give information about the nature of those investigations, it would only be the most stupid criminal who ever ended up being convicted by a court of law, because people would always be able to be one step ahead of law enforcement. So of course, you have to have a provision that, yes, on the one hand requires the police to give out much more information than they do at the moment, and that is in the Bill, but also ensures that is balanced by a test to ensure that does not prejudice law enforcement.
We want schools to explain much better how they apply their admission criteria; health authorities to provide better details of how they allocate their resources between different treatments; the Prison Service to provide information on the performance of different regimes; hospitals and general practitioners to explain better how they prioritise their waiting lists; National Health Service trusts and health authorities to provide information on their administrative procedures governing Private Finance Initiatives. Those, of all the many other examples, will be guaranteed by the Bill.
Now it says here, “Of course, there have been some who criticise the Bill for not going far enough,” and I understand that some may be present in this room, but I just make the point that at each stage of what is a radical constitutional reform programme we have been accused of not going far enough. Every single Bill that has been brought forward, we have been accused of not going far enough. Take devolution: if you remember the debates, particularly, not only before the election but immediately afterwards, there were first of all those who said we never ever do it in the first session of the parliament. Well, we did. There were those who said that holding referendums on Scottish and Welsh devolution represented a climb down, a dilution of our policy. But who would now argue that by having a referendum, and then setting up what are very powerful institutions, represents that dilution?[Audience member: “When are you going to answer the points made by James about substantial harm? We are not interested in devolution, we are interested in FoI”]
But the reason I say all this is just to put in context some of the complaints about this Bill. And I will carry on, and if you do not mind, I may have been the only person in the room who could have heckled James, but I did not heckle James, so I would be grateful if you did not heckle me, although I am happy to conduct the meeting on that basis if you really want to.
There were those who argued, and this is directly relevant to freedom of information, and much else, that incorporating the European Convention on Human Rights did not go far enough, that we needed our own tailor made Bill of Rights as well. But few will argue that the Human Rights Act will have a profound impact following its implementation next year.
Now I understand the arguments that many people here have made, that we do not go far enough. But it is the Governments’ responsibility to make decisions in the best interest of everyone, not just, to pick up a cue from Neil in his opening remarks, interest groups or those representing single interest lobby organisations, notwithstanding the important role which such organisations play in our society. Our duty is to ensure that legislation is coherent, robust and effective. Fundamentally, our constitutional reforms have to be workable. Workable for citizens, workable for interested pressure groups, and yes, workable for good government as well.
Now let me just deal directly with some of the complaints that have been made about the Bill. One of them is that the draft Bill has twenty-two exemptions in it while the White Paper mentioned just seven, and the Code of Practice had only fifteen. Well the suggestion that we have some how extended seven to twenty-two is nonsense. There are twenty-two clauses but the subject areas remain largely the same as those in the White Paper. [Interruption] Well, it is true. National security, defence and international relations, law enforcement, health and safety, personal information, information provided in confidence, commercial interests and policy advice. But as can be seen from that example, if you look in the White Paper, defence, security and international relations are simply down, as it were, in one clause; when it came to the drafting of the Bill they had to be put into three clauses. It does not mean that we have expanded the subjects in the White Paper.
Now let me come to the suggestion that the substantial harm test is a major dilution compared to what was proposed in the White Paper. Now what I say to the person who – I am sorry I cannot see but we have got this arrangement, which personally dislike, where only the speaker can be seen but not the audience, but there we are – that what I say to both you and others in the room, is look a little closer at what is being proposed. We all know, at least I hope most people here know, that the passage from policy to legislation means that language must be clear, both to those will be affected, and to the courts. What the prejudice formula delivers is the principle that the harm caused should be real, actual or of substance. That is a pretty substantial test which people, governments, will have to pass, public authorities will have to pass, in order to prevent information which would have otherwise been made public, from being made public. The Information Commissioner will have the power to make sure that organisations do not hide behind prejudice tests if they cannot make their case.
Now let me come onto the issue of policy advice. Interestingly enough, in most of the speeches I have ever read, including the one by the Prime Minister made in 1996, most people, particularly those familiar with the processes of government, have said ‘Yes of course you have got to exclude detailed development of policy from Freedom of Information, otherwise policy in government becomes impossible.’ And that is true. All institutions have to have some degree of privacy to develop their policy, and that also applies, by the way, to pressure groups, it applies to newspapers. The product of the daily editorial conferences which are held in every newspaper in the land are shown in newspapers, just as the product of government policy making emerges very quickly in terms of government announcements and bills before parliament. But the process by which newspapers reach their decisions about what goes in and what does not go in, what line to take, never reaches the public. I make no complaint about that because if they were to be made public, running the institutions of newspapers would become very difficult, if not impossible, and the same is true in terms of government. What the White Paper said is that, “Now more than ever, government needs space and time in which to assess arguments and conduct its own debates with a degree privacy. Experience overseas suggests that the essential governmental functions of planning ahead, delivering solutions to issues of national importance and determining options on which to base policy decisions while still maintaining collective responsibility, can be damaged by random and premature disclosure of its deliberations under Freedom of Information legislation.” That is true, and I just say to colleagues present here – if there are any colleagues present, and to everybody else – I will just say this, there has to be a fine balance here and I think we have got it right. I know that some people think we have not, but if you go too far and you end up in a situation where detailed policy documents, comments by ministers as collective decisions are being arrived at, where all of that is very quickly disclosable, you will not make government more accountable you will make it much less accountable, because what happens in other countries is what will then happen here. One of the members of the Select Committee on Public Administration said that when they went to one country which had FOI, they were cynically told by politicians and administrators alike, ‘Well there are two things we do, one is we wheel barrows full of documents into the cabinet room and have them declared cabinet documents so they can be exempted. The second is we use post-it notes all the time, so they can come off when there’s anybody seeking to find out how the decisions were reached.’ One of the good things, the very impressive things, about British Government is that so much is committed to paper: there is an audit trail. Friends I have in another administration abroad, say they do not put things downs on paper because it is too dangerous. If you do that you lose the very important, powerful, responsibility that ministers and officials have in our system.
Now it is very important too to understand that the existence of an exemption, this comes back to James’s point, does not mean that all information relating to government will be kept confidential. Under Clause 14 of the Bill there must be consideration by the public authority as to whether the public interest in disclosure outweighs the prejudice that will be caused by disclosure. Now I do not regard that, James, as some sort of risible test. It seems to me to be very sensible. Yes the disclosures under Clause 14 are discretionary. They are discretionary because they are additional to the disclosure required under the rest of the Bill, so by definition they are discretionary. But, as I already explained, the Commissioner will be able to ensure that such decisions are considered in the light of the public interest to disclose. If the Authority’s decision in the light of these facts is not reasonable, the Commissioner can seek a judicial review of that decision.
Now one of the more amusing aspects of publishing this Bill is to see people who damned the Code of Freedom of Information, the non-statutory code, suddenly say it is all fine, even though it has not been used very much, except by Computer Weekly. Certainly, in my experience, and I tried to use it once in Opposition, to get out of my predecessor a background document which I had actually been leaked, so it was in my hands anyway. I thought that there were about ten pages of it, which were about policy, which I thought, and I said, should not be disclosed, but the rest of it I thought ought to be disclosed. It was background information, which ought to have been in the public prints, and I hope that if there is any equivalent we are disclosing it from the Home Office ourselves, and that [request] was refused. Now, what I can say to you is that, that kind of document, under this provision would be the subject of scrutiny, because it is a background document, subject to scrutiny by the Commissioner. And in my judgement, on any basis, this Bill provides a much tougher regime than that provided by the Code, and I find it extraordinary that some people suggest that it is not.
Now let me go on, just to deal, before I close, listen to the applause for five minutes and then take your questions, with some of the complaints that have been made about this Bill, specific ones. Andrew Rawnsley in The Observer, a week on Sunday, said that the litmus test of information legislation was always going to be whether it would make less likely, and I quote “an arms to Iraq or Pergau Dam scandal, a mad cow catastrophe or a Poll Tax debacle,” and I believe that it would be difficult for a government department to justify to the public an argument that it would be reasonable to keep secret information which exposed wrongdoing in arms dealing, or misallocation of overseas aid or a serious threat to public health. I find it very hard to believe that in such circumstances a public authority would resist disclosure to the extent that it attempted to uphold secrecy in proceedings for judicial review. As to the argument that Freedom of Information would have prevented the Poll Tax, which is what Andrew was suggesting, I just say that is off the wall. The one thing that we were not short of – I was one of the people on the Labour front bench who fought the Poll Tax Bills all the way through – one of things we were never short of on the Poll Tax was information. We were awash with the stuff. It is quite important when you are making the case for Freedom of Information not to undermine your argument by ludicrous claims. There was no shortage of information whatever about the Poll Tax or its effect. The only problem we faced, was that we and – I use this in the inclusive sense – everybody faced, was that no one could persuade Margaret Thatcher that it was a bad idea. And there is no known cure to such situations, and certainly Freedom of Information does not have one, and I think that it is so important to hang on to that. We all hear a great deal about the United States experience. I think there are two sides to the United States experience, and they need to be borne carefully in mind. Certainly, I will just say two things about that. There is, on any basis, no evidence to suggest that the overall quality of public administration in the United States is higher than it is in this country, nor that citizens, particularly once we have got the Human Rights Act in force, are able in practice to exercise a higher degree of human rights than they will be able to in this Country.
The second thing is really to emphasise the first. On my desk, pour encourager les autres, I keep a book which is literally entitled “Understanding policy fiascoes”, and from time to time I waive it at officials to say I do not want their latest wheeze to be included as a further chapter. This is a serious work about policy fiascoes in the United States. Freedom of Information can do some things, but it does not stop bad policy makers making bad policy decisions. The other point I would make was just to pick some points made by Harold Evans in an article in the Guardian on the 31st of May, suggesting, and he had a long list of things which had been flushed out under the American FOI system, which he was implying, not quite saying, would not happen under our system. First of all, one of the things that is sometimes missed during the comparison, is that our system of parliamentary questions, the questioning of ministers, both on the floor of the House, more particularly through written questions and Select Committees flushes out much more information than happens in many other administrations.
Second thing is that in the list of things that Harold mentioned were body parts of executed Chinese criminals being used in being used in transplants, the forging of signatures by employees, criminals employed as security guards; these in my view would be brought to light under our proposals, if there are not brought to light already. And the thrust overall of the Bill is to increase openness. As James said, this is a draft Bill, but again it does make risible your suggestions that this is somehow like the Official Secrets Act, James, because if they had been working on the Official Secrets Act as long as we have been working on this the Official Secrets Act would not have even been on the Statute Book by the time the First World War began.
This Bill will be subject to extensive public and parliamentary consultation, including the Select Committee on Public Administration, and we will carefully consider all the comments we receive. I make no apology for anything tonight, not least for the fact I am committed to legislation that works in practice. And I am determined that the FoI regime that we have outlined will work in practice, and I welcome your help and your vociferous comments in making that a reality. Thank you very much indeed.
Neil McIntosh, Co-Chairman, Campaign for Freedom of Information
Ladies and gentlemen, I was just about to say that I agreed with the Home Secretary, that the lighting arrangements were not ideal, so I am glad that they have been turned on. The Home Secretary has been good enough to agree that he will answer your questions. Can you make them questions, please. I know that almost everybody in this room is capable of a twenty minute speech on this subject, but we do not have the time for them. Yes?
Home Secretary, it was reported in the Guardian a few months ago that there is a report that the Government is sitting on about the millennium bug in relation to international airports around world. The Government has declined disclose it. Can you give any explanation as to why it should not be disclosed?
Steve Bubb, National Lottery Charity Board
Whatever the arguments are about exemptions, I suspect a lot depends on the culture of government and local authority departments, and what is the Government going to do about encouraging officials, once the Bill is passed, to actually act in the spirit of the Act, in terms of encouraging openness?
Peter Roderick, Legal Adviser to Friends of the Earth
We have had freedom of environmental information legislation since the end of 1992, and at the moment we still do not know how that legislation is going to be affected by this legislation. It is proposed in the consultation document to abolish the Environmental Information Regulations. Do you accept, Home Secretary, that there will have to be a radical amendment to the draft Bill to ensure that the Environmental Information Regulations are not unlawfully repealed, in other words in breach of the EC Directive?
Let us take those three shall we?
Jack Straw MP
Okay. I am sorry, I did not catch your name.
Deborah King. I am an airline passenger.
Jack Straw MP
Right okay. [audience laughter]
Not on the 31st of December probably.
Jack Straw MP
I do not know the answer to your question, because I do not know the answer to the question. But if you give me your name but also if you give my private secretary, who is over there, your address, as I leave, I will get you an answer.
Stephen asks, makes what is an important point, about the importance of encouraging a change of culture in government, and what are we doing to secure that. Well there will be a huge amount of work to do that. In terms of not only encouraging a change of culture by the officials, but also by people making use of government. To draw a parallel with the Human Rights Act, what we have done there is, we have got the Bill on the statute book, we have got the Act there now, we have now got a task force under Gareth Williams, and that is not only doing the important bit about how this legislation will work, but also what cultural changes are needed – and they are very, very substantial by the way, of very great importance. A similar thing is going to happen on FOI. Let me say, I worked in Government twenty-five years ago. Sir Patrick Nairne, who was then the Permanent Secretary at the Department of Health and Social Security, can confirm this because he is sitting in the back of the room. One of the striking things, coming back to government after a period of twenty-three years, was to see that the obsessive secrecy, which really was obsessive, which was there in the seventies, had – on the whole – gone. I mean there is still, some people may say too much, confidentiality, but in the Home Office where we have, where we genuinely have secrets and things that cannot, for reasons of life and death, cannot see the light of day, a very large proportion of the stuff that I deal with, I mean outside of what is the secret bit of Government – I mean the genuinely the secret, to do with national security and some aspects of law enforcement – is not classified at all. And that is good. Loads more consultative documents, background documents, are published and that is good. I think that, if I may say so, my critics whoever they are, underestimate the degree to which the culture will change simply by putting on the statute book a clear legal right of information.
Peter from FOE says, ‘Do I think that radical amendments will be required?’ I am not sure, but obviously you are, so you need to get in touch with us. We have no intention, by the way, of using this Bill to put ourselves in breach of undertakings or legal commitments in respect of the European Union, and you may not have seen a table, as I had recently, in an obscure German treatise on German foreign policy, which I have the English translation, but I need to give it a wider audience, because the United Kingdom actually has the best record, bar only a couple, of ensuring that directives are carried through. It happened that the point that they were making, by the way, was that Germany had the worst record. But again if you want to write to me – I mean write to me – pick up the invitation from now so that I see the letter, rather than it going into the big machine called Home Office letters. I will very happily give you an answer.
Marlene Winfield, National Consumer Council
Home Secretary, many Freedom of Information Acts have what they call “sunset clauses” which limit the time for which an exemption order or exclusion will apply. You seem to imply, in your speech, that there would be time limits, but there is no provision in the Act for any time limits. Could you say why that is?
I am a non-practising barrister. You mentioned parliamentary questions as an example of getting information, enabling citizens to hold Government to account. The Code, at the moment, sets the standard by which written answers are prepared, subject to a resolution of the House. How will the Bill, as proposed in the consultation document, affect answers parliamentary written questions?
Guy Dehn, Public Concern at Work
You said that when you were in opposition you unsuccessfully applied for documents under the Access to Government Information Code, and you yourself had already received a leaked copy of the same document. If, under your Bill, there is information which is exempt information, and someone has applied to your department for it, and in the discretionary provision it is not supplied, but you subsequently discover it has been leaked to your shadow, and you find out who the civil servant was, could you tell me what action you would take?
Jack Straw MP
Yes, I will. I think Marlene asked about “sunset clauses”. This fits in, basically, with the existing structure with respect to public records. Which is that, I know it is a very long sunset, by the way, but so far as Cabinet documents are concerned, the thirty-year rule applies to those. Either information is available under this provision, or other discretionary provisions, or it will be available under the normal public records arrangements, and there is some dovetailing which is described in the draft Bill and consultation document.
Tim asks about PQ’s. Again, what we sought to do, was to dovetail the FOI regime and PQ regime together. You have got to do that, or otherwise, you would end up with a situation where, either individual applicants could get information where Members of Parliament could not, or MPs getting information where individual applicants could not, and that would just be silly. So they fit in together both in terms of conditions, and also in terms of cost. There is a limit on the cost of any one enquiry, and that has to be the same for similar reasons.
Guy asks what I would do if it turned out that someone had leaked this information to my shadow. I just ought to explain in my defence, by the way, that the sequence of events was that this document was leaked to a newspaper, which shall remain nameless – it begins with “G” – and I subsequently received the information, so by the time I got the information I was not the prime source of the leak. I received many, quite a number of, leaks about which I did nothing, because it would have been damaging if they had gone anywhere in respect of the Home Office. It would depend, the serious answer to your question, it would depend on what had been leaked. I mean, if it was simply embarrassing for a short period I would be irritated and I would want to know what who had leaked it because it represents a break down in confidence, with a small “c”, as just as any of you would. If it was seriously damaging then I would be very cross about it, but as I say, it depends on the nature of the leak. Can I just take three more?
Yes, okay, just three more. Standing at the back there yes.
Home Secretary, I would like to say, as someone who has always welcomed the promise of legislation and welcomed the promises you gave in opposition, said you would deliver on them, was never a game player – and here we are with a Freedom of Information Act – that it seems to me that the tragedy is that you are not delivering on the spirit of these reforms. You are delivering, so to speak, on the formal aspects. The aspect that I would like to ask you about, in terms of the draft Bill, which seems to me to symbolise this withdrawal from the spirit of the thing, is clause, as I read it, clause 44(7), which appears to say that if a public authority thinks that information would lead to prosecution if it revealed that information, it does not have to show that information, even to the Commissioner. There is no gloss, in the introduction, where you explain what the various clauses mean. It is interesting that this particular one is not glossed, and it appears to read as if in fact you are giving a blanket exemption to public authorities not to give information on wrongdoing.
Charles Medawar, Social Audit Limited
My background is in consumer protection, and I have got a particular interest in medicine safety and medicines control, and I certainly count myself among those who would very much prefer to continue to use the voluntary Code of Practice rather than the Bill, to obtain basic information. For example, which members of the Committee on the Safety of Medicines declared conflicts of interests over the discussion of a particular drug. But what I want to ask the Secretary of State was, you acknowledge that this Bill has caused a good deal of disappointment, universally condemned by the press, and the word betrayed has been used by an extremely moderate man, and I myself feel deeply disappointed. You gave no sense of understanding that this disappointment was anything than misconceived.
I am sorry that I am going to disappoint quite a number of you because this is the last question. The gentleman there.
Andrew Herxheimer, Drug & Therapeutics Bulletin
What will happen to the Medicines Control Agency, the blanket ban on confidentiality in the Medicines Act under your Bill?
Jack Straw MP
Anthony Barnett said that his concerns were about not delivering on the spirit of the reforms, and just to pick up Charles’ point, I am not dismissive of the criticism, far from it, but I happen to have opinions of my own which do not happen to fit with some of the criticisms, but I have said already that we will take on board detailed points made, which will now include 44(7) by the way.
This a draft Bill, it is a consultative process. I am not seeking credit for this, but there is a real difference between having a draft Bill which can be discussed over many months, and having a Bill of which you get two clear weekends; it used to be three to be hanged and two to consider a Bill, and that is it, and then it goes into Standing Committee and often it could be guillotined. This is a long running consultative process, and I am not suggesting, for a second, to both Anthony and Charles that we have got everything right in this Bill. I recognise that it is different, although in some respects goes further than the White Paper, and in other respects less far that the White Paper. But what irritates me is not the fact that various people are suggesting that they have come to a different point of view than us, but the suggestion that somehow we set out to betray people on this, which is utter nonsense, and it is no truer in respect of this than it is in respect of that long litany of constitutional reforms which, in turn irritated somebody in the audience and called them to cry out for the substantial harm test to be discussed. But I mentioned those as proof of the fact that we are delivering on range of constitutional issues, as Anthony has been generous enough to recognise, and it would be, to say the least, eccentric if we had decided not to deliver on this. Because we have not decided not to deliver on it. We put forward proposals, and they are being discussed, and if we think that they need to be changed, we are persuaded by the arguments, and that will include Parliament, who has the duty of “we propose, they dispose” and that is how it has to be, then we will change it. I have had a quick look at 44(7) Anthony, I understand, I mean I do, I acknowledge your slight surprise at its text and will look at it.
I have answered Charles, and Andrew Herxheimer asks a question about – [Interruption] – Well I understand that is your view, but it is not my view, and it is my job to try, once the Bill becomes law to prove you wrong, all right? I have a slightly sceptical audience here tonight [laughter]. I have got that point, and I will take away that message. But I also say that I – and you may say ‘Well what is he saying?’ – that I have been here before, before sceptical audiences thinking we would not deliver, and we have delivered. And then of course what happens is that people always up the demands so you can know that people are never satisfied, but some of us are used to that too. Thank you very much. On the Medical Control Agency, I do not know the answer to that, sorry. I will have to write to you, a direct answer, but I will do so.
Okay, I think – I am sorry there are many other people who wanted to ask questions – I think we are going to leave it at that. I agree with one other thing you said Home Secretary, and that is that there is a tendency in single issue pressure groups always to say that you have not gone far enough. We came very, very close with the White Paper to saying you had gone far enough. That is my only comment.
I turn now to Godfrey Bradman who is the President of the Campaign for Freedom of Information, who has been involved also from the start, to give a vote of thanks.
Godfrey Bradman, President of the Campaign for Freedom of Information
Home Secretary, we are extremely grateful to you for joining us tonight. You have given us a robust defence of the Governments proposals on Freedom of Information, and we expected no less. As you may gather, one or two of us here my not be entirely persuaded to your point of view, and you may have expected no less than that. We thank you very much indeed for coming.
Director, Campaign for Freedom of Information
Paper given at a Conference organised by the
Society for Research into Higher Education
June 22 1998
Freedom of information (FOI) will affect the academic community in two main ways. First, universities themselves will be bound by the proposed legislation, which will apply not only to government departments, local authorities, quangos and NHS bodies but also to “schools, further education colleges and universities”. 
Just as important will be the new opportunities for academic researchers. Historians will no longer have to live with the restrictions of the Public Record Acts, which bar access to documents less than thirty years old. The proposed FOI Act will be fully retrospective, providing access to less ancient government files. History is not the only discipline which will be affected. The potential benefit can be seen from this statement, made to the BSE Inquiry earlier this year by Professor Roy Anderson of Oxford University:
“Over the period 1989 to the Spring of 1991 I made a series of formal approaches to MAFF to gain access to the main BSE data base held at Weybridge with the objective of carrying out an independent analysis of the epidemiology of BSE. On each occasion access to the data was refused.
Somewhat frustrated, since I was firmly of the view that more could be done to interpret what factors were prolonging the epidemic, I then dropped the issue because work on AIDS had a high priority at that time. To put the failure to apply appropriate scientific methods in perspective – if these “back calculation” techniques had been applied in the period 1989-91, they would have revealed that the meat and bone meal (MBM) feed ban was not fully effective since new infections via this route continued through the early 1990s. If this had been known at that time, and if measures to stop the continued use of contaminated feed had been put in place, the size of the epidemic would have been signicantly smaller (by about one quarter of a million infected cattle…)”
This is an important reminder that the use of FOI by the academic community may be of immense benefit to the public as a whole.
The Cabinet Office has published over 570 responses that it received to the FOI white paper. They include surprisingly little from the world of higher education, apart from a handful of academics with an interest in FOI and a number of researchers carrying out animal experimentation, who are concerned that they may be exposed to risk of attack if their identities are revealed under an FOI Act. The universities themselves seemed largely absent.
Yet universities are amongst the bodies that may be most affected by FOI. Other bodies have been warming up for this reform for several years. The open government codes of practice have applied to government departments since 1994  and to NHS bodies since 1995.  They require them to release information on request unless it falls within specified exemptions and permit dissatisfied applicants to appeal to the Parliamentary Ombudsman or the Health Service Ombudsman, respectively. Public bodies with environmental responsibilities have been subject to a broad disclosure requirement since 1993.  Local authorities have been covered by progressively tighter open meetings legislation since 1960. The universities have been overlooked by this move towards openness. They may be less ready for FOI than most other bodies, and may find it worth introducing their own disclosure policies now – so as to lessen the shock to the system when the legislation comes.
Briefly, some of the main elements of the government’s proposals are:
* An extremely wide range of bodies including virtually the whole of the public sector will be covered.
* The right of access will apply both to records and to unrecorded information. If the information is known to officials it will have to be disclosed, recorded or not.
* The right of access will be fully retrospective, applying to information obtained after the Act comes into force and at any time in the past.
* Information can be withheld where disclosure would be harmful to any of the following specified interests: security, defence, international relations, law enforcement, personal privacy, commercial confidentiality, public safety, information supplied in confidence and the integrity of decision making. In all these cases the body seeking to withhold information would have to show that disclosure would harm – or in some cases cause “substantial harm” to – one of these interests.
* Some form of public interest test will apply which may require the disclosure of exempt information.
* Some form of charging for information will be permitted.
* The Act will be enforced by a Commissioner with the powers to order disclosure.
* There are also some ‘proactive’ disclosure requirements. Bodies will be required to publish various kinds of internal manuals, and to give reasons for their decisions to those affected. These obligations are already found in the open government codes of practice mentioned above.
The following examples from overseas FOI laws illustrate how FOI may affect universities.  They come mainly from the state and provincial laws in Canada and Australia:
* Griffith University in Australia was required to disclose large parts of an unpublished PhD thesis, which had studied the way in which an unidentified higher education institution had managed change over a period of years. The researcher had promised anonymity to the staff members interviewed, and the university had agreed to prevent public access to the thesis for a period of 5 years. The FOI request was made by one of the interviewed staff members. The Information Commissioner found that although the thesis would normally be held to be exempt from access on the grounds of an obligation of confidentiality, there was an overriding public interest in disclosure: “…unlike probably the vast majority of post-graduate theses submitted to Australian universities…the subject matter of…[the] thesis is such that its disclosure would have the effect of enhancing public knowledge and understanding of aspects of the operation of a publicly-funded tertiary institution. Its disclosure would serve key objects recognised in the FOI Act…”. However, he noted that following the university’s initial refusal it had agreed to release all but “a few highly sensitive passages”. He accepted that this limited degree of confidentiality was justified, adding that if the university had continued to withhold the whole document he would probably have required much of it to be disclosed on public interest grounds. 
* Confidential admissions guidelines demonstrating positive racial discrimination by the University of Michigan in the USA were disclosed under the American FOI Act. The guidelines “show a series of grids in which grades and standardized test scores are applied differently to whites and nonwhites. For example, a white student with a grade-point average of 3.8 out of a possible 4.0 and combined Scholastic Assessment Test scores of 1,000 out of a possible 1,600…would be rejected, under the guidelines, whereas a black or Hispanic applicant with those same results would be admitted” according to a press report.  The disclosure, to a member of the university’s staff, has led to a law suit by unsuccessful white university applicants claiming they have been discriminated against.
* A confidential report into allegations of scientific fraud by a research scientist at the Queensland Institute of Medical Research was disclosed to a journalist despite efforts by the scientist to block disclosure. A former colleague had alleged that the scientist had knowingly published invalid research data in an international cancer journal. An independent investigation by the director of a university research unit cleared the scientist of fraud, but questioned certain aspects of his judgement. The scientist objected to the report’s disclosure, arguing that it would involve an invasion of his privacy and damage his professional reputation. The Information Commissioner rejected these claims and held that even if they had been justified there would have been an overriding public interest in disclosure: “I am dealing with a report into allegations of improper conduct…made by an independent investigator who has allowed the subject of the allegations a reasonable opportunity to answer adverse material…there is a clear public interest in ensuring that allegations of improper conduct against government agencies and government employees, which appear to have some reasonable basis, are properly investigated, and that appropriate corrective action is taken where individuals, systems or organisations are found to be at fault, and that there is proper accountability to the public, in respect of both process and outcomes, in this regard.”  * The larger part of an unpublished committee of inquiry report, held by Simon Fraser University in British Columbia were obtained by a journalist under the FOI Act. The inquiry followed a dispute over payment for services between a university professor and a consultant/research assistant which led to angry exchanges including the allegation by a third party that one of the participants constituted a “potential threat” to the university community. The results of an initial inquiry were then leaked. The Commissioner reported that he found it “quite extraordinary” that the university should subsequently claim that the second inquiry report was confidential, given that no promise of confidentiality had been made to witnesses. He added: “The four parties (three of them professors) who were the principals in the investigation are now asking me to protect their privacy by not ordering any more information to be disclosed. I had some initial difficulties in being very sympathetic to their situation, since the expenditure of public funds…was at issue in the initial problem. Public money also paid for the Committee of Inquiry… As the applicant argues, the public has a right to know not only how its money is being spent but also how employees of a public body, like SFU, are conducting themselves”. The Commissioner ordered that most of the report be disclosed, although with some omissions to minimise the risk of identification to individuals involved.  * A member of the faculty at the University of Queensland asked for a number of referee reports relating to his unsuccessful applications for promotion. The Commissioner held that references from ordinary members of the faculty were exempt as they were not obliged to supply them, and disclosure could expose them to some detriment, such as embarrassment. However, heads of department were obliged to supply such reports – and their references could not be withheld under the exemption for confidential information.
The university also argued that revealing such reports would lead to less honest references, thus undermining its recruitment practices. The Commissioner treated this argument with some scepticism, commenting that if it was right “that senior academics are prepared to be less than fully honest in writing a referee report on a colleague who might see the report, in the interests of preserving harmonious working relationships or friendships, it logically seems to be no less likely that senior academics may be inclined to promote the claims for promotion of a friend, protege or supporter over better qualified candidates for promotion.” He added that the university had recently introduced regular performance appraisal of academic staff, which involved openly discussing an individual’s strengths and weaknesses with the person concerned, and that the skill required to operate this system would enable them to cope with open references from departmental heads. He added: “Were it not for the evidence filed on behalf of the University, I should have thought that, as a class, the community’s leading academics would be likely to have the skills and the intellectual integrity to make such a system work effectively. The University’s evidence, however, paints a somewhat unflattering picture of (at least a segment) of its academic staff: of persons liable to respond to adverse comment on their performance by disrupting a Department’s teaching, administrative and research activities or making retaliatory personal attacks.” He commented that the requirements to operate proper staff appraisal should help to overcome obstacles of this kind and ordered the relevant materials to be disclosed. 
On the other hand, not all complaints are successful:
* A student newspaper applied for records about an exclusive sponsorship agreement between the Coca-Cola company and the University of British Columbia, the income from which was used to improve campus facilities for the disabled. The Commissioner agreed that the documents should not be disclosed, finding that to do so would prejudice the university’s financial relationship with Coca-Cola and other potential sponsors and give the company’s rivals “a valuable document about how to structure a sophisticated sponsorship transaction”.  * A student who claimed he was unjustly forced to withdraw from a Master’s degree program applied for access to all records referring to him held by the University of British Columbia. The university disclosed some 130 pages of records, but withheld parts of 13 pages. It argued that the applicant “has a history of intimidating behaviour towards Faculty members, students and staff” and believed that disclosure of the records would be likely to endanger the safety of individuals and invade the privacy of third parties. The Commissioner accepted both these arguments and did not uphold the complaint. 
A separate important piece of legislation is the Public Interest Disclosure Bill, introduced as a private members’ bill by Richard Shepherd MP which has nearly completed its Parliamentary passage. The bill will protect whistleblowers who raise concerns about malpractice within their institution or with prescribed regulatory bodies or, in certain circumstances, with external bodies including the press. Disclosures may be protected where the individual has a reasonable belief that:
* an offence has been committed
* a legal obligation has been breached
* a miscarriage of justice has occurred
* health and safety or the environment is at risk, or
* any of the above matters is being covered-up.
There is no specific reference to academic standards, but it is worth reflecting on the wide scope of the provision referring to a breach of a legal obligation. It would include a breach of a contract term, or of any common law requirement including the failure to take proper care, or of administrative law – which would cover unreasonableness or procedural irregularity in the taking of a decision. To take one example: a civil servant who believes that he or she was being asked to act in a politically biased manner, would be protected for raising this matter – because compliance with the Civil Service Code is required under civil servants’ contracts of employment. If academics’ contracts contain reference to professional academic standards, disclosure of information relating to potential breaches would be protected under the Bill. It would be surprising if a university which was deliberately cutting standards in order to attract more students or improve its apparent success rate was not also failing to meet some legal obligation – for example, towards its students or its funders.
So important changes are coming on two fronts: in establishing a new right to information, and in protecting those who disclose information about malpractice. Many organisations are already preparing for these changes, and voluntarily adopting policies that anticipate them. There may be real benefits to academic institutions in following suit.
1. I am grateful to my colleagues Roma Diviani and Simon Canter for the monitoring of overseas freedom of information cases referred to in this paper.
2. The government’s proposals are set out in a white paper published in December 1997, Your Right to Know, Cm 3818
3. The BSE Inquiry, Statement No 9, 10 February 1998
4. Code of Practice on Access to Government Information
5. Code of Practice on Openness in the NHS
6. Environmental Information Regulations 1992
7. These examples are largely drawn from orders of the Information Commissioners who enforce the FOI laws of Queensland in Australia and British Columbia in Canada, which are more easily accessible on the Internet than the equivalent rulings under their national legislation. Queensland orders can be found at
8. http://www.slq.qld.gov.au/infocomm/listdec.html and British Columbia orders at http://www.oipcbc.org/orders/ Information Commissioner of Queensland, Decision 96014
9. ‘Group Suing University of Michigan Over Diversity’, New York Times News Service, 13 October 1997
10. Information Commissioner of Queensland, Decision 94016
11. Information and Privacy Commissioner of British Columbia, Order No 97-1996
12. Information Commissioner of Queensland, Decision 94032
13. Information and Privacy Commissioner of British Columbia, Order No 126-1996
14. Information and Privacy Commissioner of British Columbia, Order No 131-1996
Transcript of a tape recording
Before the last General Election, the Labour Party pledged to fight the culture of secrecy in Government in our manifesto. In our Manifesto, we argued that culture leads to contempt for other points of view which, in turn, leads to defective policy decisions. Ill-conceived policies lead to waste and misery.
We promised a radical solution – a Freedom of Information Act which would give Britain a strong culture of Government openness. We promised to make Britain a world beacon by creating a model freedom of information regime.
These were – and are – our aims.
In Opposition, we had prepared much of the ground for our ambitious constitutional reform programme – Devolution for Scotland and Wales; giving greater effect to the European Convention on Human Rights; granting independence to the Bank of England; and much more.
But, though our aims for Freedom of Information were clear, real work remained to be done on the detail. The Campaign for Freedom of Information – more than anyone – will appreciate the complexities.
Some criticised us for not proceeding with Freedom of Information immediately. But we wanted to make sure that our policies were thought through properly. And of course, no government can carry through its whole manifesto in one year. We also wanted to make sure we were much more radical than the Code of Practice used by the last government. We needed to make sure those changes would be both effective and enforceable.
When we published our White Paper, “Your Right to Know”, in December last year, our critics were silenced. Our proposals have been warmly welcomed, not least by the Campaign for Freedom of Information, as you have heard. The Campaign said they “should provide a fundamental break with Britain’s tradition of Government secrecy.”
We have begun as we mean to continue. Alongside the White Paper, we published a volume of background papers. These papers help to explain why our proposals have developed in the way they have. They were intended to make the debate on Freedom of Information more informed.
This is an example of the way a Freedom of Information regime should work. Government should adequately and actively take the lead in promoting openness. We should be ready to open our doors, our files, our databases, so that the British people know what is being said and done in their name.
These background papers were, generally, well received in the spirit in which they were published. Those unused to transparency in Government worried that we were being too open. Some feared that these papers would be used only by our opponents, searching for information to use against us.
That has not happened. The background papers have not brought the house down. They have not been the cause of anger or anxious debate. Instead, what they have done is helped to make the debate better informed.
This is really what Freedom of Information, I think, is about – giving people the chance to understand how Government works and why it has reached particular decisions.
I have no doubt that journalists and campaigners will take advantage of our regime of greater openness to reveal facts which may be uncomfortable for officials and Ministers. That is their job. Investigative journalism has an important role in making open government a reality. Over time, we can expect there to be a few headline-grabbing revelations as a result of the Freedom of Information Act. And why not? The media will be big gainers from the new freedom of information regime but the public will benefit even more.
The great majority of requests for information under the Act will be from ordinary people who want to be better informed. Armed with the information that only Governments can provide, they will be able to evaluate Government policy. We will also see increasing openness in the very ordinary everyday business of delivering public services. And from this Act, and from the Data Protection Act, individuals will have better opportunities to check the personal information held about themselves by public organisations.
I said that our White Paper was well received. It has also been well debated. At every stage of the process of formulating our policy, we have been open. This will continue. We received over 500 responses to the White Paper. This month they were published on the Internet. They are also now available in book form, in 6 volumes – I am afraid – for £37.
This is a timely reminder that Freedom of Information does not come without cost. We will do everything we reasonably can to minimise charges to applicants seeking information, but it is unrealistic to ask for all enquiries to be met free of charge. After all, every pound of taxpayers’ money we spend on providing information is a pound which cannot be spent on school books, or hospital beds, or nursery care.
Government is about tough choices. In an ideal world, certainly, Freedom of Information would bring no costs to the public. But we are not living in an ideal world. We have to balance all these competing demands for funds. Some form of charging is unavoidable.
I know that this is an area which troubles the Campaign. Your thoughtful response to our White Paper forcefully makes the case against charging. We will consider it very carefully because, of course, it is a major issue. But I cannot promise that we will come to an end result which will be entirely to your satisfaction.
Charging is not the only question which needs to be discussed further. Consultation revealed a raft of issues on which more thought or greater clarification is needed. The range of possible exclusions; the role of commercial confidentiality; access to personnel records; information given in confidence; and the impact of the Freedom of Information legislation on local government are just a few of the areas we need to consider further.
Perhaps even more importantly – and more fundamentally – we need to start considering how to make Britain’s Freedom of Information regime effective. How can people make use of the powers which the Freedom of Information Act will provide? How will they find out what information exists? How will they know what to ask for?
The Government needs the help of organisations like the Campaign to begin answering these vital questions. We have no monopoly of good ideas. We are very ready to steal some of yours!
There is still time to look for the best way to provide an effective regime. The consultation period on the White Paper has closed, but that is not the end of the dialogue. We are committed to openness at every stage.
Our next step will be to produce a draft Freedom of Information Bill. When it is ready, it will also be subject to wide consultation. Our aim is for the draft Bill to be published during the Summer. By the time we come to legislate, our proposals for a genuine Freedom of Information regime in this country will have been debated, scrutinised and considered from every angle. As a result, we should have a strong regime that will stand the test of time.
We have no doubt that open Government is good Government. Politicians of all parties should be encouraging the people of this country to engage in debate on the way their society is being shaped for the future.
But this is a hollow desire unless our citizens have access to official information. This Government is committed to openness, but our goodwill is no guarantee for the future. That is why we will enshrine the principles of open Government in statute.
Our intention is that no Government should ever again be able to shrug off the legitimate questions of the British people.
I close with this pledge. We will deliver a Freedom of Information Act and it will deliver.
A transcript of the Campaign’s conference on the FoI white paper held in February 1998. Speakers: Dr David Clark MP, the minister then responsible for Freedom of Information; Elizabeth France, Data Protection Commissioner; Kevin Murphy, Information Commissioner of Ireland; Michael Tankersley, Senior Attorney, Public Citizen Litigation Group; Sheila McKechnie, Director, Consumers’ Association; Charles Ramsden, then Head of the FOI Unit in the Cabinet Office; John Wadham, Director, Liberty; Jonathan Baume, General Secretary, Association of First Division Civil Servants; Richard Thomas, Director, Public Policy Group, Clifford Chance; and Maurice Frankel, Director, Campaign for Freedom of Information.
Transcript of a tape recording
I am particularly pleased to be here to present these awards, and to present awards to such a wide range of people, some of whom have made great breakthroughs, some of whom have actually undertaken acts of very great courage, which is one of the things which came out most strongly from the citations that were made. When we were going through this some weeks ago in preparation for my speech, just to show that we do make these advance preparations several weeks in advance, I knew that there was an M.P.’s award and someone said it was going to be for a fearless intention to debate those issues which the establishment wanted to conceal. I had a vivid thought for a moment of making this award tonight to my good friend and colleague Ron Davies. But actually it was Tony Wright that I gave it to, who has done magnificent work as you all know.
I thought that what came out most strongly was simply the degree to which this is not an issue that, as it were, should concern simply people in the so-called chattering classes. But many of the problems that we are talking about are very basic and very real to people we seek to represent.
So I am delighted to be here, and I am particularly delighted to pay tribute to the work of Maurice Frankel who has for many years been a tireless campaigner for freedom of information. I think it is true to say that his enormous efforts and the efforts of the Campaign have kept this issue high on the political agenda and we now have a situation where action on this issue is supported by four voters in five. And I think that the case for freedom of information is actually getting stronger not weaker.
In today’s world, as we know, information is power and there has been a huge explosion, in the communications industries in recent years. Computers are now going to be standard in every office and in an increasing number of private homes. Often, as I know all too well, instead of parents teaching children how to operate them its the other way round. But the Internet has made instantaneous electronic communications an every day fact of life for millions of people. We have new TV and radio stations and a whole host of other sources of information. Knowledge is everywhere and people demand more information from their government, from their local councils, from their health service, from their quangos, from other organisations, from private sector organisations as well as those operating publicly.
Now it is fairly clear and obvious to see the case even from the events of the past few days, when a health scare like BSE occurs, the public want to know the facts, people want to know what the scientific advice is in full, and they need to be sure that the public interest has always comes first. They want to know if there was any relaxation of regulations which resulted in public safety being compromised. They want to know what the risks are and whether the food they eat and the food they feed to their children is safe, and they want to know how to find out.
And the whole sorry saga of how this matter has been handled has resulted in the loss of public trust in government. It is because we have given so many absolute assurances in the past, so categorically, without necessarily providing the information to back it up that there is such little faith in what is said now. The only way to begin to restore people’s trust is therefore to be completely open about what the risks are and to take whatever action is necessary to restore and renew confidence in our beef industry. And I think that that is the very least that the public have a right to expect.
And before I go on to talk about Labour’s commitment to the area of freedom of information I would like if I might just to set this argument in context, because 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. We did a press conference this morning, myself and Gordon Brown about insecurities, talking of BSE, and we were trying to work out what the best examples of insecurity were, and I said to Gordon ‘What is the best example in the country of insecurity’ and he said, ‘Ask four and a half million cows’. I have an extraordinary view of them sort of hanging on every word of Stephen Dorrell and Douglas Hogg. I hope they made more sense than the rest of the population, but anyway, I digress.
As I said information is power and any government’s attitude about sharing information with the people actually says a great deal about how it views power itself and how it views the relationship between itself and the people who elected it. I want to say two things about this, one of which is very obvious, and one of which is less obvious.
The crucial question is does the government regard people’s involvement in politics as being restricted to periodic elections? Or, does it regard itself as in some sense in a genuine partnership with people? And the government’s attitude to what it is prepared to tell people and the knowledge it will share with them says a great deal about where it stands on that matter.
My argument is that if a government is genuine about wanting a partnership with the people who it is governing, then the act of government itself must be seen in some sense as a shared responsibility and the government has to empower the people and give them a say in how that politics is conducted.
Now that is an obvious point, familiar to any one who supports a Freedom of Information Act. I think less obvious is the second point, that in today’s world, I believe that there is a limit to what government can do, and the power of society or community to act and to influence the lives of the individuals within it depends on a far more diverse and diffuse set of relationships than, if you like, a concept of government that would have been more natural or more easily explicable forty or fifty years ago. I don’t believe it is possible for government to govern effectively now, unless it governs in some sense in a relationship of partnership with the people whom it is governing. It is one of the reasons why decentralisation of power is actually in the interests of government. People often say to me today: everyone says this before they get into power, then, after they get into power you start to read the words of the government on the screen and they don’t seem so silly after all. You can see the point of them and all the rest of it.
I actually believe that if we want to make government effective in the modern world it simply is not possible to do that on the basis of government just handing down tablets of stone. In fact, you can see, in my view, both with Scott and BSE it would have been far better if government had been more open, far better actually for the proper conduct of government.
Now the present government claim that they are in favour of open government but that a Freedom of Information Act is not the way forward. Tonight, I am not going to say the current government have done nothing positive in the field, because that would not be true. Indeed, as James [Cornford] was accepting, the Chancellor and the Governor of the Bank of England, their more open meetings, is obviously an example of that. How much comfort they take from that I’m not sure. But it certainly is. Their introduction of a Code on Open Government and the Ombudsman’s vigorous application of it, these are steps forward, and I think we should acknowledge that sensibly. But I would say however that in truth, what they have underlined is the need for action on a much greater scale. [Note: TV cameras leave] You can certainly tell what the sound bite was tonight. People will be saying to me: why didn’t he say anything about a Freedom of Information Act? That’s what he’s meant to be talking about.
Now the Code was brought into force on an Easter bank holiday during a parliamentary recess which is not exactly the best way to draw attention to something. Actually I used to think, indeed and still do think, the best way to publicise something is to leak it to the press, preferably to the Guardian newspaper. I certainly found that at the TUC last year.
I think that during the first eight months of its life, in relation to the Code the Government spent about 5% of the amount publicising the Code as they did publicising the Citizens Charter over a similar period. They have in fact, I believe, not paid for a single press advertisement to tell people of their rights to government information. Indeed, my colleague Tony Wright has calculated that the Department of Environment, for example, has spent just £170 telling people about open government. Now I have heard of value for money, but this seems ridiculous.
And the one home truth I would have thought about a Code on open government, is that there’s not much point in keeping it secret. Even for those who know about the Code and who use it, the process has been shown in certain circumstances to be deeply flawed. To be fair, the Parliamentary Ombudsman in his annual report published last week has complained often of time consuming delay in responding to requests for information and I think, genuinely wants to see the situation improved. That’s the real problem with the situation at present. The government grants information when it wants to. What is needed is a change in culture and a statutory obligation on government to make it a duty to release information to the people who elect the government.
The government acknowledged the need for some statutory action when they published the Code. They said it would be followed up by legislation which allowed people access to information held on personal files and to health and safety information and they also promised to review the secrecy clauses in some two hundred other statutes. Yet three years later and three Queens Speeches later the legislation has not come forward, nor has the promised review taken place. So I don’t really believe that they can argue the lack of parliamentary time is the reason for delay. This one is the lightest legislative sessions anyone can remember. The bill of course would receive the support of the Parliamentary Labour Party if it did so. So, it’s not the fragility of their majority, or otherwise, in the House of Commons.
The conclusion is, I think, that they still do not treat it with sufficient seriousness. There is still far too much addiction to secrecy and wish to conduct government business behind closed doors.
Now the most obvious example, of course, is the Scott affair because I believe that that report showed that the culture of secrecy permeates almost every single aspect of government activity. And I agree with James that it was a pretty devastating indictment of the culture of secrecy. Information was treated as a precious resource to be given out only when absolutely necessary and even then not in full. And I may say the way it was conducted beforehand, with my colleague Robin Cook undergoing the most rapid reading programme ever known in the history of mankind, was an indication of how that culture of secrecy actually operated right up to the delivery of the report itself.
I believe, if the case was not unanswerable before, Scott has made the case for a Freedom of Information Act absolutely unanswerable now, not just because of how it might have applied in the specific case, and that can be debated, but also because of the sea change it would bring in attitudes towards the release of information.
Our commitment to a Freedom of Information Act is clear, and I reaffirm it here tonight. We want to end the obsessive and unnecessary secrecy which surrounds government activity and make government information available to the public unless there are good reasons not to do so. So the presumption is that information should be, rather than should not be, released. In fact, we want to open up the quango state and the appointed bodies, which will of course exist under any government, but which should operate in a manner which exposes their actions to proper public scrutiny.
Freedom of information legislation exists in many other countries, including the United States and Canada and Australia, New Zealand, Sweden, Denmark, Norway, and France. The countries have sensible exemptions which the public here would understand and support. Information relating to national security, to law enforcement, to commercial confidentiality, to personal privacy, should of course be subject to exemption, as should the policy advice given by civil servants to ministers. But even with these kinds of exemption, there would still be vast swathes of government activity which would be exposed to public examination and to public debate.
And the Act would also be of practical use to individuals. In recent years we have finally been allowed to have access to our medical records, thanks in large part to the efforts of the Campaign for Freedom of Information. Why should we stop there? Why should what is held on other personal files not also be available for us to see? At present we have a mish-mash of rules which allows us to see some files and not others, partly dependent on whether they are held on computer or held manually. But I believe there is a strong case for taking a consistent approach to giving people access to what is held on file about them subject of course to those obvious exemptions.
The Act would also contain provisions similar to those outlined in the Public Interest Disclosure bill, and I would pay tribute again to what Don Touhig has done. That bill which is presently before Parliament, which is widely supported, is designed to protect those who reveal evidence of serious malpractice, provided they are acting in good faith and, as we saw from the list of the preconditions, have raised the matter internally first. Indeed that is not so different from the requirements in the new code for civil servants to report, I quote, illegal or improper or unethical actions in government where they see it. Again what is important is to protect the public interest.
It is not a question of absolutes, but it is a question of balance, and the present balance is surely wrong. It is wrong not merely in relation to the public sector. It is, as we have seen from the Awards that have been given, wrong in relation to the private sector as well. Of course, there will be elements which are so confidential, commercially for example, they cannot or should not be disclosed. But that would not obtain in the vast bulk of area and very often there will be a direct public interest in having information disclosed rather than actually concealed. A Freedom of Information Act would entitle the public to government information and would leave it to government to justify why information should not be released. I don’t believe that its impact would simply be in the pure matter of legislation, in the detail of the legislation. It would also signal a culture change that would make a dramatic difference to the way that Britain is governed. The very fact of 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 is my view of how government should be. I believe in the programme of constitutional change that the Labour Party has outlined. I think that a Freedom of Information Act is an important and essential part of that.
I hope you understand from what I have said this evening 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 far better educated and far more open and far more assertive democracy and country – and it is good that people feel in that way. The irony is that 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 government but more effective, more efficient, government for the future.
A transcript of the Campaign’s March 1996 seminar which examined the extent to which civil service advice could be available under a Freedom of Information Act. Speakers were: The Rt Hon Roger Freeman MP, then Chancellor of the Duchy of Lancaster; Derek Lewis, formerly Director General of the Prison Service; Graham Mather MEP; Peter Mandelson MP; Robert Maclennan MP; Peter Riddell, of The Times; and Maurice Frankel, Director of the Campaign for Freedom of Information. Also includes a supplemental paper on access to policy advice by Maurice Frankel.
Lecture by Senator Alan Missen
Lecture to the Campaign for Freedom of Information
at the House of Commons, Westminster, 17th July 1984
Thank you for inviting me to come here to talk to you on a subject that is not new to me and not new to you. I hope I will be able to add to your knowledge tonight. Perhaps I may widen the subject a little further, Mr Chairman by discussing the Australian experience in campaigning as well as our experience in the operation of the FOI Act, because I think there are significant factors that arise in both areas that may be useful and encouraging for you people who are in the process of campaigning.
It is my belief that the development of the “right to know” is something that needs to come to all democratic societies. It is necessary for an informed public to have the right of access to government documents. I regret that this country, which has been such: a leader in democratic developments for hundreds of years, is proceeding so slowly in this area. I believe that the experience we have had in Australia, even after two years of operation of freedom of information, has indicated that it is a very necessary improvement for the democratic system. So I will say something about our form of legislation, the type of operation and the way in which we got our FOI Act. I want also to speak, at an early stage, about the Westminster system, and to tackle head on (and I do this in the home of the Westminster system) the arguments that are consistently raised against freedom of information. They are misleading arguments and outdated arguments, but nonetheless are firmly held by senior public servants or “mandarins” as they are sometimes known. Some hold a fixed vision of an unchanging political system, firmly believing that, if changed, would lead to a weakening of the Westminster principles of government.
In the first place I will say a little about that delusion. When we did our Senate investigation in Australia in 1978-9, we made it clear that we wanted to investigate that argument. In the 1979 Senate Report on Freedom of Information – a fifteen month study – the Senators gave a great deal of attention, possibly excessive attention, to the views of senior public servants and tried to find out why they felt this was a dangerous development. We came to firm conclusions, in that Report, that the opponents of FOI were using the Westminster system as a kind of strait-jacket, which was restraining democracy in a certain fixed position. They were not recognising that, far from freedom of information changing the system, the system was indeed changing at all stages, and freedom of information was a response that was needed to the changes that were occurring.
One might say that there is a high road of argument on the subject of the Westminster system and that is the view that important Westminster tenets must be retained. One of these, of course, is the “responsible government” argument. Governments in our type of system, yours and ours, arise from election from the people and governments emerge from majorities in the lower House and remain responsible to it. That aspect will not be changed by freedom of information at all.
But then there are other arguments that are raised. One is the tradition of “collective ministerial responsibility” which as felt by some may be radically changed by adopting FOI. It may well be changed to some degree but not substantially. The other traditional principle of “individual ministerial responsibility” is now long outdated and hardly operating. It requires that ministers will face Parliament and resign if their actions are found to be unsatisfactory. I think this last happened in Britain in 1954 in the Crichel Down case, when a Minister resigned over the actions of his Department, and it has not happened for years in Australia. One has to remember that the party system has become so predominant that ministers are generally protected by a compliant majority in the House and the idea of them resigning, because of the exercise of their Ministerial responsibility (under which public servants can shelter) is something which does not happen.
There are other traditions ascribed to the so-called Westminster system, including the essential non-political nature of the public service. We have not had that for years. Senior public servants are often known, not-so much for their party political activities, but because they have political ideas which are known and promoted and continue to be brought forward by senior public servants from one government to another. Important civil servants operate in this way so they do act in an influential political way to some extent. Also the anonymity which is said to be another feature in the Westminster system, is something which has fallen away very considerably in all these countries – Australia, Canada and the United Kingdom in more recent years. Those arguments are what I would describe as “the high road” in opposition to FOI and I make no apologies in saying that they are mostly delusions but need to be faced four square by FOI advocates.
There is also a “low road” of argument which, in many respects, has a closer reality. That is the type of argument expressed by the Hon. James Callaghan, before he was Prime Minister. He showed a type of frankness when he gave evidence to the Fulton Committee some years ago. He used the analogy of a cricket club, and said that Parliament just was not like that. His words were:
“Frankly half the people in this country are concerned to find things that can redound to the discredit of the Government every day. It is inevitable in this case that a Government is going to have some defensive reaction and say ‘We are not going to tell you anything more than we can about what is going to discredit us’.”
That, I am sure, is an attitude honestly held by him and supported by many people in Government. It is also illustrated in the case of our own Australian Attorney General, Senator Gareth Evans, a great advocate of freedom of information. Without him we would not have achieved as much as we have. But Senator Evans, just before the Labor Government took office in 1983, said – “Look, if we are going to do anything to reform the Freedom of Information Act, and if we want to, we had better do it in the first fortnight, before the new Government has any secrets to hide.” Unfortunately he did not get going in the first fortnight and when he brought his amending Bill before Cabinet they rebuffed him on two important commitments which the ALP had already made. But through the actions of the Opposition we restored at least one of the major reforms he had hoped to effect.
The Westminster system, as such, has many versions and it varies from one country to another. Our Australian Federal system involves an unusual compromise between responsible government and the power of the Senate which protects the States. In other variations, power is given under our administrative law changes of more recent years, to an Administrative Appeals Tribunal which even has the right to reverse ministerial decisions “on the merits” in many cases. Now that involves some changes in the Westminster system, but its operation is now well accepted in Australia. We know that Ministers are not able to supervise the detailed operations of government departments. Very often decisions are made, often by senior public servants, which need to be looked at on review and changed. So the Westminster system is a developing one – it has different versions in different countries and it cannot stand as a sort of blanket prohibition on any change.
As I have said, Parliamentary accountability, so far as ministers are concerned, is something of a sham. Question time in all the Houses of Parliament proves this. My friend, James Michael, in his very excellent book “The Politics of Secrecy”, gave examples of this from the House of Commons where the idea that you are going to acquire a lot of information by asking questions is not realised. I have just spent an hour or two listening to Prime Minister’s question time this afternoon, and I did not learn very much more, although it was exciting as an entertainment. The fact is that Question Time, unfortunately, means that Members continue to be ill-informed. MPs need to be better briefed, as freedom of information would make them, and Ministers would then have to be better informed to answer searching questions. Moreover, I have mentioned the rarity of resignations of Ministers despite all this talk of individual ministerial responsibility to Parliament.
In regard to “collective ministerial responsibility”, I think Lord Hailsham said something very interesting a few years ago when he pointed out that it was originally devised to protect Ministers from the exercise of Crown pressure if applied individually to Ministers. So collective responsibility was devised. But, as Lord Hailsham explained, the threat now is from “elected dictatorships”. We have many examples where Prime Ministers are seen to have had too much power. I think Cabinets also have too much power. The office of Prime Minister is developing into a type of presidential system and their control over information is a power in itself. Parliament must restore the balance of power and FOI will assist it.
Not only is the political system changing, but the courts, both in your country and in ours, have in their judgments made a difference. They are mostly concerned with the rights of individuals in litigation to get discovery of government documents and the Government has often resisted showing these documents to individuals. Superior courts, in recent years, have challenged this. In England, the case of Conway v Rimmer (1968) was very important because it did indicate that the courts were prepared to go behind the decision of Ministers, reject their arguments, and make documents available to parties in litigation. The Australian High Court case of Sankey v Whitlam was also extremely significant. It was a demonstration of the changed attitude of the courts in Australia because there the High Court went behind the certificates of a Minister and said they could not be “conclusive” in denying discovery of government documents. The judges insisted on their right to look at documents in question and see if they conformed with the Minister’s description. The Court did so and required disclosure.
I mention this because the changing views of the courts was a powerful impetus to FOI. But none of this substitutes for the fact that you need to establish a general right to know in our democratic communities. You should not allow lofty references to the Westminster system to justify the failure of governments to move in that direction.
Let me turn now to last ten years, from 1972 to 1982, when our FOI Act came into operation. We have since had two years of its operation. On the whole it is an encouraging picture. The Whitlam Government, a Labor Government, came into power in 1972 with the promise of a Freedom of Information Bill. It raised some public discussion on this matter but, unfortunately, during three years of power, Government did very little except produce a departmental report which is a very disappointing document. It was concocted by public servants, with little or no public input, and when it was tabled, very little public discussion arose.
One of the significant parts of the Australian experience occurred when the Fraser Government came into power. Within a month, the Liberal Prime Minister, Malcolm Fraser, declared a real interest in freedom of information and then undertook that there would be a Bill brought forward by his government. This cross-party support is the significant difference between our two countries.
There is value when from both political sides there are promises, even though governments tend to backslide. But if they have made those promises, they find it very hard to avoid their commitments.
Before the tabling of the Fraser Government Bill in 1978 I had received a draft of the Bill and went to the United States to study developments there. I returned and made many suggestions for amendments, most of which were ignored, and the Bill was tabled. The legislation was somewhat limited in scope, with very widely expressed exemptions. There were two streams of development from that stage. A public campaign, which I am glad to see you are pursuing here, widened the interest of the public and showed them the need and usefulness of freedom of information. In Parliament FOI advocates asked series of questions on secret government records. The refusals to disclose highlighted the need for a strongly expressed FOI Act. There was also, of course, a Senate Committee Inquiry by the Standing Committee on Constitutional and Legal Affairs. The Senate in Australia has much more power than your House of Lords, and certain of our Bills go through the Senate first, especially when the Minister is in the Senate. Most of the work on this subject was done by the Senate and debate in the House of Representatives made very few changes and very little discussion took place. The Senate Committee investigation, which I had the honour to chair, was made up of three Liberal Senators and three Labor Senators. Senator Gareth Evans, who is now the Australian Attorney-General, was Deputy Chairman of the Committee, and worked extremely hard on this matter. Other Senators, my two Liberal colleagues, Senator David Hamer and Senator Chris Puplick (who has been out of the Senate for a few years but is about to return to the Senate), worked extremely well too in this inquiry.
The result was a report which was unanimous, with one or two minor shades of differences in various areas. Senator Evans and I, for example, were rather unhappy that we had to allow our Security Organisations (ASIO) fairly complete freedom from freedom of information. Our other colleagues took a more cautious line and we left it for future consideration. In the course of that inquiry, Senators and staff went to most States. We had submissions from some 169 persons and organisations. There was a great width of interest, by public interest bodies, unions, libraries (librarians were very active), political parties, and all sorts of bodies outside politics. The value of FOI was appreciated by a great number of organisations such as social welfare groups.
In the course of the inquiry we gave every opportunity for the senior public servants to come before the Committee to explain how terrible it was going to be and how the use of FOI was going to lead to enormous problems. Some said that FOI would lead to enormous increases in departmental costs and requirements for extra staff – others denied it. A couple of interesting examples that were given to the Committee and recorded in its Report demonstrated the exaggerated fears of some public servants. The Electoral Office told the Committee, quite seriously, that they expected in the first year 86,000 enquiries under the Freedom of Information Act about electoral matters. When asked how they arrived at those figures, they said that the number of electors was 8,600,000 and they expected about 1% of inquiries. Well, I have to tell you that, in the first year of operation, there were only 6 electoral FOI enquiries. From the Immigration Department, which also was a centre of opposition to FOI, witnesses estimated that they would get over 100,000 enquiries in a year, and need enormous increases in staff. In the first year it received 465 FOI requests, to be precise. Many of us are, indeed, disappointed with the response, but one cannot claim that the demand is likely to bankrupt the nation!
After hearing all these witnesses, we came up with 106 recommendations for amendments to the 1978 Bill and the accompanying Archives Bill. We waited about a year for the Fraser Government to respond and its response was disappointing. An election intervened and in due course another amended Bill appeared incorporating some of the Committee’s recommendations.
Now the very good piece of luck that FOI advocates had in Australia was that, on the 30th June 1981, the losing Government was losing its majority because there were new Senators coming in and majority would then be in the hands of the Australian Democrats and the Labor Party. A small number of Liberal Senators negotiated with the Government. The Government commenced the debate on the Bill and it suffered several defeats in divisions. There were 80 amendments proposed by an alliance of Liberal, Labor and Democrat Senators. After the first ten or so amendments the Government had lost two or three divisions. They called off the debate and negotiated with the Liberal Senators. There were about eight or nine Liberal Senators supporting the amendments to the Bill. Because of the fact that the Government wanted to get its Bill through and an Act in operation, they had to the 30th June to do that. I suppose we really “blackmailed” the Government into accepting some amendments. But we finally got what was still a fairly limited Bill – something like about 35 of the 80 amendments. We were abused by the Labor and Democratic Senators for accepting a compromise. However, it was a deliberate choice to take a Bill that was not strong enough but finally to get something into operation and hope that, in the new parliament, we could improve it. This did, in fact occur.
We had this piece of good fortune, a Government determined to meet its commitment, and very different from the misfortune you had here in England where Clement Freud’s Bill almost went through before the Labour Government was forced to an election. Freud’s Bill did not quite pass through the House of Commons. We had good luck on our side.
The Bill which the Australian Parliament passed, and which came into operation in 1982, did have widespread support from many organisations. It was acceptable to the Government. If we had insisted on all the amendments being passed, the Bill would have gone back to the House of Representatives where it would never have passed. The Fraser Government would have rejected amendments and it would have gone backwards and forwards for some years. It was important for this not to occur.
So the Bill came into operation, after some delay, in October 1982. The Labor Party, before the election in March 1983, had been promising substantial amendments. While in Opposition, ALP speakers, including Senator Gareth Evans, made some marvellous speeches in support of other amendments, some of which I have been able since to quote back at him. The Labor Party undertook that, when they got into office, they would implement the rest of the Senate Committee’s report. Their words were, “Labour will implement fully the outstanding recommendations of the Senate Committee on Constitutional and Legal Affairs, to ensure that freedom of information operates in practice as well as in name.” I have tried to hold them to that undertaking.
When Labor came into government, they proceeded to prepare a Bill. In two major areas which I will mention, they retreated. Cabinet rejected two of Senator Evans’ proposals, but in the other amendments that are now in the 1983 Bill are most of the other improvements proposed by the 1979 Senate Committee Report. Some twenty amendments are in the Bill passed in 1983. Among the other improvements that it does, is to increase the availability of the Act for past or existing documents, including documents containing personal information about individuals that may be inaccurate. In our legislation there are provisions for correction of such documents. But you could not, under the 1982 Act, go back beyond the date of the operation of the Act. However, now you can go back forever in the case of any documents which are affecting you personally. In regard to all other documents, we now go back five years to 1977, covering those matters that people may want to see. That was a big extension which happened in 1983. In the Amending Bill we added public interest tests to a number of exemptions. Clauses which are now qualified so that, even if the exemption in the Act might say that disclosure might be refused – because it might interfere with the operation of a government department, there is an additional “public interest” clause. Such a document will be released if it is in the interest of the public that it should be disclosed. There are also changes to the exemptions that have been quite valuable.
The cabinet documents, which we excluded from disclosure by exemption, have been narrowed down so that factual documents, that may be attached to cabinet material, can be disclosed. This stops Ministers from tacking documents onto a cabinet submission. Therefore there is all kinds of interesting and useful factual material that the public should have, now brought out into the public gaze.
The cost provisions now enable our Administrative Appeals Tribunal, on appeals, to recommend that costs be paid by the government and particularly where appeals are made on matters of important public interest.
There were, however, two defects in the amendments proposed last year. As I said, they involved two rejections that the present Attorney-General suffered at the hands of the Hawke Cabinet.
One was on the matter of conclusive certificates – the provision which applies to a number of exemptions mainly related to national security, international affairs, the internal working documents of government. A minister can give a certificate in these areas and his word is final. Now we wanted to change that. We recommended in 1979 that it should go. The Labor Government rejected the Attorney-General’s amendments. They have, however, improved the provision by providing that now any such decisions are subject to appeal to the Appeals Tribunal which can make recommendations which, regretfully, are not binding. But if the minister still adamantly refuses to go along with that recommendation he has to table in Parliament the reasons, so it can lead to a debate. It is not as good as we want, but I could not get my colleagues to push the amendments any further.
The second defect, where we did have success, was to greatly increase the power of our Ombudsman and the operation that he will do in the working of freedom of information. There are a number of amendments which were moved by me last year. They were the same amendments that Senator Gareth Evans, in Opposition, had moved a year before. In fact I read his various speeches into the record. The amendments gave the Ombudsman the power to have an assistant Ombudsman dealing only in freedom of information and they provided that he should go ahead with inquiries even though there might be a right of appeal to the Appeals Tribunal. So he is authorised to go ahead in the simple way to try to get documents for applicants. He can also appear as Counsel or engage Counsel before the Administration Appeals Tribunal. That saves a lot of people problems where there is a serious principle involved. Litigants in Australia will not spend their money rashly. If these documents ought to be disclosed, then the Ombudsman can proceed on their behalf. Moreover he has now got increased powers of monitoring FOI operations under the Bill. He can report to the Public Service Board defects and misdemeanours by public servants under the Act, and also he reports to Parliament extensively on FOI operations. So those were amendments we passed through the Senate last year, against the will of the government. Gareth Evans then accepted defeat with a smile and went back to Cabinet which accepted the Senate amendments and they went through the House of Representatives. The FOI Act now stands as a substantially effective piece of legislation.
Now I want to make a reference to British views on our developments. In the course of this whole FOI campaign your British Civil Service Commission came to Australia and also to Canada, reporting in the midst of our inquiry. I want to say that you have been grossly misled by reports which the Commission made. They came back to England and predictably they did not like the United States FOI methods. They did not like the Canadian development. The Canadians were also going ahead and now have an Access to Information Act in operation. Your Commission had this to say about Canada and Australia in their Report:
“In Canada and Australia, the Civil Service Division team found that involvement of third parties, whether the Courts or quasi-judicial bodies such as the Ombudsman or a tribunal in assessing the merits of ministerial decisions on disclosure is held to represent a weakening of this (ministerial) accountability to Parliament with the complementing danger of politicising the Courts and other body.”
Now that is all absolutely wrong. They had spoken no doubt to some senior public servants, then gallantly resisting freedom of information. Everything that has happened is exactly the opposite, both in Canada and Australia, and they did, therefore, come back with particularly bad advice for the British Parliament, because these things we do accept now – the use of the Ombudsman and Administrative Appeals Tribunal. I was quite amazed by that Report which I had not seen until quite recently.
Compared with the FOI Act that we actually have in Australia and the campaign we have had for it, I know there are differences here. I know there is a different tradition and there may not yet be the active political will. You have not got the same extent of agreement across the political parties as we have had. We had a cautious approach in my own government Parties but nonetheless a commitment. Likewise there was a stronger one on the Opposition Party’s side and that has made it rather easier. I am told, and see in James Michael’s book, that “nanny knows best” is one of the philosophies of people here, I suppose with experience of being brought up by nannies. I think in our rough crude way we Australians do not have that worry or that undue deference for authority.
You also have the Official Secrets Act here. In 1911 it was adopted in one hour in this great Parliament without a great deal of consideration by Parliament. That Act is an aberration and that is an extra problem that you have. I sometimes think that people think that just getting rid of that Act will get you freedom of information. It won’t. But certainly we did not have that problem of needing to repeal an Act of that nature. As I say, what we have had is a certain all-party support and public support which has been strong. Many newspapers supported the campaign to the hilt.
Now let me give a few facts on the operation of the Act and how it has worked in the last two years. The Attorney-General tabled a Report on the first seven months of operations and that is the Report here which I will leave for you. It is a very extensive and excellent Report. We have, of course, the benefit of having an Attorney-General who is keen on the success of this Act. He recently said he is not satisfied with the extent of usage of the Act and he has provided great help with that Report, with its schedules showing the extent to which exemptions are used. It only covers seven months, so therefore it is impossible to be too specific or take too much notice of the early figures. Moreover, there were at that stage very few appeals heard. Since then a lot have been heard and our Administrative Appeals Tribunal has generally come down on the side of considerable openness.
In this Report, the Attorney-General summarises the commencement as a “quiet introduction” rather than “resounding impact”. A lot of work has been done in educating, particularly junior public servants. A lot of support for freedom of information came from the lower ranks of the public servants. So I can say that time is on our side as they rise up the ranks, informed as they are by a series of seminars on the philosophy and practical operation of the Act.
There has been limited use of the Act. In the first year there were 5,669 applications only. In regard to the putting on of additional staff, the public service only had to put on 45% of what the estimate was, so it was much less than they had anticipated and planned in the previous budget. The media, to an extent, has not yet used the Act as much as it might. There are exceptions – glorious exceptions. Jack Waterford of ‘The Canberra Times’ has made more than 100 applications and has caused a certain amount of chaos to some departments, but, by and large, the media has not yet made the use that could be made of it. To an extent they fit the description given by the late Nye Bevan. When talking about the media and control of it, he said “You can’t muzzle a sheep”. I think unfortunately that is rather true in our country in that they have been rather sheep-like so far in the use of it. Investigatory journalism has a long way to go.
What mostly happened in this first seven months was the production of brochures, the production of the documents showing all the records that are available for the public. Those things were done by Departments and they are to be updated every three months. That was among the most important aspect of the year of development. So far as the figures are concerned in the first year, of the finalised applications under the Act (and bear in mind that a lot of people thought that public servants would use all kinds of exemptions and many would be rejected) 62% of applications were granted outright, 25% were granted in part and 13% rejected. In the following year, the figures for the first three months of 1984 show that the results there are, 70% granted in full, 23% granted in part, 5% refused, 2% transferred to other departments. I think a 5% refusal is a very good sign. 65% of applications in the first year were granted with 30 days. The period of 60 days for compliance will be reduced to 30 days in a couple of years but 65% of them were granted within 30 days in that first year.
One thing that one does find in this report is some disparity between departments. Three of the departments – Social Security, Repatriation and Taxation – had over 1,000 applications each, others received very few. The general result was, of course, that the extent of usage was not satisfactory. There is not enough knowledge of the Act at the present time.
As to cost, it cost A$ 8 million in the-first year of operation and that is not much. In fact my attention has been drawn to the cost of the U.S. Privacy Act in its first two years. I think they estimated it was going to cost $100 million to start and $200-300 million every year, and the actual cost was about a quarter of that. That seems to be typical of the exaggerated views people have about FOI. Interesting is the expression which Jack Waterford has given as to the cost of the Act, by putting it into its real context. Taking the United States costs, for example, he refers to Dr Peter Wilenski, now chairman of our Public Service Board, who commented earlier in the year that the net cost of freedom of information in the United States (where there is much more per capita use than in Australia) was less than the net cost to the United States Government of maintaining golf courses at U.S. air force installations abroad!
Waterford again has come up with the proposition that the cost of freedom of information is about one-fifth of the cost of the total government propaganda which is produced, and about one tenth the real cost of all public relations by the government. I do not think that is much to pay. We, as a Senate Committee, analytically considered details of the Attorney-General’s Report this year. We have produced and tabled a Report making recommendations and commending the Attorney-General’s Report generally. We have pointed out the need for better knowledge by the public; the production of a FOI Handbook (which has not yet been done); the monitoring needed for differences in times of compliance and the need to avoid misuse of technical exemptions of which we found some instances.
In the second year of operations, results which I have had from the Attorney-General in the last few days indicate, as I mentioned, a strong tendency towards the granting of applications. The number of applications this year has gone up by 225% on the previous year which shows that knowledge is getting through. But a recent survey, taken across Australia at the insistence of the Attorney-General indicated that only 38% of people in Australia know about the Freedom of Information Act, which is rather surprising. In my State of Victoria, it is 44%, I am pleased to say. In Queensland, not quite an area of enlightenment, it is only 25%. One of the serious results of the survey was that, of people interviewed, less than 10% felt that they would be competent enough to make a request under the Freedom of Information Act. So a lot of work has to be done. A lot of it is being done now by the Attorney-General’s Department – running a promotional campaign; putting information on the income tax return, telling people their rights under the Freedom of Information Act. They are also doing this with recipients of social services, veterans affairs and other pensions, printing some 500,000 pamphlets, and putting FOI information in the telephone directory. These are all useful ways in which we can increase the knowledge and use of freedom of information legislation. State Parliaments are progressively implementing their FOI legislation.
Now we have not gone far enough in Australia. I just want to say this now, in point form:
1. Improvements we need are to ensure that not only disclosure of information occurs but citizens make adequate use of documents obtained. We can get documents under the Act, but we also need to get things changed and we have a natural inertia to overcome.
2. We have to do something about this conclusive certificate blemish – that is a running sore.
3. We have got some rather widely expressed exemptions that need review.
4. In three years there is to be a Parliamentary review of the Act and its operation. We have to look at the existing secrecy provisions in our laws. In many other Acts, there are as many as 179 provisions elsewhere, that are supposed to be brought into accord with FOI within three years. I shall be asking some questions about this as soon as I get back in Australia.
5. There are various exclusions and various other problems that require attention.
6. We also have a lot of work to do in Australia in data protection.
But I will just say this about your proposed Bill and hope not to appear to be impertinent in criticising a Bill which has got some very good features about it. I think you have got to decide whether you are going to go for a strong Bill or a weak Bill. For example, you make no provision for extending your coverage to existing documents on any progressive basis. I would offer a caution and say if you are going for something weaker than what you want, at least say you are doing this and do not give the impression that you regard this Bill as other than a minimum instalment. While we accepted our instalment, we got more as we went along.
Remember the principles which the Canadian expert, Professor Rowat, put forward. He said there were three important principles for a good freedom of information bill:
1. disclosure must be the rule rather than the exception;
2. there must be narrowly defined exemptions justifying secrecy;
3. there must be enforcement through appeals against secrecy to some independent arbitrator.
One can add a fourth criteria to it, in regard to access, because he did refer in detail to these matters. There must be easy access. This is very important. If you have a marvellous Bill but people do not use it, its not good enough. Legislation must include production and correction of documents which are affecting people’s personal lives. You must charge low fees and have a right of waiver of fees. The public service must be enjoined to ensure it is going to be helpful to people seeking information.
Now I say finally, Mr Chairman, that I wish you every bit of luck in Britain in going ahead with this campaign. It took us about ten years and you have some time to wait, but FOI is an idea whose time has come. It is very necessary for Britain to get back to its role in democratic reform. I hope that you will soon get a strong freedom of information Bill and I am sure it will be of great benefit to and for your people if you manage it.