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“Substantial defects” remain in Freedom of Information proposals

There will still be “substantial defects” in the government’s Freedom of Information proposals, despite the changes announced by the Home Secretary today, according to the Campaign for Freedom of Information . The changes themselves are welcome and would remove a number of obstacles to openness, the Campaign said. “But they do not go far enough and leave serious flaws at the heart of the measure”.

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Just a beginning

A version of this article by the Campaign’s director, Maurice Frankel,
appeared in The Guardian on 11 October 1999.

The draft freedom of information bill has attracted a mountain of criticism, not least from two recent select committees which have both called for sweeping changes. Ministers have been particularly sensitive to the charge that the bill actually removes some the existing rights under the Conservatives’ openness code of practice. Publicly, the home secretary called these claims “ludicrous” but the leaked cabinet document shows the amendments are partly intended to demonstrate that the bill is “on a par with the existing provisions in the code”. This is hardly an inspiring objective.

An overriding defect are the several blanket exemptions which allow authorities to withhold information without evidence of harm. One of these, for information about regulatory bodies’ investigations, is to be amended. This is an improvement, but on a truly awful proposal. The draft bill seemed to strive towards self-parody, listing three separate provisions that would suppress information about accidents, public safety and workplace hazards.

Even before the Paddington crash, this was clearly nonsense. Such information will presumably now be withheld only if disclosure could prejudice law enforcement. But this modest change will not extend to police and other criminal investigations, where a blanket exemption will still operate. The Macpherson report specifically rejected this approach, which would prevent the parents of Stephen Lawrence discovering when the police first learnt the names of the murder suspects.

The most worrying of the blanket provisions is the massive get-out for information which “relates to the formulation or development of government policy”. Most FoI laws protect at least some policy advice but none does so in these indiscriminate terms.

Ministers would be able to refuse to answer almost any question about the justification for their policies. This is so sweeping that the home secretary was forced to admit that his own consultation paper had cited misleading examples of documents that would have to be disclosed under the bill. Most would actually be caught by this exemption.

Here the bill is clearly weaker than the code, which subjects policy material to a test of harm, and requires disclosure of analytical factual material.

The leaked document casts no light on what will be done. In his evidence to a select committee, Jack Straw indicated that he hoped to allow disclosure of factual material – but would resist access to advice. The crucial question is not who recommended what, but what the analytical material – typically also regarded as “advice” – shows.

Will the money for a new policy be enough? Have the potential obstacles been addressed? Will a policy stand up, or does it rest purely on whipped up aspirations and spin?

If no progress is made on this issue, the bill will fail a crucial test. There are other blanket exemptions too, notably for information accepted by authorities in confidence – a class that will protect lobbying of government by vested interests, and much else.

The other vital issue is the public interest. Authorities would have to consider releasing exempt information in the public interest, a valuable principle. But the draft bill prohibits the commissioner from ordering disclosure on these grounds. The authority would have the final word; the most the commissioner could do is check that it has thought about the case for openness.

The authority itself, which may well have something to hide, would decide and could not be challenged. Should Railtrack, assuming it is covered at all, determine what the public can know about its investment in safety? Should a minister with an alleged conflict of interest decide the public interest in full disclosure?

The Lords committee said a measure which allows ministers and authorities the final say on this issue would be “a statement of good intentions, but… not a freedom of information act as that term is traditionally understood.” The public administration committee in the Commons also called for the commissioner to be given the final say.

Here, only limited progress is suggested by the leaked document. The commissioner will be allowed to recommend disclosure in the public interest, but still be prevented from compelling it. The commissioner under Ireland’s recent FoI act can order disclosure in the public interest – Britain’s should be able to as well.

The home secretary has listened to complaints about some of the bill’s unacceptable provisions. Authorities will lose the right to withhold incriminating evidence of offences. The strange ‘jigsaw’ clause, allowing information to be withheld because of fears that, in combination with other unspecified information, it could be harmful, is to go. The cutting of authorities’ response times from 40 days to the code’s current limit of 20 working days is also welcome.

But the leaked document is silent about other urgently needed changes. The draft bill allows authorities to withhold much information if, in their “opinion”, it could cause harm. This would make many decisions unchallengeable, even if they are clearly wrong. Many exemptions, such as that for commercial confidentiality, apply when disclosure would cause “prejudice”. The test should be “substantial prejudice”, according to both select committees. An excruciatingly complex exemption for personal information raises doubts about whether information about identifiable individuals will be disclosed even where there are overriding public interest grounds.

Finally, authorities would have the absurd “right to pry” – to insist on knowing why someone want information – and, unbelievably, a “right to gag” allowing them to give someone information on condition it wasn’t passed to a journalist. These clearly oppressive provisions must also go.

The government is shortly due to respond to the select committee – which includes dozens of other important recommendations as well. The fact that the government has accepted the case for some change may be a hopeful sign, if that process continues. But if the leaked document represents the government’s final word, it will not allay serious concerns about the measure.

Select committee recommendations “would transform weak Information bill”

The Campaign for Freedom of Information warmly welcomed two select committee reports, published today, which separately call for the government’s draft Freedom of Information Bill to be substantially improved.[1]

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Evidence on the draft Bill to the Public Administration Committee

The Campaign’s response to the draft FoI Bill, which deals in detail with our main concerns. These include exemptions without harm tests, no public interest override to enable the Commissioner to order disclosure, and giving authorities the right to pry into an applicant’s reasons for asking for the information. There are two submissions to the select committee, dated 22 June and 23 July 1999, combined into this one document.

Home Secretary Jack Straw presents Freedom of Information Awards

Individuals and journalists who have fought against official secrecy, and public bodies which have voluntarily released information, are amongst those recognised in the Campaign for Freedom of Information’s annual Awards tonight.

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Speech by James Cornford, Co-Chairman of the Campaign for Freedom of Information at the Campaign’s annual Awards ceremony, 7 June 1999.

Speech by James Cornford, Co-Chairman of the Campaign, presenting a critique of the draft FOI bill.

Speech by the Rt.Hon. Jack Straw MP, Home Secretary at the Campaign for Freedom of Information’s annual Awards ceremony, 7 June 1999.

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?

Deborah King
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?

Neil McIntosh
Let us take those three shall we?

Jack Straw MP
Okay. I am sorry, I did not catch your name.

Deborah King
Deborah King. I am an airline passenger.

Jack Straw MP
Right okay. [audience laughter]

Neil McIntosh
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?

Tim Treuherz
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?

Neil McIntosh
Yes, okay, just three more. Standing at the back there yes.

Anthony Barnett
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.

Neil McIntosh
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.

Neil McIntosh

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.

Abysmal Handiwork

A version of this article by the Campaign’s director, Maurice Frankel,
appeared in The Guardian on 25 May 1999

If there was ever a case for suppressing an embarrassing document to protect ministers from criticism, it was yesterday’s draft Freedom of Information (FoI) bill. The bill was widely expected to fall short of the radical white paper published in 1997. But could anyone have expected it to reveal how deeply ministers have absorbed the culture of secrecy they purport to be demolishing?

First the good news. The bill creates a right of access to records held by public bodies, and some private bodies carrying out public functions or contracts. It may even be extended to cover administrative information about parliament itself. The right will be enforced by an information commissioner, with the power to order disclosure. Charges for information will be modest.

But the white paper’s centrepiece, the requirement that authorities wanting to withhold information must demonstrate that release would cause “substantial harm”, has been dropped. They will only have to show that disclosure would “prejudice” various interests, allowing much more information to be concealed.

The real problem is the exemptions with no test of harm at all. The police and law enforcement bodies will be allowed to withhold any information obtained during an investigation, even if there is no risk to an investigation or prosecution.

Macpherson’s recommendation that there should be no such “class exemptions” for the police has been rejected. Key information about the incompetent handling of the Stephen Lawrence murder investigation – such as the dates when the names of suspects were drawn to the police’s attention – would be secret.

The awfulness of this approach really hits home when you discover that information obtained by safety agencies investigating accidents will be dealt with in the same indiscriminate manner. Information about the causes of accidents will simply not be accessible, even if the public desperately need to know about a safety problem.

Reports into accidents involving dangerous cars, train crashes, unsafe domestic appliances, air disasters, chemical fires or nuclear incidents will go into a permanently secret filing cabinet. The same goes for reports into risks faced by workers or the public from industrial hazards. Agencies may release these voluntarily, if they choose, but are not required to under the bill. What can have blinded conscientious ministers to the abysmal nature of these proposals?

Next comes information which “relates to the formulation or development of government policy”. It’s all going to be secret, with no test of harm. This is not just sensitive policy advice. Purely factual material can be withheld if it relates to a policy which is, or at the time was, under development.

Do you want to know what surveys into the likely impact of the poll tax Mrs Thatcher’s ministers commissioned? The information will probably be withheld under this exemption. So will current scientific advice on BSE or the safety of genetically modified organisms.

The white paper had proposed a harm test in this area. FoI laws in Australia, New Zealand and Ireland all allow internal discussion to be disclosed if the balance of public interests favours openness. Even the existing open government code, introduced by the Conservatives in 1994, is more liberal, and allows some disclosure, subject to a harm test. The new bill removes this possibility.

The more you read this bill, the more attractive the Conservatives’ code becomes. The parliamentary ombudsman who supervises the code can rule in favour of disclosure on public interest grounds. He has said that if he found a department had published misleading information he would be likely to hold that there was a strong public interest in revealing the truth, even if it involved exempt information. Under Labour’s proposals, the FoI commissioner is expressly prohibited from doing this.

Instead, authorities will have to consider whether the public interest justifies them making a “discretionary” disclosure of exempt information. The commissioner’s role is limited to ensuring that the authority has thought about the public interest. If not, the commissioner can only make them reconsider, but cannot compel disclosure, however overwhelming the case. An authority which has been abusing its powers will be free to rebuff inquirers, so long as it remembers to mention the high priority it has attached to the public interest.

In 1996, Tony Blair argued that the Scott report “has made the case for a freedom of information act absolutely unanswerable”. But this bill addresses none of the Scott report’s concerns. Anyone probing arms to Iraq might arguably do better under the Tory code, with its substantive public interest test, than under Labour’s bill.

Worse is to come. Before making a “discretionary” disclosure of exempt information, the authority can insist on knowing why the applicant wants it, and may disclose it on condition the applicant agrees not to make it public. To appreciate how deeply illiberal this is, remember that information may be “exempt” even though it is not capable of causing harm.

There are “catch-all” exemptions too. Information can be concealed if, in the “reasonable opinion” of a minister or other person it would “prejudice the effective conduct of public affairs”. This could mean anything. Because the bill gives legal weight to the minister’s “opinion” decisions will be almost impossible to challenge. The wording is based on a similar exemption in New Zealand’s FoI law, but the latter contains no less than three separate safeguards against abuse – all of which are omitted here.

Information whose disclosure is not itself harmful can also be suppressed if, combined with any other confidential information, it would “prejudice” interests such as defence, commercial confidentiality, the frankness of official advice, or good relations between the Westminster and Scottish parliaments.

The purely hypothetical possibility of the two pieces of information being combined would be enough to allow the requested information to be treated as exempt. There is probably no point looking for a rational explanation here. Ideas as bizarre as this speak of deep seated anxiety about disclosure.

A request which manages to evade all these restrictions can still be stopped. The bill gives ministers the power to create new exemptions at short notice, by parliamentary order. The provision is designed to block requests which have already been received but cannot otherwise be refused. A new exemption, tailor made for the pending request, can be rushed through parliament, no great problem for a government with a large majority.

What about delays? The openness code requires a response to be given within 20 days, but the bill doubles this period. This brings FoI into line with the data protection act’s 40-day response time. But it would make Britain’s FoI act the slowest and most unresponsive in the world.

Three years ago Tony Blair promised that Labour’s FoI act would “signal a new relationship between government and people; a relationship which sees the public as legitimate stakeholders in the running of the country”. There is little sign of that objective in yesterday’s bill.

“Deeply disappointing” information bill “weaker than Conservatives’ openness code”

The Campaign for Freedom of Information said it was deeply disappointed by the government’s draft Freedom of Information (FoI) bill published today. [1]  “This is not just a major retreat from the government’s own white paper. In key areas the bill is weaker than the openness code introduced by the Conservatives” it said.

Read More

A draft Freedom of Information Bill – repeatedly delayed

The government has been promising to publish a draft Freedom of Information (FOI) Bill for consultation since June 1997. The draft Bill was originally promised for the beginning of 1998 but has been repeatedly delayed. It is currently being promised by the end of February 1999, but only if “good progress” with the drafting work is made. The following quotes show how the timetable has repeatedly slipped.

The Prime Minister, House of Commons (Written Answers, col. 99), June 2 1997:

“It is important to have full public consultation on the content of this Bill. To this end, we will shortly be setting out the Government’s proposals for a Freedom of Information Bill in a White Paper. We then hope to publish a draft bill, for consultation, early in the new year.”

Dr. David Clark, Chancellor of the Duchy of Lancaster, House of Commons (col. 322), 30 July 1997:

“I intend to publish a draft freedom of information Bill early in the new year, which will follow a consultative period after the freedom of information White Paper.”

Cabinet Office Press Release 29 October 1997:

‘[Dr Clark] said… “Consultation on the White Paper will last into the early months of next year, and will be followed by a draft FOI Bill for further consultation in the spring. Having taken on board the issues raised during consultation, we can prepare to introduce the Bill into Parliament”.’

Cabinet Office Press Release 11 December 1997:

‘Dr Clark said… “The White Paper marks the beginning of consultation on our proposals. I am keen to hear your views, which will be fed into a draft bill to be published in the spring.”‘

Cabinet Office Press Release 2 February 1998:

‘Dr Clark said… “The next stage is to publish a draft Freedom of Information Bill, which I hope to do before the summer.”‘

Lord Chancellor’s Department Press Release 28 April 1998:

‘Lord Irvine said that the Government is committed to openness at every stage.”Our next step will be to produce a draft Freedom of Information Bill to be published during the Summer”.’

Dr David Clark, Chancellor of the Duchy of Lancaster, House of Commons debate on FoI (col. 831), 6 July 1998:

“I tell my hon. Friend the Member for Cardiff, West (Mr. Morgan) and other members of the Select Committee who have expressed their concern that the Government have an agreed timetable to publish the draft Bill by the end of September for pre-legislative consideration. Indeed, nothing whatever has happened to affect the Bill’s candidature for inclusion in the Queen’s Speech later this year; I cannot be more open or definitive than that.”

Mrs. Ann Taylor, Leader of the House, House of Commons (col. 1259), 23 July 1998 said:

“I can confirm that, as my right hon. Friend the Chancellor of the Duchy of Lancaster has said, we intend to publish a draft Bill in the autumn.”

Home Office Press Release 29 September 1998:

‘In a letter to the Chairman of the Public Administration Committee, Mr Straw pledged that a draft Freedom of Information Bill would be published early in the New Year. “I have… set in hand a programme of work which I intend will deliver a draft Bill early in the New Year”.’

Mr. Jack Straw, Home Secretary, House of Commons (col. 528), 30 November 1998:

“The Government will publish a draft freedom of information Bill early next year for pre-legislative scrutiny by the Select Committee on Public Administration, and for public consultation. Following that, the Government will introduce the Bill to Parliament as soon as the legislative programme allows.”

Mr. Jack Straw, Home Secretary, House of Commons (col. 568), 30 November 1998:

“I wish that I could be more specific. I hope – I say “hope” because of the complexity of the Bill’s provisions and the need for parliamentary draftsman to have sufficient time – that it will be by the end of February, which would be sufficient time… Subsequently, subject to business managers, there will be a full debate on the Bill in the House.”

The Prime Minister, in a letter to the Campaign for Freedom of Information, 14 December 1998:

“The Government is committed to publishing a draft Bill on Freedom of Information in the current session of Parliament. The Home Secretary announced in the House on 30 November, that he hoped that the draft Bill would be available by the end of February, though that depended on good progress being made on turning the broad principles of the White Paper into legislation.

The draft Bill will then be subject to pre-legislative scrutiny by the Select Committee on Public Administration and there will, in parallel, be an opportunity for further public consultation.”

Mr. Paddy Tipping, Parliamentary Secretary, Privy Council Office, House of Commons (col. 924),16 December 1998:

“My hon. Friend the Member for Hackney, South and Shoreditch (Mr. Sedgemore), in a short but effective speech, asked about the freedom of information Bill. I am delighted to reassure him that a draft Bill will be published early in the new year – towards the end of January, or perhaps into February – and there will be pre-legislative scrutiny. We propose legislation for the whole life of a Parliament, and my hon. Friend will have heeded the commitment of the Prime Minister to ensure that, during the lifetime of this Parliament, we will have a freedom of information Act. My hon. Friend also tried to tempt me into looking at MI6, but I will resist that temptation this morning.”