Lords must defend Freedom of Information
The Freedom of Information (Amendment) Bill introduced into the House of Commons as a private members bill by Conservative MP David Maclean, would, under normal circumstances, have been killed immediately. Very few private members bills ever get beyond second reading. Even uncontroversial worthy bills struggle. So how is it that this highly controversial piece of legislation has made it through the Commons? It would seem that the Bill has the tacit support of the government, and despite some heroic attempts to talk it out, notably by Norman Baker and David Heath it survived.
The Bill, as introduced, aimed to amend the Freedom of Information Act 2000 to exempt the House of Commons, House of Lords and correspondence between MPs and public authorities.
The bill would remove parliament from the public bodies that the FoI applies to.
Maclean said: “If someone approached me and asked for a letter sent to the police or a council about a constituent, I would tell them to go away. But there have been cases where the other body can be approached and things slip through the net.
‘I want to make sure this cannot happen.
‘The move would protect constituents and MPs. If an MP writes to their chief constable trying to get off a driving ban – that is totally different. I am flagging up the issue but I expect nothing will happen.’
Opponents say that the Data Protection Act already protects correspondence and that the attempt by Maclean to block public knowledge of MPs claims for expenses is quite disgraceful.
Various amendments were introduced in the Commons
a)to limit its effect so that after 30 years protected communications would be available, in common with public records procedure under the FoI
b)the Bill also now makes clear that the effect would not be retrospective, so that requests which predate enactment would be complied with by both Houses.
c) the Bill as amended now makes clear that only communications from members of the Commons are included.
However, these minor amendments, made to make it seem more reasonable and make it harder for Peers to object to, do nothing to address the rot at the heart of the Bill.
After its passage through the Commons David Heath, Shadow Leader of the House Lib Dem) said ‘This was a black day for Parliament. Firstly, because a bad bill, that will damage both Freedom of Information and the reputation of Parliament, was passed.
‘Secondly, because Parliamentary procedure meant that many MPs could not make their voices heard.
’And thirdly, because the Government has been able to claim that it was neutral on the Bill while cynically doing everything it could to mobilise support for the former Conservative Chief Whip.’
The bill has had its first reading, a formality, in the House of Lords. For some time it could not find any peer to sponsor it but now Lord Trefgarne, a Conservative, has taken it on. However, in a House concerned with the probity and the need for as open a Parliament as possible it is likely to fall.
Liberal Democrats believe that the tacit government support for the bill will make little impression on Labour backbench campaigners like Helena Kennedy and Frank Judd. Conservatives may want to support their old friend Lord Trefgarne, but the bill sits ill with David Cameron’s declared wish for an open style of government so some Conservatives may think twice. It is unlikely the Lords will really want to give the Bill a Second Reading (due at the end of June 21st or 28th) and all those Peers who believe in open government will rally to defeat it then.
Positive action
Freedom of expression in the United Kingdom is still defined negatively. The freedom not to be offended, abused, plagiarised or blasphemed against outweighs in most legislative terms the freedom to engage in any of these potentially enjoyable and fulfilling activities. What is forbidden dominates the debate, whilst the right to free speech is on the retreat. This was not what we expected when the Human Rights Act (HRA) introduced a specific commitment to free expression into British law. The Act’s incorporation of Article 10 of the European Convention should have sent out a very clear message to anyone seeking to constrain free speech – a dearly held right in British public life.
Yet the opposite has happened, and free speech is eroded with almost every new piece of legislation. Freedom of Information is protected in its own Act, whilst Freedom of Expression struggles in the margins of hostile legislation. While freedom of information is a post-facto freedom, a way of checking up on government and other public bodies, freedom of expression is a fundamental right, without which there would be no way to publicly enforce or police any other rights. Yet it languishes in the relegation end of the rights table. With every new public debate on ‘the limits of free speech’ our rights recede. Why not, instead, launch a public debate on the limits of censorship? Why not, indeed, lobby for a Freedom of Expression Act with the same monumental force as the First Amendment to the United States Constitution? Such an Act should include details of penalties for eroding others’ rights to free expression. This would give the police the guidance they need when dealing with violent protesters. It might also set out the balance between the right to free expression and the (developing) right to privacy, copyright protection and public order, in a way that would disable future governments from placing more emphasis on the constraints than the
fundamental freedom.
Such an Act would in no way merely repeat the terms of the HRA, which for all its good intentions has gifted the government a Get Out of Jail card. The exemptions to the free expression clause are so numerous, yet so ill-defined, that a government can always appeal to public order, public morality or national security when they seek to simplify the challenges they face in managing an increasingly complex society. A new, tough FOE Act would set out precisely how and when such constraints might be applied, and would place oversight of this universal freedom in the hands of an independent scrutinizing body – the public.
Public nuisance
Trying to remember when all this started, I rooted out from my shelves the other day a copy of a book I wrote as a young reporter on the Guardian. Its front cover is cracking and a bit faded with the passage of 27 years, but the cartoon by John Kent that we commissioned is still legible. It shows Mrs Thatcher making the imperious demand, ‘What’s our biggest state secret?’ The cabinet secretary, then Sir Robert Armstrong, replies wittily: ‘Our incompetence!’ The book’s theme was the disgraceful way successive governments, both Labour and Tory, had colluded to fend off a freedom of information act, regarded elsewhere in the civilised world as a key component of a decent democracy.
In my little polemic, I laboriously traced the controversy all the way back to the 1960s – a weary trail larded with memos from senior civil servants about ways they could head off this ‘formidably burdensome’ idea, and with evasions from such politicians as the Labour premier Jim Callaghan. He complained heartrendingly that ‘the business of government is difficult enough as it is’. The problem, as I saw it then, was that Whitehall and Westminster were at bottom very undemocratic places, which had never abolished the prerogative powers of the monarchy, but simply inherited them to use for their own purposes. The rest of us were regarded not as citizens, but as subjects – and indeed, ‘British subject’ was how we were still oppressively described on our passports in those days.
The young Tony Blair put it well when he was in opposition in 1996: ‘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.’
Where I went wrong, back in 1980, was in naively imagining that an anachronistic democratic deficit was bound to be very shortly corrected. Instead, it took until 1997 before the Blair government came to office, saddled with an unavoidable commitment to introduce a freedom of information act. For all his fine words, Blair too did his very best to wriggle out of it, with the result that it was three years before a much watered-down version finally reached the statute book. Even then, few people noticed the small print, which allowed a theoretical maximum of five years before the Act actually had to be implemented. I don’t think a single one of the campaigners imagined the government would have the brass neck actually to delay implementation for the full five years. But they did.
As passed, the Act has an array of exemptions. The most noxious is a ministerial veto. Any minister can certify that disclosure of a piece of information would ‘prejudice the effective conduct of public affairs’. As the original drafts circulated round Whitehall, civil servants and politicians in every department wrote themselves further exemptions – for ‘commercial confidence’, ‘international relations’, ‘policy formation’, ‘ministerial discussions’, ‘parliamentary privilege’, dealings with the royal family, anything to do with the intelligence services. Exemptions can be claimed (and have been, interminably) in bogus attempts to delete all civil servants’ names from documents, allegedly under the privacy rules of the parallel Data Protection Act.
Our efforts to make use of the Act on the Guardian soon established that quite a few civil servants were unwilling to operate it in good faith. It takes a month at best to get an answer (‘20 working days’). Within a short time, departments were exploiting a piece of small print to claim an extra minimum of 20 further days ‘to consider public interest factors’. Many officials take a timid and precautionary approach, refusing to release anything for which an exemption can plausibly be claimed. An internal appeal then takes as long as the ministry can get away with.
A second appeal to the Information Commissioner, hopelessly overloaded, understaffed, and banished to a provincial office in Wilmslow, generates a result, often of mixed quality, after an inordinate delay of up to nine months. Only then is it possible to go to the Information Tribunal, where – at last – a degree of lawyerly rigour can be found.
Many applicants give up, disheartened, after weeks of slogging through the mud to gain a few inches in what feels like a bureaucratic battle of the Somme. This is no accident: delay and obstruction are time-honoured tactics in Whitehall, whether designed to wear down a transient minister who has too many bright ideas, or to see off importunate members of the public. Matthew Parris recently pointed out, in a column in the Times: ‘I do know what it is like to be a civil servant in Whitehall, because for two years I was one. There is a culture there that sees the public as a damn nuisance. The culture is endemic and needs to be stamped on very hard indeed.’
One of the first acts of Charles Falconer at the Department of Constitutional Affairs was unhelpful to the cause of openness. He set up what he called a ‘clearing house’. Under this, all requests that were at all interesting, or that came from the media, had to be sent off to the DCA for vetting instead of being promptly answered. Individual departments such as the Home Office also set up a rigmarole of internal filters, providing for reference up to the top; weekly submissions to ministers of forthcoming disclosures; and prolonged meetings with press officers and private secretaries in the interests of news management. There was a neurotic fear of loss of control. Rather than the hoped-for culture change, parts of Whitehall have instead been showing signs of a nervous collapse.
Of the 62,852 requests made to central government since 1 January 2005, 36,558 have been granted. Seven departments, including Lord Falconer’s own, refused to give answers to more than half the requests they received. The Act badly needs to be strengthened.
Nonetheless, some results did start to come through at different levels. Many councils began to routinely publicise restaurant health inspections. This followed an exercise in which our requests uncovered an entertaining spat with Heston Blumenthal, owner of the upmarket Fat Duck at Bray, about the most appropriate temperature for his celebrated pork cooked in brine. More significantly, MPs were forced to disclose at last their expenses claims, revealing wild variations between neighbouring politicians, some of whom definitely seemed to have their snouts in the trough. The identities also came to light of the recipients of millions in EU agricultural subsidies, including Prince Charles. The minutes of the BBC governors’ meeting were disclosed, in which they got rid of Director-General Greg Dyke, remarking that the Culture Secretary Tessa Jowell didn’t like him.
And then, a bare 18 months after the Act came in, a counter-attack began. The new bid for censorship involved the old collusive framework of ministers and civil servants – the politicians resenting their loss of information control, backed up by officials saying they objected to the amount of work involved in making disclosures.
In July 2006, Falconer circulated a private paper to cabinet colleagues, outlining a subtle and bureaucratic scheme to enable ‘the most difficult requests – generally received from determined and experienced, rather than casual, requestors – to be refused on cost grounds’.
What Falconer called ‘serial requesters’ were, of course, the very people on whom the public rely to dig out important material – the media, pressure groups, opposition MPs.
Falconer’s plan was to push through apparently minor changes to the small print of the regulations, by means of secondary legislation. He would effectively restrict organisations such as the BBC or Oxfam to four requests a year per department. This would be done by ‘aggregating’ all the requests from different journalists, or individual campaigners, and claiming that, taken together, they breached cost limits.
A second arm to the scheme was to make it even easier to reach those cost limits, by adding in notional charges not just for extracting the information but also for what lawyers in their bills call ‘perusing’. (Falconer is a commercial lawyer by trade.) And on top of that, he wanted to charge for all the time that ministers and top officials spend meeting each other to debate ways to block awkward requests. In other words, the more significant the request, the easier it would be to refuse to answer it.
This scheme to block access to FOI only to those who seek to make use of it has a certain Kafkaesque quality. Falconer accurately predicted that opponents would say that ‘the government is seeking to undermine the Act by underhand means in order to shield itself from legitimate scrutiny’. To meet this image problem, he proposed to commission a supposedly independent cost-benefit analysis.
Frontier Economics, a small consultancy with former cabinet secretary Andrew Turnbull on the board, was accordingly paid £75,000 to knock out a quick study. They produced a sheaf of dubious statistics, purporting to show that FOI cost Whitehall £24m a year, and that much of the demand came from a handful of media – mainly the BBC, the Guardian and the Sunday Times. The small print revealed that the time of ministers had been costed at a purely imaginary £300 an hour. The time taken in consultations had been arrived at by taking the numbers of hours logged by officials – and then blithely doubling the figures. The figures for newspaper use were extrapolated from a single week. Nowhere was it pointed out that the initial years of the Act would be far more expensive than subsequently, because every issue was a precedent. Nor was it explained that the government spends far more – £300m a year – on hundreds of press officers to pump out its own propaganda. And nor was it said that £24m a year is in fact fantastically cheap.
Armed with this threadbare study, Falconer sought to act quickly. It is possible that he will not get away with it in the end. The FOI Act does not actually allow discrimination between requesters. But the omens are bad. An Act that ought to be strengthened is proving instead to be, day by day, under an insidious attack.
MPs themselves, smarting no doubt from the revelations about their own expenses, have not risen up against this plan. Instead, they have cooked up a private member’s bill of their own, promoted by former Conservative chief whip David Maclean, to exempt themselves entirely from the Act. The Freedom of Information (Amendment) Bill is said to be designed to prevent disclosure of letters from MPs to public bodies on behalf of their constituents – or, of course, on behalf of other, less salubrious, interests. Ostensibly, the concern is for privacy. But the Act already protects constituents’ identities. The real effect of the bill would be to enable politicians not only to mis-spend the taxpayers’ money but also to lobby under cover. This is the very opposite of accountability.
Along with the Foreign Secretary Margaret Beckett and Northern Ireland Secretary Peter Hain, Leader of the Commons Jack Straw is backing the bill, which is being given a fair wind by the government. Straw says privately, ‘Many members on both sides of the House would welcome it.’ And how do we know that he says that? Through the old-fashioned means of a leaked letter. Perhaps we shall all be forced to go back soon to much more traditional methods of trying to penetrate the secretive parts of government.