In this guest post, Transparency International UK’s Steve Goodrich considers UK citizens’ right to access information, arguing that public money should be put towards examining how the Freedom of Information regime can be improved, not weakened
The right to access information held by the state, public officers and providers of state services is an essential part of a functioning democracy. It provides citizen-led checks and balances on concentrations of power, without which corruption would be allowed to thrive; allows citizens to make informed judgements about the efficacy of governments and elected representatives; and helps hold institutions and officials to account for their actions. It is, therefore, perplexing why the UK Government – with its welcome and newfound interest in tackling corruption – appears intent on watering down the Freedom of Information Act.
In July this year, Lord Hodges announced that the UK Government was establishing an ‘independent Commission’ to review whether the Act provided ‘safe space’ for Ministers and civil servants to develop and discuss policy. This might sound very well and reasonable – why shouldn’t a law be reviewed after it’s been in operation for a decade – however, the announcement missed out some important pieces of detail.
Firstly, there has already been post-legislative scrutiny of the Act. The Justice Select Committee did a thorough job back in 2012, which involved taking 140 pieces of written evidence and oral evidence from 37 witnesses during 7 evidence sessions. After talking to a range of individuals and organisations, the Committee concluded that there are sufficient protections for deliberation within public bodies. The Information Commissioner and Information Tribunal are both mindful of the need to ensure this ‘safe space’ exists – which is already provided for in the Act – and Cabinet minutes are not routinely outed. Considering this, it’s slightly baffling why the government wants this looking at again, and so soon after the last review.
Secondly, one of the reasons cited for re-examining the Act is the Supreme Court’s recent decision in the case of the Prince Charles ‘spider memos’. After the Upper Tribunal had ordered the government to disclose these documents the Attorney General, Dominic Grieve, tried to issue the Ministerial veto – something intended for rare and limited circumstances. However, on appeal the Supreme Court ruled that the veto could not apply because it was never intended to be an executive override for a judgment of the judiciary. As the Supreme Court’s judgment notes, it is a long-standing principle of the rule of law that the executive should only be allowed to do this in very specific circumstances where the power to do so is clear and explicit. This is not the case within the FOI Act.
Essentially, the review seems to be partly inspired by sour grapes. The government lost in a disagreement with the courts and its solution is to make the case for re-writing the law so it can ignore them in the future when it suits them. The public interest is noticeably absent from its motivations.
Thirdly, the composition and conduct of the Commission has raised some eyebrows. Members include Jack Straw, who has publicly criticised the Act, and Michael Howard whose expenses for gardening services were revealed through FOI. There are no major advocates of the Act on the panel.
The Commission has also adopted some opaque practices during the initial stages of its inquiry, including providing anonymous briefings to members of the press and considering anonymising evidence. Until civil society expressed concerns about the Commission in September, it wasn’t even planning to take external evidence and had the suspiciously ambitious deadline of November 2015 to report to government. Since then, it has opened itself up to submissions and its deadline for reporting appears to have disappeared. However, the damage has already been done – Transparency International UK has no confidence in the impartiality and independence of the Commission.
The saddest thing about this whole episode is that it’s been a missed opportunity. If public money is going to be spent on reviewing the Act it should be put towards examining how it can be improved, not weakened. For example, there are growing transparency gaps in our public institutions, with the private sector providing an increasing amount of goods and services. Although there are some circumstances where these companies can be subject to information requests, these are limited. This is why the Act should be extended to the private sector where they are providing public services.
Recently, Labour has announced that it intends to set-up its own Commission on FOI that will look at the Act as a whole, including how it can be strengthened. This is a welcome development. However, as with the government’s Commission, its members and their actions must gain the confidence of civil society and government if its findings are ever to be realised.
Steve Goodrich is Transparency International UK’s (TI-UK) Senior Research Officer. He is responsible for leading on TI-UK’s research into lobbying open data and state accountability. He spoke at ‘Freedom of Information: Extending Transparency to the Private Sector‘ on 28 September 2015, an event co-organised by the Bingham Centre for the Rule of Law and the IALS Information Law and Policy Centre.
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