Freedom of Information Bill (HL)

9

Freedom of Information Bill (HL)

13 October 2000

Briefing on amendments
While we welcome the Bill, we consider that there is substantial room for improvement. In this briefing, we focus on five specific issues and ask you to support the following amendments. As at this date, these are

New Clause 1
Purposes
(Lords Lester & Goodhart)

After Clause 1
Effect of exemptions
(various)

Clause 20 et seq
Duty to confirm or deny
(Lord Lucas)

Clause 33
Government policy
(Lords Mackay)

Clause 34
Conduct of public affairs
(Lord Archer)

Should you require any further information, please contact:Guy Dehnon020 7404 6609(w)

Introduction
Public Concern at Work is an independent charity which seeks to promote practical accountability in the public, private and voluntary sectors. Known also as the whistleblowing charity, the last Government’s White Paper on The Governance of Public Bodies referred to us as ‘the leading organisation in this field’. We and the Campaign for Freedom of Information promoted Mr Richard Shepherd’sPublic Interest Disclosure Act 1998which was strongly supported by the present Government. During its passage, Lord Nolan commended the legislation for “so skilfully achieving the essential but delicate balance between the public interest and the interests of employers”.

We regret to say that this Bill has yet to find the right balance between the public interests in openness and in confidentiality. If the eventual legislation fails to strike the right balance, we think its consequences will go wider than just the individual applications brought and the issues they concern. We say this based on our seven years’ experience of running a legal helpline for prospective whistleblowers, on the professional services we do with organisations in all sectors on creating accountable cultures in the workplace and on our policy work with governments at home and abroad. There are three particular reasons why we have a keen interest in this measure:

1.  FoI is the best guarantee there is for the quality of countless lesser decisions and policies which are taken every day across the public sector. In our view the application of this Bill in these areas is far more important than its impact on the great political issues of the day, where there is no shortage of competing arguments and informed comment. However, experience continues to show that the failure of the public sector to actually deliver a presumption of openness can turn what should have been routine decisions into great political issues. Recent incidents such as Matrix Churchill, the Bristol Royal Infirmary, the Paddington Rail crash and BSE demonstrate this.

2.  It seems to us that this country’s traditional mechanism of accountability (which deems that ministers and senior managers are as responsible for hundred if not thousands of decisions as if they had taken them personally themselves) will and can barely work in practice today where those officials who actually take decisions do not believe that their conduct is in principle open to scrutiny. Through our work with organisations in different sectors, this fundamental virtue can be seen across the competitive private sector, but only in the public and voluntary organisations where the individuals in charge are personally committed to openness. As a result we fear that if there is not a properly balanced and effective FoI regime, a key safety valve against shoddy or shabby decisions in and by public authorities will remain the official who is prepared to make a principled stand, ‘blow the whistle’ or, worse, leak information anonymously. In our view the system itself has a self-interest in providing practical, workable alternatives to relying on personal risks taken by individuals.

3.  We consider that where, as with FoI, sensitive issues of public policy have been formulated by the courts in testing real-life cases, any subsequent legislation should, at the least, have regard to that jurisprudence. Our preferred view is that the approach of case law should be followed in legislation unless Parliament can be persuaded that it is wrong or that its wider consequences require its revision.

In this briefing we draw on two examples of our dealings with the Government about the public right to information as we consider they give an insight into how the Bill may work in practice and why we consider improvements are necessary.

New Clause 1
Lords Goodhart & Lester of Herne Hill
Purpose clause
While the first five lines of the Bill clearly give the public a general right to information, the following twenty three pages set out a complex scheme of inter-related and overlapping qualifications and exemptions. This has the inevitable effect of leaving the reader (be he a citizen seeking information or a public official considering whether to release it) at something of a loss as to the overriding purpose of the legislation.

Is it to improve the lock (turning circle) on the wheels of state so that its servants will be more open with the public and more accountable to those they serve? Or is it, rather, a lock to immobilise the wheel of state so that the presumption of secrecy which underpinned public affairs through the last hundred years is fixed in legislation for the new century?

We welcome this amendment because it allows Parliament and Government to remove any confusion on this point. This is particularly important in the light of the extensive public and media criticisms of the Bill, some of which have been already addressed during its passage through Parliament. For the thousands of officials in local government, the NHS and countless NDPBs (quite apart from those in central government) who will need to apply the Bill, a purpose clause will be of immense practical assistance. It will be of similar value to a citizen seeking information about a decision that may directly him, his neighbourhood or his interests. Furthermore it will save considerable sums of public money as less time need be spent trying to decode the underlying purpose of the legislation.

We welcome the purposes set out in this particular amendment. It makes clear that the purposes of the Bill are to progressively extend a culture of openness, and thereby promote the accountability of public authorities, informed debate, public participation and public understanding of the functions of public authorities.

We ask you to support this amendment.

New Clause after Clause 1
Various
Effect of exemptions (public interest disclosures)
While we welcome several aspects ofLord Falconer’samendment, we do have serious concerns about the practicality and effect of the many exclusions from the duty to confirm and deny which remain at the heart of and distorts the public interest test in this new clause. Our reservations are detailed on page 7 of this briefing as we anticipate the issue is more likely to be directly addressed in Lord Lucas’ several amendments to delete this provision from various exemptions. However, if this issue arises on debates on this clause, we do ask that consideration is given to the points we make on page 7.

We expressly support the various amendments byLords Lucas, Mackay, Goodhart & LesterandColvilleon the balance and scope of the public interest test in the new clause. We do so because in our view this FoI Bill should, at the least, reflect and build upon the case law developed by the courts in this area. We also support these amendments on the basis of our practical experience in seeking and eventually obtaining information about the amount and types of fraud committed by civil servants.

The balance of the public interest
While this Bill gives a series of presumptions in favour of secrecy, case law shows that:

·  the burden is on the authorities to show that the public interest in secrecy outweighs that in openness;

·  where the issue is not ‘live’, the presumption should favour publication; and that

·  * there is no area where the courts are forbidden from considering whether the public interest in disclosure may take precedence over a countervailing obligation of confidentiality.

A pertinent example of this is the 1975 decision of Lord Widgery CJ on theCrossman(1) diaries. He held that the that the Government must show as regards Cabinet secrets:
1. that publication would be a breach of confidence
2. that the public interest requires that publication be restrained, and
3. that there are no other facts of the public interest contradictory of and more compelling than that relied upon.

As the Crossman diaries related to Cabinet secrets ten years earlier, the Lord Chief Justice refused the injunction. He stated “I cannot believe that the publication at this interval of anything in volume I would inhibit free discussion in the Cabinet of today, even though the individuals involved are the same, and national problems have a distressing similarity with those of a decade ago.”

More recently, inSpycatcher(2) , Lord Goff said that insofar as government information went it would need to satisfy the court “not only that the information is confidential but also to show that it is in the public interest that it should not be published.”

We recognise and accept that Cabinet information is one of the most sensitive categories of official information. As such, it is instructive to compare how the Bill approaches the publications of such sensitive information with the way the courts do. Under the Bill there will be an exemption for Cabinet and much other government information and an applicant will not even have the right to know whether the full Cabinet itself considered a particular issue. The best that the Bill guarantees is the prospect that a citizen may be told an issue was considered by full Cabinet if he can show the public interest in knowing the fact that it was considered outweighs the public interest in the exemption. It is only if that public interest test is satisfied that consideration may then be given to whether the public interest in knowing how the Cabinet had considered the issues outweighs the public interest in the exemption. The experience of the Welsh administration - which publishes Cabinet minutes - makes it difficult for an observer to understand what those who oppose such openness actually fear.

The result will be that when the Act comes into force the courts would allow an individual Cabinet minister to publish his version of how the last Government sought to handle the Scott Report on Arms to Iraq or Black Wednesday or the Ecclestone Affair. However, a member of the public, a historian or a commentator would have no right under this Bill to any information about how the Cabinet itself deliberated the issue.

Government Fraud: a case study
In 1994 Public Concern at Work asked the Treasury to send us a copy of their report on the level and types of frauds occurring in Government. After consulting with the Cabinet Office(3) and considering the matter carefully, they refused our request on the basis that it would prejudice law enforcement in that it would provide potential hints to fraudsters. We appealed arguing there were overriding public interest grounds for publication as it would give a clear message (a) to potential fraudsters that departments were vigilant and that there was every likelihood that fraudsters would be detected and (b) that financial malpractice in Government would not be tolerated. As we had not had a reply from the Treasury some months later, Alan Howarth MP tabled a Parliamentary Question asking that the report be placed in the library of the House. This was refused on 22nd March 1995 as publication “could prejudice current fraud investigations”.

We then went to the Ombudsman and his intervention encouraged the Treasury to review, and eventually change, its decision. As the Permanent Secretary to the Treasury subsequently said(4) : “In this case the things we were worried about were whether or not it would not only deter but it might encourage fraud and the extent to which it might disclose information about individual cases that we did not want to be disclosed.”

That this application centred on balancing the public interest was also clear when the Treasury wrote to us on 14th September 1995 that the Report would in future(5) be published. The reasons they gave or this change were that “because of our objective of improving fraud awareness in central government we have been considering how we can disseminate information on fraud more widely while minimising the risk of providing information which could help potential fraudsters or prejudicing fraud investigations.” The Ombudsman wrote to Alan Howarth MP on 15th September saying that he had agreed that the Treasury could make “very minor excisions from the version of the report” (his emphasis) to obscure the gender of the person involved and, in two cases only, some of the detail of the fraud perpetrated.

The Report revealed that over the previous three years £5.2 million of public money had been defrauded by staff in Government departments, of which £1 million had been cash stolen and £2 million had been defrauded due to the lack of proper controls. The report noted(6) that “staff in senior positions of authority continue to feature. Their positions have allowed them to circumvent controls.”

Under this Bill, the Treasury’s refusal to publish would be based on clause 29, in that disclosure would or would be likely to prejudice the prevention of crime. The Treasury would then have to assess whether the public interest in us having the information outweighed the public interest in preventing crime. As the Treasury maintained that the disclosure of information about how easily civil servants were defrauding the public might provide helpful tips to other potential fraudsters in Whitehall and as this was not an unreasonable view, one cannot safely assume that they would have agreed to a disclosure in the public interest. Having cleared their original decision at a senior level in the department and with the Cabinet Office, we think it inevitable that the decision to refuse release would be confirmed.