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 Dehn on 020 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’s Public Interest Disclosure Act 1998 which 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 of Lord Falconer’s amendment, 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 by Lords Lucas, Mackay, Goodhart & Lester and Colville on 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 the Crossman(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, in Spycatcher(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.

The handling of our particular application was considered by the Select Committee on the Parliamentary Commissioner on 13th December 1995 and Sir Terence (now Lord) Burns GCB, Permanent Secretary to the Treasury, gave evidence. When asked whether he felt that the culture of secrecy was changing, albeit slowly, Sir Terence replied

“Yes, I am. Each time there is an example like this where to a degree you are put through the wringer in terms of being questioned about why one’s instinct is in this direction, I think it does have a substantial spill over into lots of other things and it gradually changes the way in which people approach them. They key thing I observe about openness is that it is something that you have got to think about in advance. It is very difficult when you are suddenly challenged and asked to release a document that has been prepared for another purpose, you ask ‘Will you let anybody now see that’ and you wince slightly because very often there are things in it that you would have not put in if it was going to have a wider audience. If you start from the notion that there is a presumption that documents of this kind should see the light of day when you are preparing them you filter these things out in your mind and make sure that the things that might be an obstacle are no longer an obstacle.” (7)

The Permanent Secretary went on to remark “I would say that this incident has probably done more to alert people in the Treasury to their obligations than all of the reminders that we have sent them. Learning from experience is a very powerful process.”(8)

From this experience, we feel the public interest test in the Bill needs to clearly - and preferably substantially - favour the disclosure of information over the retention of the exemption. If it does not, the cultural changes the Bill seeks rely excessively and disproportionately on the work and tenacity of organisations like ourselves.

Parliamentary scrutiny
One additional reason why we would like to see the public interest test strengthened is a concern that the Executive may - at some time - deny information to Parliament on the basis that there is no right to it under the FoI legislation. As the above case study illustrates, this is not an inconceivable response. In the absence of these amendments being made to the Bill, we hope that the Government will give an assurance that the exemption Bill will not of themselves be used to justify a refusal to provide information to Parliament.

We ask you to support these amendments.

Clause 20(2) et seq.
Lord Lucas
Amendment to delete various exclusions from the duty to confirm or deny
These amendments address provisions in the Bill which miscast the relationship between the citizen and the state and in this regard raise important issues which go wider than FoI. They seek to remove the exclusion from the duty to confirm or deny from fifteen of the exemptions in Part II. They leave the provision in six of the exemptions(9) .

The effect of excluding authorities from the duty to confirm or deny is that many applications to the Government under this Freedom of Information Bill will be met with a standard response that (10)

“Even if such information exists, which is not admitted, you have no right to it under the following exemption(s). We are yet to decide whether there is a public interest in you knowing whether or not it does exist. We will get back to you at a later date on this”.

It is difficult to conceive of a response which will cause more offence to an applicant than this. Its probable affect on all those who are or may be affected by the substantive issue will be to alienate them from the democratic process. Its likely impact on the wider public will be to erode confidence in the body politic.

By conferring on the Government what almost amounts to a right to silence, it quite unnecessarily creates impressions of shame and wrongdoing, if not guilt, on its part. The adversarial and defensive approach of these provisions convey an image of an insecure Government which appears to think of itself as in need of protection against the public.

Continuing the analogy (in our comments in support of a purpose clause) of the wheel lock on a car, this provision might be said to improve the lock of the rear wheels, while leaving the front ones unaffected. This is because it forces the public interest test first to address whether admitting to having the information (telling the truth) outweighs the public interest in maintaining the exemption in principle. Only if this is passed, does the Bill actually allow the authority or the Information Commissioner to address the substantive issue of whether the information be disclosed.

Save for the six exemptions detailed in footnote 9, the only valid public interest test under this Bill should be whether the public interest in disclosing the substantive information is outweighed by the public interest in keeping the information secret. Other exclusions from the duty to confirm or deny the existence of any information should, in our view, be removed.

Not only are these provisions damaging to both Government and the public, but they are unworkable as:

  • they can only encourage some public officials to instinctively and initially refuse information without considering carefully whether any public interest test has been met;
  • where the information sought does not exist, the applicant has no right to know this therefore may well proceed with a futile and wasteful application to the Information Commissioner; and
  • where the information does exist but this is kept secret, the applicant may assume (and tell others) that some decision or policy was reached without taking account of some material information, which had in fact been properly considered.

We ask you to support these amendments.

Clause 33
Lord Mackay of Ardbrecknish
Policy formulation - harm test
Lord Mackay’s three amendments seek to introduce harm tests into the exemption for policy advice. We welcome them as we consider that they will improve the quality of decision making. As an illustration of the benefits of and need for these amendments, we set out one particular and current example of the way public policy is formulated at present.

In R v Secretary for Central Office of Employment Tribunals ex parte Public Concern at Work (19 April 2000) Jackson J ordered that the public should be given access to a summary or copy of claims brought under the Public Interest Disclosure Act 1998 (PIDA). We sought the information so we could monitor how the legislation was working in practice. While the decision rested on statutory construction, the court found for us on seven grounds, including the wider policy issues and the public interest in open justice. On this point, the High Court concluded, inter alia, that -

  • It is sometimes embarrassing for a party to an employment tribunals to have certain details of his claim made public. On the other hand, claimants in the courts suffer similar embarrassment. That is part of the price which all citizens pay, in order to have the benefits of an open system of justice.
  • It has always been the policy of the law that, so far as possible, litigation should be conducted under the public gaze and the critical scrutiny of all who wish to report legal proceedings
  • The principle of open justice applies to employment tribunals with just as much force as it applies to court proceedings.

The Government had obtained leave to appeal but on 25 July the DTI Minister told us that he was considering withdrawing the appeal against the decision and introducing holding regulations, pending a forthcoming internal review of Employment Tribunal rules. The proposal was that these holding regulations would remove the public’s right to know the gist of any claim but would provide them with the name and addresses of the parties. We registered our concerns at this holding position and - aware that the provision of addresses had been a particular concern to both the CBI and the President of the Employment Tribunals - asked to be provided a draft of any regulations and a list of consultees.

It subsequently transpired that the regulations had been made the day before the Minister met us and were laid the day after, just as Parliament went into recess. They came into force on 17 August. No consultation took place with the CBI, employment lawyers or other groups and no public announcement was made. The notes to the regulations gave no hint as to their purpose or effect and make no reference to the High Court decision.

When we objected to this, the Minister replied that he had carefully considered the issues. Making no reference to the High Court’s reasoning, he gave three grounds for his decision. The first was factually wrong, the second was legally wrong and the third - that openness would thwart settlements - ignored all the experience of the higher courts and disregarded the comments of the High Court on the benefits and costs of a system of open justice. On 11 September, we pointed out that had there been consultation on the issue these errors would have been pointed out and an informed decision might have been made. Concerned that a DTI internal review might assume that the recent ‘carefully considered’ decision of the Minister was not for changing, we asked for three assurances. These were that the consultation would set out the High Court’s reasons and would be impartial and that the review would address the issue on its merits. In his reply of 25 September the Minister declined to give any of these assurances. After pursuing the issue with the Minister and supportive MPs, the Minister wrote on 10 October to assure us that the consultation would be fair, reasonable and informed.

We recognise that in the scale of things this is a minor matter of policy. As such, it is one which is unlikely to attract the full consideration of a busy minister and will be left to officials to decide. In such circumstances, the practical effect is that the minister’s role is often to argue and defend his brief rather than consider the issue on its merits. In this case the Government has changed a law during a parliamentary recess to deny people a right to information. That the DTI did not have time to consult on the issue during the previous four months, suggests that one key factor was administrative convenience. While we hope other factors were considered in formulating the new policy, there has been no indication what weight was given to the High Court’s assessment of the public interest. Furthermore the fact that officials advising the Minister failed to recognise the significance of - or to address - our request for assurances about the approach the review would take raises questions about the quality of their advice.

We believe that if such policy is formulated in circumstances where officials knew that their conduct and advice would be open to public scrutiny, they would take greater care over the quality of the advice.

We ask you to support these amendments.

Clause 34
Lord Archer
Prejudice to effective conduct of public affairs
This amendment seeks to delete clause 34(2)(c) of the Bill which exempts:

  • government information which does not fall within the policy advice exemption in clause 33;
  • government information which does not fall within the other exemptions of clause 34 (namely prejudice to collective responsibility or inhibition of free and frank advice or deliberation of an issue); and
  • information held by other public authorities,
    where its disclosure would, in the reasonable opinion of a qualified person, otherwise prejudice or be likely to prejudice the effective conduct of public affairs.

We consider that such a wide ranging safety net provision will undermine such presumptions as there are in the Bill which favour the disclosure of official information. Additionally for the reasons given below we consider that such a provision may have the result of actually encouraging leaks.

The Public Interest Disclosure Act 1998 provides workers (including civil servants) with full protection against victimisation for reporting wrongdoing. While the protection will apply in virtually every case where a genuine concern is raised internally, it is also readily available where the whistle is blown to key regulatory authorities. Wider disclosures (including to the media) are protected where they are both reasonable and justified for one of four reasons. The Act does not prescribe what whistleblowing procedures employers should put in place; it simply recognises them for disclosures purposes where they exist. As such it provides good reason for employers to establish and promote whistleblowing channels which make it clear that it is both safe and acceptable for staff to report concerns about wrongdoing.

One of the points emphasised by the Committee on Standards in Public Life was that “the result of failing to provide a confidential system for matters of conscience is, ironically, to encourage leaks, which are damaging to the cohesiveness of civil service bodies and weaken the relationship between Ministers and civil servants”(11) . For these reasons, provided the reporting systems in Whitehall are effective and have the confidence of civil servants, the 1998 Act should reduce the likelihood of leaks. On this point we are pleased to record that at least four government departments have addressed this matter in a considered and constructive way.

We are, however, concerned that such a wide exemption in this Bill may once again put pressure on officials to turn a blind eye to misconduct or to leak information. This pressure will be all the greater in those authorities which have not addressed their internal accountability, be it through a whistleblowing policy or otherwise.

Under a robust FoI regime, if an official thinks something is going wrong, is poorly considered or that party political advice is being provided then - - he or she can make the point by reminding colleagues that the information could readily become public and, as such, they should take care to address the issues and be able to justify their conduct. Operating this way, such an official can feel and be seen to be loyal to colleagues and to his employer (be it the Crown or some other employer). While this clause remains in the Bill, such a warning will be unconvincing as - at its best - there is no ready or clear access to government information.

We ask you to support these amendments.

References
(1) A-G v Jonathan Cape (1976) 1QB 752 at 771

(2) AG v Guardian Newspapers (1990) 1AC, page 283

(3) Open Government 2nd Report of Select Committee on the Parliamentary Commissioner (1995-96) page 85, para 364

(4) ibid, page 84 para 357

(5) When the report was published the Treasury indicated that it had intended to publish the report at an unspecified date in the future. Although this was not a point they had mentioned to us [or apparently to the Ombudsman (ibid, page 84, para 355)], this would have been a further ground to refuse to release the Report under clause 17 of the draft Bill.

(6) para 8, Accounting Officer letter dated 13 December 1994

(7) note 12, page 84, para 358

(8) ibid, page 85, para 364

(9) The exclusion is retained in clauses 21(security matters), 23 (related certificates), 29 (law enforcement), 30 (court records), 32 (Parliamentary privilege) and 35 (communications with the Queen).

(10) This appears to be the practical effect of Lord Falconer’s amendments to clause 15.

(11) First Report (May 1995, Cm 2850-I), page 60, para 54