nly one in ten people trust politicians to tell the truth when in a tight
corner and only 16 per cent trust governments of any complexion
to put the country’s needs above those of their own
party. These figures, from the latest British Social Attitudes
survey, should worry ministers. No government can operate
effectively if the public don’t trust it, and if ministers
are disbelieved - even when telling the truth they’re
in big trouble.
Freedom of information legislation was meant to be the antidote
to this. In 1996 Tony Blair promised that Labours FOI Act
would address the publics disillusion and disaffection with
politics. It would signal a new relationship between government
and people and be absolutely fundamental to how we see politics
developing in this country over the next few years.
That might suggest that an FOI Act would be an early priority
- but of course it wasn’t. The governments lack of enthusiasm
for its own proposal was soon apparent - and when the Act
was ultimately passed, the Prime Minister himself intervened
to set commencement back to January 2005. In the meantime,
surveys show that public trust in government has now sunk
below that of the Conservative years.
What difference will the Act make when it does come into
force? On the plus side, almost the whole of the public sector
will be covered, from government departments to quangoes,
local councils, NHS trusts, schools, the police, armed forces
and Parliament itself - with the courts and security services
the main exceptions. The law will be retrospective, applying
to old records. It will apply to any written or e-mailed request,
even if the applicant doesn’t mention the Act. Charges
for information will be modest. Authorities will be required
by law to assist applicants and an independent Information
Commissioner will enforce these rights.
Not bad then? Well, you haven’t heard the exemptions
yet. Some of these apply only if disclosure would prejudice
a certain interest such as defence or commercial interests
- and even so allow disclosure if there is an overriding public
interest in it. But in others the balance is weighted against
disclosure. The facts on which policy decisions are based
fall within the same exemption that applies to sensitive civil
service advice to ministers. They will be released only after
weighing the public interest in disclosure against the public
interest in confidentiality. Officials and politicians have
never found it hard to think of reasons why openness is not
in the public interest and inviting them to do so will reinforce
the very secrecy instinct that FOI should be eliminating.
Such purely factual information cannot be withheld at all
under the equivalent Irish or Australian FOI exemptions.
Information about health and safety hazards is the bread
and butter of FOI laws overseas. But for information obtained
during inspections by enforcement bodies, like the Health
and Safety Executive, the presumption is that it will not
be disclosed - even if no prosecution is pending.
Another catch-all exemption applies to information which
in the reasonable opinion of a qualified person would prejudice
the effective conduct of public affairs - a unique combination
of elasticity and subjectivity.
However, the Commissioner will be able to override these
exemptions and order disclosure if the public interest in
openness justifies it. But here’s the catch. Any order
the Commissioner makes on public interest grounds against
government departments (though not other bodies) can be vetoed
by ministers. Labours FOI white paper had ruled out this option
saying a veto would 'undermine the authority of the Information
Commissioner and erode public confidence in the Act.'
The veto could prove just a comfort blanket, calming ministerial
fears about the new regime, but never actually used. But the
omens are not good. Last year ministers for the first time
refused to comply with one of the Parliamentary Ombudsman’s
disclosure recommendations under the 'open government' code
- something their Conservative predecessors never did. The
Ombudsman had ruled that anonymous statistical data about
the number of times ministers declared possible conflicts
of interest to their colleagues was not exempt. The then cabinet
secretary, Sir Richard Wilson, offered the dismal justification
that such information could be used against ministers, adding
'there is no such thing as just a little bit of information
which can safely be disclosed, there is no piece of information,
however small, that cannot become significant.'
This is not a one off. The Ombudsman himself has complained
that government departments resist disclosure without grounds
where it could 'cause them embarrassment or political inconvenience'.
And in July this year he threatened to abandon investigating
openness complaints altogether because of the governments
'hardening of attitudes'.
Le'ts hope it will harder for the government to get away
with this approach in the face of legislation rather than
But if there are going to be changes, its clear they will
have to be fought for.
Maurice Frankel is director of the Campaign for Freedom