The final smokescreen

January 30, 1998

THE WHITE paper on freedom of information, Your Rights to Know, published last month, was warmly welcomed, and rightly so. It seeks, in the prime minister's words, to break down "the traditional culture of secrecy - by giving people in the United Kingdom the right to know".

A Freedom of Information Act will provide a statutory right of access to material held by public authorities, including government departments, public corporations, non-departmental public bodies (quangos), and the National Health Service. The release of information is currently regulated by a non-statutory code of practice which yields access only to information and not to documents. This allows for selective editing by politicians and officials. The act will provide access to actual records. That is an important advance. The white paper is a disappointment in only one area. The government has decided to continue with the restrictive approach of its predecessors towards releasing policy advice. Such advice will be released only if it does not cause harm. There will remain an assumption that the release of policy advice is likely to cause harm.

The argument for exempting policy advice is that its release would undermine two fundamental conventions of the constitution - ministerial responsibility and the political neutrality of civil servants. However, the release of policy advice is likely to strengthen the conventions of the constitutions, not undermine them.

In his 1996 report on arms to Iraq, Sir Richard Scott argued that the essence of ministerial responsibility lay in the obligation of ministers to give information to Parliament. If that is so, then Parliament must have a correlative right to obtain that information. This is particularly the case when Parliament is seeking to attribute responsibility for something that has gone wrong. Under present arrangements it is too easy for ministers to offload responsibility onto civil servants unable to defend themselves publicly.

Giving Parliament the right to information, which may include official advice, is the only way in which MPs can hope to pin responsibility on ministers when something has gone wrong. Otherwise ministerial responsibility becomes a smokescreen. So, far from the release of policy advice undermining ministerial responsibility, it is in fact a precondition for making it effective.

The second constitutional convention is the political neutrality of civil servants. To release policy advice, it is said, means that the views of officials on contentious issues would become known. A select committee of the Commons could then tell a minister: "The advice your official gave you was better than the decision you took."

Yet between 1994 and 1997 the Treasury released minutes of the meetings, six weeks after they had occurred, between the chancellor of the exchequer, Kenneth Clarke, and the governor of the Bank of England, Eddie George. The minutes revealed several serious differences of opinion yet the governor's political neutrality was in no way compromised. Why should civil servants be in any greater danger? Admittedly, Eddie George is a statutory and independent appointment but the principle is the same.

The argument that the conventions of the Westminster system preclude genuine freedom of information is refuted by New Zealand's experience. There it is customary to release policy advice relating to decisions once they have been made. For NZ$20 (about Pounds 7) a citizen can purchase the official advice given to an incoming government. A House of Commons select committee said in 1996, that, in consequence, "the drafting of documents became more focused and relevant. Standards of administration improved - the dire forecasts made at the introduction of FOI as to its effect on candour of advice was not borne out by events. FOI also resulted in greater public participation in policy debate."

Perhaps the most powerful argument against freedom of information is derived not from the conventions of the constitution but from the Tory principle that the Queen's government must be carried on. This argument has been expressed by two ex-foreign secretaries, Lords Howe and Hurd, who insist that freedom of information would undermine effective government. Yet, by widening the area of public debate, freedom of information might actually improve decision-making. On the question of the export of defence-related equipment to Iraq, for example, we might have formulated a better foreign policy if the public had been allowed to decide for itself what place human rights considerations ought to have in it.

The fundamental argument for freedom of information derives from the principle that, in a democracy, the people have a right to know what government is doing in their name. Government, moreover, is likely to be effective only if it rests on the solid basis of informed public opinion. That means genuine freedom of information from which even the highest levels of government cannot remain exempt.

Vernon Bogdanor is professor of government, Oxford University. The Campaign for Freedom of Information is holding a one-day conference on Monday to discuss the government's proposals.

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