Select Committee on Draft Freedom of Information Bill First Report


REPORT FROM THE SELECT COMMITTEE APPOINTED TO CONSIDER THE DRAFT FREEDOM OF INFORMATION BILL

27 July 1998


PART 1 - BACKGROUND

Introduction

1.The draft Freedom of Information Bill[1] contains no purpose clause. But in the White Paper which paved the way for the draft Bill, the government made two valuable statements of purpose:

      "We believe it is right ... to open up government ... The traditional culture of secrecy [in British government] will only be broken down by giving people in the United Kingdom the legal right to know" (The Prime Minister[2]).

      "Openness is fundamental to the political health of a modern state ... At last there is a government ready to trust the people with a legal right to information. This right is central to a mature democracy ... This White Paper strikes ... a new balance with the scales now weighted decisively in favour of openness" (Chancellor of the Duchy of Lancaster[3]).

  

2.This report examines the extent to which the draft Bill published on 24th May 1999 lives up to the expectations raised by these praiseworthy sentiments. Will the Bill in its present form really transform the "culture of secrecy" in British government and deliver open and accountable government?

The select committee's enquiry

3.The select committee was appointed by the House on 17th June 1999 and required to report by 29th July 1999. We held seven meetings, including three which lasted all day. This enabled us to hold nine sessions of oral evidence. In view of the limited time available for our enquiry, the witnesses had little notice of our desire to hear them in evidence and little time to prepare submissions. We are therefore more than usually grateful to them for their assistance. We record our particular thanks to Mr Kevin Murphy, Ireland's Information Commissioner and Ombudsman, and Dr Herbert Burkert, Chairman of the Legal Advisory Board of DG XIII (Information Market) who travelled specially to London from outside the United Kingdom. We also record our indebtedness to Mr James Michael, Faculty of Laws, University College, London, who acted as our specialist adviser. His expert legal and technical advice was invaluable.

4.We have been greatly assisted by the House of Commons select committee on Public Administration, who conducted a similar enquiry into the draft bill at the same time as we did, and who made available to us the evidence which they received.[4] This helped us to avoid much duplication of effort. The Public Administration Committee also kindly invited us to attend a private meeting which they had arranged with Mr Martin Cullen TD, Ireland's Minister of State, Department of Finance, who steered Ireland's Freedom of Information Act 1997 through the Irish Parliament. This report is based on the oral and written evidence taken by the two committees, and on submissions received by the government in response to its consultation paper[5] published on 24th May 1999. We emphasise however that the conclusions which we have reached in this report are ours alone.

Pre-legislative scrutiny

5.This enquiry and report form part of a pre-legislative scrutiny procedure. We believe the procedure is to be welcomed. It enables Parliament to make its views known to the government, and it enables the government to respond, more effectively than the traditional legislative process. A characteristic of the traditional procedures in modern times is the reluctance of governments of all political complexions to accept amendments to bills once they have been formally introduced into Parliament. In contrast, the value of pre-legislative scrutiny is the government's willingness to listen and respond to argument. As Lord Williams of Mostyn, Minister of State at the Home Office, said, "We genuinely want to listen very carefully to everything that is said by this committee, or the Commons select committee, and through public consultation. We are genuinely open-minded about the best outcome we can possibly get ..... This is a dialogue ...".[6] We are grateful to Lord Williams for those encouraging words and also for his courtesy in attending the Committee to give evidence on two occasions, at the outset of our enquiry and at the end.

"Freedom of Information" and the right to know

6."Freedom of Information" is something of a misnomer.[7] A more accurate term is that to be found in the title to the Canadian Access to Government Information Act 1982. The distinction between "freedom" of information, being an absence of restrictions on the voluntary disclosure of information, and a legally enforceable right of access to information, is an important one legally and politically. It is the reason why the European Court of Human Rights has declined to interpret Article 10 of the European Convention on Human Rights (which says that "everyone has the right to receive and impart information") as requiring member states to provide for a right to demand information.[8] "Freedom of Information" has, however become a common term for such legislation, and is used as such in the United States, Australia, Ireland and other countries.

Freedom of Information: the international perspective

7.In global terms, the first law establishing such a right was enacted in Sweden in 1766, although it did not really become effective until 1809.[9] Sweden was the only country with such legislation until the latter part of the twentieth century, when other countries began to adopt such national laws (although similar laws had been established earlier in many states of the United States before the U.S. federal Freedom of Information Act in 1966). Finland adopted such a law in 1951[10], followed by Norway[11] and Denmark[12] in 1970, France in 1978[13], the Netherlands in 1978 and 1991[14], Austria in 1987[15], Spain in 1992[16], Portugal in 1993[17], Belgium in 1994[18], and Ireland in 1997. The laws adopted by Greece in 1986[19] and Italy in 1990[20] might also be included, although there is some dispute as to whether these are truly "Freedom of Information Acts", because they seem to require a need to know as a prerequisite rather than granting a right to know, and so are excluded from the list for the purposes of this report.[21] The argument that such laws were not appropriate for countries with Westminster-style constitutions did not discourage Canada and Australia from legislating in 1982, and New Zealand in 1984. Freedom of Information Bills are now under consideration in countries as diverse as Trinidad and Tobago, Bulgaria, Moldova, and South Africa. Of the countries which have adopted freedom of information legislation, some have used ordinary primary legislation, while others, such as Sweden, Finland, the Netherlands, Austria, Belgium, Spain and Portugal, have given it constitutional status.[22]

Freedom of Information: the European perspective

8.Although the European Court of Human Rights has interpreted Article 10 of the European Convention on Human Rights as not requiring freedom of information legislation, the Parliamentary Assembly and the Committee of Ministers of the Council of Europe have both adopted Recommendations endorsing such measures[23]. The European Community adopted a Code of Conduct and there were Council and Commission Decisions on access to Council of Ministers and Commission documents in 1993, subject only to limited exemptions, together with a right to appeal on merit to the European Court of Justice or the European Community Ombudsman against refusal.[24] This has led to several rulings by the Court of Justice and findings by the Ombudsman.[25]

Freedom of Information: the fundamental principles

9.Freedom of information laws vary in scope and detail, but they share three basic principles. The first is that the right of access to government information is a general right of all people, and does not depend on establishing a "need to know." In many countries the right developed from a right in administrative law to be given access to administrative documents relevant to a dispute with administrative authorities. The second principle is that the right of access is subject to a limited number of exemptions which permit refusal to disclose information if disclosure would cause harm of a specified kind. Although countries differ on the reasons for such exemptions, there is a remarkably similar core of reasons for refusing to disclose, consisting of national security, international relations, law enforcement, personal privacy, commercial confidentiality, and policy advice. The third principle is that there is a right of appeal to an impartial arbiter who decides whether the exemption applies to particular information, and who has the power to rule that the information must be disclosed. The Consultation Document of which the draft Bill is part includes a chart (Table 2) describing the kinds of exemptions from disclosure in six other countries with Freedom of Information laws (Australia, New Zealand, Ireland, the Netherlands, USA, and Canada). These are compared with the exemptions in the draft Bill, which appear to be no more restrictive, and in some ways less restrictive. In evidence, however, James Cornford and Maurice Frankel of the Campaign for Freedom of Information described the chart as inaccurate.[26] Article 19, the International Centre against Censorship, in written evidence, also criticised errors in the chart and supplied another chart ("The Real Table 2") setting out what they believed to be the true position. The Consultative Document appears to contain errors, perhaps because of the pressure of time and space within which it was produced. As an aid to understanding the international comparisons better, Article 19's alternative chart is printed as Appendix 3 to this report.

Freedom of Information: the British perspective

10.The first proposal for such a law in the United Kingdom came in evidence given by Professor Wade of Oxford University to the Franks Committee on section 2 of the Official Secrets Act 1911, which was published in 1972.[27] The Labour Party promised in its manifesto for the second general election in 1974 to "replace the Official Secrets Act by a measure to put the burden on the public authorities to justify withholding information." No legislation was introduced by the Labour government, although a White Paper on reform of section 2 of the Official Secrets Act 1911 was published in 1978.[28] In 1977 the "Croham Directive" was promulgated, directing civil servants to separate background information from policy recommendations in order to facilitate disclosure of the former.[29] The Croham Directive seems to have worked well for a time.[30] In 1979 a Private Member's Bill to reform section 2 of the Official Secrets Act and to introduce a public right of access to official documents was introduced by Mr Clement Freud MP, with the support of the Outer Circle Policy Unit, which had published a report and draft bill. The Freud bill had completed its committee stage in the House of Commons when it lapsed with the dissolution of Parliament. On the very last day of the 1974-79 Parliament the government published a Green Paper on Open Government, together with a report on Access to Official Documents: the Overseas Experience, which proposed a non-statutory Code.[31]

11.The Conservative Government elected in 1979 came with no manifesto commitment to introduce access to information legislation, and no such commitment was adopted at subsequent elections. However the Conservative Government did attempt to reform section 2 of the Official Secrets Act in 1979 with an Official Information Bill, which was withdrawn after the Blunt scandal.[32] But it succeeded with reform of section 2 with the Official Secrets Act 1989. On access to official information the Conservative Government published a White Paper in 1993, followed by a Code of Practice on Access to Government Information in 1994. This had no legal force, but provided that complaints against refusals to disclose official information could be made through Members of Parliament to the Parliamentary Commissioner for Administration.

12.The Campaign for Freedom of Information was founded in 1984 by a coalition of organisations with a common interest in greater access to government information. It continued to press for an omnibus Freedom of Information Act, while also drafting and supporting legislation to establish sectoral rights of access to information. This was done in some cases by proposing amendments to legislation and in other cases by promoting draft bills introduced as Private Members Bills. It supported rights of access to information in the Local Government (Access to Information) Act 1985, the Access to Personal Files Act 1987, and the Access to Medical Records Act 1988. The Campaign also supported the Environmental Information Regulations 1992, which were adopted to implement the Access to Environmental Information Directive of the European Community.[33]

13.The Labour Party has included a commitment to introduce a Freedom of Information Act in every election manifesto since 1974, including a detailed promise in the 1997 election. After taking office the Labour Government promised a White Paper, which became the responsibility of the Chancellor of the Duchy of Lancaster, Dr David Clark MP. The White Paper was published in December 1997, and was generally approved by the Campaign for Freedom of Information, its constituent organisations, and the press.

14.In July 1998 there was a ministerial reshuffle in which Dr Clark left the government. Responsibility for Freedom of Information was moved from the Cabinet Office to the Home Office. On 24th May 1999 the draft Freedom of Information Bill was published.[34]

Data protection and Freedom of Information

15.In 1981 the Council of Europe opened for signature and ratification its Convention for the Protection of Individuals with regard to the Automatic Processing of Personal Data. This led to the United Kingdom Data Protection Act 1984. Data Protection and Freedom of Information legislation overlap in that both provide rights for an individual to have access to files about himself. Of course, access to personal files is only one aspect of access to government information generally under Freedom of Information laws, but it is often the aspect which most concerns members of the public. It necessarily overlaps with the right of an individual to have access to files about himself ("subject access") under data protection legislation. In various countries the rights of "subject access" under Freedom of Information Acts and Data Protection Acts respectively have been treated differently. Subject access under Freedom of Information laws applies only to the public sector, while most Data Protection laws apply to information in the private sector as well.[35] It has also been common for Data Protection legislation to be limited to "automatically processed" or computerised information (as in the long title to the Council of Europe Convention) while subject access under Freedom of Information legislation applies to both electronic and manual files in the public sector. Countries also differ as to rights to correct inaccurate data and the grounds for refusing access.

16.The Registrar of Data Protection provided the Commons Public Administration Committee with two helpful memoranda dealing with the relationship between the Data Protection Acts and the draft Bill and with the question of coordination with the Parliamentary Commissioner for Administration.[36] The United Kingdom Data Protection Act 1998 was enacted to implement the European Community Data Protection Directive.[37] When the 1998 Act comes into force, United Kingdom legislation will no longer be limited to automatically processed information, and will apply to most non-computerised records. Under the 1998 Act individuals will have rights to see their files in the public and private sectors, regardless of whether they are electronic or manual. The Draft Freedom of Information Bill will also give individuals rights to see their files regardless of whether they are electronic or manual, but it will apply only to government information.


1   Freedom of information: consultation on draft legislation, Cm 4355, published on 24th May 1999. Back

2   Preface by the Prime Minister to the White Paper Your right to know: the Government's proposals for a Freedom of Information Act, Cm 3818, December 1997. Back

3   Forward by Dr David Clark MP, Chancellor of the Duchy of Lancaster, to the White Paper cited above. Back

4   The select committee on Public Administration's enquiry followed from their earlier report on Your right to know: the Government's proposals for a Freedom of Information Act, HC (1997-98) 398-I & II. Back

5   Freedom of information: consultation on draft legislation, Cm 4355, published on 24th May 1999 cited in footnote 1. Back

6   QQ 2, 504. Back

7   As the Committee of Justice (the British Section of the International Commission of Jurists) pointed out in their report Freedom of Information in 1978. Back

8   See Leander v. Sweden (26 March 1987), 9 EHRR 433, Gaskin v. United Kingdom (7 July 1989), 12 EHRR 36, Guerra v. Italy (29 June 1996), 26 EHRR 357. Back

9   Freedom of the Press Act, Chapter 2.  Back

10   Article 10 of the Constitution and the access law of 1951/83, amended in 1987. Back

11   Act No. 69 of 19 June 1970 concerning Public Access to Administrative Documents, amended by Act No. 437 of 11 June 1982. Back

12   Later amended by Law No. 572 of 19 November 1985. Back

13   Law No. 78-753 of 17 July 1978 and Law No. 79-587 of 11 July 1979. Back

14   Article 110 of the Constitution and Law No. 65/93 of 26 August 1991. Back

15   Article 20 of the Constitution and constitutional law of 15 May 1987. Back

16   Article 105b of the Constitution and Article 35 of the Administrative Procedure Act of 26 November 1992.  Back

17   Article 268 of the Constitution and Law No. 65/93 of 26 August 1993. Back

18   Article 32 of the Constitution and Law of 11 April 1994.  Back

19   Law No 1599/1986. Back

20   Law No 241 of 1990. Back

21   Dr Herbert Burkert's memorandum of evidence, p 39 below. Back

22   South Africa has adopted a public right of access to government information in its Interim Constitution (Article 23) and in the Constitution (Article 32), with a requirement that the constitutional provision on access to government documents is to take direct effect if not implemented by legislation before February 2000. Back

23   Recommendation of the Parliamentary Assembly of the Council of Europe on Access by the Public to Government Records and Freedom of Information (854 (1970)); Recommendation No R(81)19 of the Committee of Ministers of the Council of Europe to member states on Access to Information held by Public Authorities. Back

24   Code of Conduct concerning public access to Council and Commission documents 93/730/EC (OJ 1993 L 340/41); 93/731/EC of 20 December 1993 (OJ 1993 L 340/43), amended by Council Decision of 6 December 1996 amending Decision 93/731 EC (OJ L 325, p. 19); 94/90/ ECSC, EC, Euratom (OJ 1994 L 46/58) amended by Commission Decision of 19 September 1996 amending Decision 94/90/ (96/567/) (OJ 1996 L 247/45). Back

25   European Court of Justice review under Article 230 IV Treaty of the European Community, Ombudsman review under Article 21(2) 195; significant cases include Carvel and Guardian Newspapers v. Council [1995] ECR II-2765, Case T-194/94; Svenska Journalistforbundit v. Council, Case T-174/95. See James Michael, 'Freedom of Information comes to the EU', Public Law, Spring 1996. Back

26   QQ 143, 144. Back

27   Lord Franks (chairman), Report and evidence of the Committee on section 2 of the Official Secrets Act 1911, Cmnd 5104, HMSO 1972.  Back

28   Home Office, Reform of section 2 of the Official Secrets Act 1911, Cmnd 7285. Back

29   The "Directive" was actually a confidential memorandum from the Head of the Civil Service, Sir Douglas Allen, who became Lord Croham. It was published officially after it was leaked to The Times: see James Michael, The Politics of Secrecy, p 205 (Penguin 1982) and Patrick Birkenshaw, Freedom of Information, p 332, (Butterworths 1996). Back

30   QQ 350-351. Back

31   Cmnd 7520. Back

32   It will be recalled that Sir Antony Blunt, former Keeper of the Queen's Pictures, was revealed to have been a one-time Soviet agent. The revelation followed the publication of Andrew Boyle's book The Climate of Treason and it was widely remarked that Boyle would have been committing an offence under the terms of the Bill by writing the book at all. Some of the information in the book was obtained under United States Freedom of Information laws. Back

33   See First Report from the Lords Select Committee on the European Communities: Freedom of Access to the Environment, 1996-97, HL Paper 9. Back

34   This delay in publishing the draft Bill fuelled suspicions that Ministers were having second thoughts about the position adopted in the White Paper. According to Lord Williams of Mostyn, "...it took a little longer to produce than we had hoped, to be quite candid. That arose because of discussions with colleagues in other Departments. Not all of them had an identical view." (Q 2). Back

35   The federal Privacy Acts in Canada and the U.S.A. apply only to public sector information, although private sector national legislation has recently been proposed in Canada. Back

36   These memoranda have been published with the Public Administration Committee's report on the draft Bill, HC (1998-99) 570-I and 570-II. Back

37   Directive of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, (95/46/EC) OJ L281, 23.11.95, p. 31. Back


 
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