Select Committee on Public Administration Third Report


67. Information relating to the making of policy at the highest level has always been one of the most difficult areas for Freedom of Information regimes. Premature disclosure of government thinking may close off options which a government may wish to take further; it may identify individual officials closely with certain views; it may reveal rifts between different Ministers which will assist their political opponents. These difficulties have for long inhibited the introduction of a Freedom of Information Act in the UK. It has often been alleged that the conventions on which the UK's constitutional system is founded depend on a degree of confidentiality for the internal workings of government. If the advice they give to Ministers is exposed to public view, civil servants may no longer be viewed by the public as politically neutral, and Ministers may no longer be held as responsible to Parliament for actions which are seen as essentially determined by the advice of their officials. Yet early exposure of government thinking may also be helpful, by ensuring that government policy is tested by public opinion. The process could, as Professor Vernon Bogdanor argues, "widen the area of public debate".[103] Moreover, as he goes on to say, government "is only likely to be effective if it rests on the solid basis of an informed public opinion".[104]

68. A balance has to be struck somewhere between the conflicting aims of allowing government decision-making to be properly scrutinised, and of preserving the ability of governments to discuss policy in a reasonably calm and deliberate fashion. The White Paper seeks to do so by making information relating to the policy-making process subject to a harm test, but one that has a lower threshold than the others. For six of the seven "specified interests" the test which public authorities are to use to decide whether or not to disclose information is a test of whether the information would cause "substantial harm". For the seventh, where there is a risk of damage to the "Integrity of the Decision-making and Policy Advice Processes in Government", the test is a less exacting one, of whether the information would cause "harm". The Government explains that this less exacting test is required for this interest because "now more than ever, government needs space and time in which to assess arguments and conduct its own debates with a degree of privacy". It points out that in every Freedom of Information regime, there is some form of exemption for information of the type concerned. In some jurisdictions, it is argued, it is removed altogether from the ambit of Freedom of Information.[105]

69. The White Paper proposes that (as with the harm test in the other areas) there would be a series of "factors" which would need to be taken into account in determining whether the substantial harm test would prevent disclosure. It says that among the factors would be:

  • The maintenance of collective responsibility in government;
  • The political impartiality of public officials;
  • The importance of internal discussion and advice being able to take place on a free and frank basis;
  • The extent to which the relevant records or information relate to decisions still under consideration, or publicly announced.

It makes it clear that these considerations will be likely in practice to exclude "high level government records (Cabinet and Cabinet Committee papers, Ministerial correspondence and policy advice intended for Ministers, whether from government departments or other public bodies)", and also records such as confidential communications between departments and other public bodies".[106]

70. The less open regime on information that bears on the policy-making process is balanced by a commitment to "ensure that as much factual and background information as possible is made publicly available": it is "designed primarily to protect opinion and analytical information, not the raw data and factual background material which have contributed to the policy-making process". Public authorities are to be encouraged to make such information available, "even where opinion and advice based upon it needs to remain confidential". The Chancellor of the Duchy of Lancaster told us that "we are hoping to get officials to think carefully when they are presenting information to Ministers, to try to divide up their advice to Ministers between policy, in terms of opinions, and factual background".[107] It is unclear, though, at what stage such material is likely to be made available, and of what it is likely to consist, as separating policy matters and factual background is not always easy. We recommend that the Government clarify what is meant by the "raw data and factual background material which have contributed to the policy-making process", and when it might be made available—whether only after the decision on the policy is taken (and if so, how long after) or before the decision is taken.

71. The White Paper's approach to the issue of policy advice and decision-making is not an unreasonable one in principle. The FDA call it a "sensible conclusion".[108] We believe that it should work to allay any concern that the more sensitive pieces of advice on policy might tend to be suppressed (perhaps by being put on scraps of paper, or post-it notes, and quickly destroyed) or watered down. A strong degree of protection is necessary to ensure that this is not the response of civil servants; but total exclusion would fail to achieve the change in culture that is so important an aim of the proposed Act.

72. In its submission to us, the Campaign for Freedom of Information pointed out that the interpretation of the "factors" listed will change over time, as the conventions or assumptions which govern, for example, the attendance at Select Committees by civil servants, have done.

"The need to uphold the political impartiality of public officials until relatively recently was taken to require the anonymity of civil servants. The regularity with which officials now appear before select committees, the high profile role of executive agency heads, the Citizen's Charter requirement that officials who deal with the public wear name badges, and even the recent decision of the Prime Minister's press secretary to be identified as the source of his statements to the press, illustrate the extent to which this practice has changed over a short period of time".[109]

The Information Commissioner will, we assume, be able to make his judgments in the light of changing practices and conventions, and, we trust, the "factors" will be listed in such a way as to ensure that this is possible.

73. This "specified interest" is discussed in the White Paper as if it applied only to central government bodies. The Guild of Editors hopes that this is indeed true: it says that other public bodies "ought to be liable to meet such requests under Freedom of Information legislation without the operation of a simple or substantial harm test". It is unclear why this is so, or why, if it is right for the Government to have such a privilege, it should be equitable for other organisations not to have it. A number of them have made this point to us in evidence, and we accept it. On the other hand, there is a case for them not having so high a level of exemption, since the purpose of the higher test for this type of information may be, essentially, to protect the position of the Cabinet. We would welcome clarification from the Government as to whether the policy advice exemption is intended to apply to all public authorities, and if so, whether it is intended to be based on a test of "harm" or "substantial harm", or, if not, how 'Government' is defined for the purpose of the exemption.

103  Ev. p.147. Back

104  Ev. p.148. Back

105  para. 3.12. Back

106  ibidBack

107  Q.75. Back

108  Unprinted evidence (FDA submission to the Cabinet Office). Back

109  Min of Ev. p.38. Back

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