DECISION MAKING AND POLICY ADVICE
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".
Moreover, as he goes on to say, government "is only likely
to be effective if it rests on the solid basis of an informed
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.
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
- 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
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".
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 availablewhether
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".
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
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
106 ibid. Back
107 Q.75. Back
evidence (FDA submission to the Cabinet Office). Back
of Ev. p.38. Back