Select Committee on Public Administration Third Report


The long road to Freedom of Information

2. The publication of the draft Bill on Freedom of Information is a historic moment. It signals the belated creation of a citizen's right of access to government information. The United Kingdom has been beaten to this not only by the US, but by many Commonwealth and European countries. Over the past twenty-five years, there have been advances in individual areas. A series of statutes—either the result of EC legislation, or of private members' bills—have provided for access to environmental information, local government information, personal health records and so on. But demands for a statutory right of access to most information in central government have been resisted. Instead, governments have offered a half-way house, in the form of a commitment to greater openness. In 1977, following the adoption of Freedom of Information laws by a number of overseas governments and pressure for one here, the head of the Civil Service issued what became known as the "Croham directive", promising the release of more of the background detail and information behind Ministerial decisions. The Labour Party made a commitment to Freedom of Information in each General Election from 1974 onwards, and in 1979 the Labour Government published a Green Paper on Open Government, though proposing not a Freedom of Information Act, but a non-statutory Code.[1] In fact it was not until 1994 that a Code was introduced by the Conservative Government. Following the failure of another private members' bill, the Right to Know Bill in 1993, the Government issued a White Paper which proposed a Code of Practice on Access to Government Information.[2] The Code was introduced in 1994. It was revised in 1997, and remains in effect.

3. The present Government came into office with a commitment to the establishment of a statutory regime. It declared that citizens should have rights to information, and should not simply receive information by virtue of a discretionary Code of Practice. It published in December 1997 a White Paper (Your Right to Know) which promised legislation based on this principle. "A Freedom of Information Act", it said, "will provide the people of this country, for the first time, with a general statutory right of access to the information held by public authorities". It said that a "fundamental and vital change in the relationship between government and governed" was at the heart of the White Paper.[3] The Government also published a volume of factual and background information relevant to the production of the White Paper. The White Paper was very widely welcomed—not least by this Committee, which undertook a major inquiry into the proposals, and whose Report on them said that they were "a radical advance in open and accountable government".[4]

4. Translating the White Paper into a draft Bill has been a longer process than was envisaged in 1997, partly because responsibility for it was transferred from the Cabinet Office to the Home Office in July 1998. On 24 May 1999, the draft Bill was finally published.[5] Its publication has made clear that the Government is serious about its intention of passing a Freedom of Information Act before the end of this Parliament, and that it is willing to engage in serious discussion with Parliament and with others about what the Bill should contain. The Government has sought the views of this Committee on the draft Bill (as it did on the White Paper) and we have endeavoured to give it the fullest consideration possible in the time available. We have summarised our conclusions and recommendations at the end of the Report: but here we state that we welcome the publication of the draft Bill, and the Government's commitment to legislation on Freedom of Information. Once the comments we have made, and the comments made by others to the Home Office in the course of the consultation process have been taken into account, we would expect to see a Bill formally introduced into Parliament in the course of the next session. In our view, a Bill that is improved in the way we suggest will have a major and beneficial effect on the way government in this country is run.

Considering legislation in draft

5. The consideration of legislation in draft by Select Committees has been perhaps the most important innovation in the way the House of Commons operates in this Parliament. Soon after the election, the Government announced that it would extend its predecessor's policy of publishing a number of Bills in draft form. The Select Committee on the Modernisation of the House of Commons proposed that such drafts should be considered by Select Committees—whether set up for that specific purpose, or existing Select Committees.[6] Since then, a number of Committees have dealt with draft legislation very successfully.[7] However, the draft Freedom of Information Bill is probably the most significant and contentious to be dealt with in this way so far.

6. All of our witnesses—even when they have been critical of the Bill—have welcomed this consultation process. We have found the close scrutiny of the policy behind the legislation, and the possible effects of the legislation, a valuable experience and we hope that the Home Office has too. It has been an opportunity for the Home Office to explore the reaction to their proposals, and to modify them in relative leisure, rather than in the rush of the Bill's actual passage through Parliament. We welcome the Home Secretary's commitment to this process, and the assistance that he personally, and his officials, have given us at every stage. Jack Straw told us that he thought the process of considering a draft Bill was "a far more effective way (if I may say so) simply than a line-by-line examination in committee, although that is also important".[8]

"I have never embarked upon the legislative process, either in the 18 years I spent in Opposition or in the two and a half years I spent in Government, without Bills plainly being capable of improvement as a result of Members of Parliament doing their job, or part of their job, which is to scrutinise legislation".  Jack Straw, Q.1

7. Although there may be benefits in some cases in bringing together an ad hoc committee, where there is expertise to be tapped from more than one existing committee, it is clear to us that in this case there were great advantages in the Bill being dealt with by the Committee which had already inquired into the subject. Our experience in looking at the 1997 White Paper had prepared us for this inquiry; and since then we have kept a close eye on the policy and its development. We were able to do a certain amount of preparation before the Bill was published. The fact that it was commonly known that the Committee were to undertake the inquiry—which the Home Office helpfully mentioned in their consultation document—also enabled us to contribute more effectively.

8. At the same time as we began to take evidence, an ad hoc Committee in the House of Lords was established to look at the draft Bill. Having two separate Committees examining the same subject at the same time does present some difficulties—not least for the Home Office, and for those who may be called on to give evidence. But we have welcomed the co-operation we have had with the Lords Committee, which has included one joint informal meeting. We have placed our evidence in our two libraries, which has enabled us to benefit from two sets of evidence. In addition, the House of Lords Delegated Powers and Deregulation Committee has looked at the delegated powers in the Bill.[9] As a result, the Bill has probably been more extensively and more publicly scrutinised than any other before its introduction. We welcome this: but note that the time constraint we were under has meant that all this scrutiny has had to take place in a very compressed period.

9. We are not the first Committee which has undertaken a pre-legislative scrutiny to remark on the extreme time pressure experienced in this sort of inquiry. The usual two month period allowed by the Government to exercises of this type has presented a considerable challenge to the Committee. The Home Office allowed us a period after the official closure of the consultation process to finish our report, but the late publication of the draft Bill reduced this in practice. We have sought to rise to the challenge through some quite intensive evidence taking. We have held 12 evidence sessions and one informal meeting, and heard from 52 witnesses. We have addressed many written queries on the Bill to the Home Office, and we are grateful to them for responding promptly. Their replies are printed as an annex to the Report. We have received a large number of memoranda addressed specifically to us. Some of these are published with this Report. We have also received copies of responses to the Consultation Document submitted to the Home Office. We have tried to take as many of them into account as possible; but the vast majority have arrived at or after the end of the consultation process, giving us little or no time to read them and use them in our deliberations. This indicates one of the principal problems with pre-legislative scrutiny: the Committee's consideration needs to be a separate stage of the consultation process, rather than simply an aspect of the normal consultation arrangements. We note and endorse the recommendation of the Social Security Committee that where the Government plans to publish a draft Bill and invite comments on it, it should always do so before Easter, if it hopes to get the Bill into the following year's legislative programme.[10] We further recommend that the Government should then invite comments within two months, allowing a Committee the remainder of the time up until the summer recess to take evidence on the basis of the comments which have been received. We would expect this to become the normal pattern in future when the Government seeks comments on a draft Bill.

10. We welcome the Home Office's commitment to publish the factual analysis and background information leading up to the Bill. A document containing some of the background material was published in the last week of the consultation process. Its publication was held up by the fact that the material needed to be edited in order to be easily publishable.[11] This might seem itself to illustrate the need for a cultural change in Whitehall on this front, for it should have been easy to write the documents in the first place in such a way that would have required minimal editing.


11. As we have said above, we are grateful to the Home Secretary and the Home Office for all their help in the course of the inquiry, particularly to Mr Lee Hughes, Ms Rowena Collins-Rice and others who have attended and assisted at our evidence sessions. We are also most grateful to our witnesses, to those who provided us with written evidence, and to the many who copied to us the responses they have sent to the Home Office. Throughout this Report, we have highlighted some of the most concise and telling statements from their evidence to illustrate particular points. We thank especially our two special advisers, Professor Patrick Birkinshaw of the University of Hull and Professor Robert Hazell of the School of Public Policy, University College London; Mr Martin Cullen TD, Minister of State at the Department of Finance in the Republic of Ireland, and Mr Gerry Kearney, the head of the Freedom of Information Unit there, who came to give us a valuable perspective on the implementation and impact of the Freedom of Information Act in Ireland; and to Mr Daniel Brunet, General Counsel of the Office of the Information Commissioner of Canada, who gave us a very helpful account of the operation of the Canadian Act.

1  Open Government, March 1979, Cmnd. 7520. Back

2  See Q.799. Back

3  Your Right to Know: the Government's Proposals for a Freedom of Information Act, Cabinet Office, December 1997, Cm. 3818, para. 1.3 and Preface.  Back

4  Third Report of the Select Committee on Public Administration, Your Right to Know: The Government's Proposals for a Freedom of Information Act HC (1997-98) 398-I, para. 1; the Government's reply to the Report is the Fourth Special Report of the Select Committee on Public Administration, Government Response to the Third Report from the Select Committee on Public Administration (Session 1997-98) on Your Right to Know: the Government's Proposals for a Freedom of Information Act, HC (1997-98) 1020. Back

5  Freedom of Information: Consultation on draft legislation Home Office, May 1999, Cm. 4355. Back

6  First Report from the Select Committee on the Modernisation of the House of Commons, The Legislative Process, HC (1997-98) 190, paras. 19-30. Back

7  Fifth Report of the Social Security Committee, Pensions on Divorce, HC (1997-98) 869; Fourth Report of the Trade and Industry Committee, Draft Limited Liability Partnership Bill, HC (1998-99) 59; Report of the Food Standards Committee, Food Standards Draft Bill, HC (1998-99) 276; First Report of the Joint Committee on Financial Services and Markets, Draft Financial Services and Markets Bill HC (1998-99) 328; a Joint Committee is also currently examining the draft Local Government (Organisation and Standards) Bill. Back

8  Q.5. Back

9  21st Report of the Select Committee on Delegated Powers and Deregulation, Draft Freedom of Information Bill, HL (1998-99) 79. Back

10  HC (1997-98) 869 para. 75. Back

11  Freedom of Information: Preparation of Draft Legislation: Background Material, Home Office July 1999. Back

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Prepared 29 July 1999