BACKGROUND TO THE BILL
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
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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.
Acknowledgements
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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