Submitted by Lord Lester of Herne Hill
1. This evidence is given at the invitation
of the House of Commons Select Committee on Public Administration
to comment on the provisions of the Draft Freedom of Information
Bill contained in the Home Office consultation document Freedom
of Information: Consultation on Draft Legislation, May 1999
(Cm 4355), with particular regard to
the use of the word "prejudice"
in the draft Bill' exemptions;
the system for enforcement and appeals;
the duty imposed on public authorities
to consider the public interest.
2. As noted by Professor Birkinshaw and
Alan Parkin in their recent contribution to Constitutional
Reform: The Labour Government's Constitutional Reform Agenda,
freedom of information legislation "is a sign that democracy
has come of age, that citizens have a right to participate in
the decisions that shape their lives to the extent that they are
entrusted as a legal right with information lying behind policy
decisions, information about matters of concern to them or about
themselves collected by government or other bodies and which might
cover food production, nuclear experimentation, prison conditions,
public health and safety, information about guidance or codes
that government and administration use to determine citizens'
rights or liabilities.
3. By giving the public a legal and enforceable
of access to information held by public bodies, the Government
is embarking on an important and necessary constitutional reform.
A statutory right to information will encourage better-informed
debate, improved decision-making by Ministers and civil servants,
and greater accountability. It may also save public expenditure
by uncovering hidden fraud and wasted expenditure and promoting
efficiency in the public service.
4. In the Report of the Joint Consultative
Committee on Constitutional Reformissued before the General
Election of 1997, both Labour and the Liberal Democrats promised
to introduce a Freedom of Information Act which would establish
an independent machinery to shift the balance decisively in favour
of the presumption that government information should be made
publicly available unless there is a more justifiable reason not
to do so.
The Government's draft Freedom of Information Act should be measured
against this commitment and the Government's pledge to bring about
more open government. To use the words of the Prime Minister in
his preface to the White Paper, Your Right to Know December
1997 (Cm 3818), an effective Freedom of Information Act is one
that will end "the traditional culture of secrecy".
It is against this general background that one should evaluate
the details of the draft Bill.
5. In determining whether the draft Freedom
of Information Bill ends "unnecessary Secrecy in government"
three competing interests must be kept in mind: the public interest
in full and fair disclosure of information, the individual's privacy
interest with respect to personal information, and the Government's
interest in non-disclosure to protect the integrity of its operations
in governing on behalf of the people whom it was elected to serve.
These three interests and the need for a "careful balance"
between them were recognised by the Home Secretary in his statement
to the House of Commons on freedom of information.
6. The Government achieved the appropriate
balance of interests in its earlier White Paper, Your Right
to Know. The logic of the White Paper was that it contained
few blanket exemptions and instead proposed a broadly applicable
test of substantial harm to be used across the board
and in a way that would take into account special factors in particular
areas covered by some exemptions. Such a process is akin to that
found in matters of European Community law, European Convention
law and domestic constitutional law where a general principle
must be applied to a specific factual context.
It is also the approach used under the Data Protection Act
as confirmed by Lord Williams of Mostyn in a Written Answer of
8 April 1998 (WA 129)
and used under the EC Data Protection Directive. It is incorrect
for the Government to suggest, as it does in paragraph 32 of the
Consultation Document, that a substantial harm test would be inconsistent
with the Directive, since the Directive expressly recognises the
need to balance, by way of a necessity test, the right to receive
and impart information with other fundamental rights.
7. I take issue with the Government's revised
view that "a single omnibus substantial harm test cannot
work properly for the range of separate exemptions proposed"
since this is precisely what occurs here, in Europe and across
the Commonwealth in determining a fair balance between the right
to freedom of expression (including the right to receive and impart
information) and competing rights and interests. The substantial
harm test was the equivalent of the well-known European principle
of necessity and proportionality which has been interpreted and
applied by courts in a body of European Commonwealth and British
8. The draft Bill represents a fundamental
U-turn. Not only has the Government now decided to replace the
substantial harm test with a prejudice test, and to impose no
test where there was a simple harm test: it has also introduced
blanket exceptions for certain categories of information, thereby
eliminating any need to weigh the competing interests which it
recognises are at stake. These blanket exceptions impose an absolute
bar on disclosure that are unacceptable in terms of their breadth
and lack of proportionality, as well as contrary to the Government's
commitment to the presumption of openness.
They also prevent the Information Commissioner from doing her
job effectively since a blanket ban excludes any adjudication,
or even consideration, by the Commissioner.
9. In my view, there is no justification
for imposing an absolute ban on the disclosure of information
relating to road accidents, dangerous consumer products, and nuclear
incidents, to name a few examples.
There can equally be no justification for a blanket ban on disclosing
information about the mismanagement of charities
or about the health and safety risks to workers,
when there is an obvious public interest to be weighed and considered.
The danger of over-breadth is also exemplified by the inclusion
of every matter related to the function of a Ministerial private
thereby preventing the disclosure of a vast amount of information
about the activities of Ministers and their departments. It is
to be hoped that the Select Committee will recommend that such
blanket exclusions be replaced with exemptions that allow for
some proportionality in the Government's response to requests
for information, given the equally valid interests at stake.
10. As for the appropriate test to use to
determine proportionality, the Government now suggests that disclosure
should be refused if it "would or would be likely to prejudice
matters set out in the exemption in question".
On its face, this test means that any prejudice, whether serious
or trivial, can prevent the disclosure of a requested information
record. According to the Consultation Document, this is not the
Government's intention. Paragraph 36 of the Consultation Document
suggests that the test of prejudice should be one of probability
rather than possibility, and moreover, notes that the test is
intended to bar public authorities from refusing disclosure where
the prejudice is trivial or frivolous. It also states that "The
prejudice must be real, actual or `of substance'." In other
words, what the draft Bill says does not accurately reflect what
the Government says it intends.
11. In the interests of legal certainty,
the Government should write its intentions into the Bill, rather
than leaving it to the courts to reinterpret a vague test. An
adjective, such as "substantial", "significant"
or "serious", needs to be placed before the word "prejudice"
to ensure that disclosure is prevented only as the Government
has said that it intends. Without such an adjective, the prejudice
test is simply a harm test in another guise and provides no guidance
to either the Information Commissioner or public authorities on
how to address the interests at stake in an information request.
12. Furthermore, the choice of a bare prejudice
test does not sit well with other UK legislation in the information
field, albeit aimed at preventing or limiting rather than encouraging
disclosure. The Contempt of Court Act 1981, for example,
uses a substantial risk of harm test to determine strict liability;
following the recommendation of the Phillimore Committee
and opposition pressure to include the word "substantial".
This is all the more pertinent an example when one considers the
context for the introduction of the Contempt of Court Act 1981,
prompted largely by litigation concerning the disclosure of information
about the Thalidomide tragedy, and the need to give effect to
the judgment of the European Court of Human Rights in the Sunday
Times case. 
. A second example can be found in the Official
Secrets Act 1989 In essence, the 1989 Act replaced the much-criticised
"catch-all" approach of section two of the Official
Secrets Act 1911 
with six defined categories of official information, five of which
require the prosecution to prove specific tests of harm in order
to attribute criminal sanction to an unauthorised disclosure.
These amendments focused the law on the nature of the information
disclosed and the harm arising from the disclosure, rather than
the mere fact of disclosure or receipt of information covered
by the Act. They also improved the law's compatibility with the
European Convention on Human Rights by incorporating a
test which would require the restriction on the right to freedom
of expression to be justified on grounds of necessity and proportionality.
Mere disclosure, like mere prejudice, is not sufficient in a society
that requires a properly proportionate balance of competing rights
14. I also draw the Select Committee's attention
to the importance of the Government's previous position that the
tests in the Official Secrets Act and its earlier White
Paper were equivalent.
It is that equivalence which their new proposals threaten to destroy.
15. As recognised by the Government, an
effective freedom of information regime requires an independent
review and appeals system to which the public can have ready access.
The draft Freedom of Information Bill generally meets this requirement
by providing for a system of enforcement and appeals based largely
on that developed under the Data Protection Act 1998. As
a result, there will be an Information Commissioner to adjudicate
on complaints as well as a right of appeal to an Information Tribunal.
The enforcement mechanisms will be directly accessible, unlike
complaints to the Parliamentary Commissioner for Administration,
and they will be provided appropriately free of charge to the
applicant. I also agree with the suggested inclusion of the existing
laws on personal records and data protection in a single "information
regime". This will provide the public with a visible and
readily accessible "one stop shop" for complaints, via
the proposed Information Commissioner, and allow for privacy concerns
to be considered alongside, and as part of, requests for information.
16. I do not however agree with the proposal
as to the non-binding nature of the Commissioner's power to issue
practice recommendations to encourage good information practices.
Without some mechanism of compulsion, possibly after a period
of review and consultation between the public authority and the
Commissioner, such recommendations will be of little force or
17. As for the concern raised about the
non-involvement of the courts, I note that neither the draft Bill,
nor the earlier White Paper,
provides for a right of appeal to the courts. Instead, an appeal
from the decision of the Information Commissioner is allowed on
the merits to an Information Tribunal,
with subsequent appeal to the courts only provided on grounds
of an error of law.
In my view, this proposal strikes the right balance. Allowing
a broad right of appeal to the courts would be both time-consuming
and costly, particularly for an applicant facing a recalcitrant
public authority, and the proposed Tribunal provides a similar
opportunity for the hearing of all views at a much-reduced cost.
18. My main concern with respect to the
proposed enforcement and appeals system is the lack of a public
appointment procedure for the Information Commissioner so that
she is able not only to be independent of the Executive but also
manifestly seen to be independent. In many FOI jurisdictions in
other parts of the world, the media and the Opposition Parties
use the legislation to make a significant number of requests for
information, which are naturally not to the advantage of the party
in Government. The credibility of a true freedom of information
regime therefore rests on having an Information Commissioner who
is, and appears to be, both impartial and independent in resolving
any complaints. In my view, this is best achieved by making the
Information Commissioner an officer of Parliament for a fixed
term of say five years, rather than a government appointee, and
involving Parliament in the selection process. The Commissioner
post should be advertised widely and publicly, and all candidates
for the post should be vetted by an appropriate Select Committee,
with interviews conducted for short-listed candidates. The Select
Committee should then make a recommendation to Parliament in favour
of a specific appointment, with the final say on the appointment
being determined by a resolution of both Houses. Such a procedure
would, in my view, enhance both the credibility and authority
of the Information Commissioner in the eyes of both the Government
and the public.
19. Where a public authority has received
a request for information which it is not obliged to disclose,
it is nevertheless obliged by clause 14 of the draft Bill to consider
whether it should exercise any discretion it may have to disclose
such information. In considering the exercise of its discretion,
the authority must have regard to all the circumstances of the
case, "including the public interest in allowing public access
to information held by public authorities, and whether the disclosure
to the applicant of the information in question would be in the
20. By incorporating such a "public
interest test", the Government clearly intends to make public
authorities undergo a balancing exercise to see whether the public
interest in the disclosure of information would outweigh any possible
prejudice caused by its disclosure.
Yet, the result of such a determination serves no actual purpose
since the test is non-binding. Even if a public authority determines
that the disclosure is in the public interest, there is nothing
in the draft Freedom of Information Bill to require that public
authority to exercise its discretion and disclose the information.
This, in my view, makes the public interest test into a thing
written in water.
21. Furthermore, the situation cannot be
remedied by the powers of the Information Commissioner. Clause
45(2) enables the Information Commissioner to serve an enforcement
notice on the public authority to make a decision, or to specify
matters to which the public authority must have regard, but it
falls short of granting the Commissioner the power to actually
order the authority to disclose the particular information.
Scope of Application
22. Given the proliferation of quasi-public
bodies carrying out public functions in today's society,
the effectiveness of the new information regime depends on extending
the right of access to as wide a range of bodies as possible.
The Government statement of intention to apply the legislation,
by an appropriate order, to private organisations carrying out
public functions and organisations performing public functions
under contract is welcome.
However, it would be preferable for a schedule to contain a list
of applicable public authorities or for the Bill to include a
broad definition of "public authority" akin to the inclusive
definition contained in section 6(3) of the Human Rights Act
23. The devolution aspect of the proposed
Bill is of concern. The Draft Bill proposes to exempt "any
Scottish public authority . . . with mixed functions or no reserved
as well as similar authorities in Northern Ireland. In practice,
this may lead to exemptions for many public authorities, at least
until such a time when the Scottish Parliament and the Northern
Ireland Assembly enact their own freedom of information legislation.
I endorse the view expressed by the Select Committee on this issue
in its previous report.
If it is considered appropriate for the UK legislation to apply,
at least initially, to all Northern Ireland public authorities,
as suggested in the Consultation Document,
I do not see why it should not apply, at least initially, to all
Scottish public authorities as well.
24. With respect to exemptions generally,
there is cause for real concern that a Clause in the draft Bill
that would allow the Minister to provide for even more exemptions
on the passage of an appropriate order.
A Government with a large majority in Parliament will have little
difficulty in passing such an order to restrict the public's right
of access to information further than is objectively justifiable.
25. The draft Bill provides for a slow and
unresponsive freedom of information regime. Under clause 10, a
public authority has up to 40 days to comply with a request for
information, despite the fact that the Government has itself made
comparisons with six other jurisdictions whose prescribed response
times range from 15 to 30 days.
No explanation is provided as to why the United Kingdom should
have the slowest freedom of information regime by design.
Cost to the Public
26. As for the cost of a request for information,
even a minimum fee of £10 will act as a significant deterrent
for many bona fide requests for information from members
of the public, particularly from those in custody who may have
a real need for the information they are requesting. The imposition
of fees will also further delay requests and ultimately limit
the true effect of granting the public a right to information-information
that they have already paid for through their taxes about the
workings of government and public authorities. As a compromise
measure, I would suggest that no fee should be charged for any
information request that takes less than three hours of search
27. I welcome the Government's decision
to make the destruction of public records with the intent of preventing
disclosure an offence
This provision sends an important message across Whitehall about
the importance of the new information regime. However, its application
to what has been called the "yellow post-it note problem"
needs to be further investigated as the use of such fleeting means
to record information can be easily destroyed without detection.
28. In the interests of legal certainty
and greater public transparency, our information laws should be
devised to form a coherent whole, taking into account the full
range of information issues, from official secrets to Crown copyright,
as well as the well-known tests of necessity and proportionality
used in European Community law, European Convention law, the
Data Protection Act and constitutional law generally to ensure
that the public disclosure of information which the public is
entitled to know is not unnecessarily restricted. The Government's
draft Bill does not adopt a coherent approach based upon sound
and workable principles, particularly in its use of blanket exemptions
and a bare prejudice test. While the introduction of a Freedom
of Information Act in the UK is an important and welcome reform,
it must also be recognised as only one part of a rather piecemeal
approach to the needed reform of our "information laws"
275 P Birkinshaw and A Parkin "Freedom of
Information" in R Blackburn and R Plant, eds, Constitutional
Reform: The Labour Government's Constitutional Reform Agenda
(Longman, 1999) 173-201 at 175. Back
Draft Freedom of Information Bill Clause 8. Back
See para 27 of the Report of the Joint Consultative Committee
on Constitutional Reform (1997) as cited in Birkinshaw and
Parkin, supra, note 1 at 173. Back
Your Right to Know, para1 (with emphasis added to
illustrate the Government's own recognition of the need for proportionality
in response). Back
H C Hansard, 24 May 1999, col 21. Back
With the exception of a simple harm test for the requested
disclosure of decision-making and policy advice. Back
For example, in deciding whether an exception to the right
to freedom of expression, in Article 10(2), of the European
Convention on Human Rights, satisfies the test of what is
"necessary in a democratic society" to meet a pressing
social need, such as national security or public safety, or the
prevention of disorder or crime, or preventing the disclosure
of information received in confidence, or maintaining the authority
and independence of the judiciary. Back
This Written Answer was given in response to a question
about the exemptions for media intrusion upon personal privacy
contained in the Data Protection Bill Lord Williams of
Mostyn stated: "According to the consistent case law of the
European Court of Justice, in the application of Community law
the guiding principles, which include proportionality and legal
certainty, must be observed by the courts". Back
See for example Articles 9 and 13 of the EC Data Protection
Consultation Document, para 35. Back
They also run counter to the tenor of the Home Secretary's
previous testimony before the Select Committee on Public Administration:
see House of Commons, Select Committee on Public Administration,
Third Report, Session 1997-98 (HC 398-1) at para 29. See also
the Home Secretary's reference to the scales being "weighted
decisively in favour of openness": HC Hansard, 24 May 1999,
col 21. Back
See Clause 25(2)(a)(ii) of the draft Freedom of Information
See Clause 25(2)(a)(iv) of the draft Freedom of Information
See Clause 25(2)(a)(vii) and (viii) of the draft Freedom
of Information Bill. Back
See Clause 28 of the draft Freedom of Information Bill. Back
Consultation Document, para 35. Back
Report of the Committee on Contempt of Court, 1974
(Cmnd. 5794) at para 113. Back
HL Hansard, vol 417, col 143. Back
Sunday Times v United Kingdom (1979) 2 EHRR 245. Back
See Departmental Committee on Section 2 of the Official
Secrets Act 1911, 1972 (Cmnd 5104) (the "Franks Report"). Back
House of Commons Select Committee on Public Administration,
Third Report, Session 1997-98 (HC 398-1) at para 79. Back
Consultation Document, para 41; Your Right to Know
paras 5.1-5.3. Back
Your Right to Know, para 5.16. Back
Draft Freedom of Information Bill, Clauses 49 and 50. Back
Draft Freedom of Information Bill, Clause 51. Back
Draft Freedom of Information Bill, Clause 14(3). Back
See Consultation Document, para 22. Back
The Government has previously indicated that there are 1,200 non-departmental
public bodies in the United Kingdom, ranging from the Equal Opportunities
Commission and the UK Atomic Energy Authority to the Royal Botanic
Gardens and the Northern Lighthouse Board: Your Right to Know,
page 4. Back
See Consultation Document, paras 23 and 39 read with Clause 2
of the Draft Freedom of Information Bill. Back
Draft Freedom of Information Bill, Clause 2(4). Back
House of Commons, Select Committee on Public Administration, Session
1997-98, Third Report (HC 398-I), para 46. Back
Consultation Document, para 50. Back
Draft Freedom of Information Bill, Clause 36. Back
See Table 1 in the Consultation Document at pages 13-14. Back
Draft Freedom of Information Bill, Clause 66. Back