Select Committee on Public Administration Memoranda


MEMORANDUM 20

Submitted by Lord Lester of Herne Hill QC

INTRODUCTION

  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; and

    —  the duty imposed on public authorities to consider the public interest.

THE NEED FOR FREEDOM OF INFORMATION

  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.[275]

  3.  By giving the public a legal and enforceable right[276] 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.[277] 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.

EXEMPTIONS TO DISCLOSURE AND THE "PREJUDICE" TEST

  5.  In determining whether the draft Freedom of Information Bill ends "unnecessary Secrecy in government"[278] 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.[279]

  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[280] 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.[281] 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)[282] 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.[283]

  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"[284] 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 case law.

  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.[285] 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.[286] There can equally be no justification for a blanket ban on disclosing information about the mismanagement of charities[287] or about the health and safety risks to workers,[288] 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 office,[289] 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".[290] 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[291] and opposition pressure to include the word "substantial".[292] 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. [293]

  .  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 [294] 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 and interests.

  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.[295] It is that equivalence which their new proposals threaten to destroy.

ENFORCEMENT AND APPEALS

  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.[296] 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 effect.

  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,[297] 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,[298] with subsequent appeal to the courts only provided on grounds of an error of law.[299] 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.

THE DUTY ON PUBLIC AUTHORITIES TO CONSIDER THE PUBLIC INTEREST

  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 public interest.[300]

  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.[301] 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.

OTHER CONCERNS

  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,[302] 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.[303] 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 1998.

Devolution Aspect

  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 functions"[304] 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.[305] 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,[306] I do not see why it should not apply, at least initially, to all Scottish public authorities as well.

Additional Exemptions

  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.[307] 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.

Efficiency

  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.[308] 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 time.

New Offence

  27.  I welcome the Government's decision to make the destruction of public records with the intent of preventing disclosure an offence[309] 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.

CONCLUSION

  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" in general.

June 1999



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

276    Draft Freedom of Information Bill Clause 8. Back

277    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

278    Your Right to Know, para1 (with emphasis added to illustrate the Government's own recognition of the need for proportionality in response). Back

279    H C Hansard, 24 May 1999, col 21. Back

280    With the exception of a simple harm test for the requested disclosure of decision-making and policy advice. Back

281    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

282    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

283    See for example Articles 9 and 13 of the EC Data Protection Directive. Back

284    Consultation Document, para 35. Back

285    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

286    See Clause 25(2)(a)(ii) of the draft Freedom of Information Bill. Back

287    See Clause 25(2)(a)(iv) of the draft Freedom of Information Bill. Back

288    See Clause 25(2)(a)(vii) and (viii) of the draft Freedom of Information Bill. Back

289    See Clause 28 of the draft Freedom of Information Bill. Back

290    Consultation Document, para 35. Back

291    Report of the Committee on Contempt of Court, 1974 (Cmnd. 5794) at para 113. Back

292    HL Hansard, vol 417, col 143. Back

293    Sunday Times v United Kingdom (1979) 2 EHRR 245. Back

294    See Departmental Committee on Section 2 of the Official Secrets Act 1911, 1972 (Cmnd 5104) (the "Franks Report"). Back

295    House of Commons Select Committee on Public Administration, Third Report, Session 1997-98 (HC 398-1) at para 79. Back

296    Consultation Document, para 41; Your Right to Know paras 5.1-5.3. Back

297    Your Right to Know, para 5.16. Back

298    Draft Freedom of Information Bill, Clauses 49 and 50. Back

299    Draft Freedom of Information Bill, Clause 51. Back

300   Draft Freedom of Information Bill, Clause 14(3). Back

301   See Consultation Document, para 22.  Back

302   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

303   See Consultation Document, paras 23 and 39 read with Clause 2 of the Draft Freedom of Information Bill. Back

304   Draft Freedom of Information Bill, Clause 2(4). Back

305   House of Commons, Select Committee on Public Administration, Session 1997-98, Third Report (HC 398-I), para 46. Back

306   Consultation Document, para 50. Back

307    Draft Freedom of Information Bill, Clause 36. Back

308    See Table 1 in the Consultation Document at pages 13-14. Back

309    Draft Freedom of Information Bill, Clause 66. Back


 
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