Freedom of Information: FoI opens up government to scrutiny

Ministers and the Commons' authorities have lost two key battles to keep sensitive information under wraps. Robert Verkaik, Law Editor, says the tide may be turning against those who advocate secret government
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The Independent Online

What sort of right-to-know laws do we want for Britain? Should they be limited to the disclosure of information already deemed fit for public consumption or should the scope of the Freedom of Information Act force public authorities to give up documents and correspondence that might embarrass or damage the reputation of public figures and the offices they hold?

Ministers, and more recently the authorities of the House of Commons, argue for the former course of action, adopting a more conservative approach to the interpretation of the legislation.

Over the last three years, hundreds of requests for sensitive information about government business have been rejected by a new breed of civil servant whose sole function is, at least in the view of many disappointed requesters, to block public access.

But this week the tide seems to have turned in favour of those who want to see the legislation used to uncover unpalatable truths about those who govern us. Two important rulings, one by the Information Commissioner and the other by the Information Tribunal, have extended the scope of the Act and dealt a blow to those who would prefer Britain to remain a secret state.

In a key ruling on the decision-making process during the build-up to the Iraq war, the Information Commissioner, Richard Thomas, has ordered the Government to disclose the relevant Cabinet minutes. In his judgment, Mr Thomas said that this was one of the most important decisions a government could take and therefore there was strong public interest in disclosure.

Although Mr Thomas insists this ruling does not set a precedent, it is an important step towards a more open government.

The former Justice Secretary Lord Falconer was clear that he thought all Cabinet minutes fell outside the ambit of the new legislation and could only be made public under the 30-year rule. This is a view shared throughout Whitehall.

The second important ruling this week has increased the pressure on the authorities of the House of Commons to introduce a more open system for the granting and administration of MPs' expenses.

Under the judgment, MPs will be forced to disclose much more detail about how they spend their £22,000 second-home allowance.

Individual furniture invoices and mortgage arrangements could be released to the public as a result of the Tribunal's judgment which described Parliament's scrutiny of expenses as "deeply unsatisfactory".

Taken with another ruling by the same Tribunal last year, which ordered MPs and ministers to be more forthcoming about their travel expenses, these two judgments have pushed back the boundaries of secret government.

Ministers and the Commons' authorities are now considering their options. The Commons may look to the High Court to overturn the tribunal decision.

Ministers may wish to take their battle to the Information Tribunal which has the power to overturn Mr Thomas's decision on Cabinet minutes. But that is not the end of it. The Labour architects of the Freedom of Information Act must have known there might come a time when the Government would be ordered to disclose material that it would not wish to make public during its term of office. So the Act makes provision for government intervention by allowing ministers to deploy an all-trumping veto.

When that day comes, and it hasn't happened in the first three years of the legislation, we will know the true limits of Freedom of Information in this country.