How free can we get with their information?

Whitehall is steeped in a culture of secrecy which denies the public vital information. That is the most damning conclusion of the Scott report. Nicholas Timmins examines how a Freedom of Information Act would change all that
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The Independent Online
In all the 200,000 and more words that make up the Scott report, three key ones do not appear: "freedom of information". Yet the question of how much the public should and should not know lies behind almost every line of Scott's massive account of Whitehall secrecy.

Outside a few limited areas to do with arms sales, Scott's terms of reference did not allow broad recommendations on what information should be disclosed to the public, or on how much better Parliament might hold to account both ministers and Government.

At present, in Britain's unwritten constitution, ministers are accountable to Parliament, civil servants are accountable to ministers, and the public's right to know is hedged around by no fewer than 250 secrecy provisions in various Acts of Parliament. And aside from some statutory rights, there is no general right for the public to know what the Government knows.

Yet long before the Scott report, this ground has been moving. Sir Robin Butler, the Cabinet Secretary, has enunciated a new concept of ministerial accountability. Government is now so complex, he argues, that while ministers must remain constitutionally "accountable", they can no longer be held personally responsible for everything that happens in their empires - a point only underlined by the growing division of the Civil Service into arm's-length Next Steps agencies and, increasingly, privatised functions bought in from outside. The days of the Fifties - when the blameless Sir Thomas Dugdale resigned as Minister of Agriculture over the Crichel Down affair - have long gone.

Only if a minister is personally responsible for some blameworthy error or failure should he be held to blame or required to accept personal criticism and responsibility, Sir Robin argues.

Of that view, Sir Richard Scott said, "I find it difficult to disagree." He went on to argue, however, that if that stance is accepted - and it is hotly contested, not least by the all-party Treasury and Civil Service Committee in a report published two years ago - then the corollary has to be an acceptance that Parliament be provided with full information.

"Otherwise," Sir Richard says, "Parliament and the public will not be in a position to judge whether the absence of personal knowledge and involvement is fairly claimed or to judge on whom responsibility for what has occurred ought to be placed."

In other words, the public needs access to information and, where ministers have acted improperly, civil servants need to be able to reveal the fact.

On both of these, the Government has moved. Its boast that it has done more for open government than any previous administration holds good. The question is, has it done enough?

On openness, the Government has created a Code of Practice which came into force in April 1994. Individuals can apply for information and, if refused, can go to William Reid, the Ombudsman. In his hands the code has begun to work. It is still early days and it has been little used. But, for example, Richard Shepherd, Conservative MP for Brownhills, successfully used it to prise out of the Department of Transport an inspector's report on the proposed north Birmingham relief road which ministers had originally refused. The Treasury was finally persuaded by it to release a breakdown of departmental frauds.

But its critics say it has tightly drawn limitations. It offers information, not documents - although Mr Reid has been chipping away at that, saying he expects all the information to be disclosed which, in practice, should usually mean a photocopy, not a Civil Service summary.

It is not legally binding. It is overridden by those 250 secrecy provisions in Acts of Parliament which cover items from drug safety to health at work. In addition, ministers can refuse the Ombudsman's recommendation that information be released. Mr Reid would no doubt tell Parliament that that had happened. But it would take a big issue for a government with a majority to be overturned on such a decision, when much of the information that individuals want has no great political significance. If it does, the Commons would be likely to divide on party lines. There is also a range of public bodies to which the code does not apply.

It is, says Maurice Frankel, director of the Campaign for Freedom of Information, "a significant step forward. But it is not a Freedom of Information Act." That would provide statutory rights, an independent appeal mechanism which ministers could not overrule, and broader coverage of both central and local government.

Under pressure from MPs and the Civil Service itself, the Government has also introduced, from 1 January this year, a Civil Service Code providing a layered system of appeal up to the Civil Service Commission - which, in turn, can report to Parliament - for those who believe they are being asked to act illegally or improperly. It is too soon to judge its effects, either on ministerial accountability or the quality of the information that ministers provide to MPs and the public.

But if it is to operate in an era when ministers are to be viewed as accountable but not responsible, unless they are personally to blame, it is doubtful if it goes far enough. For if ministers are not responsible when things go wrong, then who will be? The answer has to be civil servants. But even under the Government's code, they have no relationship of their own with Parliament and, as last week's events revealed, no real public right to defend themselves. A black hole of accountability is opening up.

For the radicals, this is an argument for redrawing great chunks of the British constitution - for a Freedom of Information Act, a serious re- examination of the Civil Service's relationship to Parliament if its accountability for its actions is to be changed, and for a Bill of Rights: measures which could fundamentally change the citizen's relations with the state.

It is the opposite of the careful evolution of practice which Douglas Hurd and others advocate. And it is an agenda, pre-Scott, that has appealed more to a certain sort of worried intelligentsia than voters at large.

Scott may change that. But it will not be an easy transformation. As Maurice Frankel says, "there are Freedom of Information Acts and Freedom of Information Acts". Labour and the Liberal Democrats are committed to introducing one, but the details remain to be defined. And it would be the precise provisions and exclusions of such an Act that would finally decide how effective it proved.

In addition, it is no panacea. While it would probably be the most radical single measure in transforming Whitehall's secretive culture, other critical issues remain - not least, who is to be accountable to whom and how, in the new dispensation of an increasingly devolved Civil Service.

So what would you like to know?

Imagine you wanted some particular types of information - the safety of a drug you are taking, or how the Government had decided to build a particular road - how could you go about it under present legislation and current proposals?

In your search, you could be helped by two measures the Government already operates. Its recent Code of Practice on open government, and a new Civil Service Code, which took effect on 1 January and which can help ensure that ministers do not mislead you.

Potentially there is also a Public Interest Disclosure Bill - the so- called Whistleblower's Bill just put before Parliament by a cross-party alliance of MPs. It would provide some protection for employees who disclose crime, fraud or serious malpractice at work - but only if they have unsuccessfully raised the issue internally first and can convince a court they have acted in the public interest. Disclosure would often be to regulatory bodies, rather than, necessarily to the media.

The most far-reaching measure would be a Freedom of Information Act, something the Government has always opposed. This could take many forms. For the sake of these examples, we have used the Right to Know Bill drawn up by the Campaign for Freedom of Information and the US Freedom of Information Act.

Your cruise goes badly wrong

Imagine you went for a holiday cruise on a ship whose refit had not been finished. In pursuing your claim for compensation you wanted access to any official reports on the public health risks to help to prepare your case.

How could you go about it? This was precisely the position of British passengers affected by the QE2's "cruise to hell" in December 1994.

They found that port authority reports on the ship's health and safety are confidential in Britain. In the United States, however, they are disclosable under its Freedom of Information Act. American passengers - and John Denham, Labour MP for Southampton Itchen - used the Act to disclose a report which concluded there had been "reprehensible violations of the Safety of Life at Sea convention which put in jeopardy the lives of the crew and passengers".

The Code of Practice and the Civil Service Code do not help: they apply only to central, not local, government.

The Whistleblower's Bill would not help. But in other circumstances, for example, if a company were regularly putting dangerously unseaworthy ships to sea, it would help protect an employee who disclosed that - but only if the company failed to act when the issue was raised internally and a court accepted that the issue was so serious that disclosure was in the public interest.

A Freedom of Information Act would provide similar disclosure to that in the United States.

Arms sales

Supposing you wanted to know to which countries the UK was selling what arms. Government traditionally refuses parliamentary answers on this. Scott has recommended an urgent rethink. In particular, licences granted, quantities of which types of arms are exported to particular countries, and export credit support for them, should all be disclosed, he said.

The Code of Practice might conceivably help. Ministers would have to refuse the information on the grounds that it would harm international relations or commercial confidentiality. You could go to the Ombudsman if ministers refused. But he cannot force disclosure and the code, so far, is untested in this area. To date, ministers have relied on parliamentary convention and the argument that it is "not in the public interest" to disclose such information.

The Civil Service Code may help, because civil servants who believe Parliament has been misled or deceived over arms sales could raise the matter internally and, if dissatisfied, appeal to the Civil Service Commissioners to investigate. They can then report to Parliament if ministers fail to act on their recommendations. But this, too, has taken effect too recently to know if it would work.

The Whistleblower's Bill would not help. A Freedom of Information Act would allow some disclosure, but still subject to provisions such as commercial confidentiality and national security. However, an appeal would be possible to an independent body to decide whether that judgement was fair.

Government policy decisions

Suppose you wanted to know how the Government reached a particular policy decision - on a new road, for example, or a new health service policy - which went all the way to Cabinet. Under present rules, and all the other options, the Cabinet's minutes would remain closed. Even the most ardent campaigners for freedom of information believe ministerial debate should be confidential or government would become impossible. But what about the advice that ministers received?

Under all the options, Civil Service advice on which policy actually to adopt would remain confidential - for much the same reasons that cabinet minutes remain secret. The Whistleblower's Bill is not in itself an open government measure and would apply only in circumstances so extreme as to be almost unimaginable.

But there is advice that falls short of advice on which decision to take, and under the Code of Practice ministers are now committed to publishing "facts and analysis of facts" when major policy proposals and decisions are announced. Ministers, however, will publish only those which "Government considers relevant" and only after the event. In addition, the Cabinet Office guidance says: "It is not necessary to swamp Parliament and the public" by "indiscriminate" release of material.

The Civil Service Code keeps civil servants' advice secret. A Freedom of Information Act, however, would also almost certainly require fuller disclosure of facts and figures considered during policy formation, as well as expert analysis from, for example, statisticians and scientists.

Safety of medicines and pesticides

You want to know the safety data about a drug you are taking, or a pesticide used on fields near your home. The position differs for the two. The licensing authorities are debarred from disclosing any information about drug safety under legislation that is even more restrictive than the Official Secrets Act. Not even a minister can approve disclosure. Two years ago, government helped kill off a Private Member's Medicines Information Bill aimed at allowing the authorities to release safety data. Following that, the pharmaceutical industry, from 1 January this year, adopted a voluntary disclosure scheme. Those dissatisfied can appeal to the Medicines Control Agency which will tell you if the information provided is a fair summary. But if it is not, MCA can't reveal what is missing - and it can only advise, not compel, the company to reveal more. Yet if it was a pesticide that concerned you, the Ministry of Agriculture will provide you with a detailed evaluation of the manufacturer's safety studies on new pesticides.

The Code of Practice does not help. It is overridden by the secrecy provisions of the Medicines Act. The Civil Service Code would allow safety fears to be raised internally.

The Whistleblower's Bill could protect disclosure of any serious malpractice over safety.

A Freedom of Information Act would apply - as it does in United States where safety data on British drugs sold there is available - although subject to usual commercial confidentiality limitations. Cross-Europe initiatives may slowly improve the position in this area.

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