Proof that needless official secrecy costs people's lives

'Government repeatedly put the best possible gloss on the scientific evidence on the dangers to humans of BSE'
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The Independent Online

The report of Lord Phillips's inquiry into the handling of BSE crisis, when it is published today, will do more to expose the inner workings of government than any document since Sir Richard Scott's inquiry into the Arms for Iraq affair. As such, and allowing for the gruesome reasons which led to the inquiry, it is an entirely welcome event. Its 16 volumes are expected fairly mercilessly to point to the culprits in a saga that saw government repeatedly put the best possible gloss on the scientific and other evidence available on the dangers to human life of eating meat contaminated by BSE.

The report of Lord Phillips's inquiry into the handling of BSE crisis, when it is published today, will do more to expose the inner workings of government than any document since Sir Richard Scott's inquiry into the Arms for Iraq affair. As such, and allowing for the gruesome reasons which led to the inquiry, it is an entirely welcome event. Its 16 volumes are expected fairly mercilessly to point to the culprits in a saga that saw government repeatedly put the best possible gloss on the scientific and other evidence available on the dangers to human life of eating meat contaminated by BSE.

Whether it will of itself lead to changes in one of the most pervasively malign aspects of Whitehall culture is much more doubtful. That aspect is official secrecy. It will be interesting, to take a single example, to see what Lord Phillips's report will say about evidence given to the inquiry team by Professor Roy Anderson, the eminent epidemiologist at the Wellcome Trust Centre about the repeated formal requests he made between 1989 and 1991 to the Ministry of Agriculture for access to their main BSE database to carry out an independent inquiry into the incidence of the problem and the enforcement of precautions against it. He was denied such access. But when he got it several years later he was able to establish that the failure to enforce regulations covering the use of meat and bone meal to feed cattle had had a serious effect. So much so, he told the inquiry, that if the information had been available to him when he asked for it, he could have been in a position to urge steps which would have meant that the epidemic might have been smaller by around 250,000 cattle.

This merely illustrates the point that if we had known a quarter of what we now know, let alone of what we will know by the end of today, a great deal of anxiety and damage might have been avoided. At least some lives might not have been put at risk. At this point enter the Freedom of Information Bill, the legislation which is supposed to shed light on the dark corners of government and empower the citizen to find out what is really going in areas which concern him. But will it do either? Not to judge by an interesting little exchange which occurred in the House of Lords late on Tuesday evening, during the committee stages of the Bill.

Lord Falconer, the minister, was asked by Lord Brennan a simple question: if such an event [as the BSE epidemic] was to recur "many of us are concerned that... the public would have no means of finding out about relevant policy considerations until the disastrous events had happened? Can the minister reassure us that such fears are not justified?" The Minister's answer, while benignly expressed, amounted to no. Or at least no unless a request for information meets stringent criteria that puts the onus on the seeker of information to show that it is in the public interest, which are considerably more restrictive than those laid out in the government White Paper of 1997, and that allow ministers the right of absolute refusal if they choose. This is of course a wild paraphrase to put the meaning of Lord Falconer's words into layman's language; diligent readers should check Column 284 of the relevant Hansard against the Bill itself.

What Lord Brennan was principally on about was the policy advice which informed ministers as they dithered and deliberated about what to do on the BSE epidemic. And that is covered by a blanket exemption from the Bill's provisions. It is actually true that under certain, very limited circumstances, the public would, under the Bill, have access to statistics. It is even at the outside limit of theoretical possibility that a future Professor Anderson might be able to invoke the bill to try and penetrate the Ministry of Agriculture's database.

But even then the department could refuse one or more of three grounds: since the statistics "right" only applies after a decision to which they are relevant has been taken, it could argue that the statistics are relevant to a forthcoming decision. It could say that the statistics were anyway due to be published at some unspecified time in the future - another remarkable exemption - and, therefore, could not be disclosed now. And finally, it could resort to the Bill's "catch-all" clause - Lord Falconer's own term - which allows it to do so on the grounds that a "reasonably qualified person" would judge that the release would "prejudice the effective conduct of public affairs". A "reasonably qualified person", by the way, does not include the Information Commissioner who will act as the information seeker's ombudsman. Indeed, the Commissioner can only rule against the department on this ground in the very unlikely circumstances that she can prove it acted "perversely or irrationally". Let us suppose, however, that the Commissioner rules against the Department on any grounds. The minister can still, in the final resort, refuse anyway.

All this goes to the heart of some - though not all - of the deficiencies of what is still a bad bill, and for which hopes of improvement now rest with the two Opposition parties and some brave Labour rebels when the Bill has its Lords' report stage in perhaps a fortnight's time. Take the ministerial right to override the Commissioner. The Government argues that political embarrassment will deter ministers from using it in other than in exceptional cases. Really? Is Jack Straw, not to mention other ministers, going to be so deterred when they have no compunction in defending the sometimes loose use of Public Interest Immunity Certificates, or of resorting to injunctions against the media? Then, on BSE, the Government will say that the powers - albeit entirely discretionary - of the Food Standards Agency to publish information are great. And it's true that the FSA has made a robust start. But they would have had no powers over information on the enforcement of rendering, abbatoir or feed regulations.

BSE is only an example, and perhaps an imperfect one. The real scandal are the blanket exemptions, much further reaching than in other FoI regimes, including in the US, not only on all forms of policy advice, but information acquired by any authority which has rights of prosecution: the police (in defiance of Lord Macpherson's recommendations post-Lawrence), the CPS, the Health and Safety Executive, and so on. And while the Commissioner can override in such cases on the grounds of public interest, once again the minister can in the last resort overrule her. In places, no doubt, the Bill has been improved in its long passage through both houses. But it is nowhere near living up to the grandiose claims made for its plans to legislate by Labour in opposition. In some resects it remains, while admittedly statutory, weaker than the voluntary code the last government introduced and which the then opposition derided. Freedom of Information will not be most obviousissue raised by today's momentous BSE report. But it should act as a spur to some of the fainter hearts among critics of the bill to do everything they can to ensure that it lives up to the promises ministers would now prefer to forget.

d.macintyre@independent.co.uk

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