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su¬cient public access to information about governmental activities and
decisions. Openness in government is necessary if Parliament, groups and the
public are to be able to contribute to the making of policy, and if the actions of
government are to be properly scrutinised and evaluated, and the decision-
makers held accountable.

R v Shayler [2002] UKHL 11, [2003] 1 AC 247
Lord Bingham of Cornhill: . . . Modern democratic government means government of the
people by the people for the people. But there can be no government by the people if
they are ignorant of the issues to be resolved, the arguments for and against different
solutions and the facts underlying those arguments. The business of government is not an
activity about which only those professionally engaged are entitled to receive information
and express opinions. It is, or should be, a participatory process. But there can be no
assurance that government is carried out for the people unless the facts are made known,
the issues publicly ventilated. Sometimes, inevitably, those involved in the conduct of
government, as in any other walk of life, are guilty of error, incompetence, misbehaviour,
dereliction of duty, even dishonesty and malpractice. Those concerned may very strongly
wish that the facts relating to such matters are not made public. Publicity may reflect
discredit on them or their predecessors. It may embarrass the authorities. It may impede the
process of administration. Experience however shows, in this country and elsewhere,
that publicity is a powerful disinfectant. Where abuses are exposed, they can be remedied.
Even where abuses have already been remedied, the public may be entitled to know that
they occurred.

Without openness and a ˜right to know™, ministerial responsibility to Parliament
is enfeebled, opposition to governments disarmed and democracy undermined.
The e¬ective use of parliamentary questions, the work of select committees,
political campaigning by opposition parties or pressure groups, all depend on
the availability of information. Secrecy, on the other hand, begets arbitrariness
and misgovernment. In the words of Lord Jenkins of Putney, it is wrong to
deprive the electorate of information about the processes of government,
˜for where they are bad they remain bad and get worse in the dark™ (HL Deb
vol 483, col 175, 17 December 1986). ˜The ¬rst task of the opposition in
Parliament™, say JAG Gri¬th and Michael Ryle, ˜is to minimise secrecy in gov-
ernment™ (Parliament (2nd edn 2003), p 477).
British governments have traditionally maintained a high degree of secrecy
about their operations. The political culture has not in the past included any
idea of ˜participatory democracy™ which could have supported claims by indi-
viduals or groups to be provided with information about government. The
assumption discerned by Nevil Johnson in a Note issued by the Head of the Civil
557 Parties, groups and the people


Service in 1985 that ˜in some sense all information gained in the course of duty
is the private property of the Government of the day and, therefore, to be
disclosed only if its disclosure is regarded as desirable and duly authorised™
(Memorandum to the Treasury and Civil Service Committee, Seventh Report,
HC 92-II of 1985“96, p 172) seemed to re¬‚ect a persisting ethos of British gov-
ernments. Governmental secrecy was for many years forti¬ed by the draconian
section 2 of the O¬cial Secrets Act 1911. The all-embracing section 2 was
repealed by the O¬cial Secrets Act 1989 but this Act, although limited to
speci¬ed categories of information, is still wide-ranging in its application of
criminal sanctions to unauthorised disclosures of o¬cial information and it
admits no defence of the public interest in proceedings for contravention of its
provisions: see R v Shayler (above) and see further chapter 11. Civil servants
remain in any event subject to disciplinary proceedings for disclosures of infor-
mation in breach of internal civil service rules and instructions.
Some of the principal conventions of the constitution “ in particular those of
collective and individual ministerial responsibility “ have contributed to the
maintenance of governmental secrecy, by enforcing an internal governmental
discipline in the control of information. The courts admit no right at common
law to obtain information about the processes of government. In R v Secretary
of State for Defence, ex p Sancto (1992) 5 Admin LR 673, the court was of the
opinion that a minister™s refusal to disclose to the parents of a soldier the report
of a board of inquiry into his accidental death was, in the particular circum-
stances, ˜outrageous™, but could give no remedy because there was no public
˜right to know™ and no legal duty to disclose the report. A party to litigation may
be able to obtain an order for the production of o¬cial information needed to
prove his or her case “ but only if the court is not persuaded that the public
interest precludes disclosure of the information. Indeed, some judges formerly
took the view that a valid ground of objection to the disclosure of information
in legal proceedings was ˜to protect from inspection by possible critics the inner
working of government while forming important governmental policy™ (Lord
Wilberforce in Burmah Oil Co Ltd v Bank of England [1980] AC 1090, 1112.
Today an argument of this kind would not prevail against the right to a fair trial
assured by the Human Rights Act 1998.)
British governments have in the past held it to be entirely a matter for their
discretion whether and to what extent o¬cial information should be made
available to the public or to interested organisations. It has been a perennial
concern that governments are unduly restrictive in withholding information
from the public (and from Parliament) and that secrecy is sometimes main-
tained, not for reasons of the public interest, but to protect the government
from criticism or embarrassment.
In 1968 the Fulton Committee on the Civil Service observed that the admin-
istrative process was ˜surrounded by too much secrecy™ and that ˜the public
interest would be better served if there were a greater amount of openness™
(Cmnd 3638, para 278). The Government in its response drew attention to
558 British Government and the Constitution


measures already taken to disclose more information (Information and the
Public Interest, Cmnd 4089/1969). Among these was the practice, begun in
1967, of issuing ˜Green Papers™ setting out policy proposals and inviting public
comment and discussion before decisions were taken. In 1976 the Prime
Minister, Mr Callaghan, announced in Parliament that in future more back-
ground information on major policies would be published. This undertaking
was followed by the ˜Croham Directive™, an instruction to o¬cial heads of
departments circulated by Sir Douglas Allen (afterwards Lord Croham), Head
of the Home Civil Service. In terms of the Directive, departments were to
publish ˜as much as possible of the factual and analytical material used as the
background to major policy studies™.
While initiatives such as these increased the ¬‚ow of information to some
extent, they had only a modest e¬ect in opening the processes of government to
public scrutiny. Moreover they depended upon a liberal exercise by the govern-
ment of its discretion to make information available to the public, whereas
experience has taught that in the provision of information, administrative con-
venience too often prevails over public bene¬t. Nor can ministers be relied upon
to make an objective judgement, unsullied by considerations of party advantage
or personal reputation, of what should, in the public interest, be disclosed or
withheld. The Australian Senate Standing Committee on Constitutional and
Legal A¬airs concluded in 1979 (Freedom of Information, para 3.7):

The essence of democratic government lies in the ability of people to make choices: about
who shall govern; or about which policies they support or reject. Such choices cannot be
properly made unless adequate information is available. It cannot be accepted that it is
the government itself which should determine what level of information is to be regarded
as adequate.

If the government controls access to information, it may use its power “ and
indeed has done so “ to ˜manage™ the release of news and information in its
political interest by selective ˜leaking™, non-attributable brie¬ngs to Lobby jour-
nalists, the manipulation of statistics (eg on hospital waiting lists or levels of
crime) and like expedients (see Daintith [2002] PL 13). The question of misuse
or ˜spinning™ of information so as to delude the public was highlighted in
2002“03, when it was alleged that the Blair Government had made unfounded
assertions about Iraq™s possession of weapons of mass destruction so as to justify
the decision to go to war. On this sorry episode and the wider issues raised see
the Intelligence and Security Committee, Iraqi Weapons of Mass Destruction:
Intelligence and Assessments (Cm 5972/2003) and Government Response
(Cm 6118/2004); Foreign A¬airs Committee, Ninth Report, HC 813 of 2002“03
and Government Responses (Cm 6062/2003 and 6123/2004); W Runciman (ed),
Hutton and Butler: Lifting the Lid on the Workings of Power (2004); Kuhn, ˜Media
management™, in A Seldon and D Kavanagh, The Blair E¬ect 2001“05 (2005);
Yeung, ˜Regulating government communications™ [2006] CLJ 53.
559 Parties, groups and the people


(a) Code of Practice
In 1993 the Conservative Government issued a White Paper on Open
Government (Cm 2290) which expressed its commitment ˜to make government
in the United Kingdom more open and accountable™ and proposed the intro-
duction of a non-statutory code of practice on public access to government
information. The code was not to be legally enforceable but compliance would
be supervised by the Parliamentary Ombudsman. The Code of Practice on Access
to Government Information came into e¬ect in April 1994 and a revised edition
was published in 1997. The Code committed departments and public bodies
within the jurisdiction of the Parliamentary Ombudsman (or of the Northern
Ireland Ombudsman) to publish background facts and analysis relevant to
major policy decisions, explanatory material about dealings with the public,
information about how public services were run and procedures for complaints.
The Code also committed governmental bodies to release, in response to speci¬c
requests from members of the public, ˜information relating to their policies,
actions and decisions and other matters related to their areas of responsibility™.
Certain categories of information were exempted from this requirement and the
Code did not confer an entitlement to information; nor did it provide for access
to documents held by the public body.
A complaint that information had been improperly withheld could be taken
(through an MP) to the Parliamentary Ombudsman who might, at his or her
discretion, investigate the complaint and recommend (but not order) that
information should be made available.
The Code of Practice was not su¬ciently publicised and public recourse to
its provisions was at a low level. Nonetheless, it scored a number of successes in
terms of open government (see A Tomkins, The Constitution after Scott (1998),
ch 3). A number of advocates of open government argued that nothing less than
a statutory right of access to o¬cial information would be e¬ective, and cited
the bene¬cial results of freedom of information legislation in other countries
(see eg, Hazell, ˜Freedom of information in Australia, Canada and New Zealand™
(1989) 67 Pub Adm 189).
In December 1997 the Labour Government published proposals for a
Freedom of Information Act in a White Paper, Your Right to Know (Cm 3818),
which declared the aim of the proposed legislation to be ˜to encourage more
open and accountable government by establishing a general statutory right of
access to o¬cial records and information™. In May 1999 the Government
published a draft Freedom of Information Bill for further consultation and
for prelegislative scrutiny by the House of Commons Select Committee on
Public Administration and the House of Lords Delegated Powers and
Deregulation Committee: Freedom of Information: Consultation on Draft
Legislation (Cm 4355/1999).
The draft bill met with widespread criticism. It was seen by the organisation
Liberty as ˜deeply ¬‚awed™, by the Campaign for Freedom of Information as
560 British Government and the Constitution


weaker than the Code of Practice it was to replace, and was generally regarded
as falling well short of the principles of openness a¬rmed in the Government™s
White Paper. In response to the criticisms some changes were made to the bill
before its introduction in the House of Commons on 18 November 1999, but
the Public Administration Committee expressed its disappointment that the
Government had not modi¬ed the basic structure and scheme of the draft bill
(Fifth Report, HC 925 of 1998“99) and pressed for a number of amendments to
strengthen the bill in its passage through Parliament (First Report, HC 78 of
1999“2000). (See also the report of the House of Lords Select Committee on the
draft bill, HL 97 of 1998“99.) In the face of continuing criticism in both Houses
some signi¬cant improvements were made to the bill. In the third reading
debate in the House of Lords a Liberal Democrat peer (Lord McNally)
remarked that while the bill still had shortcomings and the White Paper, Your
Right to Know, remained as ˜a benchmark yet to be attained™, the bill was never-
theless ˜a Bill worth having™ (HL Deb vol 619, col 851, 22 November 2000). It
received the royal assent on 30 November 2000.


(b) Freedom of Information Act 2000
The Freedom of Information Act 2000 is comprehensive in its application to
˜public authorities™, including government departments, the National Assembly
for Wales, the Northern Ireland Assembly, National Health Service bodies,
publicly owned companies, local authorities, educational establishments, non-
departmental public bodies, the armed forces and the police (see Schedule 1).
Further bodies and o¬ces may be included by orders made by the Secretary
of State (ss 4 and 5): these may include private bodies that have functions of
a public nature or provide services under contract with a public authority. In all,
some 115,000 bodies are covered by the Act, far more than had been subject to
the Code of Practice on Access to Government Information. The security and
intelligence services are excluded from the Act™s provisions.
The Act allows any person, whether or not a citizen of the United Kingdom
or resident in this country, to request the disclosure of information from
a public authority to which the Act applies. The authority is then, in general,
obliged to inform the applicant whether it holds information of the description
requested (the duty to ˜con¬rm or deny™), and if the information is held, to com-
municate it to the applicant promptly and in any event within twenty working
days. (Information known to o¬cials but unrecorded is not covered by the Act.)
So far as reasonably practicable, the information is to be provided by the means
requested “ as by supplying a copy of written information, allowing inspection
of a record or providing a summary of the information held. An authority will
not be obliged to comply with a request if the cost of doing so exceeds
the ˜appropriate limit™ ¬xed by regulations: for government departments the
present limit is £600 and for other public authorities it is £450. If the cost is esti-
mated to be above the limit, the authority may refuse the request or require
561 Parties, groups and the people


payment of the whole or part of the cost. The Secretary of State for
Constitutional A¬airs issues a code of practice, under section 45 of the Act,
giving guidance to public authorities as to the practice which it would, in his
opinion, be desirable for them to follow in discharging their functions under
the Act. (Of course, the guidance must be consistent with the duties placed on
public authorities by the Act™s provisions.) The code, and revisions made to it
from time to time, must be laid before Parliament.
All freedom of information laws exempt some categories of information
from disclosure. The 1997 White Paper, Your Right to Know (Cm 3818), pro-
posed that requests for disclosure should in each case be assessed by reference
to a test of harm: in general, disclosure would be denied only if it would cause
˜substantial™ harm to one of a limited number of protected interests. The Act
takes a di¬erent approach, dispensing with a general test of this kind. It provides
for twenty-three exemptions from the obligations of disclosure. Most of these
are ˜class™ exemptions, applicable without the need to satisfy a test of harm
or prejudice. Information relating to national security is exempted on this basis
(a minister™s certi¬cate providing conclusive evidence that the exemption is
required for safeguarding national security). There is also, for instance, a class
exemption for information held by an authority for the purposes of criminal
investigations or certain other investigations or proceedings conducted by the
authority. Another broad class exemption covers information relating to the
formulation or development of government policy, communications between
ministers, advice by Law O¬cers and the operations of any ministerial private
o¬ce. Some of these classes are of wide scope and, none being subject to a harm
test, may allow public authorities to withhold much information of a factual
nature not manifestly requiring to be kept secret in the public interest. Personal
information and information supplied in con¬dence are also protected on a
class basis, as is information intended for future publication (it may be at some
undetermined date).
Besides the class exemptions there is a set of exemptions “ such as those relat-
ing to defence, international relations, the economy, commercial interests and
law enforcement “ which apply if disclosure of the information would be likely,
by reason of its contents, to prejudice the interest in question. A requirement
of (the probability of) ˜prejudice™ seems to be a weaker test than that of
˜substantial harm™ proposed in Your Right to Know. What has been criticised as
a ˜catch-all™ provision allows the withholding of information if in ˜the reason-
able opinion of a quali¬ed person™ (eg a minister of the Crown) it would be
likely to prejudice the maintenance of the convention of collective responsibil-
ity of ministers, inhibit the free and frank provision of advice or exchange of
views or otherwise prejudice the e¬ective conduct of public a¬airs.

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