Trying to remember when all this started, I rooted out from my shelves the other day a copy of a book I wrote as a young reporter on the Guardian. Its front cover is cracking and a bit faded with the passage of 27 years, but the cartoon by John Kent that we commissioned is still legible. It shows Mrs Thatcher making the imperious demand, ‘What’s our biggest state secret?’ The cabinet secretary, then Sir Robert Armstrong, replies wittily: ‘Our incompetence!’ The book’s theme was the disgraceful way successive governments, both Labour and Tory, had colluded to fend off a freedom of information act, regarded elsewhere in the civilised world as a key component of a decent democracy.
In my little polemic, I laboriously traced the controversy all the way back to the 1960s – a weary trail larded with memos from senior civil servants about ways they could head off this ‘formidably burdensome’ idea, and with evasions from such politicians as the Labour premier Jim Callaghan. He complained heartrendingly that ‘the business of government is difficult enough as it is’. The problem, as I saw it then, was that Whitehall and Westminster were at bottom very undemocratic places, which had never abolished the prerogative powers of the monarchy, but simply inherited them to use for their own purposes. The rest of us were regarded not as citizens, but as subjects – and indeed, ‘British subject’ was how we were still oppressively described on our passports in those days.
The young Tony Blair put it well when he was in opposition in 1996: ‘Information is power, and any government’s attitude about sharing information with the people actually says a great deal about how it views power itself, and how it views the relationship between itself and the people who elected it.’
Where I went wrong, back in 1980, was in naively imagining that an anachronistic democratic deficit was bound to be very shortly corrected. Instead, it took until 1997 before the Blair government came to office, saddled with an unavoidable commitment to introduce a freedom of information act. For all his fine words, Blair too did his very best to wriggle out of it, with the result that it was three years before a much watered-down version finally reached the statute book. Even then, few people noticed the small print, which allowed a theoretical maximum of five years before the Act actually had to be implemented. I don’t think a single one of the campaigners imagined the government would have the brass neck actually to delay implementation for the full five years. But they did.
As passed, the Act has an array of exemptions. The most noxious is a ministerial veto. Any minister can certify that disclosure of a piece of information would ‘prejudice the effective conduct of public affairs’. As the original drafts circulated round Whitehall, civil servants and politicians in every department wrote themselves further exemptions – for ‘commercial confidence’, ‘international relations’, ‘policy formation’, ‘ministerial discussions’, ‘parliamentary privilege’, dealings with the royal family, anything to do with the intelligence services. Exemptions can be claimed (and have been, interminably) in bogus attempts to delete all civil servants’ names from documents, allegedly under the privacy rules of the parallel Data Protection Act.
Our efforts to make use of the Act on the Guardian soon established that quite a few civil servants were unwilling to operate it in good faith. It takes a month at best to get an answer (‘20 working days’). Within a short time, departments were exploiting a piece of small print to claim an extra minimum of 20 further days ‘to consider public interest factors’. Many officials take a timid and precautionary approach, refusing to release anything for which an exemption can plausibly be claimed. An internal appeal then takes as long as the ministry can get away with.
A second appeal to the Information Commissioner, hopelessly overloaded, understaffed, and banished to a provincial office in Wilmslow, generates a result, often of mixed quality, after an inordinate delay of up to nine months. Only then is it possible to go to the Information Tribunal, where – at last – a degree of lawyerly rigour can be found.
Many applicants give up, disheartened, after weeks of slogging through the mud to gain a few inches in what feels like a bureaucratic battle of the Somme. This is no accident: delay and obstruction are time-honoured tactics in Whitehall, whether designed to wear down a transient minister who has too many bright ideas, or to see off importunate members of the public. Matthew Parris recently pointed out, in a column in the Times: ‘I do know what it is like to be a civil servant in Whitehall, because for two years I was one. There is a culture there that sees the public as a damn nuisance. The culture is endemic and needs to be stamped on very hard indeed.’
One of the first acts of Charles Falconer at the Department of Constitutional Affairs was unhelpful to the cause of openness. He set up what he called a ‘clearing house’. Under this, all requests that were at all interesting, or that came from the media, had to be sent off to the DCA for vetting instead of being promptly answered. Individual departments such as the Home Office also set up a rigmarole of internal filters, providing for reference up to the top; weekly submissions to ministers of forthcoming disclosures; and prolonged meetings with press officers and private secretaries in the interests of news management. There was a neurotic fear of loss of control. Rather than the hoped-for culture change, parts of Whitehall have instead been showing signs of a nervous collapse.
Of the 62,852 requests made to central government since 1 January 2005, 36,558 have been granted. Seven departments, including Lord Falconer’s own, refused to give answers to more than half the requests they received. The Act badly needs to be strengthened.
Nonetheless, some results did start to come through at different levels. Many councils began to routinely publicise restaurant health inspections. This followed an exercise in which our requests uncovered an entertaining spat with Heston Blumenthal, owner of the upmarket Fat Duck at Bray, about the most appropriate temperature for his celebrated pork cooked in brine. More significantly, MPs were forced to disclose at last their expenses claims, revealing wild variations between neighbouring politicians, some of whom definitely seemed to have their snouts in the trough. The identities also came to light of the recipients of millions in EU agricultural subsidies, including Prince Charles. The minutes of the BBC governors’ meeting were disclosed, in which they got rid of Director-General Greg Dyke, remarking that the Culture Secretary Tessa Jowell didn’t like him.
And then, a bare 18 months after the Act came in, a counter-attack began. The new bid for censorship involved the old collusive framework of ministers and civil servants – the politicians resenting their loss of information control, backed up by officials saying they objected to the amount of work involved in making disclosures.
In July 2006, Falconer circulated a private paper to cabinet colleagues, outlining a subtle and bureaucratic scheme to enable ‘the most difficult requests – generally received from determined and experienced, rather than casual, requestors – to be refused on cost grounds’.
What Falconer called ‘serial requesters’ were, of course, the very people on whom the public rely to dig out important material – the media, pressure groups, opposition MPs.
Falconer’s plan was to push through apparently minor changes to the small print of the regulations, by means of secondary legislation. He would effectively restrict organisations such as the BBC or Oxfam to four requests a year per department. This would be done by ‘aggregating’ all the requests from different journalists, or individual campaigners, and claiming that, taken together, they breached cost limits.
A second arm to the scheme was to make it even easier to reach those cost limits, by adding in notional charges not just for extracting the information but also for what lawyers in their bills call ‘perusing’. (Falconer is a commercial lawyer by trade.) And on top of that, he wanted to charge for all the time that ministers and top officials spend meeting each other to debate ways to block awkward requests. In other words, the more significant the request, the easier it would be to refuse to answer it.
This scheme to block access to FOI only to those who seek to make use of it has a certain Kafkaesque quality. Falconer accurately predicted that opponents would say that ‘the government is seeking to undermine the Act by underhand means in order to shield itself from legitimate scrutiny’. To meet this image problem, he proposed to commission a supposedly independent cost-benefit analysis.
Frontier Economics, a small consultancy with former cabinet secretary Andrew Turnbull on the board, was accordingly paid £75,000 to knock out a quick study. They produced a sheaf of dubious statistics, purporting to show that FOI cost Whitehall £24m a year, and that much of the demand came from a handful of media – mainly the BBC, the Guardian and the Sunday Times. The small print revealed that the time of ministers had been costed at a purely imaginary £300 an hour. The time taken in consultations had been arrived at by taking the numbers of hours logged by officials – and then blithely doubling the figures. The figures for newspaper use were extrapolated from a single week. Nowhere was it pointed out that the initial years of the Act would be far more expensive than subsequently, because every issue was a precedent. Nor was it explained that the government spends far more – £300m a year – on hundreds of press officers to pump out its own propaganda. And nor was it said that £24m a year is in fact fantastically cheap.
Armed with this threadbare study, Falconer sought to act quickly. It is possible that he will not get away with it in the end. The FOI Act does not actually allow discrimination between requesters. But the omens are bad. An Act that ought to be strengthened is proving instead to be, day by day, under an insidious attack.
MPs themselves, smarting no doubt from the revelations about their own expenses, have not risen up against this plan. Instead, they have cooked up a private member’s bill of their own, promoted by former Conservative chief whip David Maclean, to exempt themselves entirely from the Act. The Freedom of Information (Amendment) Bill is said to be designed to prevent disclosure of letters from MPs to public bodies on behalf of their constituents – or, of course, on behalf of other, less salubrious, interests. Ostensibly, the concern is for privacy. But the Act already protects constituents’ identities. The real effect of the bill would be to enable politicians not only to mis-spend the taxpayers’ money but also to lobby under cover. This is the very opposite of accountability.
Along with the Foreign Secretary Margaret Beckett and Northern Ireland Secretary Peter Hain, Leader of the Commons Jack Straw is backing the bill, which is being given a fair wind by the government. Straw says privately, ‘Many members on both sides of the House would welcome it.’ And how do we know that he says that? Through the old-fashioned means of a leaked letter. Perhaps we shall all be forced to go back soon to much more traditional methods of trying to penetrate the secretive parts of government.
David Leigh is investigations editor of the Guardian and author of The Frontiers of Secrecy (Junction Books)
