Legislating for Freedom of Information: the UK experience

Mark Fisher, Labour Member of Parliament

Since the United Kingdom doesnít have a freedom of information act and hasnít ever had one, itís somewhat pertinent for me to speak this afternoon. Successive governments in the UK have resisted freedom of information, but we are legislating at last, so it may be of interest to you, many of whom might be also in the situation we have been in, if I say something about the long march we have had to get to this stage of being on the brink of legislation and what we have learned. If you recall, Canada, Australia and New Zealand all legislated about the same time, around about 1982. That was the culmination of several years debate in those countries and the UK was very involved for understandable reasons in that debate. Just as there was a growth of political concern in freedom of information in those countries throughout the 1970ís, so there was in this country and we very nearly legislated in 1979. A bill was put towards parliament; it started its progression through the House of Commons, which takes about a year, and we had the somewhat grudging support of the Labour government. The Prime Minister Jim Callahan was not very enthusiastic, he was a very pragmatic politician and he thought this was all fairly unnecessary. But it was abandoned because the government fell; it was a minority Labour government in its final stages and it fell in 1979. Mrs Thatcher you will recall became Prime Minister. You might say thatís the reason weíve had no freedom of information legislation over the last twenty years. If Jim Callahan was skeptical about the value of it, Mrs Thatcher was very clear in her mind that this was an extremely bad idea, that the government was difficult enough without putting information and power into the hands of your opponents. She therefore absolutely resisted any attempts to have a discussion on a freedom of information act. Mr Major, her successor continued in the same vein. But it would be unfair to say that it was because of their personal political hostility to freedom of information that we had trouble in this country. In fact they were really giving political expression to a long held view in our civil service that a freedom of information bill would be unhelpful, difficult, obstructive and totally unnecessary. The civil service has always been in our country deeply suspicious of freedom of information, and rather contemptuous of it.

So we had a long campaign. A non-governmental body called the Freedom of Information Campaign was born. Itís very successful, led by a remarkable director called Maurice Frankel. If any of you wish to continue this subject and want any more information on the British experience, his organisation in particular knows more about it than anyone else in this country. They did a remarkable campaign of progress by stealth, building up political support, both in the Labour opposition and the other opposition parties, particularly the Liberal Democrats. But also by changing their tactics: instead of going for a big bang piece of constitutional legislation establishing the dream of right to access to information, the campaign knew that that couldnít work in Mrs Thatcherís absolute blanket opposition. So they went for a quieter and subtler approach of picking off individual areas of public information and getting legislation, small acts of parliament which were not so shocking to Thatcherís government. So we have some legislation on freedom of access to records in local government systems, access to information in the health service, access to government information for the environment and other areas. Weíre beginning to pick off some areas but it is not the same as a freedom of information bill, most particularly because although they do give greater access to information, they donít change the culture, the skepticism in the civil service and they donít raise expectations. One of the things that we suffer from in this country is that thereís very little demand for freedom of information because thereís no expectation. We have very low expectation and those low expectations are reinforced by the fact that we actually, in spite of our rhetoric during the campaign, have a pretty open system. Those who had tended for years during the campaign to say weíre an appallingly secretive country and that the government has total control of information are absolutely correct, but it actually releases huge swathes of information everyday, thereís information overkill. The crucial issue is the information the government doesnít want to look at politically or economically. That fairly small proportion is the tip of an iceberg. Itís that information which causes inconvenience, embarrassment or political or social pain which is at issue on the political side of freedom of information rather than the personal, although of course the two interact.

We have always had a very passive media, rather surprisingly. Undoubtedly freedom of information makes life more interesting and offers more opportunities to a journalist. The media has already been totally uninterested considering itís not a key political issue. Although over the last ten years it has been in a quiet way fairly supportive of it. I produced a bill in 1992, thinking Labour was going to get into government . We prepared a good bill and then Labour didnít win the elections. With all our manifesto, the only thing weíd drafted legislation on was freedom of information, so I was able to pick up a fully drafted bill which had the Labour oppositionís support and came within hours of legislation. Then the media supported it. But since then theyíve really gone off the issue, only one national newspaper, The Guardian, is following the campaign.

Why do people like me in this country want freedom of information? We think it will produce much more accountable government, better government, if information is shared between government and general public. In this country we have a hugely powerful central executive. If the government has an overall majority in the House of Commons, and keeps support there then the central body has enormous power, which Thatcher reinforced and Blair is reinforcing further; all other balancing powers like local authorities, trade unions are being weakened considerably. Freedom of information is a crucial area where some of the power of government can be balanced. So we think it is very necessary, we have learnt from other people.

I will just run through the shape of our legislation. You should learn from our mistakes, as much you learn from the good practices of Canada, New Zealand, Australia, Ireland who I think have all done a better job. In our legislation there is no clear presumption in favour of access. I think that for any legislation to be really effective it needs to have that central impulsion, a central dynamic in terms of access. Some legislations have a purposes clause which says this is what this legislation is for. We donít have that it in our bill and it really shows because there is a grudging reluctance. The legislation will give us the right to information but not help to make access. There is no duty to assist people in gaining access. You have the right, now come and get it, rather than you have the right and weíll help you come and get it and raise your expectations. Everybody has exemptions, Canada, Australian, New Zealand have all the obvious ones Ė international relations, commercial confidentiality, privacy of the individual, law enforcement. What is crucial is what exceptions to those exemptions and what tests there are Ė whether you have a public interest test or a harm test and whether in spite of these exemptions you have tests that can allow to distinguish between information that really genuinely is harmful to law enforcement and that which isnít. The crucial thing is the power of the commissioner. There are many different ways of running a commission either more or less judicial. Whatever legislation is passed, it is as important in how it is implemented, both the enthusiasm of government to implement it and the way in which crucial people like the commissioner or tribunal system, how they interpret it. Get good legislation but donít underestimate the way itís administered and finally have a good appeal system, not too cumbersome. Look to New Zealand, look to Canada rather than us. We had a fantastic white paper, but the government lost its nerve. Itís a shame.