OPEN AND SHUT CASE
The Scotsman, December 19, 1998
If anyone still needs to be persuaded of the case for a freedom of information act, the history of the Dounreay nuclear plant should convince them. In 1977, an explosion in a waste disposal shaft showered nearby beaches with radioactive particles. Yet the Atomic Energy Authority concealed the incident from an official inquiry which later investigated unexplained outbreaks of leukaemia among local children. The incident provoked an unusually forthright response from the head of the Government's Radioactive Waste Management Advisory Committee: "To say they were lying is a not unreasonable conclusion to reach."
Last year, a damning report on safety standards at the plant was withheld not merely from the public, but even from ministers, despite revealing a shocking degree of complacency. The public learned about it only after the Government agreed that the plant would accept a shipment of nuclear material from the former Soviet republic of Georgia, a decision which itself was kept secret until leaked to a US newspaper. Then we learned that weapons grade uranium had gone missing from the plant.
Such secrecy is not restricted to nuclear issues, as we know from the BSE inquiry, where the lack of candour allowed the disease to escalate at enormous cost to human health and the farming industry. Day-to-day secrecy, directly affecting individuals, is documented in reports of the Parliamentary Ombudsman who investigates complaints under the open government code of practice, introduced by the former Conservative government. The Health Service Ombudsman handles complaints about the NHS under a parallel code.
The reports provide unique insight into our secretive official culture. In one case, a woman who had complained about her medical treatment had to turn to the Ombudsman to force Forth Valley Health Board to reveal just the names and specialties of the two consultants who had investigated her complaint.
A head teacher was refused access to the inspection guidance used by HM Inspectors of Schools in Scotland - despite the fact that the code requires such materials to be published in advance of anyone needing to ask for them.
The Department of Health refused to reveal how many thousands of prescriptions had been issued for particular drugs, claiming, bizarrely, that "our legal advice is that the confidentiality of information derived from patient information, including prescription data, is not removed by aggregation and anonymisation ; "Another inquirer was refused access to the "confidential" handbook used by doctors assessing patients' entitlement to disability benefit, although it had been on sale at the Government book shop but happened to be out of print at the time.
The Health and Safety Executive said it could not track down details of enforcement action it had taken to deal with a particular problem, as this would take thousands of hours of staff time. The Ombudsman found some of the information was held on computer and could have been provided at the press of a button.
Although the code of practice has helped some individuals, it has also shown how much is still wrong. People have sometimes had to wait up to two years for information. Departments have dragged their feet, repeatedly questioning the Ombudsman's view of the code's requirements. As the Ombudsman, Michael Buckley, himself put it: "If the Gov-ernment wants me to act as referee we cannot have a situation in which every time I award a free kick everyone troops off the field for an elaborate investigation of the rule book and to telephone the FA." A freedom of information act would provide an unmistakable signal that openness was an absolute obligation, not a matter for wrangling and negotiation. But the reform is not just a more efficient way of obtaining information. It is a fundamental right. It expresses the relationship between ourselves, as free citizens in a democracy, and the government we elect. It is the practical basis of real accountability.
As Pope wrote in his Essay on Man: "What can we reason, but from what we know." Governments in Britain have never feared the expression of public opinion. They fear the public's ability to argue from the facts on an equal basis.
Ministers may prefer to evade difficult questions, avoid acknowledging that they have fallen short of their objectives, or suppress evidence that might force them to adopt a policy that they are determined to resist, perhaps for reasons of cost or ideology. The partisan nature of politics reinforces this tendency: information is refused to deny critics point-scoring chances. But there is also a bureaucratic interest in secrecy. Officials sometimes still respond as if a request for an explanation is an affront. Answering questions may lead to more work than ignoring them and offering people just a little information may only encourage them to ask for more, so better not to encourage the process at all.
The real losers are the public, who may be denied information about dangers to their health, the misman-agement of public affairs, or ill-judged policies which exacerbate the problems they are meant to cure.
A freedom of information act would guarantee the citizen's right to know, allowing authorities to withhold information only if disclosure would genuinely harm vital interests such as defence, law enforcement or privacy. The applicant who suspected a government was making spurious claims could complain to an independent body with the power to order disclosure. This legislation has become a basic ingredient of most democracies' systems of government. It is not just the US, Canada, Australia, New Zealand, France, Sweden and Holland which have such laws. Former Soviet block countries like Hungary now have them. Ireland's law came into force this year. Israel has just legislated and countries such as South Africa and Bulgaria are close to doing so.
THE Labour Party has been committed to this reform for 25 years. It featured in its election manifestos in 1974, 1979, 1983, 1992 and 1997. So there was disappointment when a bill did not appear in the first Queen's Speech. However, the white paper published in December 1997 struck a welcome note. It proposed an act that would apply across the whole public sector, at central, regional and local level and even to private bodies carrying out public functions, for example under contract. It would cover information recorded at any time in the past, including government files not yet 30 years old. It would be supervised by an Information Commissioner with strong powers to require disclosure. And authorities wanting to withhold information would have to show that disclosure would cause not merely harm but "substantial" harm - a tough test going well beyond the requirements of the present openness code.
However, the security and intelligence services would not be subject to the new act at all, although several of their overseas counterparts are covered. More worryingly, the law enforcement functions of the police, immigration service and other gov-ernment departments would remain secret, even where openness could not harm law enforcement. So after a Hillsborough-type disaster, the police would be under no obligation to reveal what their arrangements had been - an incomprehensible omission. Despite these shortcomings, the white paper was impressive and was recognised as such internationally. The commissioner who supervises Canada's freedom of information law described the British proposals as "a breathtaking transformation of the relationship between the government and the governed" which left Canada's legislation "trailing in the dust". So what has happened to them?
The white paper's architect, David Clark, lost his job in last July's Cabinet reshuffle. He had hoped to see legislation in the current parliamentary session, but the measure was dropped from this year's legislative timetable. The Government has been promising to publish a draft for consultation since the beginning of the year, but has not done so. Ministers now say it should be out by the end of February, but still can't promise it.
Although the bill is clearly going to come, there are fears that key ele-ments, such as the "substantial harm" test may be watered down. Even if a bill is introduced in the next session of Parliament, the earliest it could come into force is 2001. Implementation could even be delayed until after the next election.
But Scotland may have the chance to move more quickly. If the new parliament makes freedom of information a priority, it is conceivable that Scotland could have the right to know before the rest of the UK. On the other hand, if Scotland is slow to act, it may be the only part of the United Kingdom without a right of access. The Westminster FOI act will not apply to Scottish institutions. So until the new parliament legislates, the Scottish public would find themselves with fewer rights to information than the rest of the UK.
The new parliament would not have to decide just on the timing of an act. It could opt for a tougher act, insisting on a greater degree of openness for Scottish institutions than Whitehall will accept for itself. This is precisely what happened in Canada and Australia, where provinces and states have put their federal legislation to shame by introducing their own tougher access laws.
ONE issue that the Scottish parliament will not be able to address is official secrets legislation. The Official Secrets Act is a reserved matter. Only Westminster will be able to reform it to permit those charged with revealing official information to argue that disclosure served the public interest by exposing serious misconduct or danger to public safety.
The absence of this badly needed defence may be felt in Scotland, for in a last-minute Lords amendment to the Scotland Bill, the Government made Scottish ministers subject to this legislation. This had not been discussed in Scotland and had not been mentioned in the white paper on which the Scottish people voted.
The implication is that a minister who received information about serious health hazards could, if the information also had international relations or defence implications, risk prosecution by disclosing it - an unnecessary restriction which reflects the stale, old traditions of the past and not the way forward. Perhaps this is a matter which the newly elected parliament will take up with Whitehall.
In 1996, speaking at the Campaign for Freedom of Information Awards, Tony Blair described the importance he attached to openness. Freedom of information, he said, was "not some isolated constitutional reform" but "a change that is absolutely fundamental to how we see politics developing in this country over the next few years".
And he added: "It will signal a new relationship between government and people; a relationship which sees the public as legitimate stakeholders in the running of the country and sees election to serve the public as being given on trust.
"It is part of bringing our politics up to date, of letting politics catch up with the aspirations of people."
Those sentiments could not have been better expressed. It's high time they were put into practice.
Richard Shepherd is the Conservative MP for Aldridge-Brownhills.