The power to just say no: Corbyn, Freedom of Information and the Ministerial Veto

image_previewJeremy Corbyn recently used a speech on what a Labour government would seek to change in the media sector to confirm that the party will seek to abolish the ministerial power to veto decisions to release government papers under the Freedom of Information Act. Ben Worthy argues that the idea is neither new, or the best means of increasing transparency.

Vetoes are there in the hope they will not be needed, but their mere existence reassures. In no case is this truer than section 53 of the UK FOI Act,  which allows the government the ultimate power to block requests. Amongst a number of radical proposals in his recent speech on the media, Jeremy Corbyn suggested that he would ‘look at ending the ministerial veto to prevent the Information Commissioner being overruled’, thereby abolishing the government’s FOI veto.

Some sort of veto, or ultimate backstop, is common across many FOI regimes. The US stands as an exception due to the separation of powers (though this didn’t stop President Johnson trying to insert a thoroughly unconstitutional one into the original bill). In some senses, the veto is symbolic for supporters and critics alike, offering a final reassurance or a last line of ultimate secrecy, depending on your point of view.  The idea to abolish it has been around for some time, and the Liberal Democrats promised to do so in their 2017 election manifesto.

In the UK, whether the Freedom of Information Act 2000 (FOIA) had a veto in it or not was a key sticking point, and an indicator of the shifting radicalism of the policy as it made its turbulent way onto the statute book. The terrifying lack of a veto in the original White Paper sent a shiver through Whitehall (a veto would, it argued, ‘erode public confidence in the Act’). The later draft bill, which emerged after much retreating and agony, had a veto so wide it could be used not only by government ministers but also potentially local councillors. In this form, it was a veto that could be seen, as it were, from Huddersfield. Removed from the White Paper and re-inserted into the draft Bill, the final FOIA gave government a veto to prevent the release of information, even if the appeal system ruled in favour, in situations where the public interest had been weighed and ‘exceptional circumstances’ existed. So far so clear. But there are some complexities that only, perhaps, Corbyn’s proposal would resolve. Continue reading

Why pass FOI laws? The politics of freedom of information

Ben Worthy

Why are there now more than 100 freedom of information laws around the world, even though they help opponents and hinder governments? In a new book, published this month by Manchester University Press, Ben Worthy investigates. He concludes that the main reason is that as a symbolic pledge in opposition FOI laws are hard to resist. Once in power these promises are hard to back down from, though experience suggests that proposed laws are often watered down before being enacted. These findings are summarised here.

worthy-bookWhy don’t more politicians react to freedom of information (FOI) like Lyndon Johnson? Why don’t more of them run a mile when presented with the possibility of giving the public a legal right to ask for information from the government? When the idea of an FOI law was suggested to Johnson in 1966 by a fellow Democrat Congressman the US President responded, after some swearing, ‘I thought you were on my side?’ As his Press Secretary explained:

LBJ… hated the very idea of the Freedom of Information Act; hated the thought of journalists rummaging in government closets and opening government files; hated them challenging the official view of reality.

For any budding politician, FOI appears to be the ultimate political boomerang. It helps your opponents. It hinders you.

To make FOI laws even less appealing, there are no votes in them. Merlyn Rees, a Home Secretary who fought hard against an FOI law in the 1970s, once exclaimed that ‘the Guardian can go on for as long as it likes about open government… but I can tell you that in my own constituency of 75,000 electors I would be hard pressed to find many who would be interested’. Only in India, where the Right to information Act was part of an anti-corruption campaign, have FOI laws responded to broad public enthusiasm. So how is it that there are now more than 100 FOI laws around the world?

The question is really why would a politician support FOI in the first place? Sometimes they believe in openness and sometimes leaders who don’t believe in it have it forced upon them, as Theresa May has discovered over Brexit. Other times it is for pure advantage, because a scandal makes it hard to avoid (as in Ireland), so a politician can ensure that they get information in the future or because it has promised FOI as part of a coalition deal (as in India). It is also about context. Often FOI laws are pushed through when there is lots of other constitutional or legal change going on. Across the world, as Rick Snell points out, organised groups and enthusiastic individuals, often ‘outsiders’, push for an FOI law when other key people are distracted or looking the other way.

Continue reading

The government’s Freedom of Information commission tilts the political discussion towards damage and cost

Ben Worthy

On Friday of last week, the government announced a new commission on Freedom of Information. Here, Ben Worthy offers his response to the announcement, arguing that the objections to the scope and usage of FOI that have been raised are nothing new, and furthermore aren’t unique to the UK. Further, he argues that the commission’s remit tilts discussion naturally towards the two issues of damage and costs, rather than a more balanced cost/benefit analysis. 

What’s Wrong?

The questions in the remit of the commission boil down to asking ‘is FOI undermining decision-making’ and ‘is it too expensive’? The remit itself is, of course, priming discussion in a particular way, framing it  towards two issues of (1) whether FOI is hampering decision-making and (2) whether it ‘costs too much’ . So what does the evidence say?

Is FOI Hampering Decision-making?

Just to put this discussion into context:

  • Our 2010 study of FOI in the UK found very few requests for Cabinet documents and also found a broader lack of interest in the decision-making process. Leaks are a far more important cause of openness for these citadels of government decision-making than FOI.
  • UK governments since 2005 have used the veto seven (or technically eight) times, compared with 48 times in Australia in the first five years of its own FOI Act. This seems to indicate that ‘dangerous’ requests trying to prise open the very centre of government are relatively few in number, though their psychological effect may be disproportionate.

Continue reading

10 Years of Freedom of Information in the UK: Tony, Tension and Turbulence

Ben Worthy

Ben Worthy looks at how the Freedom of Information Act has come to work in practice and the debates around whether it is ‘good’ or ‘bad’. He argues that on balance it appears to be a success, bringing very public benefits and potentially unseen positive outcomes at local level as well.

‘The truth is that the FOI Act isn’t used, for the most part, by ‘the people’. It’s used by journalists. For political leaders, it’s like saying to someone who is hitting you over the head with a stick, ‘Hey, try this instead’, and handing them a mallet’ –Tony Blair 2010

‘The Freedom of Information Act has enhanced the UK’s democratic system and made our public bodies more open, accountable and transparent. It has been a success and we do not wish to diminish its intended scope, or its effectiveness’ – House of Commons Justice Select Committee 2012 Post-Legislative Scrutiny of FOI

These two comments sum up the difficulties of measuring how successful the UK Freedom of Information Act has been. It isn’t just about statistics on numbers of requests, users or refusals (though there are some here if you are interested). What people think also shapes how it works and how others then behave. So a former Prime Minister sees it as one of his biggest mistakes while a Parliamentary committee see it as a vital part of democracy. Which is it?

Continue reading

No Going Back: Committee Protects FOI

The Justice Committee today published its report following its post legislative scrutiny of the Freedom of Information Act. It concluded:

 The Freedom of Information Act has been a significant enhancement of our democracy. Overall our witnesses agreed the Act was working well. The Freedom of Information Act has achieved its three principal objectives, but its secondary objective of enhancing public confidence in Government has not been achieved, and was unlikely to be achieved.

It should be emphasised that the right to access public sector information is an important constitutional right, a fact that can get lost in complaints about the operation of the freedom of information regime. We do not believe that there has been any general harmful effect at all on the ability to conduct business in the public service, and in our view the additional burdens are outweighed by the benefits.

Some of the key findings were that

  •  The Freedom of Information Act has made government more transparent and more accountable.
  • The Act’s impact on decision-making is unclear, though the committee felt it may have had more of an impact than we felt it did.
  •  The Act’s impact on trust is also nuanced (perhaps more nuanced,in my opinion, than the MOJ memorandum claimed).
  • Publication schemes have been overtaken by technology, though it is too early to tell what impact reforms such as Open Data have had.

The Committee looked into some of the controversies around FOI.

  •  It concluded that evidence for a chilling effect is far from clear cut. The concerns of senior minister and officials may indicate there is a problem though, as the Committee pointed out, much of their evidence fitted particular circumstances, was hypothetical or was anecdotal-see Blair’s letter here. It did not recommend any changes in this area but sought to reassure that the Act itself, combined with use of the veto, should protect the required ‘safe space’ for discussion.  See here for my reasons as to why I am sceptical about this chilling.
  •  Despite a seemingly growing pressure for some form of application fee, the committee rejected this as too difficult to operate. It also outlined how difficult it was to calculate the cost of FOI.
  •  A final interesting and controversial proposal was the recommendation that universities be given a protection similar to that under the Scottish FOI that specifically protects research information. Interviewees we spoke to in our short study were divided over whether such an exemption would work or was necessary (see the UUK evidence and FOI man’s response).

The Committee made a number of recommendations: that the period of internal review have a 20 day limit, the ‘vexatious’ safeguards in the Act be better used and that requesters be told how much their question cost to process.

The most significant part of the report was what is did not do. There has been high profile criticism of FOI, from Tony Blair to David Cameron that worried the Information Commissioner. This had led to discussion of additional protections for discussion, the introduction of fees and other changes. The committee criticised Tony Blair for not appearing.

The report also quoted Francis Maude, who addressed concerns about ‘abuse’ by the press which may be driving some of these criticisms. Maude said: ‘Can [openness] lead to embarrassment? Yes. Do we have to be a bit grown up about that? Yes, we do’.

FOI and Extraordinary Rendition

A new website has been launched that aims to piece together data relating to rendition. As well as mapping the system of movement it also gives access to a wealth of documents.

FOI has played an important role in documenting the often complicated movement of flights of terrorists suspects (the movement of which has been linked to torture). The UK All Party Group on Extraordinary Rendition has used FOI to both the UK and US governments to find out about the dubious practice of moving people around the world to be interrogated.  It fought a long campaign to investigate the practice following up Parliamentary Questions with FOIs. There are some examples here.

Controversy over rendition has reignited following allegations that two Libyan dissidents, Fatima Bouchar and Abdelhakim Belhaj, were ‘rendered’ to Libya following Tony Blair’s 2006 visit. Belhaj claims he was tortured and a letter appears to link MI6 to his being moved, though Blair does not recall it.

In a new twist, recently a US judge has refused to release information to the All Party Group on the grounds it was a foreign government entity. He used a very interesting example:

The judge rejected the group’s argument that its members acted as individuals and not public officials. By that logic any foreign leader, including the late Kim Jong-il, could submit Freedom of Information Act requests under their individual capacity, the judge said.

See more background here and here.