Commentary On Britain's New Freedom Of Information Act
Magnus Linklater, The Times (London), 1/05/05
I want some red-hot government secrets, and I want them now. Using the new Freedom of Information Act I intend to wrench open filing cabinets that have been locked for decades, expose the briefing notes we were never meant to see, nail the rumours that will make or break the reputations of the highest in the land. If the law means what it says, then this is a new dawn for journalists. For the first time, we have the legal right to acquire any records that are held by public authorities on any topic, including documents, e-mails, computers, cassettes, microfiche, maps, and even handwritten notes. Never before has the"right to know" been given such tangible form.
That is the theory. The reality, I suspect, will be more mundane. The headlines this week, as the Act came into force, did little to set the adrenalin coursing through the veins. The battle to allow civil servants to use soft toilet paper in the 1970s; the mysterious fate of the Home Office cat in 1929; the refusal to allow Porridge to be filmed inside one of Her Majesty's prisons; the less than shattering revelation that Harold Wilson was worried about conspiracy theories, and that Jim Callaghan disliked No 10. None of these are likely to trouble historians bent on mapping the seismic events of the 20th century.
There are a few more promising examples -we have learnt more about the treatment of IRA hunger strikers, we now know there was a (discarded) plan to blow up the Channel Tunnel with a nuclear bomb in the event of invasion, and we have a list of the celebrities who have been invited by Tony Blair to dine at Chequers. But it will take more than this to shake the pillars of the Establishment. Any suggestion that, with the advent of FoI, Whitehall intends to shrug off its long record of entrenched secrecy, can be briskly laid to rest.
Just one, salutary, example: the mild revelation about Mr Blair's dinner guests, took a Liberal Democrat MP 19 months to chisel out. Just think what it is going to take to prise open a genuine, cast-iron secret. There are 23 exemptions to the Act, which cover everything from national security, defence and foreign relations, to foggy concepts such as"formulation of government policy" and"information provided in confidence." Don't think, for instance, that you can find out anything about the honours system -that is specifically excluded.
The Act is likely to be more effective at local government level, where the fusty autocracy of town hall officialdom is finally to be challenged. I suspect that more good will come of this than anything in Whitehall. I have, however, three test cases to apply to the Act, and they do not include the Attorney-General's legal advice on the legitimacy of war in Iraq -I doubt if that will see the light for 30 years or more. The first is historical. How many Nazi war criminals did the British secret services knowingly employ for counter-intelligence work after the war? We know about the Americans and what they did, because they have a genuine Freedom of Information Act which has yielded up about 500 documents on the subject. Hitherto, the British have supplied precisely six -mostly blanked out.
Yet Britain was at least as complicit in this murky affair as the US.
The second is more recent: who dreamt up the infamous three-kilometre pre emptive cull during the 2001 foot-and-mouth outbreak, which condemned millions of healthy animals to death on the basis of no scientific evidence? Who proposed it, who approved it, and what advice did the Chief Scientist give to ministers to persuade them that it was the right thing to do? The minutes of ministerial meetings held in the fraught, early weeks of the epidemic would tell us much about scientific evidence and how it is used for political ends.
Finally, how many lobbyists for the drinks and gambling industries had access to ministers during the run-up to the easing of restrictions in both of these areas, and what advice was given by chief constables over the same period? We deserve to be told far more about the evidence on which these far-reaching social experiments are based, and, to judge by the many U-turns and confusing explanations given by government spokesmen, it should turn out to be rich territory for investigation.
None of this will come easy. The more sensitive the disclosure, the more it will have to be worked at. The evidence of the"voluntary" period leading up the Act suggests that anyone applying for information must be prepared for long waits, uncompromising bureaucracy, setbacks and frustration along the way.
A plethora of reasons will be offered for withholding documents, either on the grounds of cost or conflict with the various exemptions mentioned above. Those who persevere may have to appeal to the Information Commissioner if they are turned down, and then go through another long process. Finally, the papers that are released are likely to be mind-numbing in length and arcane detail. Reading, understanding and distilling them will require time and patience."This is the hour of the long-term clever nerd," comments Professor Peter Hennessy, veteran observer of the Whitehall scene.
None of this, however, should deter us. We have been given the key to a chamber of secrets that has stayed locked for too long. Now, it is up to us to use it. That may mean that journalists will have to fall back on a skill that many have lost or forgotten: the art of long and patient investigation. It may not be glamorous, it will certainly be tedious. But in the end it may yield the greatest prize of all: the means of understanding how we are governed, and whether it is well or badly done.
I want some red-hot government secrets, and I want them now. Using the new Freedom of Information Act I intend to wrench open filing cabinets that have been locked for decades, expose the briefing notes we were never meant to see, nail the rumours that will make or break the reputations of the highest in the land. If the law means what it says, then this is a new dawn for journalists. For the first time, we have the legal right to acquire any records that are held by public authorities on any topic, including documents, e-mails, computers, cassettes, microfiche, maps, and even handwritten notes. Never before has the"right to know" been given such tangible form.
That is the theory. The reality, I suspect, will be more mundane. The headlines this week, as the Act came into force, did little to set the adrenalin coursing through the veins. The battle to allow civil servants to use soft toilet paper in the 1970s; the mysterious fate of the Home Office cat in 1929; the refusal to allow Porridge to be filmed inside one of Her Majesty's prisons; the less than shattering revelation that Harold Wilson was worried about conspiracy theories, and that Jim Callaghan disliked No 10. None of these are likely to trouble historians bent on mapping the seismic events of the 20th century.
There are a few more promising examples -we have learnt more about the treatment of IRA hunger strikers, we now know there was a (discarded) plan to blow up the Channel Tunnel with a nuclear bomb in the event of invasion, and we have a list of the celebrities who have been invited by Tony Blair to dine at Chequers. But it will take more than this to shake the pillars of the Establishment. Any suggestion that, with the advent of FoI, Whitehall intends to shrug off its long record of entrenched secrecy, can be briskly laid to rest.
Just one, salutary, example: the mild revelation about Mr Blair's dinner guests, took a Liberal Democrat MP 19 months to chisel out. Just think what it is going to take to prise open a genuine, cast-iron secret. There are 23 exemptions to the Act, which cover everything from national security, defence and foreign relations, to foggy concepts such as"formulation of government policy" and"information provided in confidence." Don't think, for instance, that you can find out anything about the honours system -that is specifically excluded.
The Act is likely to be more effective at local government level, where the fusty autocracy of town hall officialdom is finally to be challenged. I suspect that more good will come of this than anything in Whitehall. I have, however, three test cases to apply to the Act, and they do not include the Attorney-General's legal advice on the legitimacy of war in Iraq -I doubt if that will see the light for 30 years or more. The first is historical. How many Nazi war criminals did the British secret services knowingly employ for counter-intelligence work after the war? We know about the Americans and what they did, because they have a genuine Freedom of Information Act which has yielded up about 500 documents on the subject. Hitherto, the British have supplied precisely six -mostly blanked out.
Yet Britain was at least as complicit in this murky affair as the US.
The second is more recent: who dreamt up the infamous three-kilometre pre emptive cull during the 2001 foot-and-mouth outbreak, which condemned millions of healthy animals to death on the basis of no scientific evidence? Who proposed it, who approved it, and what advice did the Chief Scientist give to ministers to persuade them that it was the right thing to do? The minutes of ministerial meetings held in the fraught, early weeks of the epidemic would tell us much about scientific evidence and how it is used for political ends.
Finally, how many lobbyists for the drinks and gambling industries had access to ministers during the run-up to the easing of restrictions in both of these areas, and what advice was given by chief constables over the same period? We deserve to be told far more about the evidence on which these far-reaching social experiments are based, and, to judge by the many U-turns and confusing explanations given by government spokesmen, it should turn out to be rich territory for investigation.
None of this will come easy. The more sensitive the disclosure, the more it will have to be worked at. The evidence of the"voluntary" period leading up the Act suggests that anyone applying for information must be prepared for long waits, uncompromising bureaucracy, setbacks and frustration along the way.
A plethora of reasons will be offered for withholding documents, either on the grounds of cost or conflict with the various exemptions mentioned above. Those who persevere may have to appeal to the Information Commissioner if they are turned down, and then go through another long process. Finally, the papers that are released are likely to be mind-numbing in length and arcane detail. Reading, understanding and distilling them will require time and patience."This is the hour of the long-term clever nerd," comments Professor Peter Hennessy, veteran observer of the Whitehall scene.
None of this, however, should deter us. We have been given the key to a chamber of secrets that has stayed locked for too long. Now, it is up to us to use it. That may mean that journalists will have to fall back on a skill that many have lost or forgotten: the art of long and patient investigation. It may not be glamorous, it will certainly be tedious. But in the end it may yield the greatest prize of all: the means of understanding how we are governed, and whether it is well or badly done.