Freedom of Information Act 2000

Lord Turnbull Excerpts

Tuesday 17th January 2012 Lords Chamber

[Lord Turnbull]

My Lords, the FOI Act has, as intended, brought important benefits to citizens by giving them information on decisions affecting their lives. However, one area of the Act is not working as intended—the so-called safe space. In all the discussions leading to the Act, the code of practice, the White Paper, the Bill itself and reports by committees, the need for a safe space was repeatedly acknowledged. The noble and learned Lord, Lord Falconer, speaking on the Bill in 2000, said:

“I should … make clear that many people on both sides of the debate consider that it is appropriate that policy making should not take place in a goldfish bowl: that there should be a process which allows Ministers, public authorities and civil servants to exchange views in a way that they feel will be private to give them that space to think and make decisions”.—[Official Report, 24/10/00; col. 282.]

When taken with the principle of Pepper v Hart that the courts should be able to look at the parliamentary record as well as at the specific wording of the Act, it is crystal clear what Parliament intended. Why, then, has the safe space been under repeated attack? It is because Section 35 does not confer an absolute exemption but requires a balancing public interest test. In applying that test, however, the commissioners and the tribunal have tended to focus narrowly on the information sought in the request, not the wider signal that the disclosure produces. Any release contains two forms of information: that inherent in the document, and that which provides signals how about the commissioner/tribunal are expected to respond in future cases. There will be cases where the information itself may cause little harm but where releases of similar documents could have a big effect on the behaviour of Ministers and officials. The commissioners and the tribunal appear to place little weight on this wider impact despite the advice of many distinguished people.

There is a further dimension. The Civil Service is required to give its best advice to Governments of different complexions. This will inevitably become more difficult if the advice given by named officials is revealed to successor Governments, a danger referred to in the papers by none other than the noble Lords, Lord Heseltine, Lord Mandelson and Lord Butler. There are two ways out of this: either the commissioner and the tribunal pay more heed to the original intention of Parliament or the use of the ministerial veto, always intended as a backstop, will, sadly, become more frequent.