It was 12 years ago that I sat on my very first House of Commons bill committee, and a pretty important bill it was too. We were considering what was to become the Freedom of Information Act 2000, and I was helping Bob McLennan try to stiffen up what was in danger of becoming, in the hands of the last government, an increasingly flaccid piece of legislation.
After decades of campaigning, the 2000 Act was certainly a longtime in coming for Liberal Democrats. It was Clement Freud who first introduced a Private Members Bill in 1978 that attracted considerable support, but fell at the 1979 election. It was another Liberal Democrat MP, Archy Kirkwood, who in 1987 had his Access to Personal Files Act passed to give the public access to manually held social work and housing records.
During the 2000 Bill Committee, I remember working closely with campaigners for freedom of information such as Maurice Frankel, and with like-minded colleagues such as the former Labour MP for Stoke, Mark Fisher, to remind the Home Secretary what had been promised in opposition, indeed what had been set out in a remarkably progressive white paper, compared with what actually appeared in the bill. In the end, I think we improved the legislation, and the end result was rightly seen as a major step forward in making British politics and public life more transparent.
Not that the law was incapable of further improvement, not least because the numbers and types of bodies carrying out public functions has changed so substantially since. That’s why I welcome what the present government has been doing to widen the scope of the provisions; we’ve already extended the Act to all academy schools through the Academies Act, to the Association of Chief Police Officers (ACPO), to the Financial Ombudsman Service, and to the Universities and Colleges Admissions Services (UCAS).
What’s more, last week the Freedom Act received Royal Assent. That provided for the extension of Freedom of Information provisions to over 100 companies wholly owned by public authorities. But we mustn’t stop there.
The Minister responsible for the FOI Act is my colleague Lord McNally, and he is committed to ensuring that the Act works better and is extended even further, once the Justice Select Committee has finished their report into how the Act is working in practice. Chaired by Liberal Democrat MP Sir Alan Beith, the Committee is currently conducting post-legislative scrutiny of the Act, and I very much hope that when they bring forward their analysis we will have even more ideas for strengthening transparency and accountability within Government.
So it’s ironic, given all that good work, that one of the major rows we’ve had over recent months has been the difference of opinion on what should or should not be released in the case of the so-called risk register on the Health and Social Care bill.
The government has resisted publication on the grounds that policy advice from civil servants must be kept confidential if it is to have any value. Others have said that they ought to know what the consequences might be of what by any measure was a controversial, if in my view greatly improved, bill. Who’s right?
Paradoxically, I suspect the answer is both. The principle of not releasing the private advice of civil servants as part of the process of policy formation was recognised even when we were arguing over the original legislation line-by-line. Indeed, I remember trying to persuade ministers then to differentiate between the information on which policy was based — statistics, factual information and the like — which ought to be made available, and the opinions expressed by policy-makers disclosure of which might harm the process.
And I pointed to the provisions in the New Zealand legislation, which we often took as a model, which has a qualified exemption for information to be withheld to “maintain the effective conduct of public affairs”. So for the government to hold to the principle is not unreasonable.
But that shouldn’t be used as a reason to withhold everything connected to that advice. That’s why I’ve been arguing that, while it’s right to maintain the exemption principle, it would also be right to publish as much of what is contained in the risk register as possible so that people can form their own judgements.
Apart from anything else, much of it is either already in the public domain or has been superseded by later amendments in the bill, so it’s hard to see what damage could now be done. Indeed, probably the worst damage for those interested in ensuring transparency would be to set the precedent that the whole advice could be released, because of the effect on candour and disclosure in the future.
So we should publish, but not be damned for not releasing verbatim advice. It’s not a conspiracy, it’s a necessary protection of openness in the future. And while I would accept, if not agree with, criticism from those who have been entirely consistent in their views, the last people who should cry foul are Labour ex-ministers who, far from publishing risk registers in full, preferred to publish not at all.
* David Heath is MP for Somerton and Frome and Minister of State for Environment, Food and Rural Affairs.