Freedom of information laws are creating new opportunities – mainly for stabbing political rivals in the back.
By Jonathan Ungoed-Thomas and Andrew Porter
Sunday Times – 6 February 2005
DIRTY TRICKS FILE: The Labour Guide to Open Government
If it hurts us, block it
If it hurts the Tories, leak it
Dig the dirt on Michael Howard
Claim there's been a cover-up
- Fool the press, confuse the public
Inside the Department for Constitutional Affairs is a team of about 12 civil servants who now exercise extraordinary control over government secrets. They are the “clearing house” that decides whether to grant requests for information from key government departments under the new Freedom of Information Act. Each day these civil servants, with advice from the Cabinet Office, have the power to make or break reputations – and some politicians fear that the government and its spin doctors have found a powerful new political weapon.
The suspicion is that ministers can influence the unit to block the release of information embarrassing to Labour individuals or the government. Worse, there are signs that ministers might be using the law to release information that is damaging to Opposition MPs.
“It is gutter politics of the lowest stripe,”
said Julian Lewis, the Conservative shadow Minister for the Cabinet Office.
“They are being very restrictive with what we are asking for, but when it comes to digging out material about the last Conservative government, they are rushing to put it out.”
Last week a leaked document revealed that Labour was now trying to dig up damaging information on Michael Howard, the Conservative leader. The Sunday Times has learnt that the government might also be seeking to use the new law to pin the blame for the 2001 foot-and-mouth crisis on the Tories. Officials are said to be seeking documents which could show that the relaxation of red tape for farmers under the last Tory government created the environment in which the highly infectious disease thrived.
The government is also preparing to release information on Black Wednesday, when Britain left the European exchange-rate mechanism on September 16, 1992 – one of the most damaging episodes in John Major’s government. Yet at the same time many requests for information about the present government are getting nowhere. The Conservative Party has submitted 120 requests and has received only a handful of responses.
For the public it is a disappointment too. The sort of material being released has ranged from mind-numbing committee meeting minutes of smaller quangos to vacuous details of UFO sightings. The decision-making processes at the highest levels of government remain as opaque as ever.
“The history of this government on freedom of information is to talk big and deliver little,”
said Matthew Taylor, the Liberal Democrat MP and chairman of its parliamentary party.
“Anything they do deliver is done kicking and screaming. It still seems virtually standard practice to turn down requests. But they do seem to be willing to release information which is damaging to their opponents. It says a lot about the control freaks that are running this government.”
It was not meant to be like this. On March 25, 1996, at an awards ceremony, Tony Blair set out his vision of a freedom of information law, promising a new era of openness.
“There is still far too much addiction to secrecy and wish to conduct government business behind closed doors,”
“We want to end the obsessive and unnecessary secrecy which surrounds government activity.”
The typically bold claim was soon followed by a cooler reality, as Lord Clark of Windermere, the former Cabinet Office minister, recalls. Clark, who was charged with transforming Blair’s pledge into law, said:
“I produced a White Paper within six months, but it almost certainly got me the sack. It was bitterly opposed by the senior civil servants and was watered down.”
Clark does not blame Blair for his sacking but what he calls the “men of gold”, the highly educated “Sir Humphreys” who have traditionally run Whitehall with little scrutiny.
“These are people who have often gone to the same universities together and live in the same areas,”
“They are deeply conservative and did not want this bill.”
But it was not just the civil servants who had doubts. Once in power, Labour politicians also began to question the wisdom of opening their decisions to greater public scrutiny. At one cabinet meeting, ministers are said to have chided each other over who was responsible for the proposed law. Turning to Jack Straw, then Home Secretary, Blair is reported to have said: “This is your fault, Jack.” Straw said he had taken the idea from Blair’s March 1996 speech. Blair in turn said it had been written for him by Pat McFadden, now a policy adviser in Downing Street.
It was, however, a commitment they could not go back on after pledging to introduce the law in six successive election manifestos. The bill was passed in 2000 – but came into effect only last month. It is undoubtedly a political challenge for Labour, and might in the long run winkle out useful information. So far, though, Labour has turned the legislation to its advantage.
An internal Labour party document shows that election workers are planning to use the law to try to find evidence that Howard had helped a relative who was a drug dealer.
“Hopefully Peter Kilfoyle (a Labour MP) is on this stuff,”
says the document. Howard’s cousin, Simon Bakerman, was jailed in 2002 for his role in a £20m drug ring. Two of his alleged associates were released from jail early when Howard was Home Secretary. But they were released on the recommendation of a judge and there was no suggestion of any intervention by Howard. Labour is also seeking the help of gay campaigners to uncover Howard’s record on the section 28 clause, which outlawed the promotion of homosexuality in schools.
The scheme to use Freedom of Information to dig for dirt has an even more Machiavellian twist. A leak last week gave rise to reports that John Major and Norman Lamont, the former chancellor, were trying to block the release of information about Black Wednesday. It appeared to be embarrassing, but yesterday both men rebutted the claims.
“Neither of us objected in any way,”
Major said. Behind such machinations the Conservatives detect the hand of Alastair Campbell, Blair’s former communications director who has returned to play a role in the election campaign. Major said the episode was “consistent” with Campbell’s past activities.
The man who will have to police the political knife-fight between the parties is Richard Thomas, the Information Commissioner. When appeals are made against refusals to divulge information, he will ultimately have to decide what should be released. So far he is refusing to be drawn on how he sees the effectiveness of the new law.
“It’s too soon to make any comment on what’s happening, but there’s going to be a learning process for everybody,”
he said diplomatically. He claims that much information that was not previously available is being released. The act applies to 100,000 public bodies, including local authorities, hospitals and schools, and Thomas believes a culture change towards openness is under way.
The Conservatives, however, fear Thomas may not be tough enough to tackle the government over any abuses. They claimed to have evidence last year that civil servants were shredding huge numbers of documents before the law came into effect and were dismayed that Thomas did not launch an inquiry.
Are the Tories being over-sensitive? Some experts believe so. Robert Hazell, director of the Constitution Unit at University College London, argued that files from a previous administration were always more likely to be released because they were less politically and economically sensitive. But the act, just before an election, has by accident or design raised serious questions about whether the government can be trusted to operate it fairly.
Perhaps the only way to find out is to request files on ministerial discussions over freedom of information. But don’t hold your breath.
* * * *
‘SIR HUMPHREY’S TOP TIPS’
By Roland White
1. On no account attempt to reply within the stipulated 20 days. You know how unreliable the post can be these days.
2. In the unlikely event of a further inquiry, respond that you must first consult widely within the department.
3. Consult widely. Refer the application up, refer it across, refer it down, refer it to the necessary ministers, refer it to the necessary former ministers. Do not expect any early replies. Remember, they too will have read these guidelines.
4. On receiving the results of your consultation, deploy the catch-22 defence. Write to the applicant in hand-wringing tones to say that, alas, they have not been specific enough. What is it exactly that they want? If they knew what they wanted, they wouldn’t need to ask for it.
5. If the applicant still persists, say that the documents required must be examined by legal advisers to consider the public interest. If you can’t think of anything else, insist that there are human rights issues.
6. You know what legal folk are like. This step could take years.
7. Announce in delighted tones that the application has cleared all the necessary stages: administrative, consultative, legal. But the decision has been taken to withhold the material.
8. If the applicant obtains a legal notice demanding the release of the information, inform the relevant cabinet minister. He or she can always issue a veto blocking the release of the information.
9. If all else fails, revert to Whitehall Emergency Plan 3b: “We regret that the documents in question are no longer available as they were accidentally shredded by a junior clerk on work experience.”