BEFORE the Freedom of Information Act came into force in January, there was a system for disclosing information. The Code of Practice on Access to Government Information was the non-statutory system for the previous 11 years, overseen by the Parliamentary Ombudsman. The ombudsman published a special report last week, Monitoring of the Non-statutory Codes of Practice 1994-2005, on the working of the code. It reflects on the changing government culture towards disclosure over the years, and the lessons that can be learnt for the future.

The report starts by noting that Britain is way behind other countries in terms of openness. The US, Australia and many European countries have had statutory schemes for decades. British government, on the other hand, has been swathed in secrecy with generations of civil servants brought up on the phrase “need to know”. As the report says, this attitude was pithily summed up in Yes, Minister by the famous remark that open government is “a contradiction in terms. You can either be open or you can have government”. Indeed in 1995 the ombudsman said that “there is a tendency in some departments to use every argument that can be mounted, whether legally based, code-based or at times simply obstructive” to prevent information being disclosed.

The report sets out the history of the ombudsman’s monitoring of the Code of Practice and examines some of the landmark cases. These included refusals to provide information on internal social services guidance, export credit payments for the Ilisu dam project in Turkey, nuclear reprocessing at Dounreay, arms exports to Iraq, and internal policy discussions on the Human Rights Act. The report also highlights that delay is a main weapon of those who want to keep secrets. Eventually, many people get fed up waiting for the information and go away. The ombudsman says this must change: “. . . people want information when they want it, not when someone else thinks it appropriate for them to have it.”

The report concludes that through the efforts of the ombudsman much of the groundwork has been done to create a more receptive climate for the new freedom of information regime. It is not possible any more to operate under the ancient principle of the “need to know”, says the report: now there is a right to know and an expectation that information will be released. It should be withheld only if there is clear justification, supported by an exemption. Although this column and others have criticised the breadth of exemptions that still exist in the new Act, and wondered whether the culture of secrecy in government has really changed, it is still a welcome step in the right direction and this report is a fascinating insight into the story of freedom of information so far.

Stephen Cragg is a barrister specialising in public law at Doughty Street Chambers

E-mail: s.cragg@doughtystreet.co.uk

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