The End of the Beginning? The Freedom of Information Bill 1999
| Date | 01 December 1999 |
| Published date | 01 December 1999 |
| DOI | http://doi.org/10.1111/1467-6478.00140 |
With the publication of its plans for a Bill on Freedom of Information,
the new Labour government has been accused of abandoning its promise
of greater openness in the way government is conducted in this country
and its proposals are seen as a departure from the highly applauded con-
tents of the White Paper published in December 1997. The draft Bill has
been pilloried by friend and foe alike. It is seen as a litmus test of Blair’s
government and where it really stands on the citizen/state relationship
and how the future balance will lie between the executive and
Parliament. The authors examine the events surrounding the publication
of the Bill and its scrutiny by the pre-legislative select committees in the
Commons and Lords. The Home Secretary has hinted at possible con-
cessions in the light of fierce criticism. Is this a Bill worth saving and how
can it be improved to capture a more appropriate balance between con-
fidentiality, secrecy, and openness in the conduct of modern governance?
The Labour government elected into office in 1997 has embarked on the
most radical reform of the British constitution since the nineteenth – or
possibly even the seventeenth – century. No area has remained untouched
by its reforming zeal. On many details and principles of reform it has
attracted criticism from its political adversaries and none will be more res-
olutely expressed than that against the proposals to reform the House of
Lords. With its proposals to introduce freedom of information (FOI) how-
ever, it has managed to upset its own supporters or at least those who
looked at Blair’s government as the natural vehicle to sweep away the old
way of doing things within the British constitution. This old way included
© Blackwell Publishers Ltd 1999, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* Law School, University of Hull, Hull HU6 7RX, England.
Patrick Birkinshaw served as a specialist adviser to the House of Commons Select Committee
on Public Administration in its examination of the White Paper, Your Right to Know and the
Consultation Paper and Bill, Freedom of Information. Pre-legislative hearings were also con-
ducted by a special committee of the House of Lords.
538
JOURNAL OF LAW AND SOCIETY
VOLUME 26, NUMBER 4, DECEMBER 1999
ISSN: 0263–323X, pp. 538–54
The End of the Beginning? The Freedom of Information
Bill 1999
PATRICK BIRKINSHAW* AND NICHOLAS PARRY*
539
© Blackwell Publishers Ltd 1999
social deference to our superiors, excessive discretion and secrecy in gov-
ernment and administration, the centrality of the Crown as a legitimating
device in our government which is unparalleled in any other contemporary
democratic state, and the firm belief in representative democracy and the
convention of Ministerial responsibility. The public interest inhered in the
way tradition was organized and tradition maintained a rigid barrier
between the masses and the élites; between insiders and their confidantes
and outsiders.
If concessions were previously made to our secret constitution, they were
made on a grace and favour basis, the most recent example being the 1994
code of practice of John Major on Access to Government Information.1This
1994 code introduced an administrative and not a legal access regime which
was administered by the Parliamentary Commissioner for Administration.
The code was tagged onto his governing statute. Since 1974, and through-
out the long years of opposition, the Labour party has supported freedom
of information Bills. Reluctant support was given to a Private Member’s
Bill in 1979 immediately before the loss of office to Mrs Thatcher. Neil
Kinnock stated in 1992 that it would be among the first Bills of an incom-
ing Labour Government. For Tony Blair freedom of information legisla-
tion was essential to bring about a culture change in British government. It
would be a signal of a ‘new relationship’ between the people and govern-
ment. ‘This fundamental and vital change in the relationship between gov-
ernment and governed’2would be at the heart of his reforms on access to
information. The new government was over two years into power before a
FOI Bill was published;3its publication had been subject to numerous
delays – in spite of the fact that many western democratic states had mod-
els which could act as inspiration for the British model. This may be virgin
territory in the United Kingdom but it has been well travelled overseas.
Why the sense of disappointment, indeed outrage on the publication of
this Bill? Generally, there was a prevailing sense that underlying the pro-
vision of a right to information held by public bodies, the Bill was char-
acterised by numerous secrecy maintaining devices. After two years in
power the initial declarations of building a new constitution fit for a new
millennium had been tempered by caution even defensiveness. The gov-
ernment had suffered embarrassing leaks and publications of sensitive
information. More particularly, the Bill, which is part of a consultation
package, was seen as a wholesale abandonment of the liberal principles
contained in the White Paper on Your Right to Know which was published
along with an enthusiastic endorsement by the Prime Minister in
1Code of Practice on Access to Government Information (2nd ed., 1997). For a critique of the
code, see P. Birkinshaw, ‘I only ask for information … ’ (1993) Public Law 557.
2Cabinet Office, Your Right to Know: Freedom of Information (1997; Cm. 3818), preface by
the Prime Minister.
3 Home Office, Freedom of Information (1999; Cm. 4355) – published in May 1999.
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