Thursday, July 26, 2012

OIA review: An appalling conclusion

Last night I read through the first couple of chapters of the Law Commission's review of the Official Information Act [PDF], covering decision-making and protecting good government. The decision-making chapter is pretty sensible: basically calling for better guidance from the Ombudsman on the interpretation of the Act, and greater access to past decisions, so they can be used as a guide by agencies and requesters. This is sensible stuff, and reflects current practice (at least from sophisticated users who have read the Practice Guidelines), and it would significantly improve matters.

The chapter on "Protecting good government" is another story. This is about the most controversial withholding clauses - "free and frank advice" and "confidential advice" - which are routinely abused to protect Ministers from accountability and hide embarrassing information. Reading through it, you get the overwhelming impression that the Law Commission thinks there is too much transparency at the moment, and we would be better off with more secrecy.

This is simply an appalling conclusion. But its not surprising. Law is made by those who turn up, and skimming the list of submitters, the absence of OIA users is notable. I'm guilty here - I was busy, and so ended up not submitting on the review. Neither did OIA academic Steven Price, researcher Nicky Hager, or other journalists and academics (though some media organisations did speak up). In our absence, the field was left to officials, each with their horror story of tiresome requesters polluting the sacred temple of government with their "fishing expeditions" (otherwise known as "wanting to know what the fuck is going on"). It is unsurprising that this material therefore coloured the Commission's conclusions. At the same time, I would have expected a more critical attitude from the Law Commission towards such obviously self-interested submitters.

So the Law Commission is suggesting a redrafting of these provisions. And in the process, they are strengthening some of these provisions. The "free and frank" clause, for example, which presently only protects "advice", will be strengthened to include factual information as well (so Ministers will be able to hide the fact they were ever told something). And the "confidential advice" clause, which presently protects information only until a decision is made (on the basis that government can't possibly operate with us dirty peasants looking over its shoulder) will have that qualification removed, turning it into a blanket confidentiality clause. Together, these are a substantial rollback of transparency, which will cloak significant portions of government in secrecy again.

And then there's the monarch clause. At present, communications with the sovereign or her representative can be withheld, basically on pre-democratic grounds that "the counsels of the Crown are secret" (i.e. government is not the business of mere peasants like us). On the urging of the Cabinet Office, the Law Commission has decided to expand this to communications about the sovereign, which they consider to extend to all members of the royal family. Most obviously, this will mean that information about the cost of royal visits will be off-limits (it being impertinent to ask). But it will also mean that we will no longer be able to scrutinise our governments involvement in plans to e.g. change the royal succession. Transparency and control over our government will be sacrificed in the name of a deferential and servile attitude to foreigners.

Overall, I am not impressed so far. Bureaucrats are using the Law Commission to try and roll back transparency, and reintroduce secrecy and unaccountability for themselves. And we should not let them get away with it.