Lord Falconer – 2004 Speech to the Law for Journalists Conference


Below is the text of the speech made by Lord Falconer on 26th November 2004 to the Law for Journalists Conference on 26th November 2004.

I am delighted to be here to speak to you today.

Because today is an important milestone on our path to good government: government which is both more open, and government which is more effective.

This morning, I signed the Commencement Order which officially brings the Freedom of Information Act fully into force on 1 January 2005 – now barely a month away.

This is, I believe, an important step towards the realisation of a long-promised commitment: a commitment to openness, to freedom of information, to radical reform.

I want to talk to you today about this reform:

– what it means, to you and to the public

– what we’re doing to make it work

– and what you need to do for your part to make it work

Signing the Order this morning is an important step. But it is only a step. We will deliver on our commitment to freedom of information when the Act comes into force in a few weeks’ time. But only in part.

Because real delivery will only take place when freedom of information is integrated fully into what government does. Now, and in the future. Not a bolted-on afterthought. But fully part of how government does its business.

Getting even to this point has been far from easy. Reaching the stage where the implementation of the legislation is only a few weeks away has been a hard, hard road.

No-one should be in any doubt about how tough it has been, how tough it is being now, and how tough it will be to change the way governments do things.

When people talk about cultural change, the glibness of the phrase can sometimes not get anywhere near catching the scale of the challenge.

Cultural change in Whitehall is exactly like turning round the classic ocean liner. Opening up Whitehall and introducing freedom of information is a titanic task.

But it’s also a vital task – and vital that it succeeds.

It’s essential that government finally embraces openness.

The benefits of open government are clear: transparency, accountability, honesty. That’s the kind of government which people want to see.

Making sure that people get those benefits is hard. But it’s worth it.

Politics rarely achieves anything without a struggle. Securing freedom of information has been a real struggle. But: no pain, no gain. The difficulty of opening up Whitehall is a measure of precisely how important it is to do it.

From January 1, the Act puts in place, for the first time in this country, a presumption of openness. A presumption that there is general public interest in access to information.

And, just as importantly, it also recognises that this presumption, in order to enable the government to govern, must have limits.

Just as the Act itself struck a balance between openness and retention, so we shall strike a balance in its application.

Good government is open government. But good government must be effective government too.

Without openness we cannot hope to encourage greater participation in our democratic life.

Without openness we cannot hope to build public confidence in the way that we are governed.

And without confidence we cannot develop the credibility and effectiveness of public authorities, both in Whitehall and beyond.

These objectives – greater democratic engagement; greater confidence in government; greater credibility and effectiveness – are objectives for which all of us should strive.

One of the tests of the success of this Freedom of Information Act will be the extent to which it improves the quality of government.

Openness and transparency lead to better decision-making.

Greater accountability will improve standards.

The Act is designed to bring about a more transparent and honest dialogue, and to make services more responsive to the public.

We have cast the net widely.

The scope of the Act is almost without international precedent, with over one hundred thousand public authorities covered by the legislation.

From those who provide the services on your doorstep to the largest Government department, from the regional health authority to the local doctor’s surgery, and from 10 Downing Street to the local school: the Freedom of Information Act applies to them all.

And we will not be passive in our approach.

This is not about leaving the statute on the shelf – sitting back and waiting to see whether it will succeed or fail.

In fact, it’s the opposite.

In our preparations for 1 January 2005, we have sought to learn the lessons from other Freedom of Information jurisdictions overseas. Some jurisdictions in other countries left Freedom of Information to manage itself, leaving the policy rudderless. We will not do that.

A clear lesson is the crucial importance of leadership and management not just in the lead-up to a new regime, but in the months and indeed years that follow.

I will make sure this happens.

We’ve done a lot – over a number of years – to turn the aspiration of open government into a reality. And we will do all we can to make the reality work.

My Department has been focussing its energies primarily on preparations within central government; the Information Commissioner has been taking the leadership role across the broader public sector. I believe that that division of labour has been invaluable in preparing the way for successful implementation of the Act.

I am determined to make the Act work. I urge you to judge us by what we do to make it happen, and by what we have already done:

Today, as well as signing the implementation order, my Department is publishing a revised Statutory Code of Practice showing what public authorities must do to make a success of the Act.

A month ago, my Department published clear and comprehensive guidance aimed at officials and lawyers in government departments.

This guidance will ensure that a potentially complex piece of legislation, with connections to other legislation and information access regimes, is consistently and appropriately applied. It provides a balanced and responsible approach to the proper application of the Act.

My Department has also established a Central Clearing House to assist officials in dealing with complex requests for information. This Clearing House will act as an expert advice centre from which advice on the appropriate application of these access regimes can be sought by officials in central government departments. It will be responsive to emerging case law as our practical experience develops.

And information is for all, not the privileged few. We are clear that no individual should be priced out of the right to know.

Under the fees proposals that I announced last month, there will be no charge for the majority of information supplied under the Freedom of Information Act.

The Government will lay fees regulations before Parliament shortly. There will be no charge for information that costs public bodies less than £450 to provide. And for central government, the cost ceiling will be set at £600. This is the right approach. It confirms our commitment to making open government a reality for all.

What does all this mean in practice ? What difference will FOI make to the public ?

One answer is the difference it is already making.

In many areas, Freedom of Information is already making a significant difference, before the full introduction on 1st January.

Look, for example, at the schemes set up by the police forces, by the Foreign and Commonwealth Office and the Department of Health, which – for example – now publishes information on local MRSA rates on its website.

Major announcements, such as the assessment of the five economic tests for joining the Euro, are now underpinned by the publication of supporting studies, including externally commissioned studies on technical economic policy issues.

And my own Department has published, for the first time, its evidence to the Senior Salaries Review Body, which makes recommendations about the pay of the judiciary.

I believe this is all imaginative, user-friendly and interactive information – provided as a matter of course, rather than after being prodded to do so. Communication direct to the public.

But we will go even further than this

Where, for example, we see scope in raising the standard for Whitehall publication schemes, we will take it.

By referring to a departmental publication scheme, individuals will be able to directly access information, including a wide range of background factual analysis behind policy decisions and contract information.

All departments have publication schemes in place already. What we need to do now is develop this. My department is encouraging others within government to review their publication schemes continually, so that all meet a ‘gold standard’, giving the public easy access to information without the need to make a request.

And, in government, we are committed to pro-active releases of information, including releases of the background material assembled and analysed in the development of policy and the making of decisions.

Let me give you a concrete example:

Police forces up and down the country have already begun to release more information about speed cameras. Information that responds to genuine public concerns about their use. Information that is proactively released in publication schemes.

And now we’re going further.

In January and April of next year, the Department for Transport will publish extensive data on the location of cameras and ‘before and after’ casualty rates. Data of direct interest to everybody who uses the roads across the country. Freely available in the department’s scheme.

A simple, powerful example of our commitment to release information without anybody asking us to do so.

Releases of information of this kind, some of which represent information released for the very first time, demonstrate our commitment to a clear step-change in terms of the openness that people can expect from government.

But let me be clear too – about what Freedom of Information will not be.

The Freedom of Information Act does not signify a ‘free for all’.

It does not mean disclosure of every piece of advice.

It does not mean every discussion and disagreement becomes the subject of public debate.

When the Bill was going through Parliament there were people who said it did not go far enough – that the exemptions were too numerous and that no provision should have been made for a ministerial override, even one so narrowly drawn.

But the exemptions are there for good reason. If the balance goes too far the other way, good government would be impossible.

Governments of all political stripes, need to be able to reflect upon policy options. To share their ideas and proposals candidly before collectively deciding on an official policy line.

FOI will not change this. It is not in the public interest for policy to be formulated in an atmosphere that prevents Ministers and officials from thinking across the whole range of options.

Similarly FOI does not allow for real-time access to Cabinet minutes. And nor should it. There needs to be balance to allow access to information, but also to allow scope for private debate, discussion and dissent.

But, once policy decisions have been publicly taken, the supporting information – the background and the statistical facts – used to adopt the policy position should be made available.

Let me give you some examples of what I mean:

If the Government is making decisions on its renewable energy programme, it is important to make available the empirical evidence on which decisions were made. Information which would help members of the public understand the basis on which decisions were made.

But it would hinder good government, if we were to make available the full range of policy advice Ministers considered. To do so would hinder innovation. It would risk undermining free and frank policy-making in the future.

And let’s take another example where balance is needed – in the international arena.

No-one could argue that information provided to us in confidence by another state should be disclosed in all circumstances.

There will be occasions where the clear effect of disclosure would be to sour the relationship between two countries. It would send out a highly negative message to our international partners about the value we place on the information they provide to us.

This would not be in the public interest, nor the national interest.

Nobody really disagrees that exemptions are necessary to protect crucial information in areas such as defence, foreign affairs or national security.

In these sensitive areas, it is right that many of the discussions held and decisions taken should be shielded from full public glare.

So, we need to look at freedom of information in terms of balance.

In individual cases, we need to look at the balance between the need for confidentiality as a means of promoting effective government, and openness as the best means of promoting that same objective.

In the months and years to come, there will no doubt be a great deal of debate about whether particular, individual documents should be disclosed.

And, no doubt, these individual decisions will be held up as examples of the Act being either a complete failure, or a resounding success.

But what we should really be looking for is whether there is a shift in approach across the piece. Whether public bodies are becoming more open, whether the standard of information and of debate is being raised.

As journalists you have a clear part to play here. You are the prism through which the public will often look at open government.

We are taking our responsibilities seriously. We are determined to make this work in a way that is pragmatic, sensible and shifts the balance in a very real way.

I hope you will share this approach. You need to take your responsibilities seriously too.

The media in all its forms – television, radio, advertising, newspapers, the internet – now penetrates all our lives every day in a way that would have been impossible thirty years or more ago.

With that increased influence comes an increased responsibility.

From January, the public’s right to know – and your right to know – will be supported in statute and enforceable in practice.

Freedom of Information will give you as journalists access to more information than has been made available before.

This is a powerful new tool and I hope that you will welcome the opportunity to use it constructively.

One of the reasons why freedom of information has been vital in opposition, but unappealing in government is because it presents risks.

More cautious Governments would say that freedom of information means more challenges. More questions. More complaints.

But it is right that we do this. Let me give you a recent example:

The Press Gazette, just two weeks ago, reported how the Ipswich Evening Star approached the Suffolk constabulary for a look at files on a notorious, but now decades-old, unsolved murder.

The police dealt with this as if it were a request on the 2nd of January. They opened their files.

It led to a great splash in the paper.

But more importantly it started to build a better connection between the media, the public institution – in this case the police – and the public.

There was openness and people could see for themselves the facts of the case and make their own judgements based on all the information.

Under Freedom of Information, the public themselves will have the opportunity to have access to the information and form their own view.

We in government and you in journalism have a clear responsibility to help them in doing so.

It is in our interest as government to show people how government reaches decisions in their names. Freedom of information, done properly, will mean better government.

And it is in your interest to use the act wisely, so that people can see the full picture. Freedom of information, used properly, will mean better journalism.

The debate about freedom of information in the coming weeks will inevitably focus on the details. What is being disclosed, what will be exempt.

That’s important. But the argument over freedom of information runs at a deeper and even more important level too.

Freedom of information is an important step – a bold and significant step – in how people and the state work together. With the media as a key agent in that relationship.

It is the next stage in a revolution which, step-by-step, is reshaping the relationship between citizen and state – strengthening the connection between government and the public we serve.

It will change the relationship between the citizen and the state, between school and parent, between patient and hospital, even between politician and journalist.

For too long, freedom of information was an aspiration of political parties – more particularly, my political party – when in opposition. And for too long, it remained for political parties an aspiration if or when they reached government.

From January 1, that is about to change.

From January 1, freedom of information can bring about a real change in the quality as well as the quantity of information that both government and the media put into the public domain.

From January 1, freedom of information can improve the quality, accuracy and completeness of the public debate.

From January 1, freedom of information can mean that the relationship between the government and the people, and between the media and the people, can be different. Can be better. Can be more open. More transparent. More honest.

Those are objectives worth striving for.

And we both have a job to do.

We as politicians in government. You as journalists in the media.

Not for the benefit of government. Not even for the benefit of the media. But for the benefit of the public.

Let’s get on and do it.