Josephine Berry on Fri, 26 May 2000 09:53:39 +0200 (CEST)

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<nettime> Draconian Britain,2763,223588,00.html

Four threats to the public's right to know

Bills going through parliament will hinder watchdog role of press and
bolster state secrecy

Freedom of information: special report

Clare Dyer, Legal correspondent
Monday May 22, 2000

Who first exposed the scandal of the high death rate of babies with heart
defects in Bristol? Who warned that cows with BSE could pose a threat to
humans, when the government was categorically denying there was any risk?
In both cases, the early warnings came from the media.
A probing, questioning press is the citizen's prime safeguard against an
officialdom whose natural reaction is to try to hush things up. Britain's
culture of secrecy is buttressed by harsh libel laws and weak rights of
access to official information.
The freedom of information bill, now going through parliament, gives fewer
rights to official information than those enjoyed by citizens of the US,
Canada, Australia, New Zealand and the Irish Republic. In some respects,
the rights are weaker than those under the last Tory government's open
government code.
But three other bills well on their way to enactment with much less media
attention also threaten the public's right to know or the ability of
journalists to perform their watchdog role: the local government bill, the
terrorism bill, and the regulation of investigatory powers bill.
The freedom of information bill has drawn criticism from MPs and peers of
all parties, yet ministers have made minimal concessions and the bill is
progressing through parliament in essence unchanged. There are blanket
exemptions for whole categories of information.
Not only are sensitive policy discussions excluded - a standard exemption
under FOI legislation worldwide - but also the factual information on which
policy decisions are based, which other governments make available to their
citizens. Scientific advice, on BSE for example, opinion polls, and
submissions by lobbyists would all be exempt.
Where information was exempt, the new information commissioner would be
able to order disclosure in the public interest, but a minister would be
able to veto the order.
Under a late concession, the veto would have to be exercised by a cabinet
minister. But under Ireland's 1997 Freedom of Information Act, the
information commissioner can compel disclosure on public interest grounds
and cannot be overruled by ministers.
The FOI bill covers local authorities, NHS trusts, quangos and a wide range
of public bodies as well as government departments. Information gathered
through investigations is exempt, even if the investigation is over and
prosecutions finished. That rules out much information about safety
hazards, including the Paddington rail crash, deaths on building sites, and
data falsification by BNFL- the type of information which has proved a
powerful tool in the US for holding careless companies to account. Police
investigations are exempt too, despite the Macpherson report's
recommendation that the police should be fully accountable under freedom of
information laws.
Another clause exempts "commercially confidential" information - the excuse
already used by the government to deny the Consumers' Association
information on pension and endowment misselling. A catch-all clause, which
applies to public bodies as well as government departments, allows
disclosure to be refused if "in the reasonable opinion of a qualified
person" - a minister or official - it would "prejudice the effective
conduct of public affairs".
The local government bill will take away existing rights to information
about local authority decision-making. Now, most important council
decisions are taken at open meet ings of the council or its committees,
with council papers available beforehand. Under the bill, most decisions
will be taken by the mayor or leader, individual councillors with executive
powers, or a cabinet of councillors.
Cabinets will be able to sit in secret and only have to publish their
decisions once taken. Councils will be able to take decisions about
housing, social services, and education in much greater secrecy. People
will lose their existing rights to know, which apply only where meetings
are open. They will have no right to know what decisions are about to be
taken or to see reports and official papers in advance.
The terrorism bill puts journalists in danger of arrest, search and
questioning, and having material seized if they cover the activities not
only of organisations most people would regard as terrorist, but also
campaigning bodies, protesters and even workers involved in industrial
disputes. The bill widens the definition of terrorism from political causes
to include religious or ideological causes, and the definition of violence
to include violent action against property as well as people. Poll tax
demonstrators, road protesters or groups taking action against GM crops
would come within the ambit of the bill.
It would become a crime not to report suspicions about certain terrorist
activities, but the definition of terrorism is so wide that journalists
could find themselves expected to inform on a large range of campaigning
organisations or activities.
Photographers and cameramen in Northern Ireland who cover assemblies and
funerals could be forced to hand over film. The bill makes it a criminal
offence to collect information likely to be useful to a terrorist - which
could include politicians' home addresses.
The regulation of investigatory powers bill will jeopardise journalists'
sources and confidential information. The bill will allow the state to
intercept email and telephone communications across private networks, and
force the decoding of scrambled information, for the purposes of detecting
crime, preventing disorder, for public safety, protecting public health,
and even "in the interests of the economic well-being of the United
Law enforcement agencies would be able to force individuals to hand over
encryption keys and passwords needed to decode encrypted data, and those
individuals would be barred from telling anyone else, including an
employer, about the demand. Those who lose or forget their password would
risk a jail sentence of up to two years unless they could prove that it was
forgotten or lost.
The four bills add up to a legislative programme which, says the Society of
Editors, "will erode current safeguards, extend state powers, outlaw
legitimate journalistic investigation and bolster state secrecy".

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