The Scott Report
This is a judicial enquiry set up under Lord Justice Scott by the Prime Minister following the collapse of the prosecution in the Matrix Churchill case following the decision of the trial judge to disclose to the defence some material and reports of which Ministers had signed Public Interest Immunity Certificates. The Inquiry was looking at a range of issues concerning arms sales to Iraq during the 1980s. The Inquiry took evidence from senior Ministers and officials, including the Prime Minister and his predecessor and the Cabinet Secretary. Although the remit of the enquiry is narrower and more specific than that of the Nolan Committee, press commentators have seen its proceedings as an important element in the current debate about standards in public life. The Inquiry's report was published early in 1996.
The theme of secrecy runs throughout the Scott report. It links the refusal to reveal to Parliament the change in the guidelines on the export of military equipment; the insistence that public interest immunity should be sought for policy advice documents regardless of their actual contents; and Scott's criticism of the way in which decisions on arms export license are taken.
The present culture was illustrated by Lord Howe, when he told the Scott inquiry that:
"...there is nothing necessarily open to criticism in incompatibility between policy and public presentation of policy...It [i.e. the Government] is not necessarily to be criticised for difference between policy and public presentation of policy"
A Freedom of Information Act would go some way towards asserting the importance of the public's right to know. It will not produce absolute openness, since a considerable list of exemptions are likely to be needed, but it will shift the norm in favour of greater disclosure.
Another factor which has undermined any potential impact of the Code on traditional Whitehall culture has been the lack of government publicity for it - a point on which the recent report of the Select Committee on the Parliamentary Commissioner for Administration expressed criticism. Although some welcome national press advertising for the Code has been undertaken in recent weeks, it received minimal publicity during the first two years of its operation.
As a result, relatively few requests have been made under it, and there have been so few Ombudsman investigations - only sixteen were begun in 1995 - that no great impact on Whitehall norms could be expected. Indeed we understand that because of the low level of complaints, some of the new staff taken on by the ombudsman's office to handle the anticipated level of open government work have since been reallocated to conventional maladministration cases.
The Matrix Churchill case
Would a Freedom of Information Act have made any difference in relation to the arms to Iraq affair? Ministers have argued that it would not, suggesting that most of the relevant information would have been protected under the various exemptions in any such legislation, for example relating to policy advice, commercial confidentiality and the work of the security services.
Even more sensitive, exempt, information could in theory also be disclosable under the "public interest override" provisions that might be expected in such an Act. The Right to Know Bill, introduced by Mark Fisher MP in 1993, allowed exempt information to be disclosed if there had been wrongdoing and if in the circumstances the potential harm from the disclosure was outweighed by the public interest in openness. A comparable public interest override appears in the Code of Practice on Access to Government Information. Such provisions would mean that, in circumstances such as those which led to the setting up of the Scott inquiry - where a clear public interest justifying exceptional disclosure had been acknowledged - much normally confidential information would become available.
Finally, a Freedom of Information Act might provide for a public interest defence to charges under the Official Secrets Act 1989 and protection against disciplinary action for civil servants who disclose information in the public interest in particular circumstances.
The Scott Report is sceptical as whether these arguments justify protecting the entire class of advice, regardless of the sensitivity of actual documents concerned. Sir Richard concluded: "I find it difficult to accept that these are satisfactory grounds for a class claim in the first place." Although Sir Richard was referring to the class claim advanced in relation to Public Interest Immunity during criminal proceedings, it may be reasonable to suggest, that this particular comment applied to the justification advanced for protecting the entire class from disclosure in other circumstances also.
Sir Richard's analysis of the legal rulings on Public Interest Immunity illustrate a strand of judicial scepticism about some of the arguments against the disclosure of policy advice. That may be reinforced by the Chancellor of the Exchequer's decision in April 1994 to publish the minutes of his monthly meetings with the Governor of the Bank of England, precisely the kind of advice whose disclosure had previously been most fiercely resisted.
The Scott Report suggests an alternative approach, which is essentially to abandon policy advice as a "class" exemption and allow such material to be withheld on a "contents" basis only. This implies that advice could be withheld only where it was shown that to disclose it might be harmful to the decision making process.
Exemption 2 in the Code applies to "Internal discussion and advice" and exempts:
"Information whose disclosure would harm the frankness and candour of internal discussion, including:
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