Ex-ministers Lord McNally and Tom Brake launch attack on civil service over "rigged" Freedom of Information review

Coalition justice minister Lord McNally warns FoI review panel is a "rigged jury" – while Lib Dem chief whip Tom Brake attacks Jeremy Heywood and Gus O'Donnell

By matt.foster

20 Jan 2016

The civil service's attitude to Freedom of Information laws has come under fire from two former ministers in the coalition government, with a review into the transparency law dismissed as being "rigged".

The government launched a review of the FoI act last summer, asking a panel headed by former Treasury permanent secretary Lord Burns to consider whether the transparency law allows safe space for proper policy discussion and whether it places too much of a burden on government departments.

But the review has been criticised by campaigners and media organisations as an attempt to stymie open government, with Labour launching its own rival commission to look at how the law could be strengthened.

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Addressing Labour's commission on Tuesday, former justice minister Lord McNally – who oversaw responsibility for FoI at the Ministry of Justice – said he had fought attempts to weaken the legislation during his time in office, and attacked the make-up of the review panel, which includes noted FoI-sceptic and former home secretary Jack Straw.

Lord McNally said: “What worries me is that under the coalition the Conservatives knew they couldn’t get rid of the FoI. Within weeks of having a majority they set up this commission, with this membership."

He added: "All I can say is somebody has a sense of humour ... Talk about a rigged jury.”

McNally – a Liberal Democrat peer – told the Labour review that officials too often regarded the release of information under FoI as "deeply embarrassing" and said former civil service head Lord Kerslake, who has spoken up in favour of the act in recent weeks, would find himself "drummed out of the brownies" for doing so.

Speaking at the Institute for Government last year, Cabinet secretary Sir Jeremy Heywood said the FoI act had been a "very big positive", although he said the law imposed "extra costs" and had "some chilling effects" on the workings of government.

But the "chilling effect" argument was rejected by Lord McNally, who told the Labour review: "I certainly didn’t find any chilling effect in the nature of the advice I received. I think it’s a myth. It is an excuse put forward by people who have made up their minds."

A 2012 review of the Freedom of Information act by MPs on the justice select committee was unable to conclude "with any certainty” that FoI had had inhibited decision-making, although it did acknowledge that there were widespread concerns about the legislation at the top of government.

McNally's testimony came as Lib Dem chief whip Tom Brake – who served as deputy leader of the House of Commons in the coalition – launched a scathing attack on both Heywood and his predecessor Gus (now Lord) O'Donnell.

O'Donnell – who will appear before the Burns FoI commission today – claimed recently that a fear of plans being disclosed under FoI may mean civil servants are having to "mentally" prepare for a British exit from the European Union at the forthcoming referendum rather than do formal contingency planning.

But Brake hit out at O'Donnell and Heywood's respective remarks on FoI, arguing that publicly-voiced doubts about the act from the top of Whitehall may lead officials to "self-censor".

Brake said: "Sir Gus suggests that civil servants will not be writing down Brexit plans, but is that because senior mandarins have scared them into thinking that they cannot write things down because they will be exposed through FoI—when there is no such risk—or because it serves the chancellor’s interests to require them not to?"

And he added: "Sir Jeremy has spoken of the 'chilling' effect of the Freedom of Information act. In the interests of fairness, I should point out that now Sir Jeremy simply wants to make the FoI rules clearer, without making any substantial changes. 

"If I can paraphrase Vince Cable, in the last few weeks we have witnessed his transformation from 'Sir Cover-up' to the 'Sir Lancelot du Lac' of FoI. Which incarnation is likely to have the longer shelf-life? I know where my money is."

The Lib Dem chief whip argued instead for the act to be broadened to cover private sector providers of public services, saying a "growing proportion of work that was previously undertaken by the public sector, which is subject to FoI, is now undertaken by other organisations". Lord McNally told the Labour review that Conservative ministers had blocked attempts to broaden the act's remit during his own time in office.

A recent Civil Service World study of more than 4,000 officials found that 50% would back the introduction of charges for the release of information under FoI rules. 

But the CSW survey also found some sympathy for extending the act to private providers, while the majority of those asked (42%) said they believed they had enough resources to properly deal with requests for information. Thirty-eight percent said they felt under-resourced, while 20% said they did not know.

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