How and why governments pass laws that threaten their power

Why do governments pass freedom of information laws? The symbolic power and force surrounding FOI makes it appealing as an electoral promise but hard to disengage from once in power. However, behind closed doors compromises and manoeuvres ensure that bold policies are seriously weakened before they reach the statute book.

The politics of freedom of information examines how Tony Blair's government proposed a radical FOI law only to back down in fear of what it would do. But FOI survived, in part due to the government's reluctance to be seen to reject a law that spoke of 'freedom', 'information' and 'rights'. After comparing the British experience with the difficult development of FOI in Australia, India and the United States – and the rather different cases of Ireland and New Zealand – the book concludes by looking at how the disruptive, dynamic and democratic effects of FOI laws continue to cause controversy once in operation.

This chapter takes on overview of FOI. Freedom of Information (FOI) laws are difficult to resist in opposition but hard to escape from once in power. A commitment to an FOI law sends out strong messages of radicalism, change and empowerment that new governments find difficult to resist. However, when politicians regret their promises, as they often quickly do, the same symbolism makes the reforms difficult to escape from. It examines the history of the radical idea of openness, how it developed into the mainstream idea it is today and how it amounts to a battle between the symbol of the law and concrete opposition of institutions.

in The politics of freedom of information
The development of FOI in Britain

This chapters tells the story of the gradual movement, a tale of ‘modest incrementalism’ towards openness(Matthews 2015, 310). What began as too radical in the 1960s was becoming seemingly inevitable by the 1990s. Each ‘jump’ or reform moved FOI closer and entrenched its place on the agenda. Even the Thatcher governments, the most resolutely pro-secrecy, passed a series of access-to-information laws across local government and policy sectors. The chapter examines the frequent reform attempts through case studies of the Wilson governments (1964–70) and the Labour governments of Wilson and Callaghan (1974–79) and finally Major’s attempt to pass an ‘FOI light’ via his Code of Access. It ends by looking at the concurrent ‘locking in’ of transparency across local government in the UK.

in The politics of freedom of information

New Labour’s support for FOI was partially through willing embrace and partially through having it forced upon them. By the 1990s party backing, policy shifts and pragmatic opportunism had pushed the law centre stage.

FOI was partly thrust upon the Labour Party leadership. In the legislature, FOI’s long support in the Labour Party had built into a powerful current of cross-party support. It was also powered by the spread of FOI around the world and, perhaps mostly importantly, by rapidly shifting technology and changing public expectations in the area of information provision.

FOI was embraced by the leadership as very much a product of Labour’s eighteen years of out of power. FOI was an opportunistic policy that served to embarrass the secretive and ‘sleaze’-ridden Conservative government. It also chimed, after the experience of Thatcherism, with a current of Labour Party thought on breaking up power, and locked into a wide-ranging programme of constitutional reforms aimed at redesigning politics. More than this, the idea itself had obtained a powerful magnetic force. It was bound up with Labour’s sense of self and appealed as a policy that symbolised Labour’s radicalism and its new approach towards government and the people.

in The politics of freedom of information
A symbolic victory?

In the UK FOI policy developed in a series of phases. This chapter covers the first stage of the development covered the first eight months, from Labour entering power in May 1997 to the publication of the White Paper Your Right to Know in December 1997. At this point, FOI appeared to avoid the ‘symbolic’ trap and overt conflict so frequently seen elsewhere. A small, well-connected group of crusaders inside government took advantage of their own power and used a favourable context to neutralise opposition, with a rapid process lending momentum to a far-Reaching policy. Their efforts resulted in a hugely symbolic White Paper, rapidly formulated, that offered one of the most radical FOI regimes yet seen in the world. The vision was of a political redistribution of power opening up even the very centre of government decision-making (Terrill 2000). However, doubts remained over the policy, its workability and the levels of support for it in government.

in The politics of freedom of information
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The retreat becomes a rout

This chapter follows the process from January 1998 to the much delayed publication of the draft bill in 1999. The FOI bill ‘swapped’ policy team and, at this point, shifted the source of policy drive. With no internal champions the push came from a combination of the legislature, the media and the government’s own waning sense of duty to its manifesto.

The chapter focuses on the growing internal pressure from within the government to change the FOI commitment. Irvine’s combative approach led to short term success but a lack of consensus for moving forward. The proposed policy was threatening to key politicians and officials but also vulnerable due to the flaws within it. As Irvine’s radical plans stalled, senior figures, including the Prime Minister had growing doubts about the policy. Flaws in the White Paper were used to revise and weaken the policy while the fading power of the radical FOI group was reduced by Lord Irvine’s own personal loss of influence.

The key moment came in 1998 when FOI was transferred from supporter Irvine to sceptic Jack Straw and the Cabinet Office team broken up. This led to a much more detailed but much weaker draft FOI bill, which inserted a veto power for government and reduced the power of the independent reviewer. The original proposals were modified within the Cabinet committee. Yet the bill survived in part due to the insertion of a ‘five year’ implementation gap and the government’s lukewarm commitment to its reform agenda. However, the bill was not a wholesale watering down, as it added Parliament to the Act’s coverage.

in The politics of freedom of information
Asymmetric warfare

This chapter examines the legislative process in Parliament. A wide but fragile alliance sought to strengthen the bill but was caught between the desire to move the policy in a more radical direction and the fear that the government would drop the bill that, after all, attracted little electoral support.

The FOI bill reached Parliament following two highly regarded committee investigations in House of Commons and Lords. The government faced an increasingly assertive and expert alliance of Parliamentarians in both houses seeking a ‘stronger’ law, supported by campaigns by the national media. The government foresaw a difficult passage (Straw 2012). The government veto power was weakened and clauses made for better balancing tests when decisions to release were even.

An ‘ultimate’ confrontation was foreseen for the final House of Lords stage when a cross-party grouping of Peers appeared set to hold out for a much stronger piece of legislation. However, amid rumours FOI would be dropped and behind-the-scenes deals, the alliance in the House of Lords was forced to choose between losing the bill and having a slightly improved Act on the statute books. The FOI bill was then finally subject to an abrupt, curtailed final debate in the Commons.

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Survival and afterlife

The conclusion addresses the issue of why FOI survived, despite a lack of public interest. The UK FOI policy proceeded in distinct stages: an inside struggle followed by an external/internal conflict. The initial success of the White Paper was driven by insiders, rather than outside influence, aided by a particular context and the ignorance or disinterest of many key figures. In the later stages the drivers were very different as a complex interplay of factors kept FOI ‘alive’ as a policy. Government commitment to its manifesto generally and Blair’s public commitment to FOI helped ‘lock-in’ the government to some form of legislation when Parliament and the media applied pressure.

The chapter will briefly examine the UK legislation’s performance since 2000 across various parts of government. Drawing on academic studies (Worthy 2010: Worthy et al 2011) and official analysis (Justice 2012) it looks at the use and impact of FOI. It ends by looking at whether the fears of opponents and the hopes of supporters have come to pass.

in The politics of freedom of information
Two firsts and the greatest?

US: A long struggle by a small group of politicians and journalists over a decade led to numerous abortive attempts to pass legislation in the 1960s. The bill finally became the 1966 FOI Act following a long process of negotiation in the Senate and opposition, though crucially not rejection, from the then President Lyndon Johnson (Reylea 1983: Yu and Davies 2012).

Australia: the Australian FOI policy development, beginning in the 1970s and ending in 1982, was a long series of advances and retreats. The proposed legislation was alternatively weakened during its passage, with crusaders both in government and in the Senate seeking to preserve key features against bureaucratic and political opposition (Snell 2001: Terrill 1998).

India: the traditional view of Indian Right to Information Act is of a remarkable grassroots alliance of dedicated reformers pushed openness legislation from the local level upwards during the 1990s and 2000s (Roberts 2006: Sharma 2013). However the reality is more complex as RTI was the result of a combination of piecemeal reforms in the 1980s, shifts in elite power and support from parts of the bureaucracy and from Sonia Ghandi herself (Singh 2007: Sharma 2013).

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A legacy and an assault from within

This chapter looks at two countries that offer deviant cases-one where the legislation was passed through a consensual process and one where it was ‘imposed’ upon a new government by its predecessor.

The Consensus Model in New Zealand: agreement between senior politicians and officials led to a consensual process around developing policy, driven by those who, elsewhere, frequently formed the core resistance to the process (White 2007; Snell 2001). This led to a step-by-step, conciliatory process and a dynamic and flexible law, frequently judged one of the strongest in the world (White 2007; Aitken 1998).

The Imposed Model in Ireland: a series of controversial court cases and a scandal over infected beef in 1990s placed FOI on the agenda of two successive reformist governments. In 1997 legislation was passed as a ‘legacy’ policy in the dying days of a government which was then replaced with a successor deeply sceptical of FOI (Kearney and Stapleton 1998). The process meant FOI became a contentious and controversial issue from its inception (Felle and Adshead 2008). This represents another reason for FOI being passed, seen also in South America, whereby legislation is fostered upon a government as a legacy issue (Michener 2010).

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