On Wednesday 7th there was a brief diversion from the progress of the consideration of amendments to the Health and Social Care Bill. Baroness Thornton proposed a motion that the House should be able to see the risk register pertaining to the Bill. The Information Commissioner had ruled that it should be disclosed under the Freedom of Information Act, but the Department of Health had appealed against that ruling. So either the House had to proceed with its consideration of the Bill without knowing what was in the risk register, or it had to wait for the result of the appeal, which in turn might be taken further on appeal, and it would cause considerable delay. The uncertainty arose because under the Freedom of Information Act 2000, s.35, there is granted an exemption from the right to know if the information in question is held by a government department and relates inter alia to the formulation or development of government policy. But even where the s.35 exemption applies, as it did to the health risk register, it may be ignored if the public interest in disclosure outweighs the public interest in keeping the information confidential. The arguments for keeping certain government information confidential were put in the debate and in an earlier one on the same issue by Lords Butler and Clement-Jones, that automatic disclosure ought not to be used to damage the ability of the government to debate policy and make decisions without being hindered by premature external comment; and that disclosure could have a chilling effect on the candour with which persons involved in debating policy make their contribution. Baroness Thornton’s motion was lost.
I set this out in order to illustrate just how difficult it has become to decide what is secret and what is not. The Information Commissioner has the extremely difficult task of balancing two public interests against each other under the FOI Act. Reasonable people could go either way. All of which reinforces the argument I made the other day that it has become hard to make sense of what is kept secret and what is disclosed under the Data Protection Act and the FOI Act. In general we do not seem to know, or agree, when matters are confidential and when they are not, and what is the public interest that might be invoked as an excuse for revealing otherwise naturally confidential material. So phone-hacking is generally regarded as immoral and illegal (although few complaints were raised when Prince Charles’ conversations with the now Duchess of Cornwall were published in 1989); but the sensitive and even life-threatening material revealed by wikileaks does not seem to be regarded as equally wrong. Some injunctions to guard against publication of the details of the life of a famous person are regarded as unnecessary, others acceptable. Is it permissible to break the law in order to secure information that is subsequently judged to be in the public interest, e.g. it is said that some investigative journalists pay to get confidential material, or bug conversations? There may be a public interest defence to illegal phone-hacking, and if so, what is the definition? Perhaps the Leveson and other inquiries will clear all of this up. It would be good to have some sound principles of privacy/openness in private/public life, although the need for a judge or the Information Commissioner to balance competing public interests in this sphere can probably never be dispensed with.