BBC better protected than ministers by Freedom of Information, says Jack Straw

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The BBC is better protected than the government under Freedom of Information laws due to a "quirk of the drafting of the act", Jack Straw has told MPs.

Mr Straw, who helped write the Act, argued there were "ridiculous" drafting errors and it should be tightened up.

A Supreme Court case showed the BBC had "far clearer" exemptions in some areas than the government, he said.

The information commissioner has said fears about FOI's effect on policy-making are "greatly overdone".

The Commons justice committee is holding an inquiry into the operation of the Freedom of Information Act 2000, introduced by the previous Labour government under Tony Blair.

'Zeitgeist'

Mr Blair has since said he was an "idiot" for introducing it - likening it to handing his critics a mallet with which to hit him over the head.

Asked about the comments Mr Straw laughed and told the committee: "It was his idea. I have an alibi."

Start Quote

What's sauce for the goose is sauce for the gander in my opinion. If it's good enough for the country's largest journalistic institution it's good enough”

End Quote Jack Straw Former home secretary

He said the legislation had been a product of the "zeitgeist" of the early 1990s and "was not thought about in all that seriousness" before Labour came to power.

Mr Straw said it was "not a particularly well constructed act, intellectually" and suggested that areas that needed rewriting were those relating to protecting collective responsibility, protecting a "space" for confidential advice in policy making and a "ridiculous drafting error" that meant that if the rarely-exercised ministerial veto was used, it did not apply "for all time".

He said Labour had not thought clearly enough about how the Act would operate and, while he did not believe it should be scrapped, he had particular concerns about sections 35 and 36 with which there was a "very considerable problem".

'Crazy'

Section 35 exempts information used in policy formulation and development from having to be released but it is not absolute and must be weighed against the balance of public interest. Section 36 relates to information which would "prejudice the maintenance of collective ministerial responsibility" or "inhibit the free and frank provision of advice or exchange of views".

The Labour government had believed it was establishing a "class exemption" with section 35 - effectively exempting all policy-based information rather than having to show any specific harm would be caused if it were released.

But he said, since then the FOI tribunal had suggested it only applied while policy was being developed, not afterwards: "That is crazy and it's not remotely what was intended."

"What needs to happen is that the law certainly needs to be clarified... my view is what you need is a class exemption, full stop, which exempts information if it relates to the formulation of government policy, ministerial communications etc."

Total exemption

Class exemption was also required for documents sought which might inhibit the provision of "free and frank advice" - and those which might undermine collective responsibility.

By a "quirk of the drafting of the act" the BBC had "ended up with far clearer class exemption than has any government", said Mr Straw.

He pointed to the Supreme Court ruling in February that the BBC did not have to publish the internal Balen report into its Middle East coverage. The court ruled that, once it was established that the information was held by the BBC to any significant degree for the purposes of journalism, it was exempt from disclosure.

Mr Straw said: "So it has a total class exemption for the operation of its internal decision making. What's sauce for the goose is sauce for the gander in my opinion. If it's good enough for the country's largest journalistic institution it's good enough.

"The BBC's a very important institution but it's not actually running the government."

Risk register

Committee chairman Alan Beith said it could be argued that the government was different because it was making decisions that affected people's lives "on an enormous scale".

But Mr Straw said collective responsibility and decision-making was "fundamental to the running of government".

"If you undermine collective responsibility, which is essentially what the [information] tribunal and the enthusiasts for FOI have been doing, then you will start to undermine government. And then, far from discouraging leaking and poor record-keeping, you will encourage it."

He said there should be "a space in which decision makers can think thoughts without the risk of disclosure" - and not just at the time.

"I'm very struck that this right to protect private space for decision-making is one which many in the media including the BBC seek to deny government but are very jealous about guarding for themselves."

Asked whether he agreed with Labour's recent FOI demands for publication of the "risk register" compiled ahead of controversial NHS changes in England, he said he had "loyally voted" with his party on the issue.

But he said, talking "generally" about risk registers, it had to be possible for officials to give ministers advice on risks, without it going public which would "set all sorts of hares running" for which it was not designed: "It must be, in my view, protected."

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