17 May 2007
Reuters Building, London
Lord Falconer told the Media Conference that he believed in open but effective government. Recognising the importance of a free press he argued that a free press did not mean unfettered access to all information. Access for the media should be in the interest of the public, not the press.
Good afternoon. And thank you for that introduction Alistair. The spirit of openness was certainly displayed when earlier in the week you kindly sent me an indication of what you were intending to put me through this afternoon.
There is something of a tradition among politicians that it is always better to have either the first word or the last word. To set the tone or sum it up. However a glance at the programme reveals that I am sandwiched between Maurice Frankel and afternoon tea. The Romans have been starving the lions.
In any event the prospect of having the last word in a room full of journalists is wilful optimism on my part.
I really am pleased to be here this afternoon. Because I think that some the issues you have been discussing today are not only genuinely interesting but they are hugely important and they cut to the heart of the relationship between the citizen, the media and the state.
Regrettably, I have not been able to listen to the previous speakers and hear what ground you have covered but this afternoon I'd like to talk about two broad themes: the freedom of the press and open government, before going into some of the specifics.
A free press is an essential part of a healthy democracy. Every bit as important as universal suffrage, an independent judiciary or the rule of law.
Because we have it, and have had it for so long, we do not articulate its importance enough. Without a free press those in authority or those with power commercial or state are not held to account.
It is because they are free that as a society we are free and well governed. Harry Evans and Thalidomide; The Washington Post and Watergate; the American Networks and Vietnam; Chris Mullin and the Birmingham Six. The examples are legion: their importance huge.
To have a free press you must put up with bits of the press being bad and unfavourable. Because we recognise the importance of freedom to publish, and because we recognise the potentially chilling effect of restrictions, huge care needs to be taken in identifying any restrictions that are put in place.
Issues of openness fall into three linked categories: first a right to obtain information from the state; second, freedom to publish information, and third legitimate right to privacy
There is a large measure of consensus on the need for restrictions. For example, few people would doubt the validity of reporting restrictions which would prevent the naming of an informer. For example, few people would dispute the merit of preventing sale of people's private medical records. For example, few people would dispute restrictions on freedom of information which would genuinely damage national security.
These examples demonstrate two things; first there are legitimate interests which can not always but can - trump press freedom. And second, the balance should not ultimately be determined either by the press or the state or the relevant commercial interest when there is a dispute but by an independent arbiter.
First, freedom of information. Access to information about what the state is doing, what information is it acting on, and on what is being said internally is vital. We introduced the FOI Act 2000.
It is a huge change. The state, for the first time, is under a legal obligation to divulge a wide range of information.
Like most other progressive democracies around the world with FOI acts, there needs to be limits. No one would dispute the importance of protecting medical, educational or employment records. Nor certain information regarding foreign relations, military or security policy, or indeed in the development of policy. Officials do need to be given the opportunity to look at all aspects of what might be possible without fear that their advice will be requested and published.
What seems clear is that openness is not an absolute. I don't think that can be in dispute. So the question comes therefore, where is the line between what is disclosable and what should remain confidential. If the test is public interest who determines the public interest, should it be the press? Should it be politicians?
Neither- it is, as it should be - a matter for the law. There is an independent information commissioner who is able to arbitrate on issues of contention, and an appeal to the Information Tribunal to determine what should be disclosed.
The second area then is the operation of FOI. The more we open up government and public authorities, the higher their standards. Giving people access to the factual basis on which their decisions are made means that the citizen can hold government and public authorities more fully to account. FOI also puts an onus on creating a culture in which more information is published as a matter of routine. This culture over time will lead to better services for the public with more information being more accessible more of the time.
FOI's purpose is to hold governments better to account bring better government.
When I have spoken about a right to know and not a right to tell, I was making a specific point raised by the press. The purpose of the FOI act is to give the public access to information. It is not to provide the media with page leads.
To understand the right to know is to understand who the Freedom of Information Act is there to serve the public. It is the right to have access to information about government and public authorities. The information itself is the important part the facts, the figures, the decisions. The FOI Act provides the statutory right for people to access this information the right to know. There is no statutory right for the media to convey this information.
Yes, the media provides a hugely important service in drawing attention to issues revealed through FOI, and for scrutinising the government based on the information that is disclosed - but it is not the only conduit.
Let me quote from a leader entitled 'Ministers must not return to secret government' in The Independent:
'Even before the right to know powers were in force, [Lord Falconer] was considering how the Government could spike journalists' guns by simultaneously publishing the material they had requested on ministerial department websites.'
This thundering from The Independent illustrates the dilemma. The purpose of simultaneous release is to make requested information available to everyone not just the readers of a particular paper or viewers of a particular programme. It is neither a return to secret government nor an assault on the public's right to know or on the freedom of the press. Yes, the public have a right to know the information but why should it be in their interest for the press to determine when and how they get it.
Of course the media will, do and should make considerable use of FOI I am glad that they do, it is of considerable benefit to the wider public.
But freedom of information is there to put information in the hands of the people who request it. It is not there to serve sectional interest -whether it be press, government, commercial or politician.
The debate around simultaneous release shows that parts of the press view freedom of information on the basis that anything which makes the matter more difficult for the press - even if that involves less disclosure - is an illegitimate restriction.
This is not so. There are conflicting interests. As long as this is accepted which I think it is, and the method of balancing the interests is demonstrably independent, then the system should work.
Take the current issue around fees. We are consulting on the fees regime. FOI requests are compiled at no charge to the requestor. Everybody accepts that it is sensible that there should be some time limit on how long the public servant ought to spend on answering requests. Or else some authorities and a number of smaller authorities are included in the 100,000 plus bodies subject to FOI - would spend their whole time answering requests rather than doing their business.
Equally everybody accepts that there must be a means of independent verification for how long it might take in a particular case. The requestor must be able to refer to the Information Commissioner's Office whether the estimate is reasonable.
This regime - free to the requestor, but with time limits - has been in existence for over two years. The calculation of the limit of time does not include reading the file where a file is requested.
It is now perfectly normal request now is to ask for a list of file names. Once that is done, a further request is made for each file. Nothing wrong with that, but, equally, it seems reasonable to allow reading time in determining the cost once we know this is a perfectly normal request.
Equally the time limit applies to each individual request. Should there be a method by which request can be aggregated where the breakdown of request is to get round the limit? Again that does not seem unreasonable to look at after two years' experience.
I am keen to reach a consensus on this. It is proving very difficult because each proposal is viewed as a determined attempt to undermine FOI.
It is not. Engage in the debate.
Could I move from FOI, to restrictions on reporting. There are currently existing restrictions on reporting in the criminal and family courts. In the criminal courts those restrictions are well understood.
I am concerned that we sometimes restrict the reporting of terrorist trial for too long in some cases. Given the interlinked nature of some of the recent terror trials, I recognise the importance of reporting restrictions for the interests of ensuring future fair trials. But the consequence is that the public know nothing, sometimes for years of the conviction of a terrorist for an outrage which has occurred a long time before. We need to see whether there is scope for more openness without prejudicing the fair trial, or security operations. The sooner the public know the better. Convictions following a fair trial is a major weapon to combat terrorism.
This balance between the right to know and the importance of protecting the public is also demonstrated in the operation of the family courts.
Openness in family courts
Over the past few months we have been consulting on making family courts more transparent. There is a feeling that the workings of, and the decisions made in family courts are too secretive. The argument runs that without increased openness there can be no confidence in the workings of the family court, and therefore no confidence in the process or the outcomes.
That seems a sensible proposition. Understanding and visibility of the process, and understanding and access to the decisions is essential if we are to increase confidence and indeed prevent miscarriages of justice. On that we all agree. Where perhaps we don't - is in the how.
Media groups argue that the solution lies in letting journalists in as of right to act as a proxy for the public. To restrict them would be to deny the public and mean that miscarriages of justice could go unrecognised and unreported.
This from the Newspaper Society's response to the consultation sums up the position:
'We fully support the proposal that the media should be allowed to attend ALL family courts as of right & the principle of a general presumption of openness must be the established if public confidence and accountability is to be achieved. The role of the media as representative of the public particularly in relation to attendance at court proceedings is well established and understood.'
Justice must be done and seen to be done if there is to be confidence in the system true. But we are not talking here about a balance of equivalents, but a balance of priorities. Important though justice being seen to be done undoubtedly is it is a second order issue to justice actually being done. If justice being done is impaired by, or even at risk of being impaired by it being done in public, one must take precedence over the other.
In our recent consultation, more than 200 children responded with the vast majority being adamant that they did not want the family court room filled with press or other people who have no involvement with proceedings.
Take this view from the National Children's Society:
'We have concerns about the assumption that the media will work on behalf and for the benefit of the public alone. Allowing the media access to family courts proceedings would give the public greater awareness of the complexities involved in making difficult decisions about a child's care and welfare. However the media also inevitably has a function to find news that will increase readership and sell newspapers and magazines. Any plans for opening the courts must ensure that the courts are open to scrutiny in a manner which keeps the child's welfare and protection paramount.'
That view reflected the overwhelming majority of children and children's groups that replied. They do not want people in the court hearing private details of their lives. They are worried about themselves or their families being identified by people who they do not trust to report responsibly. Their concern is that in reporting public law cases the first consideration of the press would not be the protection of the child.
Broadcasting courts
Many of the issues I have discussed are also relevant for allowing broadcasting in courts. I recognise the benefits of allowing cameras into the court rooms - increasing understanding of judgements and improving knowledge of how the courts work is something we are naturally keen to see. But just as in the family court, it should not come at the cost of victims and witnesses.
The test must be, in allowing television access to courts, will this add unnecessarily to their distress, and separately, will knowledge that the TV cameras are there - make people less willing to give evidence? Open justice may lead to the removal of justice. Something no one wants to see.
There is no easy answer. As I have said before, I'm in favour of moving forward in the ways I have already set out. No to filming witnesses and victims, yes to judges when for example, they are making their sentencing remarks. But the way forward must be one which, like in the family courts, does not deliver openness at the price of individual protection.
Broadcasting in courts doesn't have to be a binary decision cameras or no cameras. In the US, for instance, there is a variegated pattern of when and where cameras are allowed in. A simple yes or no, would not serve anyone's best interests.
Coroners' Courts
The second specific area I want to mention is coroners' courts. Reporting restrictions in coroners' courts are currently very different from those in family courts. Coroners sit in open court and the press have the ability to report on all aspects of the inquest, and include any details they choose, subject to national security considerations.
The press need to act with responsibility. For many families, dealing with the unexpected loss of a loved one is hard enough in itself. The added burden of an inquest can often be an unwelcome one. It remains right that verdicts in inquests are open and known. But can it be right that the families in every single case - also have to deal with salacious press coverage of aspects of the deceased's private life if there is no public relevance. Again a balance needs to be struck to ensure we do not add unnecessarily to the distress of the family.
There is a strong view that the reporting of inquests, often involving tragic deaths, or suicide can lead to a great deal of additional suffering and distress for the families involved.
The Government's draft Coroners Reform Bill proposes that the coroner should be able, in certain cases like child deaths and suicides, to impose restrictions on what can be reported, such as insisting on anonymity. The system cannot undo the trauma of losing a loved one, but it can lessen unnecessary distress. The decision, in the first instance should plainly be down to the judge.
That seems to me to be a sensible balance to strike.
The final area that I'd like to touch upon briefly is the Government's intention to increase the penalties for breaching [s55] of the Data Protection Act. It seems to me to be one of the clearest demonstrations of the need to strike a balance between conflicting principles.
The state has a duty to protect the citizen from unwarranted and illegitimate intrusions into private lives. And in the DPA we have another mechanism. People's personal information bank account details, addresses, phone records, should remain personal, but the threat of a fine is clearly not enough to ensure that they do.
The Information Commissioner has described a 'pervasive and widespread industry devoted to the illegal buying and selling of such information.'
Journalists, among others, are main props of this industry. They would claim to be acting in the public interest but what right should the media have to access such personal information? It is not to threaten the freedom of the press to ensure that there are reasonable limits to what should remain private and confidential, and to properly enforce those limits.
Following advice from the Information Commissioner, the Government is looking for the first opportunity to legislate to allow for custodial sentences, because, put simply at the moment the fines that are currently applied are not enough of a disincentive. The public are entitled to legitimate protection and privacy. At the moment the balance is wrong. The public are not getting the protection they need.
Conclusion
Openness is critical to good government as a free press is essential to a free nation but so is ensuring that people are given the protection they are entitled to, the protection that the state is obliged to give them.
The media in all its guises, old, new, and not yet invented, will long continue to be a vitally important means by which issues are brought to public attention. And it will remain as important as ever to ensure that in spirit and in practice we have a genuinely free press, without unnecessary restrictions.
But we also need to ensure that in so doing we do not jeopardise the public's legitimate rights to privacy, nor the ability of the Government to govern.
The press have a duty to act with responsibility. And in the most part it does.
The principle that underpins all of the examples I have given this afternoon is the same the state has a duty to protect the public. In seeking to do so it is not retreating into the comfort of secrecy, but seeking to strike the balance that the public demands and that an effective system of governance requires.
Thank you.