In recent years, the British government has attempted to allow greater access to government information and stop the old notion of obsessive state secrecy. In November 2000, Parliament adopted the Freedom of Information Act, which creates a legal right for individuals and organisations to have access to information held by government authorities. Many editors and journalists argued that the law should give broad access to government information, whilst government officials were concerned that such access would create risks to security and also undermine the efficiency of government. The Freedom of Information Act is a compromise between these positions. The Act creates a public right to information which is subject to a number of exceptions. Some of these exceptions apply only where release of the information would harm particular interests, such as defence or international relations. Other exceptions apply to entire classes of information even if disclosure does not cause harm. There is, for example, a general exception for all information that relates to the formulation or development of government initiatives and policy. This means that the government could deny access to research and reports that were used in deciding government policy. The Act provides less access to government information than many people had hoped for, but it has created a legal right of access to government information that did not previously exist in British law
The first movement towards more open government came following the Interception of Communications Act 1985 a law which regulated various authorities use of phone tapping and other techniques. The law was introduced following an ECtHR decision in the case of Malone v UK 1984 where the applicant complained that the United Kingdom’s authorities had illegally tapped his phones while he was under investigation for theft of which he was eventually acquitted. The case dealt with Article 8 of the ECHR, Everyone has the right to respect for his private and family life, his home and his correspondence. The wider issue was that the government did not deny or accept that it had been involved in the illegal phone tapping which showed that information on these matters were suppressed contrary to the rights afforded under Article 10. The decision resulted in the government introducing the 1985 Act, however its scope was limited as it only regulated the situations where the tap could be used rather than outlining the limits to private life. Consequently due its limitations and extensive technological development the 1985 Act was replaced by the The Regulation of Investigatory Powers Act 2000 also known as the RIPA.
Despite the introduction of the RIPA Article 10 of the ECHR is still limited as information regarding authorised an unauthorised phone taps are still difficult to obtain. Furthermore any complaints of Human rights violations can only be made to a special tribunal established by the RIPA which also prevents any court from examining the decisions it has made. Another act which came into effect as a result of a ECtHR decision was the Security Services Act 1989. The decision in question derived from the case of Hewitt and Harman v United Kingdom 1989 which found that a complaint against MI5 was inadmissible. As a result MI5 was placed on a statutory basis meaning that its function and existence was written down in law. However Human Rights complaints against MI5 cannot be brought before a court, the only effective way to examine a possible complaint can be made to a tribunal set up by s65 of the RIPA. Furthermore the outcomes of these tribunal hearings are private and there can be no effective scrutiny by a court.
The influence of these provisions and decisions are not directly attributable to the decisions of the ECtHR as at the time of their introduction there was also political pressure from domestic matters. One such pressure came from the case Secretary of state for the home department ex p Ruddock which involved a phone tapping complaint from the Campaign for Nuclear Disarmament group.
Another instance where domestic political pressure has shown that the decisions of the ECtHR are not the main reason for a move towards open government can be derived from the introduction of the Official Secrets Act 1989. As mentioned before the OSA 1989 decriminalised the disclosure of various state secrets and also replaced the OSA 1911 which was widely discredited due to the outcome of the R v Ponting 1985. In Ponting the defendant was accused of leaking documents about the sinking of an Argentinean war ship in the Falkland’s war to a labour party MP. The documents revealed that the Argentinean war ship had indicated surrender by fleeing the exclusion zone but was nevertheless attacked and sunk by the British forces. Ponting admitted revealing the information and was charged with a criminal offence under Section 2 of the . His defence was that the matter was in the public interest and its disclosure to a Member of Parliament was protected by . Subsequently he was acquitted because of the broadness of Section 2 which allowed a jury to decide that his actions were in the public interest.
The OSA 1989 suppresses less information than the 1911 Act due to the introduction of the ‘harm test’ which takes into consideration the subject matter of the information being divulged. The nature of the ‘harm test’ is that there is no public interest defence, as there was in Ponting under the 1911 Act, and such a defence cannot even be implied into the test. Accordingly any good that stems from the disclosure of secret information cannot be considered by the jury, they must focus only on any harm that may have been caused. This position was supported in the case of R v Shaylor where a secret service agent divulged confidential information relating to the interception of communications and the warrants issued under section 2 of the Interception of Communications Act 1985. Under the 1989 Act Shayler was not afforded the defence of public interest as it had been excluded from the new law. Questions arose as to whether this provision was in line with Article of the ECHR but because the Act was not absolute and provided for disclosure with lawful authority provided the correct procedures were followed, sufficient and effective safeguards to satisfy Article 10 (2) of the Convention had been provided.
Under the influence of the Human Rights Act, the courts have extended the existing law of "breach of confidence" to protect the right of individuals to keep personal information out of the media. The law of breach of confidence protects sensitive information communicated in confidential circumstances. Traditionally this applied in quite restricted circumstances. A newspaper cannot, for example, publish information a patient has told a doctor in confidence without the permission of the patient. Obligations of secrecy are frequently contained in employment contracts and employers are able to use an action for breach of confidence to prevent disgruntled employees from disclosing damaging commercial information. In the famous "Spycatcher" case, the British government attempted to prevent newspapers in the UK from publishing extracts from a book written by Peter Wright, a former British intelligence officer living in Australia. Wright was clearly in breach of his contractual obligation of secrecy. But the courts refused to prohibit the publication in Britain on the ground that the information in the book was already widely available in America and other countries. Lord Kieth of Kinkel stated during the trial,
“The general rule is that anyone is entitled to communicate anything he pleases to anyone else, by speech or in writing or in any other way. That rule is limited by the law of defamation and other restrictions similar to those mentioned in art 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms … All those restrictions are imposed in the light of considerations of public interest such as to countervail the public interest in freedom of expression.”
BIBLIOGRAPHY
Richard A Chapman
Open Government
1987
ISBN : 0-7099-3484
Howard Davis
Human Rights Law Directions
2nd Edition
ISBN: 978-0-19-955434-8
Loveland
Constitutional Lal Administrative Law & Human rights
3rd Edition
ISBN: 0-406-95952-8
Helen Fenwick & Kevin Kerrigan
Civil Liberties & Human Rights
Routledge Revision Q&A
Online Google Book
oxcheps.new.ox.ac.uk/.../Attorney-General%20v%20Observer%20Lt...
http://www.britishcouncil.org/china-society-publications-media.pdf
In 1945, he was the head of a department involved in colonial studies at the , he later went on to write a few books on corruption, local government and in developing countries.
From the online law reports whose URL will be provided in the bibliography
by
naughtystudent (student)
