No FOI in Queen’s Speech?

FOI Man argues that the absence of FOI from the Queen’s Speech does not mean that the Government has abandoned plans to amend FOI significantly, and explains what the process of making the proposed amendments would involve.

Last month some commentators expressed surprise that there was no reference to FOI in the Queen’s speech. Especially as there had been some talk from Government of making changes to FOI following the post-legislative scrutiny last year.

The Government has stated that it wants to do three things of significance:

1. reduce the acceptable limit above which FOI requests can be refused
2. include consideration and possibly reading time amongst the factors that can be included when estimating the cost of answering FOI requests
3. allow aggregation of the cost of multiple FOI requests from the same person or campaign when considering if requests can be refused on cost grounds.

The Campaign for Freedom of Information has drawn attention to the significance of these proposals, and the potential harm they could do to the right to know. But does the fact that there was no reference to them in the Queen’s Speech mean that the Government has given up on them?

Well, the truth is that the trailed changes wouldn’t require primary legislation. All three of the proposals above could be achieved by amending the FOI fees regulations. Specifically, the first proposal would require an amendment to regulation 3, the second to regulation 4, and the last one to regulation – you guessed it – 5. In the case of the last one, all that would be required would be for the sub-clause which refers to requests being “the same or similar” to be removed. But the effect of that would be dramatic, in that it could potentially stop journalists or even whole media organisations (being legal persons) from making more than one FOI request within a three month period.

So how easy will it be for the Government to make these changes? Well, amending regulations is much easier than amending an Act of Parliament. But depending on the primary legislation affecting them, it can still take some time to achieve any amendment. Some regulations require a vote. That isn’t the case with the fees regulations, which would just be “laid” on the table of both Houses – effectively passed without debate unless someone raises an objection (which given the quantity of secondary legislation that is passed each year rarely happens).

That said, there are still a number of hoops that the Ministry of Justice, as the relevant Government department, would have to leap through to bring these changes into force. Firstly, as the regulations affect the Data Protection Act as well as the Freedom of Information Act, there is a requirement to consult the Information Commissioner on any new regulations.

Generally these sort of changes would also be subject to some sort of wider consultation. In the old days (ie before the current Government) my understanding is that consultation was more or less mandatory for a change in the law of this type, and it would have to go on for at least 13 weeks. The current Government has dispensed with these requirements though their own Consultation Principles still encourage consultation in most circumstances. However, rather worryingly for FOI campaigners is the exception set out in the Principles which suggests that consultation will not be necessary “where adequate consultation has taken place at an earlier stage”. One wonders if a Government keen to push these changes through might argue that the evidence collected during the Justice Select Committee’s post-legislative scrutiny constituted “adequate consultation…at an earlier stage”.

And there would be precedent for a consultation destroying plans of these sort. The new proposals are exactly the same as those made by Tony Blair’s Government in 2006/07 which ended up being dropped following very negative feedback during the consultation period. Also because the incoming Prime Minister, Gordon Brown, did not wish to be associated with plans to emasculate Freedom of Information. He wasn’t all bad, clearly.

The Government has also established new hoops in the form of their attempts to cut down on red tape. In many cases, a new regulation won’t be approved unless the Department concerned has identified two regulations that can be scrapped. I know – stupid idea – but it might just help delay any proposed amendments to the fees regulations.

So, by my reckoning, if the Government wants to amend the fees regulations, it will need to do the following:

• draft new regulations
• consult with the Information Commissioner
• possibly consult with all of us (but there is the possibility that they’ll justify skipping this because of the post-legislative scrutiny)
• run the gauntlet of their own Regulatory Clearance Process including a write round of Departments and passing the Regulatory Policy Committee.

My understanding is that the shortest timescale for all of this to take place would be about 13 months, a period which no doubt started when the Government responded to the post-legislative scrutiny last November. So unless we keep a beady eye on the Ministry of Justice over this, we might find that we have new regulations in place by the end of the year.

Alternatively, as the Information Commissioner suggested at a recent City University-hosted event, perhaps they’ll put this on the back burner given that we’re less than 2 years out from the General Election and this might upset the few journalists that are still talking to them after Leveson.

For the time being, who knows? So watch this space as just because the Queen didn’t mention FOI in her shopping list this year, it doesn’t mean that there couldn’t be significant changes just around the corner.