How Whitehall neutered the Freedom of Information Act

"You idiot. You naive, foolish, irresponsible nincompoop," Blair said to himself in his memoirs.

"There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it."

Was he discussing the deaths of hundreds of thousands in Iraq? The dismantling of Britain's civil liberties? His decision to let John Prescott stand in for him at PMQs? No. Of all Blair's decisions, it was the Freedom of Information (FoI) Act which sparked a crisis of self-doubt.

It's a doubt the civil service has done its best to address. Since the Act was passed it has become increasingly useless. Now, after four years of coalition government, the FoI Act is barely worth the paper it's written on. One of the most powerful pieces of transparency legislation this country produced has been neutered.

In recent months, the Department of Work and Pensions (DWP) has fought a fierce legal battle to prevent the publication of the risk register into Iain Duncan Smith's Universal Credit scheme, along with other documents into concerns and problems with the plan. The information commissioner ruled it should be released, minus the risk register. A tribunal agreed, but wanted the risk register published too.

The DWP fought the case tooth-and-nail but lost. It appealed and lost that too, this time with a venomous response from a judge who could see "no support for the argument" and pointed out that the department had not "provided any persuasive evidence". The DWP asked for permission to appeal again and has been granted the opportunity to do so at an oral hearing in a few months.

How much is all this costing, you might wonder? Well wonder all you like, because you'll never find out.

My FoI to the DWP asking for costs came back recently with a flat refusal, as expected. "The department does not keep a record of the time its staff spend on particular Freedom of Information case work so the information you seek is not held," it said. The full cost to the public purse would have involved the costs of the DWP, the Treasury Solicitors Department and the Information Commissioner's Office, but even this small piece of the puzzle was considered confidential.

These legal cases are not small fry. The grade of barrister involved in them usually cost £3,000-plus a day and countless government appeals mean they go on for months, even when the judge's disparaging remarks have already made clear they have almost no chance of success.

It’s the same across government departments. We know from the scraps of information in Home Office accounts that it haemorrhages cash on Theresa May's constant legal battles and appeals. These included £8.9 million on liability for unlawful detention by the UK Border Agency (UKBA), £37.5 million in a dispute between UKBA and former asylum accommodation providers and £21.2 million for outstanding cases in which UKBA changes to immigration rules had a negative impact on institutions.

This is just the tip of the iceberg, but when campaigning group Brit Cits tried to find out more, the Home Office - without a trace of irony - told her it would be "disproportionately expensive" to provide the information.

What goes for FoI goes for parliamentary questions as well.

Shadow justice secretary Sadiq Khan recently asked a series of basic parliamentary questions to then-prisons minister Jeremy Wright. He was told it would be too expensive to "manually interrogate" prison incidence reports to find out how much contraband was getting into jails and how. In a string of questions, Wright basically just stamped the words 'disproportionately expensive' across each one. 

When Tory MP Philip Davies asked which religions were being targeted in religiously-aggravated attacks, he was told that "data on religious belief of offenders or victims are not reported centrally to the Ministry of Justice".

There was a similar response when campaigners from the Howard League used FoI to ask how many times their name had cropped up in internal correspondence. They have a sneaking and not-unjustified suspicion that the justice secretary does not like them very much and may be making policy decisions to spite them. "I am afraid that I am not able to confirm whether the Ministry of Justice (MoJ) holds the information you have requested," the department wrote back. "On this occasion, the cost of determining whether we hold the information would exceed the limit set by the Freedom of Information Act and, as a result, I am afraid will not be taking your request further."

In its response the department let slip that it can only search for the titles of emails, not the content of the message.

It is symptomatic of the way governments have responded to FoI: not by embracing the spirit of openness but by finding ways of avoiding compliance while staying within the letter of the law.

The first response is not to record information at all, as in my FoI request. Alternately they just don't to hold it centrally, as in the MoJ's refusal to collate incidence reports from prisons about contraband. They can then cite an S12 cost of compliance exemption, saying it would cost more than £600 to collect the data.

Or they cripple themselves with ineffective systems, like email searches than can only scan titles rather than the message content.

This approach is hopeless if one is interested in effective government. What sort of company would make do without information as pertinent as that which the MoJ claims to have no interest in? If the government cares about contraband it may wish to find out how it gets into jails. If it cares about hate crime it may wish to find out which faiths are being targeted.

One quick glance at Google Analytics gives me much more information about the aims and achievements of this website than government departments have about matters of national importance. A Google Mail account allows far greater search and retrieval than the system employed in Whitehall. We're not talking top-level data here. This is simple stuff.

When these tried and tested methods fail, departments cite an S22 exemption, saying the information is intended for future publication, although they can rarely confirm when the future publication will take place.

Or they cite S35 on the formulation of government policy – an exemption intended to relate to high-level government police but which is increasingly applied far more broadly.

Or – as in the DWP risk register case – they cite the S36 exemption on the basis of prejudice to effective conduct of public affairs. As several judges have made clear, this is overwhelmingly used to save ministerial blushes rather than protest honest internal debate.

Finally, they cite the S43 exemption on commercial interests to keep the activities of privately-run public services, such as those delivered by Atos and G4S, out the public eye. Labour has pledged to make these firms subject to FoI if it gets to power but even if it does so, the commercial interest exemption allows the department and the contractor to play a game of hot potato, constantly citing commercial sensitivity in refusing to reveal information which is manifestly in the public interest.

(Incidentally, the mad effects of privatisation are more far-reaching and pernicious than that. Justice minister Simon Hughes recently revealed he couldn't visit a women's rehabilitation centre, because to visit one and not all of them would potentially open up the MoJ to judicial review after the work is contracted out. A child who had just drunk five pints of Coca Cola could not have developed a more problematic system.)

The reason Blair felt so strongly opposed to FoI was because it was such a genuinely good piece of legislation: transparent, far-reaching and closing the gap between the state and the public. But it wasn't enough to pass it. Laws like that need to be tended to make sure they are achieving their desired objective. Instead, the political class has looked aghast at what it did. Civil servants and ministers have taken notice of that and stacked the odds against publication.

Their method for doing so has significantly constricted the potential for effective government. It is a telling indication of their priorities: faced with a choice between being able to do their jobs properly and limiting embarrassment, they opted for the latter.

It is part of a depressing tradition in Westminster. When a genuinely radical innovation is introduced, the system shuts it down. That's why Sarah Wollaston – the independent-minded MP selected by an open primary for the Tories – was the last of her kind. The scheme was not cancelled because it didn't work. It was cancelled because it did work. The same thing is happening to Freedom of Information.

Brave New World: Even the UN is open to drug decriminalisation

The body set up to enforce the world's drugs laws has admitted decriminalisation is an "alternative" to prohibition. The story is unlikely to garner many headlines but this is brave new world territory. It's the global equivalent of a town sheriff telling his officers not to put people in jail for taking drugs anymore.

The funny thing is, it happened ages ago and we didn't even notice.

It's in the 2007 report of the UN's International Narcotics Control Board (INCB), a deeply reactionary and aggressive body which polices nation states' obedience to the 1961 Single Convention banning recreational drugs. Transform's Danny Kushlick was going through it the other day when he noticed something remarkable. It says there is no need to send anyone to jail for the "possession, purchase or cultivation" of recreational drugs.

Here's the quote in full, from section B18:

"The conventions differentiate sharply between offences related to drug trafficking and offences related to personal use of illicit drugs and between offences committed by drug abusers and those committed by others.

"Under the 1988 Convention, drug abusers who commit offences may be required to undergo treatment, education, aftercare, rehabilitation or social reintegration, in addition to being convicted or punished, providing that the facts and circumstances surrounding the commission of the offence indicate it to be an offence of a minor nature.

"However, with offences involving the possession, purchase or cultivation of illicit drugs for the offender’s personal use, the measures can be applied as complete alternatives to conviction and punishment, and none of the convention obligations referred to in paragraphs 15-17 above apply to such offences.

"As such, the conventions recognize that, to be truly effective, a State’s response to offences by drug abusers must address both the offences and the abuse of drugs (the underlying cause)."

As Kushlick wrote to me:

"It's weird on two fronts:

"1) That they said it and

"2) That no one had noticed it before

"I feel a bit like I walked through the looking glass…"

It's important to note where the board stops. It is not supportive of legalisation. In fact when Uruguay legalised cannabis, it bullied it with a statement warning about the impact on the country's "public health and well being".

It added, with a trace of malevolence:

"INCB looks forward to maintaining an ongoing dialogue with all countries, including those where such misguided initiatives are being pursued, with a view to ensuring the full implementation of the convention and protecting public health."

Bu the fact that this organisation is open to decriminalisation is an astonishing benchmark for the drug reform movement. Apparently, even the most die-hard prohibitionists are starting to recognise the evidence of decades of failure. As Kushlick said: "UK politicians must follow the numerous countries that have decriminalised, to vastly greater success, rather than those that continue to criminalise users and small-scale growers."

Fittingly, the comment has been discovered just after the UN's leading health agency, the World Health Organisation (WHO), effectively called on countries to end the criminalisation of narcotics. The WHO has worked hand-in hand-with the INCB to aggressively push for the blanket ban on recreational drugs on the world stage.

Now, after countless deaths and ruined lives, it has changed its tune.

A report earlier this month on HIV among vulnerable people – like gay men, drug injectors, prisoners and sex workers – suggested countries end the criminalisation of injection and certainly stop sending people to jail for it.

"Countries should work toward developing policies and laws that decriminalise injection and other use of drugs and, thereby, reduce incarceration," it said.

It also called for countries to decriminalise programmes which provide clean needles and syringes and encouraged opiate substitution treatment for people who are dependant. Finally, it said countries should ban compulsory treatment for people who use and/or inject drugs.

The recommendations were in relation to HIV and drug injection, but you can see how the priority is being placed on public health rather than criminal justice. This is the balance of priorities which drug reform advocates have been demanding for decades: a focus on saving life rather than punishing it.

The ramifications of that advice go well beyond injection. It's unthinkable that someone offering that advice would suggest sending a cannabis smoker to jail, for instance.

With intellectual changes of this magnitude taking place at a global level, there's a growing sense that we're approaching critical mass. Soon even the most studiously ignorant national government – like ours, for instance – will need to take note.

It's a brave new world. And we've been in it since 2007, apparently.

How Britain profits from the attack on Gaza

The video emerged on Monday. It appears to show a man searching for his family amid the rubble of Gaza, apparently during a ceasefire. He is shot by a sniper. For a while he lies there, moving awkwardly. Then he is shot again.

The component parts of the sniper rifle may have been made in the UK. After Israel's 2009 incursion into Gaza – Operation Cast Lead - the Commons committee on strategic export controls found British arms exports "almost certainly" were used in the attack, in direct contravention of the UK's policy that arms exports should not be used in the occupied territories.

The military equipment sold to Israel includes parts for sniper rifles and small-arms ammunition, ground-based radar, military aircraft engines and navigation equipment, military communications and unmanned drones. Britain also supplied components for cockpit displays in US F-16 combat aircraft sold to Israel, engine assemblies for their US Apache helicopters, armoured personnel carriers and components for the guns and radar in Israeli Sa'ar-class corvettes.

Then-foreign secretary David Miliband told the Commons all future arms-related applications would be assessed "taking into account the recent conflict". After all, it is against Department for Business rules for an export licence to be granted where there is a clear risk they might be used to "provoke or prolong conflict within a country" or "be used aggressively against another country". Either criteria, depending on how you choose to look at it, could be applied to the Gaza crisis.

Britain even revoked a handful of licenses, all related to parts for an Israeli navy gunboat known as the Saar 4.5 Class Corvette, which was likely used to shell Gaza.

'Israel and the Palestinian territories' is the biggest recipient of approved export licences from the Foreign Office's list of 27 countries of human rights concerns. They are worth £7.8 billion to the UK, towering over China's £1.5 billion or Saudi Arabia's £1.8 billion. Of that £7.8 billion, just £5,539 goes to the Occupied Territories.

The number seems massive, especially given Britain is responsible for just one per cent of Israel's military imports (most come from the US). The vast majority of the figure is irrelevant. It's made up of a single licence approval for "equipment employing cryptography and software for equipment employing cryptography" – phone masts, basically. Put that to one side and you have what experts believe to be about £10 million in military contracts.

Here is what the money goes on, according to the Commons committee:

"All-wheel drive vehicles with ballistic protection; body armour, components for body armour, military helmets, components for pistols, components for body armour, components for all-wheel drive vehicles with ballistic protection, components for assault rifles, components for pistols, components for equipment employing cryptography, components for military communications equipment, cryptographic software, equipment employing cryptography, software for equipment employing cryptography, software for the use of equipment employing cryptography, general military vehicle components, military support vehicles, small arms ammunition, weapon sights, military communications equipment and components for small arms ammunition."

But Britain's military relationship with Israel is not one-sided. It is based on cooperation, on British firms working with Israeli firms, in an entanglement which precludes a critical political response to the savage attack on Gaza.

Take the Watchkeeper combat drone, built in the UK by UAV Tactical Systems, which was set up by Israeli company Elbit Systems and French company Thales. Elbit's 51% stake tells you where the balance of power is. UAV Engines, which builds the rotary engine, is a wholly-owned subsidiary of Elbit.

In 2007, the Ministry of Defence ordered 54 Watchkeepers at a cost of £800 million. They came in late, of course, but the Watchkeeper system will be in service until 2040.
That sort of contract is typical. At the Farnborough International Air Show, which ended a couple of days ago, Elbit was marketing its wares as 'battle tested'.

Israeli company Rafael and the Israeli Aerospace Industries (IAI) were also present. Rafael announced it was in negotiations to add to its 15-year deal with the Ministry of Defence so it could supply its fighter jets with new targeting pod systems.

Several British firms provide Israel with spare parts for the F16 and Apache fighter jets and naval ships. These were the machines used to kill hundreds of civilians in Lebanon. Human rights groups estimate that they have killed 223 Palestinians during the current offensive in Gaza, 46 of them children, 26 of them women and 14 of them elderly.

Yesterday, David Cameron urged a "proportionate" response from the Israelis, but he placed the blame overwhelmingly on Hamas. As a father his heart bled when he saw images of children being killed on beaches with Israeli munitions, he said. But "this can be most quickly brought to an end" by Hamas ceasing to fire rockets.

There were gasps in the Commons from the Labour benches. "These attacks are not just disproportionate," Peter Hain said. "In any other conflict they'd be described as war crimes."

That is precisely what they are, as any reasoned, impartial observer would conclude. But even if Cameron were such an observer he would be hamstrung by a military-industrial network which entangles British and American firms and state military departments in decades-long, multi-million pound contracts.

These military deals do not exist in isolation. They discourage any attempt by the British government to condemn Israel's operation with the sort of language which it deserves. Britain profits from Israel's horrible little wars. And Israel can conduct its horrible little wars because Britain's desire for profit trumps its commitment to human rights.

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