Special report: Freedom of information
George Monbiot
Monday August 27 2001
The Guardian
Britain's Freedom of Information Act is hardly the stuff of
revolution. It permits only the feeblest of concessions to that key
component of democracy: our ability to find out what's being done in
our name. But it represents, campaigners hope, a dim promise of
enlightenment, the glimmer of a suggestion that, for the first time
in history, the inhabitants of this quasi-medieval realm might start
to be treated like citizens, rather than subjects.
Now this feeble light is fading even before the act has been
implemented. We won't be allowed to view the business of the state,
for the simple reason that it is no longer just the business
of the state.
The private companies taking over our public services have brought
into government a doctrine which makes public disclosure almost
impossible. "Commercial confidentiality" is supposed to
defend secrets of the kind which industrial spies seek to pass on to
other corporations: the special ingredients or patented processes
which might make a company more successful than its rivals. It is
being used instead to hide almost every aspect of public services
from democratic scrutiny.
In the court of appeal last week, London Underground argued that if
a report into the government's plan to part-privatise the tube were
made public, it would compromise the commercial secrets of the
companies hoping to run the system. The court disagreed, and allowed
publication, and we were able to see that the report was not
commercially sensitive, just embarrassing. The plan to part-privatise
the tube, it revealed, is a disastrous waste of money. But the
appeal court's defence of this freedom was, as far as I can
discover, unprecedented. Elsewhere in Britain, judges have done all
they can to prevent us from discovering how public services will be
run.
While all eyes were fixed on the case in London, another court
battle, at the other end of the country, was grinding on in
relentless obscurity. For six years the people of Skye have been
challenging Britain's first private finance initiative project. This
month the courts produced yet another ruling which must appear to
anyone with the slightest sense of natural justice to be grossly
unfair.
It's hardly surprising that the government departments which
commissioned the Skye bridge should seek to conceal the true nature
of the project from the people it affects. To travel to or from
their homes, the people of Skye must (unless they buy in bulk) pay
the highest tolls per mile of road anywhere on earth: the private
companies running the bridge charge £5.70 each way for a
one-mile crossing. Leaked documents analysed by the islanders
suggest that the companies' claim to these tolls is frangible.
At least 60% of the cost of the bridge was met by the taxpayer
before the first concrete was poured. Of the £25m invested,
just £500,000 was provided by the PFI consortium. Yet the
companies appear to be collecting some £3.3m a year: their
peppercorn investment will, it seems, reap up to £88m from
one of the poorest communities in Britain. The islanders had no
legal right to this information: it was deemed "commercially
confidential". They extracted most of it from from a stack of
official documents left by a mysterious stranger on the doorstep of
the postmaster of Portree. There they also found plenty of evidence
to suggest that the tolls had never been properly authorised by the
government.
If they could prove this, it would mean that the prosecution of the
hundreds of objectors who have refused to pay had no basis in law.
But whenever they have sought to obtain the information which could
have exonerated them, the courts have been less than cooperative.
All the 496 people prosecuted so far have been denied legal aid,
irrespective of income. The appeals they have lodged, led by the
self-taught legal warrior Robbie the Pict, have been dismissed on
what appear to be the most spurious technicalities: Scotland's
foremost expert on legal procedure has described the crown's case as
"fatally flawed".
The islanders discovered that, in contravention of Scottish law, the
lord justice general appears to have ruled on the legality of his
own decision when dismissing one of their appeals. The Scottish
Office responded to this revelation by slapping a 75-year injunction
on the letter which could have proved it: the objectors won't be
able to discover whether they were justly prosecuted until 2070.
They also had reason to believe that the contract between the
government and the companies which built the bridge would show that
their convictions were unlawful. But when, after months of legal
dentistry, the contract was dragged into court, the key 40 pages had
been excised on the grounds that they were "commercially
confidential". This month the Scottish law lords assessed a
further appeal of the Pict's in a secret hearing from which he and
the other islanders were excluded. Robbie still doesn't know what
their grounds for rejection were.
The same corporate secrecy is now being used to protect every
approved private finance project in Britain. In opposition, John
Prescott told campaigners against the proposed Birmingham northern
relief road that Labour would build it "over my dead
body". (We're still waiting for the ultimate sacrifice, John.)
After coming into office, Labour announced that it had changed its
mind. The reason was, of course, "commercially
confidential". The objectors spent £50,000 in court to
try to discover what was in the contract. At first the judge ruled
that parts of it should be released, then he suddenly reversed his
decision.
This secrecy blights our lives in a thousand subtle ways. Devon's
privately financed A30 road should, according to the public inquiry,
have been built with "as quiet a surface as possible".
Instead the consortium used "brushed concrete" - perhaps
the noisiest of all possible surfaces - with the result that some 40
square miles of Devon countryside are blasted with noise pollution.
Local people know that they can't contest this decision until they
can find out why it was made, but the highways agency has told them
that its agreement with the consortium is a commercial secret.
In opposition, Alastair Darling, now secretary of state for work and
pensions, complained that using commercial confidentiality "to
hide the truth about the extent of the taxpayer's commitment from
the public is inexcusable". But like Mr Prescott, he seems to
have left his principles at the door of government. We have, as a
result, no means of discovering whether the public services of the
future will meet our needs; how much they will cost; or whether
public provision would offer better value for money. As the private
finance initiative starts to intrude into every aspect of government
life, commercial confidentiality becomes the skip into which all
inconvenient data is dumped. There is nothing in the new freedom of
information act which will protect us from this.
Whenever the state seeks to justify a new form of surveillance, it
argues that if we have nothing to hide, we have nothing to fear.
Almost every leaked document which wriggles into the public domain
suggests that the private finance initiative is a monstrous fraud
upon the taxpayer. Indeed, with full disclosure, PFI would become
impossible to implement. The government has so much to fear only
because it has so much to hide.
g.monbiot@zetnet.co.uk
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