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Speeches
JUSTICE
BRITISH SECTION OF THE INTERNATIONAL
COMMISSION OF JURISTS
FORTIETH ANNIVERSARY LECTURE SERIES
LONDON WEDNESDAY 17 DECEMBER 1997
FREEDOM OF INFORMATION: THE SEVEN DEADLY
SINS
The Hon Justice Michael Kirby AC CMG*
JUSTICE AND ALL THE DEMONS
I must start
with a tribute to Justice. It is the jewel in the crown of
the International Commission of Jurists (ICJ). Founded by
an all-party group of lawyers in 1957, when autocracy was
showing its true colours in South Africa and Hungary, it has
become an indispensable guardian of human rights and the rule
of law in the United Kingdom and far beyond. As ICJ President
I am proud to pay tribute to forty years of achievement. And
to add my voice to that of Lord Chief Justice Bingham and
other leading jurists of this great country. May Justice continue,
in Lord Bingham's words, to sharpen perceptions, deepen insights,
voice concerns, challenge preconceptions and illuminate dark
corners well into the new millennium that is about to commence.
Some of the problems which existed in
1957 have gone away. Pluralist democracies now exist in South
Africa, Hungary and many other States. Yet we should take
seriously Václav Havel's warning:
"The demons that have so fatally tormented
European history - most disastrously of all in the
twentieth century - are merely biding their time.
It would be a tragic mistake to ignore them because of
technical preoccupations with transfer funds, quotas or
tariffs."
Those demons continue to stalk the world,
not only in Europe. In comparison with countries such as Rwanda,
Cambodia, Tibet and Bosnia, we in Britain and Australia have
been blessed by a constitutional system that tends to fend
off the worst of the demons. Yet we should never be complacent.
Indeed, we must be in a constant stage of vigilance: demanding
constant renewal of our governance so that it meets the needs
of the people.
Thirteen years ago, in November 1984,
I gave the Granada Guildhall Lecture, here in London. In the
post-Watergate era, there were many demands for reform of
the law governing the media and access to information. I remember
circumstances of the lecture well. Cold night. Historic setting.
Mr Willie Whitelaw (as he then was), Deputy Prime Minister,
in the chair. He introduced me fulsomely. Then, picking up
my speech, which had been tenderly laid on the podium, he
walked resolutely back to the chair. Puzzled, and apparently
a little reluctant, he eventually surrendered my papers on
my insistent demand so that I could make my speech. I remember
thinking at the time that the acquisitive tendencies of government
in the United Kingdom knew no bounds.
I finished my speech, thirteen years
ago, with words which remain relevant. This is what I said:
"We in Australia, who inherited the ideas
of freedom that sprang up and flourished not far from
this famous Hall, owe many debts, intellectual and emotional,
to you and to your laws. We share many institutions. Necessarily,
we share many of the same problems and defects. But I
believe, boldly, that for once we have some ideas ripe
for your consideration. It will be a signal of the maturity
of our relationships if you, who gave us so much, can
now accept a little in return. Being an Anglophile, I
would give you many things. But if you would accept one
only, I would give you freedom of information. The wave
is coming. It is borne forward by technology and by example.
It renews accountable democracy. It stimulates responsible
freedom in the media. It obviates the plagues of leaks
that spring up in a world of too many secrets. It encourages
a questioning and self confident citizenry. It deserves
your belated attention. ... Impertinently [I] throw down
this antipodean gauntlet."
The Swedish law on freedom of information
(FOI) was first enacted in 1776. The United States federal
law, in 1966. The Canadian Access to Information Act came
in 1982. The New Zealand Official Information Act in
the same year. The Australian federal Act immediately followed.
Most major European nations have enacted FOI legislation.
The United Kingdom has remained, until now, the exception.
A Private Member's Bill was introduced in the House of Commons
in 1993 but was rejected by the then Government. It is true
that guidelines on open government were adopted as a Code
of Practice. But the code is not legally enforceable, although
complaints can be made to the Parliamentary Commissioner.
My gauntlet, like that of Simon de Montford, remains unrequited.
But at last, on 11 December 1997, the government's proposal
was published. It promises action.
A CHANGE IN GOVERNANCE
To a friendly outsider, the last few
months appear to have brought about, or foreshadowed, a very
considerable - even constitutional - change in the governance
of Britain. Perhaps the news that has caught most attention
of lawyers in other countries of the common law has been the
introduction of the Human Rights Bill into Parliament. Presenting
the Bill, the Lord Chancellor (Lord Irvine of Lairg) paid
tribute to Lord Scarman, present in the House, for his long
advocacy of such a measure. The Lord Chancellor also paid
tribute to Lord Lester of Herne Hill, an indefatigable advocate
of human rights legislation. The latter in an article in The
Times has said that the Bill, if enacted, would bring
about the end of the "elective dictatorship" which the second
Lord Hailsham had said was the special feature of the government
of Britain.
In future, people in this country with
complaints that the law breaches fundamental human rights
will not have to go to Strasbourg. They will be entitled to
bring their complaints to the courts of this country. Lord
Irvine has explained the purpose of this measure as being
"to restore faith in democracy". He has said that it is to
be seen as part of "the most ambitious and extensive programme
of constitutional reform and modernisation this century".
He has promised that the Government "will govern with a new
spirit of openness ... [in] partnership with the people".
Judges and lawyers throughout the Commonwealth
are watching closely the passage of this new human rights
legislation. Nowhere more so than in Australia where constitutional
reform is also being considered on the eve of the centenary
of our federal charter. We, like Britain until now, have remained
stalwart in our resistance to a general constitutional or
statutory statement of human rights. In future Australia we
will be flying solo.
In harmony with the new Bill of Rights
legislation for Britain, the Lord Chancellor promised that
the new Government would "introduce a Freedom of Information
Act to give people the right to know what Government is
doing in their name". In a speech to a conference in July,
he denied reported fears of back-peddling concerning FOI.
My trusted informant, Maurice Frankel of the Campaign for
Freedom of Information, has told me that there is a fair chance
of legislation, based on the White Paper, in the Second Parliamentary
Session in 1998. However, that is a year away and eighteen
months into the life of the new Government. For those for
whom government by the people is more than a slogan, the progress
of British reforms in governance is truly fascinating.
In his address to the Lords in support
of the Human Rights Bill, Lord Chief Justice Bingham, a jurist
admired throughout the Commonwealth of Nations, cited Milton's
poem, written 350 years ago:
"Let not England forget her precedence
of teaching nations how to live."
It is true that in many things, in government,
the law, in literature and sport, England has taught the nations
of the world. But it also taught them the business of bureaucracy.
It was a stern lesson. Its officials throughout the Empire
were almost wholly uncorrupted. After the 1850s they were
chosen by open, competitive examinations. They followed steady
routine. They observed the rule of law, not the whim of rulers.
But they also followed a regime of high secrecy. However suitable
that regime of the Official Secrets Act was for imperial
and colonial times, it became seriously unsuitable for times
in which political theory, egged on by information technology,
preached that the century of the common man had arrived.
England still has lessons to teach. The
majority of the countries of the Commonwealth of Nations cling,
in various forms of democracy and autocracy, to the regime
of official secrets. The belated acceptance of FOI and the
promise of enforceable rights, more than two hundred years
after the loss of the American colonies, thirty years after
the United States statute and fifteen years after Canada,
New Zealand and Australia, will still be timely. It will encourage
moves that are beginning in the new Commonwealth to follow
Britain in this legal matter yet again. Indeed, it is propitious.
In India, a draft Freedom of Information Bill has been
circulated. It will now be in abeyance pending the general
election called for March 1998. Parallel Bills have been introduced
into the Legislative Assemblies of Tamil Nadu, Rajasthan and
Goa. The only other Asian jurisdictions to have considered
such legislation were Hong Kong before the handover and Japan.
In legal matters many Commonwealth countries, which equally
boast of elective, and not so elective, dictatorships, still
watch legal developments in this country. That is why it is
important for Britain to keep the faith with the FOI promise,
to secure its passage through Parliament and to establish
its principle in a strong and modern statute, as a model for
other wavering countries to follow. Alas, in some of them -
from Palestine to Singapore - it is the anti-terrorism
legislation of late colonial days that modern rulers cling
to. Let a new, confident Britain send out a fresh message
of accountable government.
FOI: SEVEN DEADLY SINS
So far I have said little more than I
did in 1984 in the Granada Lecture. But on the brink of the
consideration of freedom of information legislation for Britain,
it is as well to identify the seven deadly sins of FOI which
experience in Australia, and elsewhere, in the intervening
years has suggested you should be on your guard to repel.
These are the special demons of FOI legislation. It is desirable
that you should be alert to them.
I Strangled at birth:
The first sin is the danger that
this brave but novel idea could be strangled at birth.
One of the most popular of British television exports
has been Yes Prime Minister! In Australia it was
said that Prime Minister Hawke and the Head of his Department,
Sir Geoffrey Yeend, used to watch it together each Monday
night. They were observed to laugh; but at distinctly
different times. All of us have seen the way the unforgettable
Paul Eddington portrayed the intermittently idealistic
politician, Jim Hacker, as an occasional proponent of
FOI legislation. How frequently, and comparatively easily,
Sir Humphrey led him on. Only to win the last battle on
grounds of supposed principle, urgent economy or the dangers
of political embarrassment.
Do not under-estimate this danger
to your FOI proposals. Many a White Paper has come to
nothing or emerged into final legislative form a pale
shadow of its former self. As the days and months tick
away, it will be important for British proponents of the
fundamental change of administrative culture which FOI
signals, to remain vigilant, despite political assurances.
An Australian politician (Mr Gareth Evans QC) once
said that it was imperative for any government proposing
a FOI law to get the legislation enacted within the first
year of office, lest the skeletons accumulating in the
governmental cupboard thereafter render the prospect of
enforceable rights of access to information too politically
uncongenial to press on with.
Victoria was the first Australian
State to introduce FOI legislation. Its form is very similar
to the federal Act. But late this year, the State Government
has begun to signal the possibility of substantial changes.
The Melbourne Age reminded the Government how its
predecessor, which had introduced the law:
"... seemed to fall out of love with
its own creation after the then Opposition health spokesman
... began using FoI applications frequently and effectively.
But now [he] is a member of a party in government and
positions have reversed. Some of his colleagues think
the FoI Act should be amended again and the [Opposition]
is springing to its defence."
The moral is clear and based on Australian
experience. Opposition MPs and "investigative journalists"
soon become amongst the chief users of well-targeted FOI
requests. They do it for the purpose for which Opposition
MPs and journalists exist - to embarrass and harass
the government. Ministers, advised by their officials,
rarely appreciate such harassment. Typically, they seek
to avoid it wherever possible. The longer the delay in
the passage of the long heralded United Kingdom FOI Bill,
the greater the risk that Sir Humphrey will have the last
laugh yet again. You can readily imagine the well-tuned
arguments. "Contrary to our long established principles
of government". "Weakening and distracting the firm government
hand on the tiller needed to achieve the government's
essential programmes". "Need for further study". "Embarrassing
to the back-benchers". "A God-send to the Opposition and
the media". "Cripplingly expensive". Like castor oil in
childhood, FOI is best not tarried o'er, lest the constant
contemplation of the brave leap makes it too hard actually
to accomplish.
II Retaining secrets:
The second deadly sin is to pretend
to FOI but to provide so many exceptions and derogations
from the principle as to endanger the achievement of a
real cultural change in public administration. As countries
introduce FOI legislation, the sharpest debates tend to
be about the exemptions. One criticism of the Federal
Act in Australia was that the cautious approach in framing
the exemptions meant that, in practice, few documents
had become available to inform political debates which
would not have been available before. The United States
FOI Act has only nine exemptions. The Australian Federal
Act has nineteen. Most of the State Acts in Australia
have fewer exemptions than the federal. In recent years
there has been a tendency to introduce special exemptions
for documents (such as Cabinet notebooks and electoral
rolls) which might already have been effectively protected
by existing exemptions. Sir Humphrey got the jitters.
Acute questions have arisen in many jurisdictions as to
how the public interest is to influence disclosure or
exemption? Whether the interests or motives of the applicant
are to be judged irrelevant? How vexatious and repeated
applicants are to be handled? Whether conclusive Ministerial
certificates are to play any part? Specific problems have
arisen as to the scope of the exemption of Cabinet documents.
But if that exemption is cast in language that is too
wide, it will embrace, and thereby exempt, a vast range
of governmental documents which might be, or become annexed
to, Cabinet material. Similarly internal working documents
may be of legitimate interest to the public so that the
people know how they are governed and why. There are several
elements in the White Paper that are encouraging. The
test of "substantial damage" for exemptions; the extension
to all existing records [par 2.7]. The provision
of some access to civil service advice and internal discussion
which will "not cause harm". These are welcome indications
of a commitment to openness. However, the proof of the
pudding will be in the final form of the legislation and
how it is administered.
III Exemptions:
The third deadly sin consists of
surrendering to too many requests for exemption from the
application of FOI legislation. In several countries,
including Britain and Australia, a wide range of activities
which was formerly performed in governmental corporations
has now been "privatised". Some such bodies will take
on the character of purely private corporations. But if
they are established by statute and if they draw on the
Consolidated Revenue, the arguments for including them
in the ambit of FOI legislation are substantial. Their
executives will squeal endlessly, if Australian experience
is any guide, about the need for them to escape the "chains
of government legislation" and to take on the "true character"
of private companies. Some of these demands may be justified
by reference to the non-reciprocal weapon that is sometimes
handed to their competitors. It is reassuring to note
that the White Paper extends coverage to various privatised
utilities and public bodies working on contracted out
functions [par 2.2]. Based on Australian experience,
I predict many battles here as the legislation goes to
the wire. Given the many legal exemptions applicable,
many of the objections of privatised activities are unconvincing.
They should be kept to an absolute minimum.
IV Costs and fees:
The fourth deadly sin is to render
access to FOI so expensive that it is effectively put
beyond the reach of ordinary citizens. This is a development
that is becoming of concern in Australia. The critics
of the administrative reforms in Australia (of which FOI
was one) tend to find ready allies in the government of
the day. During the Hawke Labor Government, one of the
most constant critics was Senator Peter Walsh who lambasted
the costs of the administrative law. He sometimes seemed
reluctant to take into account the efficiency gains, improved
accountability, increased political legitimacy and the
other positive features of the new system. Calls for the
containment of costs are particularly persuasive when
directed to a Minister under pressure to reduce, or curtail,
the costs of his or her administration. In Australia,
we have been watching the debates about the increases
of up to 150% in civil court fees in Britain. We have
had similar debates where the government moved in 1997
to increase court fees by as much as 500%. This would
have increased enormously the cost of bringing an appeal
to the highest court. The Australian Senate disallowed
the increases which had been justified on the principle
of "user pays". It is important for governments, whatever
their political complexion, to understand that some basic
activities of government simply have to be provided at
the general cost of the taxpayer. They represent the price
of governing a civilised community. To expect the user
to pay fully for basic government services, such as a
day in court, is surely wrong. The same, is true of FOI
charges.
Initially the Australian federal Act
did not contain application fees. Charges were imposed
for photocopying. When these were increased in 1985, they
too were disallowed by the Senate. In 1986, an initial
application fee of $30 was fixed and an internal review
fee of $40 was introduced. These have been common fees
in Australia. In the United States and New Zealand there
are no application fees. In Canada, at least until recently,
there was a $5 application fee. However, search fees have
been introduced and differential costs are sometimes provided
for commercial applicants. In some States of Australia,
the maximum limit on the charge that may be levied has
been abolished. Astonishingly, one political opponent
of a State government was reportedly presented with a
bill of $30,000, allegedly the cost of carrying out her
FOI inquiry.
According to a report I read in The
Times, the Lord Chancellor is said to be properly
prudent with public funds. The cost of FOI will, of course,
be assigned to each separate governmental unit. There
is undoubtedly a cost. But it is a cost of running the
kind of government that renders authority accountable
to the people. It would be a sad irony if FOI were attained
but at a price which frightened off deserving users. The
White Paper proposes an application fee of up to £10 modelled
on the fee for access to computerised files under the
Data Protection Act. The Data protection Registrar
in Britain has warned that such fees "may be a deterrent
to those seeking to exercise their rights". But the more
ominous comment is that "additional charges" may be made
for requests which "involve significant additional work".
There are jurisdictions where fees have been used to discourage
FOI requests.
V Decision-makers:
A fifth deadly sin to watch is the
threat of undermining the essential access to an independent
decision-makers who can stand up to government and require
that sensitive information be provided. If an applicant
is discontented with an initial departmental response
in Australia, at the federal level (with parallel arrangements
in most States), access can be had to the Ombudsman or
an independent quasi-judicial tribunal. In mid-1997 proposals
were considered to change the federal tribunal involved
in a way that was thought likely to diminish its independence.
The proposals were said to be "driven" by the federal
public service. It is true that a tension exists between
officials and the independent tribunal which conducts
merit reviews of their decisions. The officials argued
that the tribunal was too expensive, too court-like, too
formal and too costly. There was such an outcry at the
proposal (including by business interests which rather
liked an independent body to be reviewing government decisions)
that the Australian government withdrew the change. The
Law Council of Australia welcomed this decision. It emphasised
that it was a very important right in a democratic society
for the citizen to be able to have an objective merit
review of important governmental decisions. In 1996 the
Australian Law Reform Commission recommended the creation
of an Information Commissioner to oversee the operation
of the federal Act. Such proposals appear useful. However,
the ultimate recourse to courts or court-like bodies is
a necessary assurance of the independence and courage
of decisions when political pressure could otherwise be
exerted to prevent sensitive documents being disclosed
at embarrassing times. It is reassuring that the White
Paper proposes the appointment of an Information Commissioner
with powers to enforce decisions. Courts are expensive.
Administrative remedies are cheaper and more accessible.
But it is vital to have a link to the courts for the truly
hard case. Putting it quite bluntly, judges with tenure,
independence and entire separation from the civil service,
are used to doing unpleasant things to powerful people
where the law requires it.
VI Interpretation:
The sixth deadly sin is one for which
the judiciary, and not the politicians, may be accountable.
Judges also grew up in the world of official secrets and
bureaucratic elitism. Sometimes they may share the sympathies
and the outlook of the Sir Humphreys of this world. In
the way in which the common law often follows a course
harmonious with statutory law, it is desirable that judges,
in their decisions, should also embrace the culture of
FOI. It is a culture which asks not why should
the individual have the information sought, but rather
why the individual should not - at least where
the information concerns the government of that individual's
country or documents in some way relating to the individual
personally.
My judicial life now spans 23 years.
I was appointed to my first judicial office in December
1974. I can say without boast that I am one of the longest
serving judges in Australia. I have seen a lot of changes.
Over the years I have, like Lord Denning, sat in many
cases when the majority of my colleagues fell (in my respectful
view) into error. Take these examples:
- In 1984, in the New South Wales Court of Appeal, I upheld
the submission that the common law had moved to the point
that it would require a donee of statutory power, to give
reasons for a decision affecting an individual's statutory
promotion rights. This seemed to me to be a basic right
to information from a body established by Parliament and
therefore with a legal obligation to act fairly. The majority
decision of the Court of Appeal was reversed by the High
Court of Australia, on which I now sit.
- In 1994, towards the end of my service in the Court of
Appeal, I held, in dissent (following a decision of the
Canadian Supreme Court) that although the common law would
not provide a patient with an enforceable right of access
to her medical practitioner's records about her, principles
of equity, developed from the fiduciary character of the
doctor/patient relationship, would uphold that right. The
High Court of Australia rejected my reasoning and, by inference,
the Canadian and American decisions on which it drew. It
also declined to follow a decision of the English Court
of Appeal. Access to the patient's medical records unless
provided by statute was denied. Of course, in public hospitals
and under some privacy legislation , access to medical records
about one's self can already sometimes be obtained in Australia.
After the case, the Australian Federal Minister for Health
announced that, for more general access, he would propound
a voluntary code. Legislation has been introduced in one
jurisdiction to give a statutory right.
- Increasingly, cases about the operation about FOI legislation
are coming before the higher courts in Australia. Choices
must be made by judges. So far, the courts have generally
favoured access over secrecy. However, it is necessary for
courts themselves to move with the new culture of openness.
One commentator in Australia has
pointed out that in such battles "the bureaucracy ...
by virtue of their staff resources, money and limitless
time can simply outlast and outwit any member of the community
who goes there with a serious policy issue to raise".
The Commissioner and, where necessary, the judges have
the duty to ensure that the principle of access to information
is upheld. This is true, not only in decisions on FOI
legislation.
VII Changing administrative culture:
This brings me to the to the seventh
deadly sin. This is the notion that the passage of FOI
legislation is enough of itself to work the necessary
revolution in the culture and attitudes of public administration.
Going on Australian experience, it is not. In a series
of lectures in 1994 and 1995, Sir Anthony Mason, the past
Chief Justice of Australia, confessed to a doubt that
a "significant change in the administrative culture" and
"an improvement in the quality of administrative decision-making"
had actually been achieved as a result of the administrative
reforms in Australia, including FOI. Apart from anything
else, if little is done to promote knowledge of the FOI
facility and to enhance the citizen's view that this is
a right (and not an exceptional petition), an FOI Act
is unlikely to be put to general use. In recent reports
on the operation of the New South Wales Act, the State
Ombudsman, Ms Irene Moss, criticised the lack of
publicity and education programmes, the high levels of
refusal or resistance to FOI applications, the lack of
monitoring, auditing and centralised consideration of
lessons for good administration and the under-utilisation
of the FOI Act measure in Australia's most populous State.
A report released earlier this month castigated sternly
the delays and resistance which had marked efforts to
gain access to documents involved in a public project.
Refusal of access was described as "unreasonable" and
contrary to the public interest. A particular technique
for attempting to circumvent the FOI Act, "confidentiality
agreement" was singled out for special attention.
Passing laws on FOI is only the first
step. Learning from the experience of erroneous, misleading
or incomplete records and deriving lessons for improved
administration which will apply throughout the civil service
is the big leap that must still be taken.
In some jurisdictions of the Commonwealth
of Nations, FOI legislation has gone beyond being a reactive
measure. Thus, s 25 of the Freedom of Information
and Protection of Privacy Act of British Columbia
in Canada provides:
"25(1) Whether or not a request for
access is made, the head of a public body must, without
delay, disclose to the public, to an affected group of
people or to an applicant, information:
(a) About a risk of significant
harm to the environment or to the health or safety
of the public or a group of people; or
(b) The disclosure of which is,
for any other reason, clearly in the public interest."
This provision completely turns on
its head the secret world of Sir Francis Walsingham and
the Royal court bureaucracy from which the ethos of British
public administration ultimately derived. Instead of a
rule of secrecy, a primary rule of openness is substituted
with the authority of law. I feel sure that there are
still a few Sir Francises and Sir Humphreys lurking in
the corridors of power in Whitehall and Canberra who would
snuff out any attempt to introduce s 25 into our
law. But it is a thought to conjure with, especially in
the world of new information technology which has revolutionised
the public information systems and virtually demands a
new and more open legal regime.
Freedom of information is important
to Justice and to the International Commission of Jurists.
In a world of secrecy and opaque government, serious wrongs
can occur which may never come to light. FOI legislation
is at once a means of casting the light of scrutiny into
the dark corners of government and a contribution to a
new culture of openness in public administration. I trust
that Justice and its supporters will be vigilant upon
this topic in the weeks and months ahead.
RENDERING OFFICIALS OUR SERVANTS
The change of political attitudes and
the massive alteration in information technology that combine
to require a new regime of administrative openness, even acknowledging
that it will have some costs and produce diversions, annoyances
and embarrassment from time to time. The true change is not
merely technological. It is legal, political and attitudinal.
One of the finest writers in Australia on the law of equity,
Justice (formerly Professor) Paul Finn of the Federal Court
of Australia, recently explained the new world of administration
in terms that drew lessons from the principles of equity which
originated in London not far from here:
"To the extent that the power of the
people is devolved upon institutions and officials under
our constitutional arrangements, those officials and institutions
become the trustees - the fiduciaries - of that
power for the people. The reason is obvious enough. In
a fundamental sense the power given to officials, elected
and non-elected alike, is not their own. It is ours. They
hold it in our service as our servants. In short, our
officials exist for our benefit."
Justice Finn is concerned that many of
Australia's "constitutional assumptions" which were made in
Britain, have nearly wholly failed. Parliament, as an institution,
is seriously weakened. The real independence of the public
service has been cut away. There has been, until now, no general
Bill of Rights to empower the courts. The political parties
have tended to be controlled by a few. Improvisations such
as Royal Commissions are created. But the fundamental institutional
problems remain.
Even if Finn's hypothesis that the foundation
of public administration is a trust obligation owed to the
people is rejected, his opinion demonstrates the importance
of administrative law reform in general, and freedom of information
in particular, in the larger scheme of the political reconfiguration
of countries such as ours. The other constitutional reforms
which are afoot in Britain may prove an antidote to the "corrosive
cynicism" which in Britain, as in Australia, has been creeping
into our governmental institutions. Those who feel apologetic
about FOI, its costs and occasional inconveniences, do well
to reflect upon the need to return to the basic principle
of accountable government. In Australia, this has been described
by Finn as a "republican" idea. It is the idea that power
derives from the people and is not just something surrendered,
gradually and reluctantly, by authority from above. The notion
of popular government is now generally accepted. What we have
to do, in both our countries, is to convert the idea into
a more robust and practical reality. FOI is a very important
ingredient.
THE IMPACT OF TECHNOLOGY ON HUMAN RIGHTS
I was asked to add a few closing words
about privacy and about the impact of new technology on information
rights, particularly, and human rights in general. My eyes
were opened to these themes in the 1970s and early 1990s when
I chaired committees of the OECD on privacy protection and
information security. They are large issues. If I elaborated
upon them, I would delay you here too long.
Obviously, privacy is closely related
to FOI as the law in every jurisdiction where FOI has been
adopted, acknowledges. Privacy today has gone beyond invasions
of the person and of the person’s physical space. Today privacy
also concerns a measure of control over personal information
about the individual, much of it now in computers or circulating
by telecommunications.
The central tenet of most modern privacy
laws is the right of access of the individual so that he or
she can see the data upon which others make decisions affecting
that person’s life. As a late entrant into the FOI field,
Britain has a rare chance to rationalise its rules on FOI
and information privacy.
In Australia, the Federal Government,
after an early promise to extend privacy protection law into
the private sector, has now abandoned the proposal to introduce
general information privacy laws. Interestingly, and as a
sign of the times, many private sector bodies have actually
indicated their support for information privacy laws because
the existence of such laws is now sometimes a pre-condition
to the supply of personal data from other countries affecting
private individuals.
Freedom of information legislation ordinarily
includes exemptions designed to protect the privacy of persons
mentioned in the government’s data collections. Where disclosure
would involve revelation of the "personal affairs" of someone
else, power must be given, either to exclude such disclosure,
to permit it only after agreement of the person concerned
or following the approval of the independent decision-maker
who is appointed to decide conflicts of this kind. For example,
breaches of individual privacy may sometimes be authorised
where disclosure is necessary to prevent, or lessen, a serious
and imminent threat to life or health; where it is required
or authorised by law; where it is necessary for enforcement
or investigation of the criminal law or under data protection
legislation. The inter-action between FOI legislation, on
the one hand, and privacy or data protection laws, on the
other, should be a constructive one. This is because, experience
teaches that many FOI requests are actually made in furtherance
of the demand of individuals to have access to official data
concerning themselves. Furthermore, the central provision
of most modern data protection/privacy laws is the right of
access of the individual to most of his or her own data. In
this way, FOI reinforces, and does not endanger, privacy protection.
A larger question is the way in which
privacy more generally should be defended in societies such
as ours, and especially in relation to the media. Despite
its adaptability and creativity, the common law of England
(which has been inherited and adapted in most parts of the
Commonwealth) did not develop a coherent law of privacy protection.
This was curious, given the high value which the English typically
ascribe to their privacy. It is a common jest that the English
concept of bliss is an empty railway carriage. Lord Chief
Justice Bingham has said that the courts will develop privacy
law, given time. Perhaps in this country they will be encouraged
to do so by the Human Rights Bill when it becomes law. The
Times, in a recent editorial, expressed concern that that
Bill, now before Parliament, will give enforceable protection
for privacy, including as against the media.
It is natural that the media, which are
not presently regulated by law in this regard, should wish
to retain its high measure of legal immunity. Nobody likes
to be subject to legal regulation, least of all the powerful
and the opinionated. Fairly, the media points to the importance
of freedom of communication and freedom of expression. These
basic human rights are also reflected in the Human Rights
Bill. Yet it is essential that proponents of human rights
should make it clear that freedom of expression and freedom
of the press are not absolute values. They compete with other
basic human rights. One of these is the right to individual
privacy. That right has taken a battering in recent times.
But in the International Covenant on Civil and Political
Rights it is declared that "no one shall be subjected
to arbitrary or unlawful interference with his privacy, family,
home or correspondence, nor to unlawful attacks on his honour
and reputation". There are similar provisions in the European
Convention and in many other statements of fundamental rights.
The law of this country, and all the laws that are derived
from it, protect honour and reputation. Is it not time to
provide an effective measure of legal protection for privacy?
It was proposed in Australia, but not yet enacted
The stimulus of the demand for such protection
has come not so much from the fundamental principles of human
rights or legal theorists. Rather, it is the product of the
revulsion of civilised people at the spectacle of serious
abuses of individual privacy which have become so common.
The case of Diana, Princes of Wales, is simply the most visible
and vivid example of the hounding of individuals in their
private lives to an extent that is intolerable and for which
there should be effective redress. All that usually tends
to be available for such affronts is mealy mouthed words or
caning with a feather.
Years ago Lord Denning invoked the famous
cry of Thomas Fuller 300 years ago. It lies at the heart of
adherence to the rule of law and the control of great power.
"Be you ever so high the law is above you". That principle
is addressed to government, to politicians, to judges and
to civil servants. It stimulates the contemporary moves to
FOI law. But it is also addressed to the media. It underpins
the efforts, belatedly, to provide effective legal protection
for individual privacy. Privacy is, after all, a fundamental
human right, and yet in our societies it is largely unprotected
by the law. A proper measure of enforceable protection should,
in my view, be provided.
The debates about human rights and information
technology have now moved far beyond privacy and information
security. They embrace the problem of cryptography and whether
governments should have a right to enter every data system
in the name of national security, counter-terrorism, drug
surveillance and so on. They include the many legal and ethical
issue raised by the Internet and the explosion of information
and of modern media.
Twenty years watching the policy themes
of information technology has taught me that one of the chief
challenges to human rights in the coming millennium will be
the impact of technology on who we are, how we are governed
and how we live. This challenge goes far beyond informatics.
My service on the Ethics Committee of the Human Genome Project
and on the International Bioethics Committee of UNESCO teach
me that, possibly, the most difficult quandaries for human
rights in the future lie in genomic research. The genome,
manipulated, has the potential even to change who human beings
are. In this respect, it concerns the human rights of future
generations and who humans and future generations will be.
But to explore these issues would sorely test your saintly
patience. I hope I will have another chance - and in
shorter than thirteen more years.
I leave by throwing down another gauntlet.
May Justice, which has been in the vanguard of the human rights
movement of Britain, and in the world that still looks with
hope and admiration to Britain as a haven of fairness, continue
to quest out the new challenges to human rights. May Justice
never rest easily on its laurels. Its greatest days lie ahead.
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