546 General Principles of Constitutional and Administrative Law

tip of an object was protruding from that pocket. DC Bell immediately

concluded that Mick had a knife in his pocket. He approached Mick saying

‘Come outside laddie. I want to search you.’ Mick, who was a law student at

the local university, was not a member of a motor-cycle gang and had never

been to ‘The Biker’s Cafe’ before. Mick, somewhat startled by DC Bell’s

manner, asked ‘Why?’, and received the reply: ‘I’m a police officer. You’d

better do what I say.’ Mick followed DC Bell out to the street and, without

further conversation, allowed him to pull out the object in his (Mick’s) pocket.

It proved to be a torch.

(i) Discuss whether the search of Mick was lawful and consistent with the

ECHR.

(ii) Suppose that, in searching Mick’s pocket, DC Bell had discovered a

packet of heroin. Would the discovery of the packet be admissible

evidence against Mick in any subsequent trial?

21.3 Explain the procedures, under PACE, whereby the police may obtain access

to evidence which it is thought will be of assistance in the investigation of

any crime.

22 State Secrecy

The republican perspective which I introduced in Chapter 1 stresses

open government as an important way of combating domination.

There are two aspects to state secrecy. The first concerns a public right

of access to information held by government. Our private law tradi-

tions mean that the basic position is that no such right exists. The state,

like a private person, can control its information unless there is a

positive law to the contrary. Apart from cases where the principles of

natural justice apply (see Chapter 16), the common law gives no right

to information. Indeed in Burmah Oil Corporation v. Bank of England

[1980] AC 1090 at 1112, Lord Wilberforce did not believe that the

courts should support open government. There are, however, certain

statutory rights to information of which the Freedom of Information

Act 2000 is the most general but is not yet in force. On the other hand

public interest immunity in litigation and the absence of a general duty

to give reasons for government action reinforce state secrecy.

The second aspect concerns claims by the state to suppress informa-

tion held by others such as the media. Here the state is interfering with

common law rights and also the right of freedom of expression under

Art. 10 of the European Convention on Human Rights. The onus is

therefore on the state to justify its intervention. In relation to govern-

ment information, secrecy is re-enforced by many statutes, notably the

Official Secrets Act 1989 forbidding disclosure of certain information,

by the civil law of breach of confidence, and by employment contracts.

There is also a tradition of voluntary secrecy generated by the

priority of efficiency over accountability and partly perhaps by the psy-

chological condition of many persons who desire to hold public office.

For example, such persons may favour secrecy to reinforce their self-

importance and may also be disposed towards tribalism. In par-

ticular, ministers and senior civil servants agree to subject any memoirs

they propose to publish to vetting by the Cabinet Office. ‘All informa-

tion obtained by virtue of office is regarded as held for the State and

not for the benefit of the office holder or the interested reader’ (Cmnd

6386 (1986), para. 62). Contemporary policies of privatisation and

encouraging public bodies to follow commercial practices, including

‘commercial confidentiality’, also militate against openness in favour

of a protective, defensive culture.

547

548 General Principles of Constitutional and Administrative Law

Access to government information as such is not protected by the

ECHR. Nor does it fall within Art. 10 (freedom of expression). Article

10 has been said to protect people who wish to disclose information

and does not force anyone to do so (see Leander v. Sweden (1987)).

However this takes no account of the democratic interest in the free

flow of information which the ECHR has recognised in the context of

press freedom (see Chapter 19). There may, however, be a right to

information, under Art. 6 (right to a fair trial) and Art. 8 (respect

for family life; see Gaskin v. UK (1989) – adoption records – applied

restrictively in Gunn-Russo v. Nugent Care Housing Society (2001)).

In addtion to general concerns about freedom, arguments in favour

of ‘open government’ include the following:

. Democracy: officials should be accountable to a well-informed

public opinion.

. Autonomy: people should be able to exercise informed choice in

relation to their own affairs.

. Justice: in being able to correct false information.

. Direct public participation: in decision making as an end in itself.

. Public confidence: in government.

Arguments in favour of government secrecy are primarily efficiency

based and include the following:

. Release of certain kinds of information might cause serious harm,

e.g. national security, crime prevention, child care and some eco-

nomic information.

. Expense and delay, bearing in mind that seekers of information may

be cranks, enemies or maniacs.

. Freedom of information could weaken ministerial responsibility to

Parliament.

. Frankness within government, e.g. the danger of policy making

being inhibited by premature criticism or the quality of debate being

diluted by the temptation to play to the gallery (see Birkinshaw,

2001, p. 283 et seq.).

. Public panic if disclosures are misunderstood.

. Vanity and self-protection by public officials so that it might be

more difficult to make public appointments.

. The mystique of government emphasised by Bagehot as a source of

stability (see Chapter 3).

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State Secrecy

22.1 Voluntary Disclosure of Information

There is nothing to prevent the government from giving informa-

tion on its own terms. Indeed the Official Secrets Act provides for

‘authorised’ information to be disclosed and the Freedom of Infor-

mation Act 2000 leaves government with a discretion to disclose the

many matters that are exempt from a duty to disclose under the Act

(below). From the republican perspective this is not satisfactory in that

it is not conducive to human dignity that important rights should

depend on the goodwill of those in power. For example, the govern-

ment provides unattributed information to journalists who are willing

to fall into line (the ‘Lobby’). The press also accepts the ‘D’ notice

system which relies on voluntary censorship by a committee of officials

and press representatives and voluntary regulation by the Press Com-

plaints Commission.

Pressures for ‘open government’ have also been met by the vol-

untary disclosure of information (but not documents) held by central

government departments (see Open Government Cm 2290, 1993). This

Code of Practice (1994) is subject to many exceptions notably, infor-

mation the disclosure of which ‘would harm the candour and frankness

of internal discussion’. A charge can be made for supplying informa-

tion and there is no enforcement mechanism other than general

channels of complaints within departments. However, the Parliamen-

tary Commissioner can make recommendations.

The Code is sometimes restrictive. For example, the government

will ‘normally’ disclose, but only after the policy is announced, facts

and analysis of the facts which the government considers relevant and

important in framing major policy proposals or decisions. ‘Infor-

mation’ also includes reasons for administrative decisions to those

affected, information about how public services are run including

costs, complaints procedures, range of services, targets and standards,

in response to specific requests, information relating to policies,

actions and decisions.

The exceptions are in some cases vague. They include harm to

defence, security and international relations, information received in

confidence from foreign governments, courts or international organi-

sations, communications with the royal household, prejudice to the

administration of justice, harm to public safety or public order; danger

to the life or physical safety of any person, protection of confidential

sources, environmental damage, immigration and nationality, effective

management of the economy and tax collection, effective management

and operations of the public service, public employment, including

550 General Principles of Constitutional and Administrative Law

personnel records, public appointments and honours, ‘unreasonable’,

voluminous or vexatious requests, information which will soon be pub-

lished or where publication is premature, research statistics or analysis,

individual privacy, third-party’s commercial confidences, information

given in confidence, disclosures prohibited by statute, international

agreement or under parliamentary privilege.

22.2 Statutory Rights to Information

There are certain statutory rights to information held by the govern-

ment. They are characterised by broad exceptions and weak or non-

existent enforcement mechanisms. None of them gives access to the

inner workings of the central government.

The most important of them are as follows:

. Historical records (see Cm. 853 (1991)). These are, subject to

exceptions, made available after 30 years (Public Records Acts 1958,

1967, 1975). The 1993 White Paper on open government (Cm. 2290)

proposed that records be withheld beyond 30 years only where

actual damage to national security, economic interests or law and

order can be shown, or if disclosure would be a breach of confidence

or cause substantial distress or danger. At present many records are

subject to blanket exclusion. The Freedom of Information Act 2000

removes exemptions for communications within UK governments,

court records, decision making and policy formation, legal profes-

sional privilege and trade secrets contained in historical records.

Information relating to honours is to be protected for 75 years and

law enforcement matters for 100 years.

. Personal information held on computer or in structured manual

records (Data Protection Act 1998). However, the Act exempts

much government data including national security matters, law and

tax enforcement matters and data ‘relating to the exercise of

statutory functions’.

. Local government information. The Local Government (Access to

Information) Act 1985 gives a public right to attend local authority

meetings including those of committees and sub-committees and to

see background papers, agendas, reports and minutes. There are

large exemptions. These include decisions taken by officers, confi-

dential information, information from central government, personal

matters excluded by the relevant committee, and ‘the financial or

business affairs of any person’. The Act appears to be easy to evade

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State Secrecy

by using officers or informal groups to make decisions. It is not clear

what counts as a background paper.

. The Public Bodies (Admission to Meetings) Act 1960 gives a right to

attend meetings of parish councils and certain other public bodies.

The public can be excluded on the grounds of public interest (see

R. v. Brent Health Authority ex parte Francis (1985)).

. The Access to Personal Files Act 1987 authorises access to local

authority housing and social work records by the subject of the

records and in accordance with regulations made by the Secretary of

State (see also Housing Act 1985 s. 106 (5)).

. The Environmental Information Regulations 1992 (SI 1992 no. 320)

implementing EC Directive, (90/313) require public authorities to

disclose certain information about environmental standards and

measures. The information must be made available on request, but

there are no specific requirements as to how this is to be done.

A charge can be made. Requests can be refused on grounds includ-

ing manifest unreasonableness or a too-general request (how does

a citizen know what to ask for?), confidentiality, increasing the likeli-

hood of environmental damage, information voluntarily supplied

unless the supplier consents, international relations, national secur-

ity. Under the Aarhus Convention on Access to Information, Public

Participation and in Decision Making and Access to Justice in Envi-

ronmental Matters (1998, Cm. 4736 (2000)) the government is

required to make regulations giving a general right to environmen-

tal information subject to exceptions on public interest grounds.

These will replace the present regulations and be integrated into the

machinery of the Freedom of Information Act 2000 under s. 74 of

that Act (see also HL 9 (1996–97), Freedom of Access to Information

on the Environment).

22.3 The Freedom of Information Act 2000

The majority of democratic states possess freedom of information

legislation giving the public a legal right of access to governmental

information. The Freedom of Information Act 2000 is a weak ver-

sion. It is not yet in force and is required to be in force by 2005 (s. 87).

Some parts of it, in particular a requirement to prepare ‘publication

schemes’ (s. 19), are already in force but these give no right to par-

ticular information.

Subject to many exemptions and, in some cases to a governmental

veto the Act requires public authorities to disclose information on

552 General Principles of Constitutional and Administrative Law

request and also to confirm or deny whether the information exists

(s. 1). This is supervised and enforced by an Information Commissioner

who also has advisory and promotional functions. The Information

Commissioner will also supervise a Code of Practice on Access to

Government Information and approve publication schemes. The Act

does not prevent an authority from disclosing any information (s. 78).

The scope of the Act is potentially wide. Under Sched. 1, central

government departments (but not the cabinet, the royal household or

the security services), Parliament, the Welsh Assembly (but not the

Scottish government), local authorities, the police, the armed forces,

state educational bodies and NHS bodies are automatically public

authorities as well as a long list of other specified bodies, as are com-

panies which are wholly owned by these bodies (s. 6). The Secretary of

State may also designate other bodies, office holder or persons as

public authorities which appear to him to be exercising ‘functions of a

public nature’ or who provide services under a contract with a public

authority the functions of which include the provision of that service

(s. 3 (1)). This might include, for example, a voluntary body acting on

behalf of a government agency. The Secretary of State can, however,

put limits on the kind of information that the bodies he lists can

disclose (s. 7).

The Act gives certain rights to any person to request in writing (s. 8),

information held by the authority on its own behalf or held by another

on behalf of the authority (s. 3 (2)). Reasons do not normally have

to be given for the request. However, disclosure can be refused if the

applicant has not provided such further information as the authority

reasonably requires to enable the requested information to be found

(s. 1) although the authority must provide reasonable advice and

assistance (s. 16). A request can also be refused if the cost of com-

pliance exceeds a limit set by the Secretary of State or where the request

is vexatious or repetitive (s. 14). A fee regulated by the Secretary of

State can be charged (s. 9). The authority must respond promptly and

within 20 working days. However, if the matter might involve an

exemption there is no time limit other than a ‘reasonable time to make a

decision’ (s. 10).

The Information Commissioner can require the authority to disclose

information either on his own initiative (enforcement notice, s. 52), or

on the application of a complainant whose request has been refused

(decision notice, s. 50). Reasons must be given for a refusal and the

Commissioner can, where appropriate, inspect the information in

question and also require further information. An authority can refuse

to disclose to the Commissioner any information which might expose

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State Secrecy

it to criminal proceedings other than proceedings under the Act itself.

Both sides may appeal to the ‘Information Tribunal’ on the merits

with a further appeal to the High Court on a point of law (s. 57). The

right to information can be enforced by the courts through the law of

contempt but no civil action is possible (s. 56).

However, the government sometimes has a veto over the Commis-

sioner’s enforcement powers (s. 53). This applies to information held

by the central government, the Welsh Assembly and other bodies

designated by the Secretary of State. It applies to any request that falls

within the exemptions. An ‘accountable person’ (a cabinet minister, or

the Attorney General or their equivalents in Scotland and Northern

Ireland), can serve a certificate on the Commissioner ‘stating that he

has on reasonable grounds formed the opinion’ that there was no

failure to comply with the duty to disclose the information. Reasons

must be given and the certificate must be laid before Parliament. The

certificate would also be subject to judicial review.

The right to information under the Act is subject to many

exemptions contained in Part II. These apply both to the information

itself and usually to the duty to confirm or deny. Most are blanket

exemptions for whole classes of information. Some require a ‘prejudice’

test relating to the particular document. However, this is less onerous

for the government than the ‘substantial prejudice’ that was originally

envisaged (White Paper, (1997). Some exemptions are absolute. Those

that are not absolute are subject to a public interest test (see below).

The absolute exemptions are as follows:

. information which is already reasonably accessible to the public

even if payment is required (s. 21);

. information supplied by or relating to the intelligence and security

services (s. 23). A minister’s certificate is conclusive subject to an

appeal to the Tribunal by the Commissioner or the applicant which

in respect of the reasonableness of the decision is limited to the

judicial review grounds (s. 60);

. information contained in court records widely defined (s. 32);

. information protected by Parliamentary privilege (s. 34);

. information that would prejudice the conduct of public affairs in the

House of Commons or the House of Lords (s. 36);

. certain personal information, although some of this is available

under the Data Protection Act 1998 (s. 40 (1) (2));

. information the disclosure of which would be an actionable breach

of confidence (s. 41), a public interest test applies at common law

(see below);

554 General Principles of Constitutional and Administrative Law

. information protected by legal obligations such as legal professional

privilege or European Law (s. 44).

In other cases the exemption applies only where it appears to the

authority that ‘the public interest in maintaining the secrecy of

the information outweighs the public interest in disclosure’ (s. 2 (1)b).

The balance is therefore tipped in favour of disclosure. However,

because this test is subjective, the Commissioner’s powers may be

limited to the grounds of judicial review.

The main exemptions of this kind are as follows:

. information which is held at the time of request with a view to be pub-

lished in the future (s. 22). No particular time for publication need be

set although it must be reasonable that the information be withheld;

. information required for the purpose of safeguarding national

security. There is provision for a minister’s certificate as under s. 23

(see above);

. information held at any time for the purposes of criminal pro-

ceedings or investigations which may lead to criminal proceedings

or relate to information provided by confidential sources (s. 30).

This would include many inquiries into matters of public concern;

. information the disclosure of which would or would be likely to

prejudice defence, foreign relations, relations between the United

Kingdom devolved governments, the House of Commons or the

House of Lords, law enforcement widely defined to include many

official inquiries, the commercial interests of any person including

the public authority holding the information, or the economic