Is it possible to deliver frank, robust, clear advice if you know it might become public? This is one of the key points members of the House of Commons Justice Select Committee must consider in their post-legislative scrutiny of the Freedom of Information Act.

Lawyers, some of whose advice is privileged, may have some sympathy with the argument that public figures have the right to confidential advice on the practicalities and principles of public policy matters. And no one likes it when someone stands literally over their shoulder while they try to write something coherent. There are shelves and a wall behind my desk, and I like it that way.

It would be quite wrong, though, for legal-world people to immediately go on a headlong empathetic rush to side with this version of privilege. Some of the ground on which the FOI Act has been attacked will sound familiar to lawyers who feel, with some justification, that the direction of public policy is set against other matters they care about deeply.

Leaving aside, for now, claims that civil servants are ‘too scared’ to be honest, ‘in case they get FOI-ed’ [sic]. (There are also plenty of grounds for refusing requests, but that is not what this blog post is about.)

Instead think of objections to the FOI Act’s demands that have been variously conflated with our so-called ‘health and safety culture’, as a similar ‘burden’ on legitimate activity, and with our similarly so-called ‘litigation culture’ with FOI requests labelled variously ‘frivolous’ and ‘vexatious’.

As Gazette readers know, every time the UK’s oft-referenced ‘health and safety’ and ‘litigation’ cultures are subjected to any decent scrutiny, they are shown to have little foundation in fact. We should be suspicious of these labels.

And it is my strong suspicion that objections to the operation of the FOI Act do not really stem from the fact that civil servants become physically ill with the fear that their advice will come out in a FOI request. It is much more about the embarrassment of their political masters.

Specifically, did they ignore sensible advice? Were they warned that something was a bad idea? Did they gloss over inconvenient facts? Think of FOI as being a little like disclosure in a piece of litigation, and you begin to get the picture.

Where our civil servants are good at what they do, they actually emerge from exercises in transparency pretty well.

If you want an example of this that is in the public domain, I would recommend picking up a copy of Matthew Parris’s book Parting Shots: Undiplomatic diplomats - the ambassadors’ letters you were never meant to see (Penguin, £9.99). The book is a collection of ambassadors’ valedictory dispatches to their political masters as they left a posting, a tradition that was stopped in 2006.

These dispatches frequently gained a wider distribution than political masters would have liked, among other British missions, the missions of other countries, and sometimes the media too. In among the eccentricities, humour, and occasional racist remarks or inexplicable bugbears, there is plenty of, as you would hope, sound advice that reflects well on the authors. (Where the authors are plainly nuts, that also comes across pretty clearly.)

However, sound advice and clear analysis does not reflect well on the ministers who ignored it. If moves to weaken the FOI regime succeed, it is their blushes that will be saved.

Eduardo Reyes is Gazette features editor

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