The Hutton inquiry has been riveting for Whitehall watchers. It is as if we had been invited not just to peep into the secret garden of Number 10, but to walk around the offices and peer into all the filing cabinets. This has led to wishful thinking among some constitutional reformers who suggest that in 2005, when the 2000 Freedom of Information Act finally comes into force, we will be able to do precisely that.
Hutton has helped to revive the government's promise of a civil service act, designed to draw clearer boundaries between the roles of ministers, civil servants and special advisers. But freedom of information (FOI) is unlikely to be significantly advanced.
When Hutton shines his spotlight into the darker corners of Whitehall, he enjoys a degree of co-operation which the ordinary FOI "requester" can only dream of. There are four main reasons why the disclosures to Hutton should not be equated with the kind of information we will get to see under FOI: resources, exemptions, speed and government attitude.
First, resources. The Hutton inquiry will cost about ?2m, and much more in terms of civil servants' diverted time. Under the FOI Act, Whitehall guidelines advise departments that they can refuse requests which will cost more than about ?500 to answer, in order to prevent undue diversion of resources. All FOI laws require some such protection to guard departments against unduly voluminous requests or fishing expeditions. But?500 would not have taken the Hutton inquiry very far.
The second reason lies in the exemption regime. The secretary to the Hutton inquiry, Lee Hughes, was the official in charge of FOI in Whitehall, and has applied FOI principles in editing the documents before they are published on the website. At least two pages have been withheld on grounds of national security, and a lot of personal details have been deleted to protect privacy. But much more could have been withheld, under the FOI Act exemptions for defence, international relations, formulation of government policy and the free and frank provision of advice. Because of the intense public interest in the Hutton inquiry, Hughes was able to take a bold view of the overriding public interest in disclosure. Few of his colleagues will be quite so bold when responding to FOI requests, and will find plenty in the multiple exemptions to justify nondisclosure. By international standards, Britain's FOI Act has a particularly broad exemption for policy advice, with no requirement to disclose purely factual material, or statistical, scientific and technical reports of the kind David Kelly prepared. Most unusually, the final decision on release is left to ministers, who are unlikely to disclose policy advice which does not support their decisions.
Next, speed of response. Hutton gets documents within days, sometimes hours. The FOI Act requires departments to respond to a request within 20 days, but the time limit can be extended, and in overseas jurisdictions complex or tricky requests often take months, especially when departments need to consult lawyers or third parties before deciding how much to release. If information is withheld, and the FOI requester decides to appeal, the appeal can take years. For a journalist, having to wait months or even years for information will generally kill off a story.
Finally, the government's attitude. Having set up the Hutton inquiry, the Blair government can hardly decline to co-operate. Ministers and officials have leaned over backwards to help. Once the inquiry is over, it will be business as usual. We know the government's business as usual attitude from its response to two recent reports from the ombudsman, Ann Abraham, who had recommended disclosure of lists of ministerial gifts and possible ministerial conflicts of interest. In the former case, she revealed that the lord chancellor, who favoured disclosure, had been overruled when Jonathan Powell, Blair's chief of staff, decided that press coverage of a "huge list of gifts" would be too embarrassing. Both Abraham's recommendations were swept aside, leading her to threaten to withdraw from investigating access to information complaints if this was how the government responded.
It is not generally recognised, especially by officials who fear the advent of FOI, just how many cards the government continues to hold. It can stand pat, and decide to release nothing. It can play for time, and release information late, or in dribs and drabs. If taken to appeal, departments can argue the toss with the information commissioner, delaying matters further. If the commissioner orders disclosure on public interest grounds, ministers can veto his decision.
These fears are not fanciful. All these things have happened in other countries; they are likely to happen here. True, the FOI Act has an overriding public interest test. On that, let the last word rest with Richard Scott. In the course of his inquiry into arms for Iraq, Scott became a wise and weary Whitehall watcher. His report concluded: "where disclosure might be politically or administratively inconvenient, the balance struck by the government comes down, time and again, against full disclosure." Scott had no lasting impact on changing that culture; neither will Hutton.
