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FOI Act Should Be Rewritten To Protect Government Secrets, Says Jack Straw

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Jack Straw says the FOI act was not
Jack Straw says the FOI act was not "well constructed"

The former Labour Minister who introduced the Freedom of Information Act told MPs it should be rewritten to protect secrecy in government decision-making.

Jack Straw said the Act, which he helped create as Home Secretary in 2000, has hampered ministers and civil servants' ability to put their thoughts on paper for fear of seeing them published later.

Controversial documents like the NHS risk register, which the FOI Tribunal forced the Government to disclose, should be protected from exposure so ministers can think through the dangers of legislation, he declared.

He insisted, speaking to members of the Justice Committee, that "it has to be possible for officials to say to ministers `There are these risks' without them going public... That sort of information must be, in my view, protected."

The act, he said, contained "ridiculous" drafting errors and needed to be tightened up.

Straw argued that sections 35 and 36 of the Act should be "clarified" to exempt from disclosure information on the formulation of government policy, ministerial communications and law officers' advice and to avoid inhibiting the free and frank exchange of views within government.

Ministers who framed the Act believed they had given a "class exemption" to internal Government policy discussions, but this had been undermined by a series of "rather extraordinary decisions" by the FOI Tribunal, which appeared to believe that the protection should be lifted as soon as a policy was in place, he said, adding: "That is crazy and it is not remotely what was intended."

The Act has "at some levels of government - particularly at high levels - led to a reluctance to commit the process of decisions to records, so in one sense it has made it more difficult to secure accountability, rather than less," Straw told MPs.

"There has to be a space in which decision-makers can think thoughts without the risk of disclosure, not just at the time but the risk of disclosure afterwards" he added.

Former Prime Minister Tony Blair has famously said that he now regrets passing the FOI Act, writing in his memoir: "I quake at the imbecility of it."

Straw today said that, when Blair handed him responsibility for FOI in 1998, he made clear that he wanted him to row back from earlier proposals drawn up in the first months of the Labour administration, which the former Home Secretary said were "unreal" in the extent of the openness which they envisaged.

He admitted that the reframed Act which he eventually passed in 2000 was "not particularly well-constructed" and said sections 35 and 36 in particular had caused "very significant problems". Despite featuring in the 1992 and 1997 manifestos, freedom of information had not been thoroughly thought-through before Labour took office, he said.
"The error that we made was not so much having it in the manifesto, but not thinking clearly enough about how it would operate, because we have ended up with an Act that leads to greater access to documents than in any other comparable jurisdiction," said Straw. "In government, we should have taken more time to think this through."

But he added: "My answer is not to repeal the whole Act. It has produced many benefits as well as some disadvantages."