IV. Governance issues
An extensive pilot of e-voting took place in the 2007 elections. A review of the process found that the systems were poorly designed and insecure. There were numerous problems including unreliable registers, incorrect ballot displays, and poorly designed cryptographic receipts.1 Some electronic counts had to be abandoned while others had significant delays in counting or severe discrepancies between the counts. The former government rejected suggestions from the Electoral Commission to conduct further pilots before widespread adoption of e-voting.2 There is some indication that public support for e-voting is increasing, however. Widespread problems at polling stations in the 2010 elections prompted calls for reform of the voting system, and recent research conducted by Cisco indicates that two-thirds of voters expect to vote online by the time of the next elections.3
The Freedom of Information (FOI) Act was enacted in November 2000.4 However, its full implementation was delayed until 2005, the slowest implementation of any FOI law in the world. There were over 34,000 requests to central government bodies in 2008, a slight increase from 2007.5 A full report for 2009 has not been published at the time of writing, though a statistics bulletin from the Ministry of Justice indicates that central government bodies received 6,857 requests in the first quarter of 2010, an increase of 14 percent over the first quarter of 2009.6 One notable request on the expenses of MPs led to the resignation of the Speaker of the House and many other MPs.
Appeals against denials of information are to the Information Commissioner and then, until 18 January 2010, the Information Tribunal. On that date the Information Tribunal ceased to exist and all its work was transferred to the new General Regulatory Chamber. From 18 January, all FoI appeals will be heard either in the First-tier Tribunal (Information Rights) or in the Upper Tribunal.7
The utility of the Act has been limited by extensive delays in responding by public bodies and to appeals by the Information Commissioner, many of which can last up to five years. In June 2002, the Scottish Parliament approved a Freedom of Information Act8 that is regarded as somewhat stronger than the UK Act. It also went into effect in January 2005.
It is also limited by the breadth of the exemptions on which a public body may rely in denying access to information. In the recent case of BBC v. Sugar, the Court of Appeal held that for the purposes of the Freedom of Information Act 2000 Sch.1, information that was established to have been held for a genuine journalistic purpose was effectively exempt from production under the Act even if it had also been held for other purposes. Where the exemption is qualified, however, it may be possible to argue that the public authority has reached the wrong conclusion. The Information Commissioner recently decided that the Cabinet Office was wrong to rely on the exemptions contained in sections 37(1)(b) (the conferring of honours), 40(2) (personal data) and 41 (breach of confidence) in refusing to disclose whether Lord Ashcroft had given an undertaking.9 In the Commissioner's view, the public interest in transparency in the honours system outweighed the Cabinet Office's claim that disclosure would be "unwarranted and prejudicial to the rights and legitimate interests" of Lord Ashcroft.
The Act is also fundamentally undermined by the existence of the Ministerial veto. The Labour government relied on the veto to avoid having to publish the minutes of cabinet meetings at which the 2003 invasion of Iraq was discussed. Labour had argued that doing so would damage cabinet government and invoked section 53 of the Act to veto first the Information Commissioner's decision that the public interest should prevail, and later that of the Information Tribunal, which upheld the Commissioner's decision.10
The Commissioner said at the time: "Anything other than exceptional use of the veto would threaten to undermine much of the progress towards greater openness and transparency in government since the FoI Act came into force."
Despite this, on 10 December 2009, Straw announced that he was exercising his powers of veto for a second time – this time to prevent disclosure of minutes of the Cabinet Ministerial Committee on devolution to Scotland and Wales and the English regions in 1997.11
The coalition government have committed themselves to increased transparency in government, to "throwing the doors open of public bodies" and to creating a new "right to data". It remains to be seen what these commitments will mean in practice.
In the draft of their Freedom Bill they proposed that the Information Commissioner be given greater powers to ensure that all data controllers, both in the public and private sector, are complying with the Act and punish those who are not. This would mean giving the Commissioner the same power to inspect private companies as public bodies.
The Ministry of Justice have recently announced that they intend to amend the FOIA by November 2011 to incorporate further organisations.
Non-government organisations' advocacy work
The Foundation for Information Policy Research (FIPR)'s highest-impact activity between 2008 and 2010 was the 2009 report "Database State"12 that examined a number of government systems that hold information on many citizens. The report found that 11 of them almost certainly infringed the ECHR. It was extensively covered in the media. The opposition parties, the Conservatives and the Liberal Democrats, who now form the Government, adopted its arguments and a number of its ideas. The new government abolished a number of systems, including the proposed ID card and the ContactPoint children's database. The debate continues on health systems.13
Another of the Foundation for Information Policy Research's high-impact campaign in 2008 was against the behavioural advertising system devised by the commercial company Phorm. FIPR documented how it worked and demonstrated that it was illegal. The government disagreed, but FIPR convinced the European Commission to intervene, which it eventually did by taking the view that if Phorm was legal in the United Kingdom, the country's implementation of the acquis communautraire was defective. It subsequently threatened legal action. The United Kingdom is now changing its regulations.14
International obligations and International cooperation
The UK is a member of the Council of Europe (CoE) and has signed and ratified the CoE Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data (Convention No. 108)15 and the European Convention for the Protection of Human Rights and Fundamental Freedoms.16 In November 2001, the UK signed the CoE Convention on Cybercrime but is yet to ratify this instrument.17 The UK is a member of the Organisation for Economic Cooperation and Development (OECD) and has adopted the OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data.
- 1. Open Rights Group, May 2007 Election Report, July 2007 http://www.openrightsgroup.org/e-voting-main/.
- 2. The Government’s response to the Electoral Commission’s recommendations on the May 2007 electoral pilot schemes, October 2007, available at http://www.justice.gov.uk/docs/gov-response-elec-comm.pdf.
- 3. See http://www.publicnet.co.uk/news/2010/07/15/study-shows-big-rise-in-deman....
- 4. Freedom of Information Act 2000 (c.36), available at http://www.cfoi.org.uk/foiact2000.html. For detailed information on the Act, see the Campaign for Freedom of Information's website http://www.cfoi.org.uk.
- 5. Ministry of Justice, Freedom of Information Act 2000: 4th Annual Report on the Operation of the FOI Act in Central Government 2008, June 2009.
- 6. Ministry of Justice, Freedom of Information Act 2000 – Statistics on implementation in central government Q1: January – March 2010, 24 June 2010, available at http://www.justice.gov.uk/foi-quarterly-stats-jan-mar-2010a.pdf.
- 7. Transfer of Functions Order 2010 (SI 2010/22).
- 8. See http://www.scotland.gov.uk/consultations/government/dfib-00.asp.
- 9. Cabinet Office Ref: FS50197952 28/01/2010 )
- 10. Cabinet Office and Dr Christopher Lamb v IC (EA/2008/0024 & 0029 27 January 2009)
- 11. Cabinet Office FS50100665 23/6/09)
- 12. See http://www.lightbluetouchpaper.org/2009/03/23/database-state/.
- 13. See also http://www.lightbluetouchpaper.org/2010/06/17/database-state-latest/ and http://www.lightbluetouchpaper.org/2010/09/13/research-public-opinion-an....
- 14. See http://www.lightbluetouchpaper.org/2008/04/04/the-phorm-webwise-system/ and http://www.lightbluetouchpaper.org/2008/04/22/stealing-phorm-cookies/.
- 15. Signed 14 May, 1981; ratified 26 August 1987; entered into force December 1, 1987.
- 16. Signed 4 November, 1950; ratified 8 March 1951; entered into force September 3, 1953.
- 17. Signed 23 November 2001.