Freedom of expression has long been acknowledged as an important civil liberty, both internationally and within UK domestic law. The inclusion of freedom to information within this right is often sidelined.

Article 19 of the International Covenant of Civil and Political Rights (ICCPR) stipulates that freedom of expression ‘shall include freedom to seek, receive and impart information and ideas of all kinds’. Although the ICCPR was ratified by the UK in 1976, freedom of information was not officially incorporated into UK domestic law until the arrival of the Freedom of Information Act 2000.

Dictatorial veto

In theory this act provides all of us with access to records or documents held by public authorities. Any information can be requested but there are limitations as to what will be released. That is the catch. This week, Justice Secretary Jack Straw overruled the Information Tribunal’s decision to publish an important government document. It contained minutes taken during a cabinet meeting which discussed the legality of the Iraq war prior to the invasion.

Straw justified his actions on one of a number of get-out clauses in the Freedom of Information Act, in this case section 53 which allows ministers to veto tribunal decisions if they believe ‘on reasonable grounds that the decision to withhold the information was in accordance with the requirements of the Act.’ He went on to further explain that he felt publication of the cabinet minutes would ‘risk serious damage to cabinet government; an essential principle of British parliamentary democracy. That eventuality is not in the public interest.’

Section 53 has not been invoked until now. Indeed the extensive UK appeal system provided Jack Straw with a less dictatorial route to challenge publication, one which he opted not to take. If the tribunal or an appeal court had ruled against the publication, the manner of the decision would at least have been more palatable. Overruling the weight of a decision from the expert and independent body of the Information Tribunal highlights the government’s willingness to deny freedom of information in a bid to prevent criticism.

In effect, this power of veto gives government ministers complete independent control and judgement over our access to information, and undermines the aim of the act itself. Furthermore, it leaves the public in the dark on key decisions leading up to the Iraq war.

Violations of procedural fairness

Other restrictions on information have caused recent controversy in the publicised House of Lords Appeal case, concerning two Algerian defendants and Jordanian, Omar Othman (also known as Abu Qatada) versus the Home Department.

The judgement allows for the defendants’ extradition to countries where torture of detainees is widespread, based on the surety of non-binding diplomatic assurances. More importantly, it ruled that within the Special Immigration Appeals Commission (SIAC), the use of closed evidence not available to the defendant was acceptable in such a case. Evidence withheld included that used to assess the risk of torture should they be extradited.

Organisations, including Human Rights Watch fear that such restrictions on access to evidence, especially where the risk of torture is at stake, amount to a violation of the ‘fundamental notions of procedural fairness’, and breach international law. Without the release of such evidence, how can defendants attempt to respond to or disprove its validity?

The case is not over yet. Qatada has already lodged a complaint with the European Court of Human Rights (ECtHR), while the two Algerians may follow suit. The UK extradition appeal system was struck down by the ECtHRs in the Chahal (1996) case, but SIAC is a new procedure set up by the government in response to the identified discrepancies, so it is unclear what the court will rule.

Restrictive Legislation

The government states that extradition of the defendants is necessary to protect national security. This has often been cited as a reason to curb freedom of information, with government claims that such measures are necessary in the fight against terrorism. February saw the government introduce yet more legislation of this very nature, as section 76 of the Counter-Terrorism Act 2008 came into effect.

This makes it an offence to elicit, publish or communicate information from members of the armed forces, intelligence services or the police, if it is ‘likely to be useful to a person committing or preparing an act of terrorism’. The wording is incredibly vague and gives even more powers to police officers, who in theory could detain someone for merely photographing them.

Protestors and journalists use film and photography not only to record the occurrence of public dissent, but also to monitor and record police behaviour during events such as demonstrations. This has supplied vital evidence in proving cases of police misconduct and may even have acted as a deterrent against inappropriate use of force. This documentation of information is now at risk

As the UK government continues to erode the right to freedom of information, campaigners call on us to question the real ‘necessity’ of such measures, what the results of such measures actually entail and to use our right to freedom of expression as a means to protest.