The fifteen, twenty, thirty-year rules

The government has published its response (PDF) to the review of the 30-year rule.

The rule itself is a bit of a historical oddity – a blanket rule saying that government records should be opened after thirty years is a hangover from before the “on-demand” FOI Act, where you can apply for material regardless of its age. However, it survives in Part VI of the legislation; any record is deemed a “historic record” at thirty years after creation, and as such loses a lot of its ability to be exempt from disclosure. A document which was originally kept secret because of commercial confidentiality, for example, loses this exemption after thirty years.

The review recommended reducing this to fifteen years; the government response has advised twenty. In Scotland, which is subject to a similar but not quite identical piece of devolved legislation, the time limit has recently been dropped directly to fifteen years, in three tranches, with full release being completed by later this year.

The counterproposals are, on the whole, sensible. Other than the fifteen/twenty year change…

  • The thirty-year rule will remain for a set of material: anything commercially confidential, anything sensitive touching on the devolved administrations, and the “effective conduct of public affairs” clause. It’s a little vaguely worded, and this worries me that in the eventual legislation we may find a much more flexible (ie, long) term for some material. How long is the average PFI contract for, for example?
  • The new system will be phased in a year at a time – so, for example, we would release records from 1981 and 1982 in 2011, then 1983 and 1984 in 2012, letting the threshold creep steadily down to 20 years. This is in contrast to Scotland, which tried to clear the backlog in a couple of years – but then, it’s a bigger problem.
  • There is to be a presumption in favour of anonymity for civil servants; names in records released as historical documents will be redacted unless decided otherwise or they’re very prominent.
  • The legal position of communications with the monarch is to be clarified; records will be absolutely exempt for twenty years, or five years after their death, whichever is the longer. This also applies to the heir and the second-in-line to the throne, but all other members of the Royal Family have a qualified exemption – they’re presumed closed, but can be released under request.

On the whole, good things. I’m moderately concerned by the alterations to the commercial confidentiality clause – by the time this report turns into a statute, that looks like it may drift into actually making things worse than the current state of affairs – but it is, to mangle the old quote, currently moving in the direction of goodness. The anonymity proposals I am not sure about – there are good reasons for it, but there are also serious impracticalities, especially from a historical perspective. The amount of redaction appropriate at the twenty-year mark may well not be the same as the amount appropriate a hundred years on, but if we only have the one point of release, we’ll be stuck with whatever decisions were made at that point. Hmm.

Some details emerge from the report that reflect things which’re already happening. The government has formally clarified that “special advisors” are indeed legally civil servants, and subject to the provisions of the Act; they’re also grinding slowly forward with making a number of additional bodies, including UCAS and the legally ambivalent academy schools, subject to the Act.

So, twenty versus fifteen. This is an interesting debate.

A key part of the philosophy behind the thirty-year-rule is to avoid governmental records being turned into political ammunition, and relatedly to reassure the authors that they don’t have to keep material off the record for fear of it later being used against them. (It’s assumed that once you’re retired or dead you can live with the opprobrium.) The main example of this is ministerial papers, but from this standpoint, fifteen years is often just a little too short – it would have meant, for example, that papers relating to Callaghan as Chancellor (1964) got released when he was Prime Minister (1979), and in the event Brown wins the coming election, he’d have the same issue.

The current government will have lasted fourteen years, almost at that threshold, and the previous one eighteen – it’s true that no-one held senior office through the Conservative period, but it does demonstrate how prolonged a spell in power can be. If the modern trend is to parties holding power for long periods with occasional grand shifts, which it may well be, twenty years is a little safer; it also covers for the rare case of someone, like William Hague, whose ministerial career seems likely to bracket one of the prolonged spells of opposition.

There’s also a good case to be made that for politically touchy material like, say, Brown’s records from the early chancellorship, it wouldn’t be released regardless of the threshold, due to the section 36 exemption, likely to prejudice the conduct of public affairs. But a fifteen year rule would imply the time and expense of specially auditing an entire tranche worth of departmental and cabinet records to decide if they’re sufficiently sensitive to be restricted, then doing it again a couple of years later once the person in question is out of office in order to clear them for publication. The extra few years would, presumably, sharply cut down the number of such cases; is it a worthwhile payoff from an efficiency standpoint?

I am ambivalent on this one, I admit.

In the Scottish context, of course, this is currently academic. Holyrood is not overly concerned with the prospect of a former Scottish Secretary looking a little silly, and there won’t be any Scottish Executive (as was) records released until well into the coming decade. On current form, it seems likely that with the less monolithic nature of devolved politics we’ll have shorter ministerial tenures, as well, and thus less need for the extra few years.

We shall see. It’s an unfortunately timed announcement, coming as it does just before an election, but hopefully whoever gets in will pick up the ball and run with it. It’s not something either side would particularly benefit from more or less than the other, after all – they all have ticking skeletons in the closet waiting for the cabinet papers to be released.

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