The Right to Know
Stephen Sedley on freedom of information
We are accustomed to finding that we have been lied to. To insure ourselves against such deceptions we repeat the mantra that we don’t believe everything we read in the newspapers. There have been, and must still be, parts of the world where the reputation of the press is such that people don’t believe anything they read in the newspapers: in Czechoslovakia in the 1960s nobody believed that US aircraft were dropping cluster-bombs and napalm on Vietnam because the official newspaper reported daily that they were. Because our experience is less uniformly bad, we tend to give initial credence to what we are told. Yet repeated revelations over recent years that people in whom we put our trust have been lying not only to the media but to Parliament and the courts have shaken our confidence in our own scepticism.
We need anchorage in some version of reality to keep us from going wholly adrift; but whatever version we choose involves a certain act of faith, or at least of trust. Whom are we to believe? Freedom of expression, a right for which people have literally gone to the stake, has only a distorted bearing on this question because it has to do not with your right to know but with my right to tell you what I think you ought to know. Its triumph in the Enlightenment had a curiously economistic relationship with the right of others to know. Milton, defending the freedom to print without official licence, had argued in the Areopagitica that ‘all opinions, yea errors, known, read, and collated, are of main service and assistance toward the speedy attainment of what is truest.’ Here, well over a century before Adam Smith, was the theory of the marketplace of ideas. In the mouth of Justice Holmes, echoing John Stuart Mill, this became part of the jurisprudence of the First Amendment: ‘The best test of truth is the power of the thought to get itself accepted in the competition of the market.’ Holmes’s dictum is cited by Lord Steyn in a significant recent decision on prisoners’ rights as the third of four reasons for placing a high value on freedom of speech. The first is that freedom of speech is important for its own sake: this I take to mean that it is important to everyone to be able to speak their mind; and so it is, though it is also important for the speaker to consider what harm it can do. The second reason is that it promotes self-fulfilment – an aspect, perhaps, of the first reason. The last is that ‘freedom of speech is the lifeblood of a democracy.’ The physiological metaphor is apt because, as Lord Steyn goes on to point out, free speech enables opinion and fact to be carried round the body politic in the hope, if not the expectation, that they will be heeded by others.
But all these reasons lie on what economists would call the supply side. None of them engages with the needs of the recipient of whatever is to be communicated; nor with the situation of others to whom the information or opinion may relate; nor with the situation of those who desire information and cannot get it, or who need information which they do not know exists, or whose lives and possibilities are blighted by silence or lies. Do they have anything worth calling a right to information?
One of the reasons it is necessary to ask the question is that we know that truth does not necessarily drive out falsehood: as often as not the reverse happens. As in any real marketplace, the huckster’s megaphone can drown out the voices of honest traders, the snake-oil merchant prosper while the market gardener goes home empty-handed. In one of the few real-life markets which enjoy near-perfect competition, the used-car salesman is a byword for mendacity. It was the century of mass communication – the 20th century – which was the century of mass murder driven by lie-machines. If the victory of truth were ineluctable, only that would be true which triumphed and all that triumphed would be true.
If truth prevails, it prevails only often enough to make it a certainty that just as commonly lies prevail. We have to criminalise people for lying successfully – lying about others, lying about merchandise, lying about a company’s prospects, lying to secure some benefit for themselves, lying to a court. We do not believe our own cliché that truth will out, and we would be fools if we did. If then the fictional marketplace of ideas is subtracted from the justifications of the right of free speech, what assurance remains that a general right of free expression will not permit the triumph of falsehood? Is it necessary to complement free expression, in the toolkit of human rights, by a right to information?
We have come some way over the past half-century towards recognising information as more than a discretionary gift from those who hold it. Governments pay constant tribute to its importance, and the present Government is in the throes of legislating to give the public an enforceable right of access to some official information. The content and ambit of the legislation are heavily contested, and its final form is still unclear. But it is important to appreciate why governments are perennially cautious about opening their cupboards and filing cabinets. It is not the product of some Freudian hang-up afflicting permanent secretaries, nor of mere nervousness or embarrassment on the part of ministers. It is because the absence of direct access to government information is a necessary condition of the ability of ministers to feed their versions of fact through lobby journalists to the public.
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