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.
Information, in any case, is not a holy grail; it is not even a fixed quantity. News is news only when it has been acquired, reported, selected, written up, sub-edited and captioned. Medium and message may not be the same thing, but they are synergistic and commonly indistinguishable: the newsreader’s tone can give a wholly unintended slant to the written text. But let me avoid the philosophy of truth-telling in favour of an assumption that there is in the world a fund of things which are worth knowing either instrumentally or for their own sake but to which only a few have immediate access. That they may be contentious or even falsifiable does not make them, for my purpose, any the less facts: indeed, it is irresistibly tempting to define facts – as someone once defined news – as anything someone doesn’t want you to know. Such facts may be held by research establishments, by large enterprises, by governments and (by design or by accident) by the army of information-seekers and traders who travel with them like pilot fish.
This congeries of fact-holders possesses complicated mechanisms – cultural, ethical or rule-based – for controlling the outflow of information without impeding a maximal inflow. The mechanisms are almost always self-interested, driven not by any acknowledged right in others to know what the organisation knows but by what it suits the organisation that others should know – or, what is not the same thing, should be told. The pilot fish (Parliamentary lobby journalists are a good example) are part of it, for their future nourishment depends on their present trustworthiness. But for everyone in the organisation the rules are backed by sanctions, often career-threatening, because all organisations know that there is a widespread tendency to leak. Some leaking is done, no doubt, from motives more base than those underlying the secrecy. Some will be done out of true high-mindedness. But it is all done at a risk, for it has always been a corollary of the dependence of power on knowledge that power will denounce knowledge which it is unable to control.
The law has come slowly and partially to reverse this risk in selected situations. The tort of breach of confidence has from its infancy been answerable by the exposure of iniquity; but a right to information calls in question the very notion of property in knowledge on which it is founded. Much more recently, Parliament has legislated to protect whistle-blowers from victimisation. This is an acknowledgment that there is information which others, perhaps the whole world, have a right to know: but it is expressed not in terms of the rights of humanity but of wrongs by which fact-holders may forfeit their own rights. If, however, beyond the law of trade and state secrets, facts are to be regarded not as commodities capable of appropriation and hoarding but as part of the shared necessities of human life, the law still falls short. Its premise remains the proprietorial one, and from it flow countless daily distortions and lacunae in things people want or need to know for entirely legitimate purposes.
Our newly patriated human rights instrument, the European Convention, contains no express right to information. Nor do any of the other international or constitutional instruments of which I am aware. Even the most recent and most meticulously liberal, that of South Africa, dropped an enforceable right of reply from its original draft. In the United States, legislative attempts to secure a legal right of reply have been struck down under the First Amendment – logically enough, since the necessary premise of the prohibition on the abridgment of free speech is the possession of it, and ex hypothesi those who need a right of reply don’t possess it. There remains in general no way in the developed world of making the media carry the other side of an argument if they don’t want to; nor of preventing the dissemination by them of disinformation; nor of stopping them from imposing selective information blackouts.
But the European Court of Human Rights has had from time to time to think about the provision of information by states as a secondary right or obligation derived from the tabulated rights in the Convention. In 1998, it had to consider the rights of people living downwind of a toxic chemical plant near Manfredonia. The Court, in contrast to the Commission, would not accept that the ignorance in which local people had been kept infringed Article 10 of the Convention. This begins: ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority.’ The reason, a narrow one, was that the EU mechanism for accident readiness and public information was in place in Italy: it was just that it had not worked. The case was therefore not one where government was actively obstructing the flow of information. The Commission, however, by a slender majority, had taken a much firmer line. It held that ‘the current state of European law ... confirms that public information is now an essential tool for protecting public wellbeing and health in situations of danger to the environment.’ It cited a 1996 resolution of the Parliamentary Assembly of the Council of Europe to the effect that where nuclear energy and related matters are concerned ‘public access to clear and full information ... must be viewed as a basic human right.’ This the Commission took to be evidence of a developing body of European opinion in favour of the recognition of a fundamental right to information about environmental and personal hazards. Article 10, it concluded, placed on states an obligation not simply to make such information accessible but to publish it.
Such a right, if recognised, cannot be treated as parasitic on the tabulated Convention rights. It is, if anything, an implicit prior right by which violation of or respect for other rights can be known. This is possibly why the Court went the other way on Article 10. Its reasoning, however, was terse and narrow: it amounted to no more than that this was not a case of active suppression of information by the state and so differed from the decisions on press freedom in which the Court had recognised the ‘right’ of the public to be informed as a corollary of the right of free expression. The dissenting members of the Commission, including the UK’s, had put it better, if conservatively: a positive obligation to inform would distort the language of Article 10 and would go beyond any decision of the Court. The second of these reasons, while true, is an example of F.M. Cornford’s axiom that nothing should be done for the first time. The first is a respectable strict constructionist’s view of the Convention, but perhaps takes too little account of the Court’s own view of the Convention, in other cases, as a ‘living instrument’ capable of growth with changing circumstances.
The pay-off for the inhabitants of Manfredonia was that the Court went on to hold that Article 8, requiring respect for private and family life, did carry a right to information where, as here, the information was relevant to the enjoyment of that right. Its reasoning, particularly in view of its decision on Article 10, was laconic: the applicants were denied ‘essential information that would have enabled them to assess the risks they and their families might run if they continued to live at Manfredonia, a town particularly exposed to danger in the event of an accident at the factory’. This case, Guerra v. Italy, was thus a positive but short step towards a right to information. It was followed, however, in McGinley and Egan v. UK, by a stronger assertion of the right, this time in favour of servicemen who had been exposed to nuclear test explosions. The claim failed on its facts, but the Court was prepared to enunciate a positive obligation on the state in these terms: ‘Where a government engages in hazardous activities such as those in issue in the present case, which might have hidden adverse consequences on the health of those involved in such activities, respect for private and family life under Article 8 requires that an effective and accessible procedure be established which enables such persons to seek all relevant and appropriate information.’ There is something odd about discovering a right to information in the entrails of Article 8, which says nothing about information, and refusing to discern it in Article 10, which explicitly integrates ‘freedom ... to receive ... information and ideas without interference by public authority’ in the right of free expression. Yet in its recent jurisprudence the Court has stayed with its early decisions that these words are included in Article 10 not to accord any right to information but simply to stop governments interfering with ‘information that others wish or may be willing to impart’.
The dominance of the fact-holder in Convention jurisprudence is reinforced by the strong body of Court decisions on press freedom. This is so even where the rhetoric of the court picks up that of the press: ‘Not only does the press have the task of imparting ... information and ideas: the public also has a right to receive them.’ Nothing in the Court’s jurisprudence so far has carried the right to information under Article 10 beyond an echo of the right of the media to convey their messages. Here, however, there are perhaps the beginnings of a contrast with the English law of defamation. In a recent recasting of the law of qualified privilege in Albert Reynolds’s case against the Sunday Times, Lord Nicholls dropped the old formula of a duty to report coupled with a public interest in knowing, in favour of a single test – ‘whether the public was entitled to know the particular information’. This finally cuts out the sometimes mealy-mouthed plea that it was purely out of a sense of duty that the defendant published its allegations. It places in the centre of the frame what I would regard as the constitutional issue of a right to information.
Even so, all reporting involves selection and presentation, and no Ministry of Truth will ever, one hopes, come to exercise control over these. Journalists can legitimately defend their presentation and choice of data as the way they give the public what it wants, which is not bald or endless facts but information that readers find interesting. This, at least, is the immovable object encountered by the otherwise irresistible force of the fact that in a society where less than a tenth of reported crime is violent, the proportion of violent to other crime reported in the press ranges from 18-22 per cent in the broadsheets to 30-35 per cent in the mid-range press and 50-60 per cent in the red-top tabloids. If nine-tenths of their paper’s crime reports loyally reflected run-of-the-mill frauds and motoring offences, readers would no doubt switch to another paper.
But where does this end? One study found that the public – 82 per cent of it – believes that judges systematically undersentence. Yet a clear majority of the same sample group (a large one of 8000), given the facts of a real case, favoured a sentence lighter than the one imposed by the trial judge and standardised by the Court of Appeal. There is only one possible source of the disinformation responsible for this paradox. But who is to speak for the right of the public not to be deceived by the press, and where is the rights instrument which will give legitimacy to the claim? The issue is not only a moral one. Ignorance and misinformation create a fear of crime which distorts people’s lives. The belief that criminals are simply let off by the courts disinclines some people to report crime or to press charges. It inclines others to take the law into their own hands. And in their turn politicians, rather than challenging the myths, have responded to them as if they were the reality: the history of criminal justice legislation since the liberalising Criminal Justice Act of 1991 has been an almost continuous escalation of punitive responses to crime, consciously spurred on by a segment of the press.
Where then may we look, outside Article 8 of the Convention, for a nascent right to information? The patriation of the Convention by the Human Rights Act 1998 is not, it is worth reiterating, the landing of aliens bent on abducting members of the UK judiciary and returning them to the Bench programmed to speak in a strange idiom. It is an organic enlargement of our system, much of which is already open to such change; and it’s therefore appropriate to look within our own law for doctrines which will require and may even welcome adaptation to the Convention’s standards.
I will take a single example, the doctrine of informed consent to medical intervention. Because it is an artefact entirely of the common law, no problem of resistant statutory provision affects it: it will arguably have to become Convention-compliant. Both because the common law has always prioritised the physical autonomy of the individual and because more recently the possibility of recourse to Strasbourg has sharpened awareness of the issues and the pitfalls, the courts have been circumspect about permitting medical or psychiatric intervention against the will of the patient; less so, for good reason, against that of an adult who purports to speak for the patient. But refusal, like consent, presumes knowledge, and it is the patient’s right to know which remains a fraught issue. The House of Lords, given the opportunity in the mid-1980s to recast the law, opted by a majority for a standard of information which left in the doctor’s hands the critical question of how much the patient should know, and the Court of Appeal thereafter leaned towards the most conservative of the four majority speeches as representing the law: so long as the doctor acts in a way of which at least some responsible colleagues would approve, his or her judgment of what the patient ought to know will not be negligent.
The case for not requiring more of doctors, at least when it comes to treatment, is a considerable one which has held the ring for almost half a century. It has probably played a major part in preventing the development of defensive medicine in this country. But in relation to the initial decision to undergo or to decline treatment the role of the doctrine is far less obvious: indeed, the doctor’s and the patient’s interests under it can be regarded as antithetical. The very decision to undergo treatment involves a submission to the risk of failure or accident or misjudgment, all falling short of negligence, and if the patient is also to be denied a fully informed choice about whether to assume these risks, the inequality of power between doctor and patient becomes problematic.
It was the pioneering voice of human rights in the United Kingdom, that of Lord Scarman, which spoke out in 1985 in Sidaway v. Bethlem Royal Hospital Governors against medical paternalism and in favour of personal autonomy. ‘The doctor’s duty,’ he reasoned, ‘arises from his patient’s rights’; so the duty of care included ‘a proper respect for his patient’s rights’, and ‘the duty to warn’ was part of this. Drawing on recent Canadian law, he proposed that a risk should be regarded by the law as significant enough for the patient to be warned of it if a reasonable person in the patient’s – not the doctor’s – position would think it so; unless clinical judgment indicated that the warning itself would do disproportionate harm to the patient.
Behind the difference of view we can now see far more clearly than we did in the mid-1980s the chasm between the common law’s focus on doctors’ duties as the fulcrum of liability and the Convention’s concern with affirmative rights. It may well be that the courts will be asked to revisit the issue of informed consent to medical intervention in the light of the Human Rights Act. If they are to do so, it is to be expected that they will be invited to look again at the case law of other common law countries, both those with and those without rights instruments. They will certainly be asked to think afresh about the issue in the light of Article 8 of the Convention, since respect for private life is plainly engaged and because most medical treatment, being furnished by the state, is unaffected by the problem of horizontality. But thought should also be given to the wider principles of human dignity and autonomy which underlie the entirety of human rights instruments. Neither concept is uncomplicated: each takes on a different aspect depending, for example, on whether the individual is regarded as a free agent or as a member of a community. But both have something to say about the balance of power between doctor and patient and therefore about the measure of the latter’s undoubted right to information about his or her own chances.
In recent years, as the prospect of a rights instrument has come closer, the law has quietly moved forward on this front. In 1997, reasserting the received test of medical competence, Lord Browne-Wilkinson set on one side the question of disclosure of risk; and a year later in the Court of Appeal Lord Woolf, drawing the threads together, held: ‘if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk.’ Information may thus be coming to feature not as a parasitic requirement of another tabulated right but as a prior requisite if other rights are to have value and substance. It was in the case which in 1929 finally enabled the courts of this country to put behind them a deeply embarrassing body of decisions which denied women the status of persons in the democratic process that Lord Sankey, in the Privy Council, described the Canadian Constitution as a ‘living tree’, capable of growth within its natural limits. The metaphor has been adopted by the Canadian Supreme Court in its development of the Charter of Rights and Freedoms and echoed by the Strasbourg court in its description of the Convention as a ‘living instrument’. In the field of information and human rights, at least, the space and season for growth – and for the accompanying shedding of dead wood – are palpably there.