As public services are part-privatised, the business of the state is being shrouded by “commercial confidentiality”
By George Monbiot. Published in the Guardian 28th August 2001
Britain’s Freedom of Information Act is hardly the stuff of revolution. It permits only the feeblest concessions to that key component of democracy: our ability to find out what’s being done in our name. But it represents, campaigners hope, a dim promise of enlightenment, the glimmer of a suggestion that, for the first time in history, the inhabitants of this quasi-mediaevel realm might start to be treated like citizens, rather than subjects. Now this feeble light is fading even before the act has been implemented. We won’t be allowed to view the business of the state, for the simple reason that it is no longer JUST the business of the state.
The private companies taking over our public services have brought into government a doctrine which makes public disclosure almost impossible. “Commercial confidentiality” is supposed to defend secrets of the kind which industrial spies seek to pass onto other corporations: the special ingredients or patented processes which might make a company more successful than its rivals. It is being used instead to hide almost every aspect of public services from democratic scrutiny.
In the court of appeal last week, London Underground argued that if a report into the government’s plan to part-privatise the Tube were made public, it would compromise the commercial secrets of the companies hoping to run the system. The court disagreed, and allowed publication, and we were able to see that the report was not commercially sensitive, just embarrassing. The plan to part-privatise the Tube, it revealed, is a disastrous waste of money. But the appeal court’s defence of this freedom was, as far as I can discover, unprecedented. Elsewhere in Britain, judges have done all they can to prevent us from discovering how public services will be run.
While all eyes were fixed on the case in London, another court battle, at the other end of the country, was grinding on in relentless obscurity. For six years the people of Skye have been challenging Britain’s first private finance initiative project. This month the courts produced yet another ruling which must appear to anyone with the slightest sense of natural justice to be grossly unfair.
It’s hardly surprising that the government departments which commissioned the Skye Bridge should seek to conceal the true nature of the project from the people it affects. To travel to or from their homes, the people of Skye must (unless they buy in bulk) pay the highest tolls per mile of road anywhere on earth: the private companies running the bridge charge pounds5.70 each way for a one-mile crossing. Leaked documents analysed by the islanders suggest that the companies’ claim to these tolls is frangible.
At least 60% of the cost of the bridge was met by the taxpayer before the first concrete was poured. Of the pounds25 million invested, just pounds500,000 was provided by the PFI consortium. Yet the companies appear to be collecting some pounds3.3 million a year: their peppercorn investment will, it seems, reap up to pounds88m from one of the poorest communities in Britain.
The islanders had no legal right to this information: it was deemed “commercially confidential”. They extracted most of it from a stack of official documents left by a mysterious stranger on the doorstep of the postmaster of Portree. There they also found plenty of evidence to suggest that the tolls had never been properly authorised by the government. If they could prove this, it would mean that the prosecution of the hundreds of objectors who have refused to pay had no basis in law. But whenever they have sought to obtain the information which could have exonerated them, the courts have been less than co-operative.
All the 496 people prosecuted so far have been denied legal aid, irrespective of income. The appeals they have lodged, led by the self-taught legal warrior Robbie the Pict, have been dismissed on what appear to be the most spurious technicalities: Scotland’s foremost expert on legal procedure has described the Crown’s case as “fatally flawed”.
The islanders discovered that, in contravention of Scottish law, the Lord Justice General appears to have ruled on the legality of his own decision when dismissing one of their appeals. The Scottish Office responded to this revelation by slapping a 75-year injunction on the letter which could have proved it: the objectors won’t be able to discover whether or not they were justly prosecuted until 2070.
They also had reason to believe that the contract between the government and the companies which built the bridge would show that their convictions were unlawful. But when, after months of legal dentistry, the contract was finally dragged into court, the key 40 pages had been excised on the grounds that they were “commercially confidential”. This month the Scottish lawlords assessed a further appeal of the Pict’s in a secret hearing from which he and the other islanders were excluded. Robbie still doesn’t know what their grounds for rejection were.
The same corporate secrecy is now being used to protect every approved private finance project in Britain. In opposition, John Prescott told campaigners against the proposed Birmingham Northern Relief Road that Labour would build it “over my dead body” (we’re still waiting for the ultimate sacrifice, John). After coming into office, Labour announced that it had changed its mind. The reason was, of course, “commercially confidential”. The objectors spent pounds50,000 in court to try to discover what was in the contract. At first the judge ruled that parts of it should be released, then he suddenly reversed his decision.
This secrecy blights our lives in a thousand subtle ways. Devon’s privately financed A30 road should, according to the public inquiry, have been built with “as quiet a surface as possible”. Instead the consortium used “brushed concrete” — perhaps the noisiest of all possible surfaces — with the result that some 40 square miles of Devon countryside are permanently blasted with noise pollution. Local people know that they can’t contest this decision until they can find out why it was made, but the Highways Agency has told them that its agreement with the consortium is a commercial secret.
In opposition, Alastair Darling, who is now Secretary of State for Work and Pensions, complained that using commercial confidentiality “to hide the truth about the extent of the taxpayer’s commitment from the public is inexcusable.” But like Mr Prescott, he seems to have left his principles at the door of government. We have, as a result, no means of discovering whether the public services of the future will meet our needs; how much they will cost; or whether public provision would offer better value for money. As the private finance initiative starts to intrude into every aspect of government life, commercial confidentiality becomes the skip into which all inconvenient data is dumped. There is nothing in the new freedom of information act which will protect us from this.
Whenever the state seeks to justify a new form of surveillance, it argues that if we have nothing to hide, we have nothing to fear. Almost every leaked document which wriggles into the public domain suggests that the private finance initiative is a monstrous fraud upon the taxpayer. Indeed, with full disclosure, PFI would become impossible to implement. The government has so much to fear only because it has so much to hide.