Ken Clarke’s bailiwick has launched a consultation on “Opening up public bodies to scrutiny”. Top of the list of bodies that might be forced to reveal their inner workings under the Freedom of Information Act is the Advertising Standards Authority. Stephen Groom shines a light on a potentially explosive development.
Topic: Regulatory
Who: The UK Ministry of Justice
Where: Whitehall
When: January 2011
Law stated as at: 1 January 2011
What happened:
The Ministry of Justice announced new plans to extend the scope of the Freedom of Information Act ("FOI") to open up government and other bodies to public scrutiny. Top of the list of bodies under consideration for the transparency treatment is the Advertising Standards Authority ("ASA").
The MoJ release proclaims that "the changes will make it easier for people to use FOI to find and use information about the public bodies they rely on and their taxes pay for."
Justice Minister Lord McNally intones:
"The public deserves a Government that is open and accountable for its actions. I am delighted to announce this package of measures to extend the scope of the [FOI], which will give people additional tools to find out whether thousands of UK bodies are acting in the public interest and providing value for money."
This is all very interesting but one wonders if anyone has told Ken Clarke and Lord McNally that the ASA does not benefit from taxpayer's money. It is funded by a levy on advertising spend.
The MoJ goes on to talk about enhancing the independence of the Information Commissioner's Office, but although reference is made to introducing provisions for the Commissioner "to set charges for certain services independently," there is no other mention of how the Coalition proposes to finance the dramatic increase in the ICO's workload that will clearly result from providing "additional tools to find out whether thousands of UK bodies are acting in the public interest and providing value for money."
Why this matters:
For altogether different reasons neither the ASA nor the ICO are likely to be impressed with this news, but there may be an altogether different reaction from advertisers. Brand owners who have experienced ASA investigations into their advertising and been frustrated by the lack of transparency in the regulator's decision making processes will view this prospect with relish.
The potential extension of the FOI remit to additional bodies such as the ASA will be effected by secondary legislation following statutory consultations with the bodies concerned. One imagines that the ASA is already manning the defences and marshalling its arguments. A key objection ground will clearly be the self-funding nature of the ASA/CAP/ASBOF system. It will also be not unhelpful that the new ICO head was formerly head of the ASA.
On the other side, the Coalition may have other, maybe populist agendas beyond those mentioned in this announcement which are driving this forward and this could make life difficult for the ASA. Either way, the up and coming consultations promise to be a bare knuckle fight. Will the FOI apply to them so we can all ask to see the ASA/MoJ exchanges? Perhaps we should be told.
