Sarika Singh

Tuesday 13th July 2010 Westminster Hall

12:59

[Ann Clwyd (Cynon Valley) (Lab)]

I am grateful to have secured this debate, and to be here under your chairmanship, Mr Streeter. I welcome the new Minister to his post. I hope he hears what I am saying—I welcome the new Minister to his post.

Sarika Watkins-Singh is a young Welsh Punjabi Sikh. In November 2007, as a 14-year-old, she was excluded from Aberdare girls school in my constituency, for refusing to remove the kara, a steel bangle that she wore as an integral part of her Sikh religion. The headmistress had told Sarika that she was not permitted to attend the school wearing the kara, and tried teaching her in isolation, away from her friends and fellow pupils. However, Sarika rightly and bravely continued to argue that she should be allowed to wear the kara, and so the headmistress excluded her from the school.

This has been a sad case from the start, because all that was needed was a bit of common sense and not much more than a cursory understanding of the law. I told the school, first privately and then publicly, that it was making a mistake, and that its action represented a considerable injustice to the young girl. I told the school that if it persisted it would cost it money. I met Sarika and her mother and tried to speak to governors of the school. I spoke to colleagues here in the House of Commons and was told that the civil liberties organisation, Liberty, had already become involved. It seemed clear to me that the school’s action contravened the Race Relations Act 1976, the Equality Act 2006 and the Human Rights Act 1998. I urged the school and its governors to think again, and to act in the interests of good race relations. Unfortunately, the school stubbornly stuck to its position.

Sarika, showing courage and determination far beyond her years, continued to stand up for her right to practise her religion and exhibit her Sikh identity, and she pursued a legal case against the school through judicial review. Of course, she won her case, just as I had predicted. The High Court found that the school had indirectly discriminated against Sarika on the grounds of race, contrary to the Race Relations Act, and on the grounds of religion under the Equality Act. As the constituency MP, I repeatedly warned the school and the governors that they should uphold the law and not waste public money on the case. My advice was simply ignored.

In the aftermath of the legal case, it seemed to me that the school had some big questions to answer. It was obvious from the start that the school would lose the legal case but it stubbornly went ahead with fighting it, at, I suspect, considerable expense to local taxpayers. I then asked, on behalf of my constituents, how much the legal case had cost the school and from where the money to pay for it would come: would it come from the school’s budget—the budget to pay for school books, teachers and resources for the pupils’ education—or had the local authority agreed to provide other public money to support a foolish and unwinnable case? I also wanted to know how the decision to fight the case had been reached. Obviously, I am not a lawyer, but it seemed pretty clear that the school would lose. What legal advice, therefore, had enabled the school and its governors to come to their ill-informed decision to defend their position? The school is, of course, a public authority for the purposes of the Freedom of Information Act 2000, and so under that Act I requested that information—and more—of the school’s governing body.

I am sorry that this is a lengthy list of events, but it is important to put it on the record. In brief, I first wrote to the chair of governors on 20 February 2008. Following exchanges of letters, it was clear that I was not getting answers on what public money was being spent on the case. I therefore notified the school in March 2008 that I intended to make requests under the Freedom of Information Act. I wrote again to the school on 15 May 2008, requesting that an internal review be conducted, a step required of me before I made any complaint to the Information Commissioner. After the school refused my request, I contacted the Information Commissioner on 29 July 2008, requesting answers to my questions. I also sent a copy of the letter to the school.

I received a reply from the Information Commissioner on 11 September 2008, recommending that the school issue me with an internal review decision within 20 days. The school replied on 16 September 2008, stating that the internal review

“had been delayed by the intervening court case and school holidays”.

It said that my requested review would therefore take place on 24 September 2008. On 23 October 2008, I was notified by the clerk to the governing body that the only answer that the school would disclose was that the judicial review claim had, to date, cost the school £76,699.40.

Following the legal case, I began a fresh request for information in March 2009, by which time there was a new chair of governors. I requested the information and the school ignored my letter. I wrote again on 16 April 2009, and the school denied having received my first letter. The chair of governors then acknowledged the copy that I sent to them of my letter, but was not able to provide any of the information. I replied to him in May 2009, suggesting that we extend the deadline by another 20 days. The school then replied on 27 May 2009, refusing to provide the information, but not giving appropriate reasons in line with the Freedom of Information Act. I wrote to the school on 9 June 2009 asking it to conduct an internal review of its decision to refuse to provide the information. The school replied on 6 July 2009, sticking to its decision to refuse to provide the information. I wrote to the Information Commissioner on 15 July 2009, initiating a complaint under the Freedom of Information Act. The Information Commissioner’s Office wrote to the school on 7 October 2009, and the chair of the governing body wrote to me on 8 October, disclosing that the costs in relation to the judicial review had escalated to £170,000.

The Information Commissioner had given the school until 4 November 2009 to provide a copy of the disputed—withheld—information and to give any further arguments it had for withholding information. On 23 November 2009 the Information Commissioner said:

“Unfortunately, the authority initially struggled to understand the role of the Information Commissioner’s Office (the ICO) as regulator of the Freedom of Information Act 2000…I am however pleased to confirm that it now has a full understanding of our role and is working towards providing a full response by the 7th December 2009”.

Three weeks later, the Information Commissioner wrote again, saying that, unfortunately, despite her assurances in her letter of 23 November 2009 that the authority now had a full understanding,

“it appears that the Authority still does not fully understand the role of the ICO. The Commissioner has today therefore issued an Information Notice to the Authority…compelling a Public Authority to provide the Commissioner with a copy of the disputed (withheld) information. The Authority has 30 days…from the date of the Notice to comply. Failure to comply may result in the Commissioner making written certification of this fact to the High Court…I do however hope that this will not prove necessary”.

We are now in July 2010, and I am still being sent around in circles. I believe that the school fully understood the situation but was still playing for time. In a letter dated 19 January 2010, the Information Commissioner told me that the 30-day deadline for a response from the school had passed. The ICO said that it was writing to the governing body again, giving it a further 14 days to respond, and thanked me for my continued patience. My patience has now run out.

On 20 January, the ICO said that the matter had been passed to the Information Commissioner’s solicitors because the school had appealed to the First-tier Tribunal (Information Rights). The ICO informed me on 27 April that it had decided to cancel the first information notice, and that it had written on two further occasions to request the information from the school, but that the information remained outstanding.

In my letter of 17 May, I asked why the original information notice dated 17 December 2009 had been cancelled. I was told that it was on the advice of the ICO’s legal team, because—it is worth emphasising this—the governing body of Aberdare girls school had complained that the notice was addressed to Aberdare girls school rather than to the governing body of Aberdare girls school. The ICO admitted that that was an error and sincerely apologised for it, but clearly this is just another excuse by the school for yet further delay.

The ICO issued a second information notice in May 2010, but the school appealed to the First-tier Tribunal (Information Rights) on 27 May. In a further letter on 27 May, the ICO stated that it cannot make further progress in the investigation of my complaint until the tribunal makes a decision.

More than two years on, that is where the case sits now. I am told by the ICO that further progress cannot be made with the investigation of my complaint until the tribunal has ruled on the appeal, and that that is likely to be some months away. In effect, the school has run rings around the law to avoid explaining how much money has been wasted on a stupid, ill-considered action to defend the indefensible.

The Campaign for Freedom of Information published a report in July last year about delays in investigating freedom of information complaints. Its survey showed long delays in the processing of such complaints. The report states:

“The severe delays described here are sufficiently serious and widespread to undermine the FOI Act’s effectiveness and public confidence in it.”

That is very much my view.

I am aware that the ICO’s annual report will be published tomorrow. Perhaps the Minister might be able to say something about that. However, whatever the deficiencies in the ICO or the law, the advent of the Freedom of Information Act should be celebrated. It was one of the triumphs of the Labour Government, and it enables us, the public, to subject public authorities to the kind of scrutiny that was never possible before. It gives us access to all the inconvenient and embarrassing bits of information that some public authorities would rather not disclose.

However, public confidence and the effectiveness of the Act are being undermined by the difficulty in pursuing complaints against authorities that refuse to release information that the Act requires them to release. The problem is that it is just too easy for public authorities to obstruct the process. If they ignore enough letters, miss enough deadlines and pretend that they do not really know what is happening and why, they will be able successfully to evade an information request for a long enough period to diminish the detrimental impact, reduce embarrassment and avoid the accountability that release of the information would cause. In this case, a possible reorganisation in the near future of the school concerned means that accountability can be brushed under the carpet because it suits the authority concerned.

I assure the House that I will not let this case rest until the truth—the whole truth—comes out, and those who are responsible for what has been done to their community and for impoverishing the resources of the school are named. Their actions have been irresponsible and a disgrace. Deadlines must be more strictly enforced. A reply being required within 20 days should mean that failure to provide a reply in that time is a breach of the Act and subject to sanction, and failure to release information that is required under the Act should also be a breach of the Act and subject to sanction.

The Sarika Singh case received national news attention. It led on the “News at Ten” and made the headlines in many newspapers. It was a long and arduous case for a courageous 14-year-old schoolgirl to go through, and it was an important and contentious case for my constituents. It established important precedents for schools throughout the country in respect of respecting pupils’ rights to give expression to their religion. The public have a right to know how the governing body of Aberdare girls school came to its decision to pursue the legal case and, in particular, how much public money was spent.

Yesterday, I received an addition to my vast file of correspondence on the subject. I received a letter from the commissioner, which states:

“I very much regret that this case is taking such a long time to resolve. You may know that the public authority in the case is strongly resisting my Office’s investigation. Most unusually, I have had to resort to the Information Notice procedure to secure cooperation and both Notices have themselves been appealed…This case is most untypical of Freedom of Information Act casework undertaken by my office.”

The case has cost the school at least £170,000, but I do not yet know whether that is the full extent of it. The final figure is yet to be revealed—it may well be much more. As an elected representative, I have asked questions of the school and its governing body on behalf of the public. All the information is held by the school, and none of it is difficult to provide. I believe that the reasons for non-disclosure have been to shield those who are responsible from the disapproval of the public for reasons that they may now regret.

13:09

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

I congratulate the right hon. Member for Cynon Valley (Ann Clwyd) on securing this debate on a matter that I am sure will be of interest to many hon. Members because of its wider impact. I thank her for working with the Justice Department in preparation for the debate and would like to say up front how much I admire her determination in this case to seek transparency from a public body as provided for by the law.

The Government are committed to enhancing transparency, as was made clear by the coalition agreement. We are already making available a wide range of information in line with the agreement. For example, the Treasury’s combined online information system, or COINS, database on UK Government expenditure, which was provided by Government Departments, has been published at www.data.gov.uk. The website also has information about special advisers working in Government Departments, as well as the numbers of staff, consultants, contractors and agency staff working in Departments, agencies and non-departmental public bodies.

That is just the start. Much more information will be made available over the coming weeks and months to increase transparency and accountability in the public sector. Of course, proactively making information available forms just one part of our commitment. Ensuring the effective operation of the Freedom of Information Act is also key to transparent and accountable government. It is vital that the public be able to request information that is of interest to them directly from public authorities, and that that is provided where it is in the public interest to do so. But the buck does not stop with the public authority. It is equally important that the Act be enforced in a robust and timely manner by the Information Commissioner. The same applies in relation to the other legislation that the commissioner has responsibility for, such as the Data Protection Act 1998.

The issue of robust and timely regulation is the focus of this debate. The right hon. Lady is right to be alert to the challenges that continue to be posed by the maintenance of a robust and efficient FOI regime. However, I hope that she will understand that it would be inappropriate for me to comment on the specific case at the heart of this debate, as it is ongoing and is the subject of an appeal to the First-Tier Tribunal General Regulatory Chamber.

The right hon. Lady has made plain her feelings about the situation. She is correct to identify delays in processing requests at the Information Commissioner’s Office, which were highlighted in the report published in July 2009 by the Campaign for Freedom of Information, as she mentioned. She also noted that the original information notice was wrongly issued due to ICO error, but that she has received an apology from the ICO in relation to that.

The CFI report highlighted a catalogue of delays based on an analysis of almost 500 decision notices issued by the Information Commissioner’s Office between 1 October 2007 and 31 March 2009. The report calculated that it took an average of 19.7 months to issue a decision notice and stated that it took between one and two years to issue a decision notice in 46% of cases. In one quarter of cases, it took between two and three years to issue a decision notice. Although those figures say nothing of the many cases that were resolved informally, without recourse to a decision notice over the period, it was still a pretty damning picture. However, very significant progress has and is still being made to rectify that situation.

The current Information Commissioner, Christopher Graham, took up office in June 2009, just before the Campaign for Freedom of Information published its report. Following his appointment, Mr Graham recognised the impact that the backlog of cases has had on the performance of his office and announced his intention to

“put a shock through the”

FOI

“system”.

The clearance of the backlog of FOI cases was identified as one of his top priorities. I am pleased to say that he has made significant progress in clearing the backlog of old FOI cases that he inherited. In the first three months of 2010 alone, for instance, more than 1,000 cases were closed; the number of cases over one year old was halved; and the average age of cases fell by 34%. Those impressive results have continued. Between 1 April 2009 and 1 April 2010, the number of cases more than two years old fell by 91% and the number of cases more than one year old fell by 72%. That is a very significant achievement, of which Mr Graham and his staff can be justifiably proud, especially in the face of rising demands for the ICO’s services. However, both Mr Graham and the Ministry of Justice recognise that there is no room for complacency. Efforts to maintain and improve the level of performance must be maintained.

The commissioner will publish his annual report tomorrow, as the right hon. Lady said. Although she will understand that I cannot disclose its contents today, I have no doubt that she will be encouraged by the progress that it will show.

The current economic climate is, of course, extremely challenging, but the Government are committed to providing the ICO with the best deal possible to maintain its progress and to fulfil its vital role. I have to say that this is not just about money; it is also about people and expertise. I am sure that the right hon. Lady will be interested to know that three experienced caseworkers have been seconded from central Government, helping to cut through the ICO’s backlog.

The commissioner has made great strides to improve the efficiency of his operation to provide increasing value for money. That is evidenced in the remarkable increase in case clearance that I have just mentioned. The programme of work is holistic and ongoing and includes a fresh look at all processes; the integration of FOI and data protection staff to achieve greater flexibility in the ICO’s resources; the introduction of a triage system for casework; greater emphasis on the informal resolution of cases; the production of more concise decision notices; and increasing the numbers of staff authorised to sign off formal decisions.

Of course, the speed with which requests are dealt with is only one part of the picture. An effective commissioner must have sufficient enforcement powers to hand to perform his role—a point made strongly by the right hon. Lady—including the power to require a public authority to provide him with information through an information notice, and a power to require a public authority to take a particular course of action, through an enforcement notice. The commissioner has stated that he will readily use those powers against public authorities and has increasingly done so. It is worth bearing it in mind that non-compliance with either an information or enforcement notice from the commissioner is a criminal offence. That has been key to ensuring greater compliance from recalcitrant authorities. However, in a democratic society, it is only right that a public authority has a right of appeal against such notices and the FOI Act provides for that.

Sometimes the process can feel frustratingly slow for those trying to access information. The right hon. Lady knows how it feels, as she said during her long description of what she had to go through. I understand that she wanted to put the process on the record so that we can learn from what happened in her situation. However, we should not allow frustration to override the right of public authorities and requesters to challenge decisions where they think they have a right to do so.

Debates such as these prompt us to reconsider whether the ICO’s powers of enforcement and public authorities’ right of appeal are appropriate, fair and balanced. I can assure the right hon. Lady that we will keep returning to the matter, because it is of central importance in ensuring that both individuals and organisations can exercise the rights that we want them to have. Any unnecessary obstacles, such as delays, must be—and are being—tackled to make sure that personal data are protected and that information that should be released is released as quickly and efficiently as possible.

It is important that we continue to support the commissioner, as his work is at the heart of the Government’s transparency agenda. The commissioner will publish his annual report tomorrow and the right hon. Lady will have the opportunity to see it. I am sure that she will be pleased to note the steps that the Government have already taken and will continue to take to make more information available to the public, shedding light on public affairs, from the corridors of Whitehall to the meeting rooms of borough councils and local schools.

The right hon. Lady specifically asked me to say whether the commissioner has enough power to regulate the freedom of information regime effectively. We believe that, as things stand, that is so. The powers are there. The commissioner can issue information notices, which require public authorities to provide the information requested, and can issue enforcement notices that do not require an initial complaint to be made to the ICO. One can technically start off with an enforcement notice straight away, if it is appropriate. It is a criminal offence not to comply with those notices, and if public bodies do not comply the commissioner can refer the matter to the courts to be dealt with as contempt of court.

Under section 49 of the Freedom of Information Act, the commissioner presents annual reports to Parliament, as will happen tomorrow, on the exercising of his functions and can lay further reports as he sees fit. Those reports can raise criticisms of public bodies’ handling of FOI. Furthermore, under schedule 3, if the commissioner reasonably suspects that public bodies are failing to comply with any of the requirements of the Act, he can seek a warrant from a circuit judge, granting the ICO the right to inspect premises, seize information and retain it for as long as necessary, unless it is under cover of legal privilege.