FOI Requests: Scotland Office

Tuesday 15th September 2015 Westminster Hall

10:59

[Sir Edward Leigh (in the Chair)]

Order. We now come to an Adjournment debate, to be moved by Mr Peter Grant, on the Scotland Office response to freedom of information requests.

To set the guidelines for this debate, I will just make a short opening statement, which is being made after consultation with the Clerks of the House of Commons. I should advise Mr Grant that he should not make direct reference to the proceedings of the case before the Election Court concerning Alistair Carmichael, nor should Mr Grant state what he thinks the judgment should be—[Interruption.] Could hon. Members and members of the public leaving Westminster Hall do so quietly, please? Mr Goldsmith, I am reading out a very important statement concerning the sub judice rules. Nor should Mr Grant state what he thinks the judgment should be in a case before the Election Court. He should focus his remarks on the Scotland Office’s failure to comply with FOI requests and not upon current legal proceedings.

As it is a matter of public record that before 22 May Mr Carmichael denied all knowledge of the leak and after 22 May admitted full responsibility for it, it is hard to insist that references to this fact should not be referred to in debate, as they are not a matter of legal argument. However, what is a matter of legal argument is whether Mr Carmichael’s character and conduct in this matter fall under the Representation of the People Act 1983 and should result in his election being declared null and void. Also, Mr Grant should of course not use the occasion of the debate to impugn the character of Mr Carmichael.

I call Mr Grant to speak.

11:00

[Peter Grant (Glenrothes) (SNP)]

I beg to move,

That this House has considered the matter of FOI Requests: Scotland Office.

Thanks very much, Sir Edward, for putting on the public record the advice that I have had previously when I have discussed my request for this debate with the Table Office, and of course I will comply entirely with that advice, as was always my intention.

I am grateful for the opportunity to have this debate this morning, but I suspect that, as with most people who secure debates in Westminster Hall, I really rather wish that it had not been necessary to do so, because I wish that not only the Scotland Office but other Ministers up to and including the Prime Minister had been a bit more open about what Ministers knew and when they knew it.

My intention in securing this debate and in raising matters related to this issue in the House on numerous occasions has nothing whatsoever to do with the former Secretary of State and the continuing right hon. Member for Orkney and Shetland (Mr Carmichael). My intention is to find out what else has been going on that was completely beyond the remit of either of the two inquiries that have been set up, because I understand that a standards inquiry may still be conducted into the matter.

To put things into a bit of context, I have always had a very keen interest in freedom of information legislation. As a serving councillor in the 1990s, I was on the record as saying that a proper Freedom of Information Act and proper proportional representation would make between them the single biggest improving difference to the way that local government operates, and the experience in Scotland to date certainly suggests that that is the case.

I have previous experience of working in the NHS, in the days when Michael Forsyth was Secretary of State for everything, including health, and I saw at first hand the catastrophic impact that secrecy in the NHS in Scotland had, because major financial difficulties were covered up time and time and time again, until eventually the health board in the area that I lived in and that I had previously worked for nearly went bust, as did several other health boards in Scotland.

Freedom of information has been described as a snooper’s charter, but it is not; it is a way of giving the public a chance to hold all of us properly to account. My view on FOI has always been that if someone does not want to be held to account, they should not be here. The single golden rule about freedom of information is not the Sir Humphrey Appleby line, “You never try to conceal from the public that which they would be able to find out in any case”; the rule about freedom of information should always be, “If it would damage your career for the public to find out what you were doing, then you shouldn’t have done it in the first place”. That is the acid test that should always be applied.

I found it interesting that shortly before the summer recess the Government announced that responsibility for freedom of information legislation was moving from the Ministry of Justice to the Cabinet Office. When I saw a statement a few days ago that the Information Commissioner has put the Ministry of Justice on special measures because the Ministry is so bad at answering its own FOI requests, I wondered whether that had something to do with this change, because the MOJ is managing to respond to only 75% of FOI requests within the statutory time. Then I realised that the Cabinet Office is also achieving exactly 75%.

However, I will concentrate on the Scotland Office. Between 2012 and 2014, it received 280 resolvable FOI requests; in other words, requests about information that it actually held and that it was capable of responding to. Only 25 of those FOI requests were fully withheld, which is less than 10% of the total number received; in only 11 cases during that period did the Scotland Office claim any form of exemption from responses; and in only one case out of the 280 requests over a three-year period did the Scotland Office ever claim that somebody’s physical or mental health or safety would be endangered if information was released.

However, when somebody asked for a copy of a memo that had already been released to the press, the Scotland Office response was, first of all, to withhold that information fully, which immediately makes it an unusual response. The Scotland Office claimed that that request was exempt, but in 2014 it never claimed that anything was exempt, so again that shows that its response to that request was somewhat unusual.

Initially, when the Scotland Office responded to that request it claimed that releasing the memo might damage our relations with the French Government. That is an exemption that may well have merit; I would not like to comment on that in full. I could understand that there might be concerns that disclosing the contents of the memo might harm diplomatic relations with the French Government, but it is a pity that nobody thought about that when the memo was put in The Daily Telegraph in the first place. It is also a pity that the senior civil servant who phoned the French embassy to ask about a private conversation between French diplomats and the elected Head of the Scottish Government did not stop to wonder whether that was being disrespectful to the Scottish Government.

So, one of the things that I would like to have answered today, and one of the reasons why I am continuing to push this matter, is this question: is it common practice for Whitehall civil servants to go behind the back of Scottish Government Ministers and to follow up every private meeting those Ministers have with overseas diplomats in order to find out what was said? I would suggest to civil servants in the Scotland Office or in any other office of Government that if they want to find out what the First Minister of Scotland has said to foreign diplomats they should ask the First Minister of Scotland. Apart from anything else, that way there is less danger of things getting “lost in translation”, which I believe is the quote being used now.

I go back to the original FOI request. Following its being refused on the grounds that it might damage relations with the French and then on the grounds that it contained personal information, the question is this: whose personal details were in the memo? If there were the names of senior civil servants, and certainly if there were the names of Government Ministers, it cannot possibly be claimed that that is exempt information. The Data Protection Act is not there to protect Ministers from being held accountable for what they did, or even for what they knew.

The applicant asked for an internal review, which is supposed to be a chance for the answering Department to get the matter right second time around. However, rather than accepting that some of the exemptions no longer applied, the Department discovered that releasing the memo would in fact cause a danger to somebody’s physical or mental health and safety. The Department, having explicitly said in a letter of 15 June that it had considered that exemption and found that it did not apply, then discovered by 28 July that releasing the memo would put somebody’s health or safety in danger. I do not know what had happened in the meantime; I do not know whether one of these children from Syria who are actually Daesh operatives in disguise and who we keep hearing about had somehow got in under the radar.

The Information Commissioner is very clear about what the health and safety exemption means. It does not mean that it might be upsetting or stressful for somebody if a document is released. The Information Commissioner cited examples. For instance, disclosing information about a highly contentious research facility—one that is, for example, conducting research on animals—could threaten the safety of those working there and their families. So, that is a valid ground for withholding information. Equally, if someone is asking for information about a murder investigation, it might be that releasing that information would be extremely stressful or distressing for the family of the murder victim. Again, that is a legitimate case for using the health and safety exemption. But for the life of me, I cannot imagine what could have been in that memo that could possibly endanger anyone’s physical or mental health or safety if it had been disclosed. I look forward to the Information Commissioner’s response on that point, because I understand that in the particular case that we are discussing today the applicant has referred it to the commissioner for a ruling.

In that regard, it is perhaps worth noting that although most of these FOI requests were made a few years ago, the Scotland Office has an 80% failure rate on appeals that are referred to the Information Commissioner. In 80% of those cases, the commissioner said that the Scotland Office got matters either completely wrong or partly wrong. As I say, some of those FOI requests were from a few years back, when everybody was learning the ropes, but the Scotland Office’s record is still not a particularly clever one that it should try to defend.

It is not only in response to FOI requests that we are seeing this refusal to co-operate. I have put any number of questions to Government Ministers, up to and including the Prime Minister himself. Interestingly, when I asked the Prime Minister directly which Ministers knew the memo existed, which of them had seen it or had had access to it before the unauthorised leak—not who had leaked it—he did not answer on behalf of all the other Ministers; he declined to answer, on their behalf. All he did was refer me to the press release that the Scotland Office and the Cabinet Office had issued on 22 May, with the results of their inquiry, which does not say anything about who else had access to the memo. It refers to those who did have access but does not identify which Ministers may or may not have had that access. That, therefore, is another question I would like to have answered just now: which other Ministers and senior civil servants had access to the memo before the unauthorised disclosure?

That question is important because it starts to get to the nub of why the memo was written. We know it was written by a senior civil servant in the Scotland Office but, interestingly, we do not know who it was written for, who instructed the civil servant to go behind the back of our First Minister and ask the French embassy for its account of a private conversation involving the First Minister.

I would like to know—well, first I would like to know where the Secretary of State for Scotland is, but we might get an answer to that later—whether it is common practice for UK Government Departments to follow up private meetings between Scottish Government Ministers, or indeed Ministers from the Welsh or Northern Ireland Assemblies, and overseas diplomats, and for Whitehall to go behind Ministers’ backs and ask overseas Governments for their account of those meetings without bothering to check it for accuracy, in this case with the First Minister of Scotland. If they had bothered to do that before the memo was written it would have become clear that a lot had indeed been lost in translation.

The most important question I want answered—and I will continue until I get answers—is: which Ministers were aware of the memo? Which Ministers were sent copies of it before it was leaked? I do not know why the Government are so determined to withhold that information from us, but I am an awkward person—that goes with the badge—and the more a public body tries to deny me access to information that my people want the more convinced I become that there might be something in it that it really does not want us to see and the more determined I become, therefore, to find it.

[Margaret Ferrier (Rutherglen and Hamilton West) (SNP)]

Does my hon. Friend feel that the Government are reneging on the Freedom of Information Act? The Government explained in a 1997 White Paper that their aim was to be more open, to be a Government based on mutual trust:

“Openness is fundamental to the political health of a modern state. This White Paper marks a watershed in the relationship between the government and people of the United Kingdom. At last there is a government ready to trust the people with a legal right to information.”

Is that information being withheld?

[Peter Grant]

I am grateful to my hon. Friend for her question. It is not for me to say whether in this instance the Scotland Office complied with the Act; that question is now with the Information Commissioner. From my experience, primarily of the equivalent legislation in Scotland and my couple of significant successes against big public bodies—I have taken appeals to the commissioner and won—I cannot see how the physical or mental health or safety exemption can apply to a piece of paper. Similarly, I cannot see how the same exemption can apply to the Cabinet Office telling us when the inquiry was finished. Lord Chilcot was able to tell us that he had finished taking evidence in an inquiry about an illegal war in the middle east. No one would have been endangered because of that, yet it endangers someone’s health or safety if the Cabinet Office tells us the day on which the Cabinet Secretary finished speaking to witnesses about the inquiry. There is a clear question in people’s minds about why the results were not announced until after the general election, and there may well be legitimate reasons for that, but until the Cabinet Office is prepared to come clean on that particular aspect people will always wonder what is happening.

My concern is that something does not smell right. If there is absolutely nothing to hide, why are the Government going to such extraordinary lengths to keep it hidden? Can we be told today, on the record, which Ministers were aware of the contents of the memo before it was leaked? Why was the memo written and was it part of a routine process of going behind the backs of Ministers of the devolved Governments to find out what has happened in their private and confidential conversations with friendly Governments?

11:14

[The Minister for Civil Society (Mr Rob Wilson)]

I congratulate the hon. Member for Glenrothes (Peter Grant) on securing the debate. I am aware that the Scotland Office received a number of freedom of information requests about the leak of a memorandum produced within the Department, and also about the investigation into the leak conducted by the Cabinet Office. I am also aware of the hon. Gentleman’s efforts in Parliament to obtain information about the matter. I hope it will help him, and others here today, if I respond to the points made by first saying—as he did—something about the Government’s general approach to freedom of information and the Freedom of Information Act and, secondly, about the operation of leak inquiries, and of this case in particular.

It is important to state clearly that the Government are committed to openness, and recognise the contribution that the Freedom of Information Act has made to greater transparency. But for any freedom of information regime to operate effectively, it is also important that it provides appropriate safeguards against the disclosure of sensitive information. The Freedom of Information Act contains a range of exemptions designed to protect sensitive material from inappropriate disclosure. Some, such as those relating to personal data and court records, are absolute, but others, such as those relating to investigation and health and safety, are qualified. Before such qualified exemptions can be applied, it is necessary to consider the public interest for and against disclosure, and only when the balance of the public interest favours withholding information can an exemption be applied.

The Scotland Office has a strong record on answering freedom of information requests. In 2014, the Department received 154 requests, 92% of which were answered within 20 working days—the equivalent figure for the Scottish Government was 77%. Of those 154 requests, 69 were granted in full and nine were declined in their entirety. In other words, the Department granted 85% of the requests received in 2014 and entirely declined just 11%. Figures for 2015 have so far been published for only the first quarter, but they are broadly consistent with those for 2014. From January to March this year, 90% of Scotland Office requests were answered within 20 working days and 82% resulted in full disclosure. That record demonstrates the seriousness with which the Scotland Office, like the rest of the Government, takes its obligations under the Freedom of Information Act, and clearly shows that when it is in the public interest to release information, that material is provided.

The hon. Member for Glenrothes raised concerns about the handling of specific cases. He is doubtless aware of the appeals route that exists under the Freedom of Information Act but it might, none-the-less, help if I said something about it now. An applicant who is dissatisfied with the response he or she receives to a freedom of information request has the right of appeal, and I understand that a number of applicants have chosen to exercise that right in relation to requests about this particular matter. An applicant may first ask the public authority to conduct an internal review of its original decision to decline a request. Should the applicant remain dissatisfied, he or she may submit a complaint to the Information Commissioner under section 50 of the Freedom of Information Act. The Information Commissioner's Office, which is independent of Government, has the power to issue a binding decision notice ordering disclosure if it concludes that information has been wrongly withheld. It is then possible for applicants and public authorities to appeal further to the first tier tribunal and, on a point of law, beyond that to the upper tribunal or courts. Freedom of information requests received about the leak and resultant investigation were answered based on an assessment of the requested information’s sensitivity. I recommend those dissatisfied with the responses they have received to appeal those decisions through the channels I have described.

I conclude my comments on freedom of information by re-emphasising that for the Freedom of Information Act to function effectively, it is important that it strikes an appropriate balance between transparency and the protection of sensitive information.

[Peter Grant]

Given that the Minister has indicated that he is coming to the end of his comments, does he intend to answer any of the questions that I asked? Are the Government prepared to answer them at any time? If not, perhaps the Minister can just say that they are not going to answer them.

[Mr Wilson]

I intend to answer all the questions that the hon. Gentleman raised. We have 10 minutes more to debate this matter, and if he gives me the time and has some patience, I will be perfectly happy to deal with the questions he asked.

The Freedom of Information Act has now been in operation for more than 10 years, and it is therefore right that we review its operation. That is why we have recently established an independent commission on freedom of information, which is looking at the protection the Act provides for sensitive information and its costs to public authorities. The commission will report by the end of November.

Against the backdrop I have described, I will address the particular concerns expressed by the hon. Member for Glenrothes on the leak of the Scotland Office memorandum. It is important to underline that the Cabinet Office completed a full and detailed inquiry into the leak, and we have been transparent about the purpose and findings of the inquiry at every stage. In response to concerns expressed by the First Minister, on 4 April 2015 the Cabinet Secretary instigated a Cabinet Office-led leak inquiry to establish how extracts from the document may have got into the public domain. The leak inquiry followed thorough and well-established procedures for dealing with such matters. In investigating the source of the leak, the investigation team searched all relevant official phone records, emails and print logs. Those who had access to the memo were asked to complete a questionnaire on what they did with the memo when they received it. They were then interviewed about that.

The Cabinet Office issued a statement on 22 May 2015 confirming the conclusions of the investigation. That statement is available on Gov.uk. It is a well-established convention that the Government do not comment on the process or conclusions of leak inquiries. However, in recognition of the particular sensitivities of this matter, the Cabinet Secretary felt it was necessary and appropriate to set out details of the approach taken during the investigation and the conclusions reached. In that respect, we have gone further than ever before in providing information on the investigation.

Members will recognise that an important balance has to be struck in handling such inquiries. It is essential that we ensure that the public have full confidence and trust in the operation of leak inquiries and are assured that appropriate action is taken where conclusions are reached. Alongside that, however, is a wider public interest in ensuring that leak inquiries take place in an environment where individuals feel able to contribute fully and frankly and have complete confidence that any evidence provided will be handled with confidentiality. Maintaining the confidentiality of the detailed operation of such inquiries is critical in ensuring that future inquiries and broader whistleblowing processes are trusted and effective, receiving the full co-operation of all.

Alongside that, the Government do not release investigation reports, which may reveal techniques used by Departments and insight into how to avoid detection. The Cabinet Office and the Scotland Office received a number of FOI requests relating to this matter. They were handled in the usual way, with full consideration given to the weight of public interest in each case. Any decisions to withhold information reflected the important need to maintain a safe space around the operation of leak inquiries and were balanced against the unprecedented amount of information already in the public domain. As I have already set out, clear routes of redress are open to any individual who feels their particular request has not been handled fairly or appropriately, either through an internal review or referral to the Information Commissioner’s Office. We will continue to handle any such cases on their individual merits.

The hon. Member for Glenrothes asked specific questions about why the Government have not released the memo in question. As the Leader of the House made clear in response to the hon. Gentleman’s questions, it is important that the Government can operate in the interests of the country, and by that I mean the UK. In considering the hon. Gentleman’s specific request for sight of the memo, the Scotland Office concluded that releasing the memo would be detrimental to international relations. Anything that would hinder the United Kingdom’s ability to work with its international partners would damage the United Kingdom’s ability to protect and promote its interests abroad, which would not be in the public interest.

As the Cabinet Office statement of 22 May made clear, the investigation team interviewed the civil servant in the Scotland Office who produced the memorandum. He confirmed under questioning that he believed that the memo was an accurate record of the conversation that took place between him and the French consul general. He highlighted that the memo had stated that part of the conversation between the French ambassador and the First Minister might well have been “lost in translation”. Senior officials who have worked with the individual say that he is reliable and has no history of inaccurate reporting, impropriety or security lapses. The Cabinet Secretary concluded that there is no reason to doubt that he recorded accurately what he thought he had heard and that there was no evidence of any political motivation or dirty tricks.

I want to see whether I can deal specifically with some of the hon. Gentleman’s questions. He asked who saw the memorandum. The Cabinet Office statement on the leak inquiry made it clear that the former special adviser, Mr Roddin, and the right hon. Member for Orkney and Shetland (Mr Carmichael), who gave his assent, were responsible for the leak, and that no one else had any involvement in leaking the memo. The Scotland Office operates within the civil service code, and the inquiry did not find any issues of propriety with Scotland Office officials. We would not normally comment on internal communications.

The hon. Gentleman asked about the common practice for civil servants to go “behind the back” of Ministers—I think that was his phrase—and speak to foreign diplomats. It is common practice for UK Government Departments to engage with diplomatic and consular corps across the United Kingdom and to share factual information about our respective activities on a wide range of issues, including Scotland. The UK Government and the Scottish Government regularly share information on engagement in international activities in a manner that is consistent with a memorandum of understanding and supplementary agreements between the UK Government, Scottish Ministers, Welsh Ministers and the Northern Ireland Executive. Officials at the Scotland Office work within the guidelines set out in the civil service code and the inquiry did not find any issues of propriety with Scotland Office officials.

The hon. Gentleman asked why the Cabinet Office has taken FOI policy from the Ministry of Justice. That is presumably because it is logical for FOI policy to sit within the Cabinet Office, given that it is the lead in transparency policy in general across Government. He also asked why the Scotland Office used an exemption relating to physical and mental health. The Scotland Office applies freedom of information exemptions to requests on a case-by-case basis. If an individual is unhappy with the handling of a case, they can go to the Information Commission or tribunal.

I think that directly handles the questions that the hon. Gentleman asked me. As I have previously set out, it was a thorough investigation and I am clear that the statement issued by the Cabinet Office in May deals robustly with the concerns that he and others have expressed.

Question put and agreed to.

11:29

Sitting suspended.