Freedom of Information

Debate between Lord Beith and Robert Buckland

Thursday 24th January 2013 Westminster Hall

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

It is a pleasure to speak under your chairmanship, Mr Hollobone. We may be suffering today from the fact that two progressive causes are being debated at the same time, in a rather curious upstairs- downstairs situation. Upstairs, in the main Chamber, the franchise and the voting age is being debated, and here in Westminster Hall we are considering an important constitutional issue: freedom of information. I am glad that the Minister is here to reply to the debate, as she used to serve on my Committee, and we look forward to hearing from her shortly.

Many of us campaigned for years for freedom of information and against excessive Government secrecy, believing that openness is an aid to better Government, as well as an enhancement of the rights of the citizen. It was a long and hard battle. In John Major’s time, we achieved a code of practice on access to Government information, but the Freedom of Information Act 2000 was the most important step forward and its introduction is very much to the credit of the then Labour Government. So it was rather surprising that the then Prime Minister, Tony Blair, said in his memoirs that he had been a “nincompoop” to introduce it and that it was

“antithetical to sensible Government.”

The Justice Committee repeatedly asked Mr Blair to appear before us to give oral evidence about his dramatic change of view, and we deplored his failure to do so. We did not think that it was entirely justified to use the House’s powers to compel his presence, although that was a possibility, but it seemed very strange that someone with such strong views and who played such a major role in this matter should not be willing to appear before us to explain his views.

However, the right hon. Member for Blackburn (Mr Straw), who is always extremely co-operative in giving evidence to the Committee, told us that the Freedom of Information Act was Mr Blair’s idea and not his. We are all used to politicians, including Ministers and former Ministers, wanting to claim credit for things, but denying the credit for something as significant as the Freedom of Information Act seems a very strange thing to do.

To complete the chronology, I should mention the Protection of Freedoms Act 2012, which was passed under the present Government, because it extended the effect of the Freedom of Information Act to academies, to the Association of Chief Police Officers and all its public functions, to the universities admission body, UCAS, and potentially to a whole range of other bodies, too. So the extension of the role of freedom of information continues.

The Justice Committee and its predecessor Committees have been closely involved from the start of this process. We reported in 2004-05 on progress towards the then imminent implementation of the Freedom of Information Act; in 2005-06, we reported on the first year’s progress; and in 2006-07, we reported on the Labour Government’s plans to change the legislation in a restrictive way, mainly by the use of charges, which we opposed. The fact that the planned changes did not go ahead might have owed something to the transition from the Blair era to that of the right hon. Member for Kirkcaldy and Cowdenbeath (Mr Brown).

In this Session, we carried out post-legislative scrutiny of the 2000 Act, after the Government had made their own post-legislative assessment in 2011. That is a model of its kind; it is the sort of work that needs to be done in post-legislative assessments. It was thorough, well supported by research and a great help to us in the work that we did. I am happy to say that the Government and the Committee have reached a common view on most of the main issues, although there are some significant points of difference.

Our report on freedom of information was issued in July 2012, after seven evidence sessions, and the Government responded to it in November 2012. In their memorandum, the Government reiterated the well known four main objectives of the Freedom of Information Act:

“Openness and transparency: to help open up public authorities which carry out public functions, both proactively…and reactively… Accountability: to make Government more accountable to politicians, journalists and the public; Better decision-making: an improvement in the quality of decision-making…because those drafting policy advice would be aware that they would have to be able to defend their reasoning… Public involvement in decision-making…public participation…and…greater public trust in that process.”

The first two of those things—openness and accountability—have been achieved, to significant extent. The third thing—better decision making—is quite difficult to decide on, not least because many other factors determine the quality of decision making. The fourth thing—public trust—was a pretty unrealistic aim from the start, and I will refer back to it later because it would be hard to say that it has been one of the consequences of the Freedom of Information Act.

I will start with openness and transparency. We drew a distinction between reactive openness in response to requests made under the Act and proactive transparency in the publication of information by public authorities. On openness, we concluded in our report:

“We agree with the Ministry of Justice that the Act has contributed to a culture of greater openness across public authorities, particularly at central Government level which was previously highly secretive… Our evidence shows that the strength of the new culture of openness is, however, variable and depends on both the type of organisation and the approach to freedom of information of the individual public authority.”

On transparency, we made the point that

“proactive publication…cannot substitute for a right to access data because it is impossible for public bodies to anticipate the information that will be required.”

The beauty of the Freedom of Information Act is that, ultimately, the public, not the public authority, decide what information is needed. However, that is not an argument against proactive publication.

The Act encourages proactive publication, and the Government have a transparency agenda driven by the Cabinet Office, which seems to take the transparency demanded by freedom of information provisions a stage further, by encouraging raw data to be released in an open and reusable format. I welcome and encourage that, but we concluded that the relationship between the two initiatives was a bit unclear. We called on the Government to take steps to ensure that the freedom of information regime and the transparency agenda worked together, including by examining initiatives in different Departments before implementation to ensure that they are effective, as well as by assessing the existing initiatives to ensure that they

“offer value for money and do not have unintended consequences.”

On accountability, the consensus of evidence to us was that accountability had certainly been enhanced. Many examples can be produced of ways in which, for instance, spending can be challenged effectively because the information can be obtained. That has not always been a comfortable process, not least for Members of this House and the other place—I will refer to some aspects of that later—but it is a necessary feature of the control of expenditure that it should not be concealed and that the public should be able to find out what taxpayers’ money is being spent on.

One important issue raised with us by the Information Commissioner was the potential for accountability

“to be undermined if the freedom of information regime did not apply to private providers of public services.”

I will come back to that point and how we intend to deal with it later in my remarks.

Then we come to improving the quality of decision making, which can be achieved not least by creating an awareness that there will be subsequent scrutiny of the decision-making process. We enter an interesting area, because part of the background to the publication of our report was a great deal of noise being made by former senior civil servants and Cabinet Secretaries about the threat to the safe space within which policy discussions take place and the possibility that the Act had a chilling effect, both on the decision-making process and on the extent to which that process was properly recorded. These were serious people making quite serious comments, and it created a fear that the Freedom of Information Act might be threatened by a revolt by top civil servants or former top civil servants against the scrutiny under which they had been placed.

We received a lot of interesting evidence on the subject. We took evidence from former Cabinet Secretary Lord O’Donnell and from Ministers and former Ministers. A lot of it was anecdotal, and views differed among witnesses about the Act’s impact on high-level decision making. The Constitution Unit, which did research on the issue, thought that the chilling effect was negligible or marginal, and it was difficult to find any real evidence for what was sometimes claimed. The Committee recognised the problem. At paragraph 154 of our report, we said:

“Freedom of Information brings many benefits, but it also entails risks. The ability for officials to provide frank advice to Ministers, the opportunity for Ministers and officials to discuss policy honestly and comprehensively, the requirement for full and accurate records to be kept and the convention of collective Cabinet responsibility, at the heart of our system of Government, might all be threatened if an FOI regime allowed premature or inappropriate disclosure of information. One of the difficulties we have faced in this inquiry is assessing how real those threats are given the safeguards provided under the current FOI legislation and what, if any, amendments are required to ensure the existence of a ‘safe space’ for policy making.”

We accepted that some decisions by the commissioner and the tribunal that information should be disclosed have challenged the extent of the safe space for policy making. We also accepted that case law was perhaps not sufficiently developed for policy makers to be clear enough about what space is safe. We called for clarification of the statement of policy on the use of the ministerial veto under section 53 of the Act. The Government refer to the veto being used in exceptional circumstances, but it seemed that it was being used in some cases not because the circumstances were exceptional, but because it was the only way to protect the safe space. We called for senior officials, if they are concerned about the Act’s effect, to state explicitly that the Act already provides for a safe space and for high-level policy discussion. There are provisions in the Act that do that, and there is the backstop of the Government’s willingness to use the ministerial veto if necessary.

[Mr Robert Buckland (South Swindon) (Con)]

I am grateful to my right hon. Friend for fairly encapsulating the arguments that we set out in our report. Does he agree that one problem that case law and the tribunals have set for those who want to guard the safe space is determining where that space exists in the process? From a reading of at least some of the judgments, it seems that the public interest test changes according to where a decision or document comes in the policy-making process. That is a problem for civil servants and Minsters alike.

[Sir Alan Beith]

I am grateful to my hon. Friend, who is a valued member of the Committee. It is true that the agreed extent of the safe space varies according to the stage in the process, but that is right and not unreasonable; some parts of the process require confidentiality more than others, at least for a period. One reason why I and the Committee were reluctant to use any other tool to deal with the problem was that we would be in danger of creating whole areas of restriction where they need not exist. The application of common sense and, as I say, the backstop use of the veto provide for a mechanism to deal with the issue that could be more widely understood. We certainly called on the Government, and we are calling on them now, to ensure that the position is fully understood in government and by officials.

The Government said in their response that they

“were minded to review and, as appropriate, revise the policy on the use of the veto…we propose to consider how the veto policy can be adapted both in terms of the process involved in its use and to offer greater clarity and reassurance on its ability to offer appropriate protection in addition to that which it provides in the context of information relating to collective Cabinet responsibility.”

There is always a political price to pay for using the veto. Any Minister who invokes it will be criticised, challenged and questioned, and rightly so. We have seen a number of instances recently, ranging from the devolution discussions to the Prince of Wales’s letters. No Minister can undertake such a course without facing pretty severe challenge—the hon. Member for Hammersmith (Mr Slaughter) knows about that from his own experience —and that is right, because such things act as a hurdle: politicians will say, “Do I have to do this? I’m going to get a lot of stick for it in the House.” That hurdle is one means by which we ensure that the veto is not lightly used, although it does have a purpose and a potential benefit.

In our report, we made an important point that tends to get overlooked. Frankly, there is much more likelihood of the most confidential and sensitive discussions, and the papers relating to them, being released in major public inquiries, such as the Leveson inquiry or the Chilcot inquiry into the Iraq war, than through the freedom of information process. The ministerial veto does not work for Leveson or Chilcot, and thank goodness, because they dealt with very serious issues, and it is right that an exceptional process was used to probe them. People sometimes attributed to the Act the fact that some things were eventually, and rightly, found out, but in some of the most sensitive cases, that was down to the different processes, against which neither the Act nor ministerial vetoes provide any protection, and nor should they.

[Mr Buckland]

Does my right hon. Friend agree that, as the Committee found, using the Australian approach of a block exemption for Cabinet papers might be superficially attractive, but it could, and probably would, as in Australia, give rise to litigation over what is meant by Cabinet papers? Even worse, it could be used as a device to avoid the freedom of information regime by wrongly classifying papers in that category.

[Sir Alan Beith]

My hon. Friend’s point conjures up the picture of a civil servant armed with a rubber stamp saying “Cabinet Paper”, which can be applied wherever there is a fear that something that they do not want to disclose will be disclosed early. The Committee concluded that a common-sense approach was the way to deal with the issue. All it requires is to be reinforced through clear advice and guidance to civil servants on how the veto backstop and the other provisions of the Act afford them some protection.

In our inquiry, we heard from the Constitution Unit that the Act had not had a significant effect in increasing public participation in decision making, and we saw no great reason to disagree with that finding because other processes that increase participation, such as consultations, fall outside the Act. As I indicated, however, there is little evidence that freedom of information has had a noticeable positive effect on public trust in the Government and other public bodies, and it was always unrealistic to expect anything different. In paragraphs 37 and 38 of the report, we say:

“Evidence of irregularities, deficiencies and errors is always likely to prove more newsworthy than evidence that everything is being done by the book and the public authority is operating well. In these circumstances, the expectation of a substantial increase in public trust…was always going to prove unrealistic… Greater release of data is invariably going to lead to greater criticism of public bodies and individuals, which may sometimes be unfair or partial”,

and I am sure that some hon. Members agree with that. We continue:

“In our view, however this, while regrettable, is a price well worth paying for the benefits greater openness brings to our democracy.”

I speak as someone who, among other things, was criticised in a newspaper article for having a toilet in his constituency office repaired at public expense, so that the staff could use it. I felt like asking the journalist whether he had been asked to contribute to the cost of maintaining the toilets in his newspaper’s offices at his own expense. However, we have to live with these things, and the benefits of expenditure not being concealed outweigh any personal cost that we pay.

Complying with freedom of information requests involves costs, but it can also create savings, which accrue from the disclosure of the inappropriate use of public funds or the fear of such disclosure. Section 12 of the Act provides that public authorities are not required to comply with the duty to publish information if the cost of compliance exceeds the appropriate limit—£600 for central Government and £450 for other public bodies, which translates as 24 and 18 person-hours of work respectively.

We rejected proposals that what we regarded as more subjectively measured activities, such as reading and consideration time, should be included in the time to calculate costs, but we recommended a small reduction in that period. The Government took a different view in their response and said they would make “efforts to reduce burdens” arising from what they call the

“‘industrial’ use of the Act”.

They say that time taken to consider whether information should be released or to redact it before release should count towards the time limit. They say that they will consult on the change and will seek to develop a method of calculation that will be consistent across public authorities.

The Government say that the change will affect a low proportion of requests: 4% of those to central Government and 10% of those to other public authorities, but that is still quite a lot, perhaps more than 1,000 requests. We are concerned about that and particularly about the potential effect on local newspapers. My area has a unitary authority, and if a local newspaper wanted to follow up stories about several different local services—education, highways and social services—it could quickly fall foul of that aggregation. I should be grateful to the Minister if she thought carefully about that.

We examined charging, and we considered that it was not appropriate to go down that road. Any charge designed genuinely to recoup costs would deter genuine requests, and few kinds of charging would deter frivolous requests or, for that matter, what the Government call industrial requests. There are such things—industrial requests from large commercial companies who want to collect a lot of information and could afford to do so if there were charges; or requests from less well funded organisations, including small local newspapers, which are not going through a very profitable period at the moment. Those requests could be made in other ways. If a charging system were introduced, requests from private individuals might well be handed over to media organisations, in pursuit of a legitimate campaign, for example, to find out what was going on in government.

The Government agreed with us about charging, but they have said that they are considering charging people to go to the Information Tribunal. That would be a matter of some concern. I hope that the Minister can say more about it today. It has arisen since we published our report.

We said something about frivolous and vexatious requests. The folklore about the Freedom of Information Act tends to imply that all public authorities are completely weighed down by trivial, frivolous and vexatious requests. In practice, that is not so. A limited number of requests appear frivolous, and vexatious requests can of course be rejected, by following procedures that experienced public authorities use. We were told stories about applications for information about ghost sightings in the town hall and things of that kind, but it is not too difficult for the public authority simply to reply that it has no information at all on the subject. That is not a lengthy process.

Our view, again, was that it would be unwise to transform any aspect of the Act to deal with a problem that is not all that significant or serious:

“It is apparent from witnesses that frivolous requests are a very small problem, but can be frustrating. There is a case for adding frivolous requests to the existing category of vexatious requests which can be refused, but such requests can usually be dealt with relatively easily, making it hard to justify a change in the law.”

We gave considerable consideration to time limits and saw no need for any change to the 20-day response time within which public authorities must respond to freedom of information requests. However, we thought that time limits should be introduced for the public interest extension allowed under section 10 of the Act and that a further 20-day limit should be set in statute, which could be further extended in complex cases. The Government disagreed with us, preferring to rely on the Information Commissioner’s guidance and the code of practice under section 45, to ensure the timely completion of extensions and internal reviews.

We took evidence and made a recommendation on university research. We did not go along with the view of some people in the university world that universities should be exempted from freedom of information legislation. Universities spend a great deal of public money and carry out public functions. All those that are not wholly private in their funding are subject to freedom of information provisions. We think that should remain the case, but we recognise that there is a problem with the premature disclosure of continuing research projects. That has been dealt with in Scotland by different legislation, and we believe that there should be better protection, or pre-publication exemption, under section 22 of the Act, for research carried out by higher education institutions. There should be a dedicated exemption on the lines of the Scottish provisions. We are pleased that the Government have accepted the recommendation, and I should just like clarification of how that will be achieved.

I said that I would mention a significant problem, and it becomes more significant with each new announcement that the Government want to use the private sector as a major provider of public services. The problem is how freedom of information is applied to private organisations, commercial companies or, indeed, voluntary sector bodies that carry out public functions. There was some uncertainty about the interpretation of section 3(2)(b) of the Act, which provides that information held by a private company on behalf of a public authority with which it has a contract is subject to the Act, but other information held by such a company is not. It is quite reasonable that other information should not be covered—the Freedom of Information Act does not apply to the commercial activities in the private sector of a commercial company—but there is a genuine and appropriate concern about what happens when such a company does what would otherwise be done by a public authority.

We favoured the use of contractual terms to deal with the issue, as currently happens in many cases. The body that commissions the services, whether a probation or health trust or a Department such as the Ministry of Justice, should ensure that the contracts that it writes will protect the access that it requires to all material relevant to potential freedom of information requests, so that it can respond to any freedom of information bid.

The Government have broadly agreed with that conclusion and have helpfully gone further by suggesting that they will amend the section 45 code of practice to encourage public authorities and contractors to provide information on a voluntary basis, going beyond the minimum covered by a request to an authority. It seems to us that that openness follows the public money, in just the same way as the Public Accounts Committee wants accountability for spending to follow the public pound, and that the best way to achieve that is not to put a commercial organisation in the rather confused position of being partially subject to FOI, but to put it under contractual obligations that, if it carries out a service on behalf of the taxpayer, it is obliged to the body that commissions it to provide the information.

The Committee will take further evidence in a couple of weeks from the Information Commissioner on the work of his office. We may then follow up some of the issues that I have outlined. We welcome his work and have a good relationship with him. It has long been the Committee’s view that the Information Commissioner should be an Officer of Parliament, like the ombudsman, the health ombudsman or the Comptroller and Auditor General. That is the situation in Scotland, with the Scottish Information Commissioner. That would underline the commissioner’s independence. I was struck by the fact that in yesterday’s debate about blacklisting, which relates to another side of the commissioner’s responsibilities—data protection—my right hon. Friend the Business Secretary stressed the fact that the Information Commissioner is an independent regulatory official, running an independent regulatory body, and not a creature of the Government. That, indeed, is how things work in practice. However, it would be much better to underwrite that position, by making the commissioner fully a creature of Parliament rather than, technically, as he is now, part of the governmental system.

When considering the overall impact of the Freedom of Information Act, we need to bear in mind something that kept coming up in different ways during the Committee’s proceedings. Since the Act was conceived and then passed, a significant change has affected the whole freedom of information issue: the explosion of internet use and the new opportunities created by it. That has made access to published information easier; it has allowed published data to be searched in ways that were virtually impossible with manual searching; and it has posed a challenge to the quality and effectiveness of some public sector databases. Kent county council has explained to us that getting its database to the point at which it could effectively be interrogated by the techniques that are now available would be a major and costly task. The internet explosion has also created internet- based mechanisms for making freedom of information applications, along with organisations devoted to assisting people to make such applications. We must keep the matter under constant review.

The Freedom of Information Act set out principles that we believe should apply to Government for all time, but precisely how we apply them and the context in which we do so are things that change, and the Information Commissioner’s Office has a significant role in assisting us with that. Because of its data protection responsibilities, the office happens to have a great deal of knowledge within it about mechanisms that are relevant to data protection and to freedom of information and how information is accessed.

More generally, our view is that the Freedom of Information Act has significantly enhanced our democracy. It is working well and achieving most of its main purposes. Rewriting or restricting it and reducing its scope, effectiveness and accessibility would be far too high a price to pay for the convenience of government.