Transparency

Lord Wills Excerpts

Thursday 10th November 2011 Lords Chamber

[Lord Wills]

My Lords, it is a pleasure and a privilege to follow the noble Lord, Lord Gold, in his maiden speech. He comes to this House with a most distinguished career in the law and his speech today demonstrated to all noble Lords what an asset he will be to our debates. I understand that when he stepped down as senior partner at Herbert Smith, the law firm that he mentioned, a note was circulated to staff saying that,

“he has brought his own special type of magic to everything he has done since he walked through the doors of Herbert Smith”.

I am sure that all noble Lords who have heard his speech today will be looking forward to seeing more of that magic in this House.

I join previous speakers in congratulating the noble Lord, Lord Elton, on securing this debate on such an important issue. Transparency is crucial in the securing the accountability that is fundamental for the health of a democracy. I also congratulate the noble Lord on what to my ears sounded like a most cogent case for transparency. I declare my interest as a member of the advisory council of Transparency International UK.

I start my substantive remarks by congratulating the Government and the responsible Minister, Mr Francis Maude, on their commitment to transparency through the open data programme. That was started by the previous Government, and was a particular project of Prime Minister Gordon Brown. I am sorry that in an otherwise compelling speech the noble Lord, Lord Elton, did not acknowledge that fact. On this point, I was also sorry that such a distinguished historian as the noble Lord, Lord Hennessy, in congratulating the Government on bringing in the 20-year rule, somehow omitted to mention that that rule was legislated for by the previous Government. Airbrushing history in this way is the opposite of transparency.

[Lord Hennessy of Nympsfield]

My Lords, I take the noble Lord’s stricture on the chin. He is absolutely right, it was an omission, but it was inadvertence rather than malice.

[Lord Wills]

I am grateful to the noble Lord for setting the historical record straight.

I congratulate the Government on the way in which they have taken on the open data programme with real determination and vigour. I was going to rehearse some of the merits of it but the noble Lord, Lord Elton, did it far better than I could. This promises significant immediate constitutional benefits in transferring power to citizens and less immediate but potential longer-term benefits in improving value for money in delivering public services through greater engagement of users. It will also encourage innovative developments by not-for-profit organisations and businesses. Again, the noble Lord set out just how quickly people can take advantage of all the opportunities opened up by this programme. Confidence in the ability of the programme to deliver results must be increased by the setting up of the Public Sector Transparency Board and its distinguished and experienced membership, some of whom I had the privilege of working with when I was a Minister with an interest in this area in the previous Government.

While the Government should be given credit for their achievements in this area, elsewhere their commitment to transparency is not quite so clear. We have already heard from my noble friend Lord Prescott on one aspect of this, but I want to focus on the Freedom of Information Act. When I raised this issue in your Lordships’ House, the responsible Minister, the noble Lord, Lord McNally, responded to my criticism by accusing me of rewriting history because:

“There has been an absolute tsunami of transparency. My right honourable friend Francis Maude has been frightening the life out of Whitehall and his ministerial colleagues by the way he has been forcing through transparency”.—[Official Report, 10/10/11; col. 1455.]

That is perhaps not the most fortunate choice of image for those of us who believe in the benefits of transparency but, more importantly, his response wrongly conflates the work on open data and on freedom of information. They are not the same. There is one critical distinction between them: the open data initiative, for all its considerable merits, is a top-down programme. The Government decide what data sets to release. In contrast, the Freedom of Information Act allows the citizen to decide what information they want to have, and then there is an established process that decides what should be released and what withheld.

Those are twin approaches to securing greater transparency and they ought to be complementary. However, there is an asymmetry in the Government's approach, with enthusiastic progress being made on open data while freedom of information has more or less stood still so far—in fact, in some key areas it is actually going backwards. We are a year and a half into the lifetime of this Government and so far they have done virtually nothing to extend the scope of the Freedom of Information Act beyond the actions already set in train by the previous Government.

I have been criticising the Government about this for many months so, after all these criticisms, I was delighted to see just this week that an exchange in the other place suggested that the Government are at last consulting on extending the Freedom of Information Act to other organisations. I hope that those consultations will be followed by action in the near future, and another 18 months or so will not be allowed to pass before anything happens.

On its own this lack of progress to date would be disappointing, but what is worse is that two landmark Bills brought forward by this Government, both referred to by the noble Lord, Lord Elton, actively restrict the scope of the right of the citizen to secure information under the Freedom of Information Act. The Localism Bill envisages that a growing proportion of local authorities' functions will be carried out for them by other bodies under contract. As it stands, that will significantly weaken the right of the citizen to make freedom of information requests about those functions. I tried to help the Government to remedy what I hoped was an unintended consequence of their legislation by submitting amendments both in Committee and on Report, but all were rejected out of hand. As a result, far from increasing transparency as the coalition agreement promised, the Localism Bill decreases it.

That is not all. Under the Health and Social Care Bill, NHS work will be performed in future either by NHS bodies or by independent providers. Although the independent providers will not be directly subject to the Freedom of Information Act, they will be subject to a contractual obligation to co-operate with the commissioning bodies in answering freedom of information requests. So far, so good. However, the disclosure clause applies to information held on the commissioning body’s behalf,

“for the purposes of this Agreement”,

and the standard NHS contract goes nowhere near covering the full range of information currently available under the Freedom of Information Act from public authorities. It appears, for example, that any request for the provider’s correspondence with suppliers whose products have proved to be substandard are likely to be met with the response that this is held for the provider’s purposes, not the commissioning body’s, and therefore is not subject to disclosure.

It gets still worse. The shredding offence in Section 77 of the Freedom of Information Act applies when an authority or a member of the authority’s staff deliberately destroys, amends or conceals a record after it has been requested in order to prevent its disclosure, but if a contractor shreds a record in order to avoid having to pass it on to the commissioning body to answer an FOI request, the contractor commits no offence. Again, if a public authority claims that it does not hold requested information, the Information Commissioner can investigate whether this claim is true; but if a contractor claims that it does not hold particular information, there is no mechanism for validating that claim. The contractor would not be subject to the commissioner’s jurisdiction. In fairness to the Government, they have not ruled out addressing these issues; they have simply pushed them into the long grass, beyond post-legislative scrutiny of the Freedom of Information Act, and there is no guarantee at all that even then they will take action.

In the mean time, which may stretch on for years, citizens will be denied access to information that they currently have about areas of potentially great concern to them, covering all the range of local authority services and what could turn out to be matters of life and death in the NHS.

In conclusion, the report card on this Government’s commitment to transparency and information is mixed. Where they remain in control of the data released to the people they serve, the commitment should be applauded. However, where the citizen is more in control, then this Government have been pedalling backwards in crucial areas. Sadly and regrettably, this tarnishes their record.

--- Later in debate ---

[Baroness Warsi]

My Lords, I thank my noble friend Lord Elton for tabling this debate, which has proved to be wide-ranging. I also thank the other noble Lords who have made contributions today, raising important points, challenges and even kind plaudits. This is a timely debate because we are at an important milestone in our journey towards transparency and open data. I will briefly remind noble Lords of the background to this agenda and then give a quick round-up of progress to date. I will then deal with some of the specific points raised in the debate and cast a forward look towards the Government’s ambitions for transparency, which will be set out in a White Paper to be published in the spring.

In opposition we developed plans for a more open way of doing government. We envisaged a time when people knew that they could easily and quickly find out: which parts of government and which initiatives cost what, whether on a regional or national basis; who in government, whether a civil servant or a special adviser, did what and what they were being paid; which government contracts were coming up, and so on. We had a vision that people could choose public service provision using the same customer feedback techniques that so many of us are now used to when, for example, researching hotel options or flights on TripAdvisor, or shopping on Amazon.

The noble Lord, Lord Elton, gave the example of the Society for Cardiothoracic Surgery, which reported that mortality in coronary surgery had fallen by a fifth over five years. The professional body attributed this result to the public reporting of outcomes. We are not just talking about cost accountability; we are talking about data that save lives through the spread and adoption of best practice. As I said, it is a journey. Open data are the means and open government is the end.

Since the election we have ensured that we progress on this journey at great speed. In May of last year, just two weeks into the coalition Government, the Prime Minister sent a letter to all Secretaries of State, setting out the Government’s specific commitments on transparency. Much of the data that we released initially were about Whitehall, Westminster, people and money. However, important though this is, the example of cardio surgery shows vividly that there is more to open data and transparency than accountability. Following the success of the previous year’s data releases, on 7 July 2011 the Prime Minister publicly set out a second series of further open data commitments, targeting key public services, including health, education, criminal justice, transport and more detailed government financial information.

Today we have an astonishing amount of data on data.gov.uk, with over 7,500 data sets, more than any other comparable transparency service in the world. Much of this is big, complex and not necessarily accessible to the public. In many cases it is used by the professionals, whether that is the surgeons I described earlier or local authority commissioners, NHS managers, school authorities or welfare services.

We are also seeing data being repackaged and released for citizens to use. For example, FixMyStreet helps users to find the right telephone number or form to report local problems, ranging from dog fouling to broken street lights to pot holes. Since its launch, FixMyStreet has received more than 90,000 citizen reports. The website police.uk allows users to use offences reported in their locality by entering a street name or a postcode. It includes a range of offences such as theft, shoplifting and criminal damage and has received more than 430 million hits since its launch. By May of next year this website will show what has happened after a crime has been reported to the police and you will be able to track that crime’s progress through the courts.

We can also use public data to build economic value, stimulating innovation and enterprise in the UK’s knowledge economy. A growing market place has already sprung up in the health sector as a result of open data and transparency. Companies such as Dr Foster and CHKS are at the front of this growing industry with an estimated total value of around £50 million per annum. Estimates of the total potential growth contribution of open data-based markets vary from about £16 billion per annum to about £90 billion per annum.

The Chancellor’s and Business Secretary’s growth review on 29 November will contain a series of commitments to liberate new data to support enterprise and growth in sectors as diverse as life sciences and digital technologies. In addition, a public data corporation will bring together data from government bodies such as HM Land Registry, the Met Office and Ordnance Survey into one organisation, providing easily accessible public information as well as driving further efficiency in the delivery of public services.

I will now respond to some of the specific issues raised by noble Lords in this debate. The noble Lord, Lord Elton, raised the issue of the recommendations of the O’Hara report and the outcome of the open data and public data corporation consultations. These issues are being seriously considered and are broadly welcomed by the Government. We are positive about the specific recommendations and we will respond in a White Paper, which is due to be published in spring.

In relation to international aid, the Government believe that greater aid transparency is essential to efforts to improve results from development to co- operation worldwide. The Secretary of State will be seeking agreement by donors to implement the aid information standard developed under the UK-led International Aid Transparency Initiative.

A question was raised in relation to EU-level action to improve transparency in the extractive sector to match the standards being set in the UK. The Government are supportive of that.

My noble friend Lady Benjamin raised an extremely valid point. It is amazing to see how shining a light on the decisions that people make can have a positive impact on behaviour, including behaviour around the employment and engagement of people from diverse backgrounds. I will write to her in relation to the specific amendment that she proposes.

The noble Lord, Lord Hennessy, raised yet more benefits of a drive towards transparency and data release. I will ensure that his comments are seriously considered.

I welcome the comments of my noble friend Lord Gold and congratulate him on a both humorous and thought-provoking maiden speech. His work for the Conservative Party is hugely appreciated; he brings much wisdom, calmness and sound judgment to his role as chairman of the Conservative Party disciplinary committee.

I am sure that my noble friend listened carefully to the substance and style of this morning’s contribution from the noble Lord, Lord Prescott. I am disappointed that the noble Lord feels that disclosure has been somewhat political; the public have a right to know and the Government are committed to openness. He raised a specific question about the level of £500, which was established as a minimum requirement for departments to release information. DCLG, in line with its past releases, chose to release information on transactions lower than £500. The point that the noble Lord made about the casino dinner was released in response to a Parliamentary Question to DCLG, which was answered factually. Sir Gus O’Donnell has received a letter from the noble Lord, and DCLG will respond directly to him in the next couple of days.

I am glad that the noble Lord, Lord Wills, is encouraged by the Government’s consultation on extending the Freedom of Information Act. The Government have introduced provisions in the Protection of Freedoms Bill to extend the Freedom of Information Act to companies wholly owned by multiple public authorities, whereas currently the Act applies only to companies wholly owned by a single public authority. This will bring more than 100 more bodies within the scope of the Act. We are not stopping there. We are currently consulting on the possible inclusion of more than 200 bodies within the scope of the Freedom of Information Act, on the basis that they provide functions of a public nature—these include harbour authorities, exam boards, the Local Government Group and the NHS Confederation, to name but a few.

[Lord Wills]

Before the Minister leaves that point, can she answer the question asked by my noble friend Lord Hunt about when the Government will take action on the consultation that she has just mentioned?

[Baroness Warsi]

The Government’s recent open data consultation consulted on an extension to the types of organisations to which the open data policy could apply. The Freedom of Information Act will also be subject to post-legislative scrutiny to see how it is working in practice. Further policy in this area will be developed. At this stage I do not have a specific timeframe, but I can write to the noble Lord once I have further information.

My noble friend Lady Byford asked some important questions about how what we are trying to achieve appears to be hindered by how we achieve it. The Government are committed to achieving the very benefits that she highlights and will give serious consideration to the challenges she raised, which could stand in the way of those benefits. She also raised an important point in relation to privacy, and I can assure the noble Baroness that we will not extend transparency at the expense of privacy. Personal data will be handled in accordance with the provisions of the Data Protection Act.

The noble Lord, Lord Hunt of Kings Heath, raised some important points about politicians. All politicians, all of us who are in the public sphere, must be committed to the very basis and essence of this agenda; otherwise, we will be accused of hypocrisy, not just by each other across these Benches but by the public. I can assure him that all those in this Government are committed to that very basis of transparency and openness. Our goal is for participation and engagement—