Transparency

Debate between Lord Wills and Lord Hennessy of Nympsfield

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.