Freedom of Information

Andy Slaughter Excerpts

Thursday 24th January 2013 Westminster Hall

[Mr Andy Slaughter (Hammersmith) (Lab)]

It is a pleasure to be here under your chairmanship, Mr Hollobone. The fears expressed by the Chair of the Select Committee, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), about the quantity of Members in this debate have been laid to rest by the quality of the contributions. We have had three outstanding contributions by Members who are quite expert on this subject. There has also been, among the three parties represented so far, a large degree of consensus. I hope that I can make the official Opposition a fourth party to that consensus and I hope even more that the Minister will join it when she replies to the debate for the Government. I say that because I agree with what the hon. Member for Aldridge-Brownhills (Sir Richard Shepherd) said. I think that he said that freedom of information was the best thing that the Labour Government did. I had written down that it was “one of the best things” that the Labour Government did. Of course, if we were here to discuss all the good things that the Labour Government did, we would use up the rest of the time, but can we at least agree on that?

I am not surprised that we are still discussing the way in which the Act works 13 years after it was passed. It took five years for it to be introduced, and I think that that was probably right. It has taken eight years, judging by what the Select Committee says in its invaluable report, to bed in, and I think that that is also right and nothing to cause us concern, because, as the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) said, this is a major change in culture for Government—a major change to the way in which administration takes place in the public sector. It has affected, for the better, decision making, as well as the operation of the Government and the public sector.

Through the stance that the Select Committee has taken in its report but also by—if I can put it this way—flushing out the Government in their response, it has done a great service to advancing the cause of the Act and freedom of information. I find very little to disagree with on the policy issues dealt with in the report, although perhaps there is a slight degree of complacency in relation to some of the practicalities of the way in which the freedom of information system works—I have had some experience of that myself. More needs to be done to ensure that the existing system operates effectively, but before I come to that, let me just review where I think the parties are.

I looked at the manifesto commitments. The Liberal Democrats’ manifesto said that they wished to extend freedom of information legislation

“to private companies delivering monopoly public services such as Network Rail.”

That was on the same page as replacing the House of Lords with a fully elected second Chamber, but we cannot have everything.

The Conservative manifesto made no mention of freedom of information, but in some ways what it did say was more interesting. It talked about

“transforming the way the state goes about its business, using decentralisation, accountability and transparency”.

It says that

“we will bring the operation of government out into the open…we will create a powerful new right to government data, enabling the public to request—and receive—government datasets in an open and standardised format.”

It says, for example:

“We will…require public bodies to publish online the job titles of every member of staff and the salaries and expenses of senior officials”.

All of that resolved itself into one sentence in the coalition agreement:

“We will extend the scope of the Freedom of Information Act to provide greater transparency.”

What that throws up is a matter that the Chair of the Select Committee has already referred to—the difference between the voluntary publication of information and the ability of the citizen to request that information. There is general agreement that transparency and the publication of data is not only a good thing in itself, but can assist the process of freedom of information. Clearly, if more information is put into the public realm and if public authorities get into the habit of being transparent about the way they conduct themselves, that is not only complementary; it actively assists and removes some of the bureaucracy from freedom of information. However, the two things should not be confused.

It is interesting that the Liberal Democrat manifesto specifically referred to Network Rail. I had a meeting with the head of transparency for Network Rail—there is one—earlier this week, and they were gently trying to persuade me that, given that it has a proactive policy for being transparent, perhaps it did not also need to be subject to freedom of information. I do not want to put words into their mouth, because they did not go quite that far, but that was the gist of the discussion. Well, I disagree. I think that it is laudable if Network Rail has that aim, but that should not remove from it the burden of having to comply with the Act.

The Protection of Freedoms Act 2012 was mentioned. Some of the additions under that Act were simply consequential on other changes. Bringing academies into the same ambit as state schools is controversial, but it does not add much. I am sorry that we have not—

[Sir Alan Beith]

Of course, the hon. Gentleman would have complained pretty bitterly if we had not taken that action. He should be a little less churlish about the Protection of Freedoms Act, not least because, for example, it brought in the Association of Chief Police Officers, which was carrying out very significant public policing functions while also being a representative body for chief police officers. That extension was an extremely important one. I have a lot of sympathy with what the hon. Gentleman said about Network Rail, which is a very ambiguous body, created originally under the previous Government, but we are only a coalition. We get some of our proposals through, but not all of them.

[Mr Slaughter]

I hope that, rather than being churlish, I am being balanced in saying that the Government—both parties in the coalition—have taken steps on transparency and that there is an impetus from at least some parts of the coalition to move forward the ambit of the Act. I have never been able to understand why, for example, council housing departments should be subject to it but housing associations should not and why the NHS should be subject to it but Network Rail, which is also a large public sector organisation, should not. We should be resistant to special pleading from organisations.

I addressed a conference of university officials some time ago, and freedom of information was a big concern of theirs—that is, not being subject to it. I will say a little more in a moment about the research, with which I do have some sympathy, but the idea was that universities should not be subject to it because, they were saying, it costs them money and they are relatively small organisations in the great scheme of things. I am not sure that is true, for a start, but the number of requests that an organisation receives probably bears some relation to its size and therefore to its means. I suspect that many of our universities are rather bigger than, say, some small district councils.

We should therefore resist special pleading. Where there are grey areas, we should err on the side of openness rather than exemption. In particular, we should look at the points that the hon. Member for Aldridge-Brownhills made in relation to the increasingly blurred lines between the public and private sectors.

My right hon. Friend the Member for Tooting (Sadiq Khan), the shadow Lord Chancellor and my boss, made it very clear in his Labour party conference speech last year that the next Labour Government would extend FOI to

“cover the delivery of public services”,

such as prisons, schools and hospitals, by private companies and the voluntary sector. That must be right. It is right in any event, but the contractual roles that organisations —we know the usual suspects: Capita, Serco and G4S—are taking on not only involve huge additional powers, but often mean that whole areas of Government service, policy and decision making are devolved to them.

[Mr David Amess in the Chair]

I was talking to the Public and Commercial Services Union this week about the fact that it is envisaged that the criminal fines enforcement process—collection—be passed to a private company on a very long contract that delegates not only administrative, operational and decision-making powers, but some powers that until recently were judicial.

[Mr Llwyd]

What the hon. Gentleman says is right. The transfer of public functions to the private sector may not have been uppermost in people’s minds when the Act was drafted, but it is increasingly becoming an issue. Before we know it, much of the prison estate will be privatised, so, in that regard, it is absolutely crucial that FOI structures are in place.

[Mr Slaughter]

I am grateful, I agree and I hope that the Minister will address that point directly when she responds.

I shall leave that aside, because we could all discuss for a long time the types and numbers of organisations that we want to add. I would rather talk about the other two issues I mentioned: how the Act is operating and how the ongoing policy issues are being resolved or not resolved. The report deals with those matters well.

I have serious concerns about how the Act operates on a day-to-day basis. I am a prolific but I hope responsible user of the Act, so I can say from experience that the quality of service one gets varies hugely. Some organisations are good: they take matters seriously, provide comprehensive information timeously and obey not only the letter but the spirit of the Act. Many do not.

I shall give one example. It is not an extreme example at all; it is very typical. On 26 October last year, I made a request to my local authority. I was aware that it had delegated to itself, from committee to officers, the ability to sell off property as it became vacant, but it was not reporting it anywhere. Simple questions: how many properties have you sold in the past four years and what is the value of those properties? Every two or three weeks after the 20-day deadline passed, we chased them. Nothing was done. There was no attempt to comply with the Act—“You’ll get it next week.” “We’re very sorry. Don’t you have that yet?” Those were the kinds of faux-amateur ways in which it responded.

I am sure that I would not have the answers now had I not written to the chief executive earlier this week and said that I was going to raise the matter in this debate. The very straightforward answers arrived yesterday. They reveal that over that period, more than 200 properties were sold, at a value of more than £88 million, which, in the past two years, represented more than 10% of the total stock that had become vacant. Those facts and figures are important, not only because of the amount of public money involved, but due to the policy and human implications of disposing of good quality property that could be re-let, when 11,000 people are on the waiting list and many of my constituents are being moved out of London because it is said that there is no affordable accommodation. Those data should and could be available, not in 20 days, but in 20 hours.

That is a mild example. In other cases, I have waited over two years for responses. If a public authority does not wish to respond, it can find myriad ways not to do so. To give another example, we have a proportionately large number of free schools and academies in my constituency and I wanted to see the financial base on which they were funded, the capital grants, the costs they were paying for land and matters of that kind. Two years on, I still do not have that information. The excuses I have been given vary from commercial confidentiality to the notion that it would be embarrassing for those organisations, lest they are not successful, to reveal what their basis for bidding is at the time. They have even been based on tiny semantic points. It was not one of mine, but another request asked what a particular piece of land was sold for, and at the end of the process the response came back after months of delay, “Although contracts have been exchanged, there has not been completion, and therefore it cannot be right to say that this property has been sold.” I thought that was slightly disingenuous given that the people who bought it were building on the land at the time.

I will not take up the House’s time with my private grievances, but I use those examples to show that if a public authority does not wish to follow the Act, it can find myriad ways not to do so, which can range from using unqualified staff and devoting insufficient resources to deliberate obfuscation and devious avoidance. The problem is, as the Committee correctly notes, that there is no immediate penalty and the elaborate process of review is, again, often used to delay rather than bring justice.

I hope I am not quoting out of context, but the Committee says:

“We were pleased to hear relatively few complaints about compliance with the 20 day response time. We believe that the 20 day response time is reasonable and should be maintained.”

I suspect that people are put off and do not go through an additional complaints procedure or use the process of internal review and appeal. I agree with the Committee that it is important that the process of internal review is also prescribed, so that what should be a method of redress is not used for further delay. I have taken cases to the Information Commissioner where that process has had to be gone through, and unfortunately, it can take one or two years—longer in some cases—by which time, saving the most important cases of national interest, the issue will almost certainly be dead. That, of course, is the objective of the defaulting party. I hope that there is more scrutiny, by Government and the Ministry as well as the Select Committee, of the simple procedural operation of the Act and whether its spirit and letter are in turn being obeyed.

The hon. Member for Aldridge-Brownhills mentioned Maurice Frankel and the Campaign for Freedom of Information. I associate myself with the hon. Gentleman’s remarks. The campaign is a fantastic organisation, which does more than anyone else to keep us on the straight and narrow. It notes that more than 44% of requests to central Government exceed the 20-day limit. That is poor, even when the correct process is followed. We could do much better.

I shall turn to some of the policy issues. I cannot better what the Committee said on the veto and the alleged chilling effect on policy development. The Chair would not put it in these terms, but the Committee has seen through those objections and does not recommend change. I hope the Government will follow that view. There is a risk, as the right hon. Member for Dwyfor Meirionnydd acknowledged, that people will try to subvert or get round the Act in many ways, and we have heard examples of using private devices or e-mails to keep things out of the public realm. The last thing that we want to do in response to that—we should acknowledge the problem and try to work out ways of challenging it—is to say, “Well, in that case, we should allow more secrecy, because that is the only way to get that balance right.” Those debates will continue, because the agenda is both moving and changing.

There are other issues, which I had hoped could have been put to rest, that the Government in their response have kept going and even revived. The first is the issue of fees. I appreciate that the Government have resisted that, which is right, and requests to cover their costs. None the less, they have introduced the possibility of fees at tribunal, which may be a slippery slope. Certainly, if a complaint has reached such a level, which is quite a challenge for any applicant to achieve, the issue of fees should be resisted.

The Newspaper Society, in its briefing for today’s debate, as well as the Campaign for Freedom of Information and a number of national newspapers, have tried to draw attention to the worrying fact that ways are being found to limit access by way of cost. Generally speaking, those are occult ways of doing it; it is not a head-on attempt to restrict. When I say occult, I am not referring to the ghosts and zombies in the Cabinet Office or in Leeds city hall. I am talking about ways that are, ironically, not open.

I have a number of questions for the Minister to answer. If the Government are thinking of reducing the number of hours beyond the marginal levels that the Select Committee proposes, what are those proposals and how can they be justified? Are they thinking of introducing the aggregate claim, whereby an individual or an organisation will only be able to put in a certain number of claims before hitting the cash limit? Moreover, in totting up the number of hours on any individual request, will the Government include thinking time? If they do, what is the rationale for that and where is the impact assessment that will show the effect that that will have? Maurice Frankel quotes an estimate that says that just the thinking time clause alone will affect 4% of requests to central Government and 10% of requests to other public bodies. Those are significant figures, but, as Maurice Frankel points out, that is based on the actual time spent and not on the estimated time, which of course could be a lot greater. Any one of those measures, let alone the aggregate of them, would have a significant effect on the number of requests that are refused on the grounds of cost, which is a route that we do not want to go down.

There is a general acceptance, I think, that there has to be a limit on costs. No one in this debate has said that the overall cost of the Act is prohibitive and I do not think that the Government have said that either. None the less, cost is a convenient way to turn down requests without having to justify things more thoroughly. As I have said, I have had every possible reason thrown at me. One very common one is commercial confidentiality, which is often presented in a nonsensical way. Let me give an example. There was a significant and controversial land sale in my constituency between two public sector bodies—part of the BBC estate was being sold to Imperial college. The whole matter was resolved; there were no outstanding issues and no ongoing negotiations. Yet both parties resisted requests on the basis of commercial confidentiality. We need to be more sceptical about some of the excuses that are used. I hope the Government will not be seduced by those arguments, and that we can have some clarity on that.

There is an argument when it comes to research. I do not accept the argument for exemption of universities, but, given what is happening in Scotland, it may well be that the Government are right on this. We want to protect genuine research, but we do not want to allow that to become a catch-all for refusal. We should consider exemptions very carefully. This is an area in which the Government, thus far, do not have a bad record.

The Minister will have heard me say very often, even in the short time that she has been in post, that the Government have a bad record on the citizen’s right to access justice and information. We have cuts in legal aid and the prospect of further cuts, the wholesale change to conditional fee agreements, a review of judicial review, and charges increasingly being introduced for courts and tribunal services. That is a poor record, and a signature of this Government of which they should be ashamed. Let us not add freedom of information to that catalogue. So much has been achieved over the past 15 years with a reasonable degree of consensus. We want to allow the citizen far, far greater access to information, and to change what has been very secretive government in this country, under all parties, into something that is genuinely open. That will be as beneficial to the Government as it will to the citizen, so let us not shy away from it now.