Freedom of Information

Helen Grant Excerpts

Thursday 24th January 2013 Westminster Hall

[The Parliamentary Under-Secretary of State for Justice (Mrs Helen Grant)]

It is a great pleasure to serve under your chairmanship, Mr Amess. I congratulate my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) on securing this debate, and I thank all hon. Members who have contributed. I am grateful to the Justice Committee for its thorough work on the post-legislative scrutiny and to all those who contributed to its inquiries. I re-endorse the sentiments that have been made this afternoon in relation to my right hon. Friend’s great aplomb and his ability to chair the Committee.

The Government remain committed to greater transparency—the Freedom of Information Act is a key part of that—and we have been successful in our key aims of increasing openness, transparency and accountability. I agree with hon. Members that it is perhaps less clear how much of our secondary objectives of increasing trust and public participation have been met and that, to some extent, those objectives may not have been realistic ambitions. I agree with the Justice Committee that the Act has been a

“significant enhancement to our democracy.”

It is not perfect, but it is generally working well. For that reason, the Government are not proposing a radical overhaul.

Before turning to the specific issues raised by post-legislative scrutiny, it is important to say that we need to put them in the context of the Government’s wider transparency agenda. Since we came to power, we have published almost 9,000 data sets, covering a wide range of subjects connected to health, education, transport, crime and justice. In June 2012, we published the open data White Paper, “Unleashing the Potential”, which sets out how the transparency agenda can help to provide greater access to and the re-use of raw data. We have set up the Open Data Institute to promote innovation, using the data that the Government publish, and pushed strongly for more transparency internationally, including through the international Open Government Partnership.

I assure my right hon. Friend that the Government’s transparency agenda is no substitute for, and will certainly not diminish, the important work that is being done in relation to the Freedom of Information Act. As we take the transparency agenda forward, we will push for greater openness and accountability, so that people know what is being done in their name and with their taxes.

Proactive publication needs to be complimented by an effective system that allows the public to seek information for themselves about how public authorities do their jobs. That is why the Freedom of Information Act is so important and why we are taking a number of steps, following scrutiny, to strengthen and extend it.

We are reducing from 30 to 20 years the lifespan of some of the exemptions to disclosure in the Act. That reflects and is simultaneous with the changes that we are making gradually to replace the 30-year rule under which public records are released by the National Archives with a 20-year rule. We have made secondary legislation to begin that transition over a 10-year period, and it came into effect on 1 January.

We are introducing enhanced rights to access and reuse data sets under the Protection of Freedoms Act 2012. A public consultation on a draft code of practice to help public authorities to meet those new obligations concluded on 10 January, and the provisions will be commenced shortly.

We are taking steps to extend the Freedom of Information Act to more organisations that perform public functions and to companies wholly owned by any number of public authorities. We have already extended it to all academies, the Association of Chief Police Officers, the Financial Ombudsman Service and the Universities and Colleges Admissions Service.

In our response to post-legislative scrutiny, we made it clear that we intended to conclude consultations with a wide range of other bodies, including more than 200 harbour authorities, awarding bodies, approved regulators under the Legal Services Act 2007 and 2,000 housing associations. Therefore, unless there is good reason for not doing so, we can extend the Act to any public function that they carry out. Our aim will be, where possible, to introduce secondary legislation over the next two years to implement the changes that we decide are warranted.

I am aware of some Members’ concerns about the position under the Act of contractors and other companies that provide public services. The challenge that outsourcing public services poses to transparency is real, and it is one that we have sought to address proportionately. We do not currently propose the formal extension of the Act to providers of outsourced public services. We prefer the Justice Committee’s recommendation that contractual transparency clauses be used and enforced to ensure that freedom of information obligations are met.

We strongly encourage public authorities and contractors alike to go further than the minimum requirements in the Act and voluntarily to provide more information. To that end, we will issue guidance that sets out the circumstances in which we want to see further information released. My hon. Friend the Member for Aldridge-Brownhills (Sir Richard Shepherd) and the shadow Minister raised powerful concerns about this issue, but I reassure them that if our proposals do not have the desired effect, formal extension of the Act can be considered and is always possible.

We have sought to balance the need for transparency with the need to minimise burdens on business and to encourage active participation by bodies large and small in the provision of public services. Some people might not consider that enough, but it is a light-touch, good approach requiring the co-operation of public authorities and contractors alike. As I said, however, if that approach yields insufficient dividends, we will consider what other steps we need to take to ensure accountability, and that includes formal extension. I hope that provides reassurance.

Let me now turn to the Act’s cost. Despite the many benefits that the Act has brought, we cannot ignore concerns about the burdens that it imposes on public authorities. That is especially important in the current challenging financial climate and at a time when more freedom of information requests than ever are being received. Central Government received 47,000 initial applications in 2011, at a cost of £8.5 million in staff time alone. Local authorities and other public bodies are also affected. We aim to focus our efforts on the disproportionate burdens placed on public authorities by what we call industrial users of the Act.

[Mr Llwyd]

I am listening carefully to the Minister, especially on this part of her speech. I do not recall any local authority that gave evidence to the Committee saying that the costs were prohibitive. Perhaps she is over-stressing that aspect.

[Mrs Grant]

Whether or not I am over-stressing them, these matters will be considered in great detail through consultation, and there will be ample opportunity for others to have an input and become involved.

Our research indicates that a very small number of requests contribute to a relatively large proportion of the cost of freedom of information: 8% of requests to central Government cost more than £500 to answer and make up 32% of total staff costs. The Justice Committee recognised that issue in recommending a small reduction in the cost limit beyond which requests need not be complied with. We believe that would result in only the most minimal reduction in costs, so we will consider whether to go further.

My right hon. Friend the Member for Berwick-upon-Tweed raised consideration time, and the shadow Minister raised thinking time. We recognise, of course, the practical difficulties in including such tasks, but they are worth considering to find out what might be done.

The introduction of fees for tribunals has also been raised by Members today, and we will certainly consider what we can do to recover the costs associated with the running of tribunals, but we do not think anything that we do will impede access to justice. We will also consider other ways to reduce burdens fairly and proportionately, including addressing where one person or group of people use the Act to make unrelated requests to the same public authority so frequently that it becomes an inappropriate burden.

I assure Members that whatever measures we ultimately decide to take, we will have regard to the need to reduce burdens without an excessive impact on transparency. An example of that is our decision in the post-legislative scrutiny response not to introduce new fees for answering freedom of information requests. To do so would both deter the legitimate use of the Freedom of Information Act and prove expensive for public authorities to administer.

The third key area addressed by post-legislative scrutiny was the protection afforded to highly sensitive information. The Government welcome and share the Committee’s conclusion that it was Parliament’s clear intention that the Act should protect safe space for policy formulation and Cabinet discussion. That issue has rightly been raised by my right hon. Friend the Member for Berwick-upon-Tweed, and I note his and other hon. Members’ references to the allegation of a possible chilling effect.

We agree with the Committee that the current system of protection in the Freedom of Information Act, including exemptions for the disclosure of information and the availability of the veto, has generally worked well. We share the Committee’s view that new absolute exemptions are not necessary. Although we are committed to transparency, so that any freedom of information regime can operate effectively, it is right that we keep under review the protection given to genuinely sensitive information. Effective government depends on the protection of the principle of collective responsibility and the ability of both Ministers and officials to provide advice freely, frankly and with candour.

We have announced our intention to review and, as appropriate, revise the Government’s published policy on the use of the veto. The policy is designed to assist where use of the veto is considered in respect of information that relates to Cabinet collective responsibility. However, no limitation in the Freedom of Information Act prevents the veto being used for other information. Indeed, the Government have concluded that its use was justified in other contexts on more than one occasion last year. Accordingly, we propose to consider whether the veto policy can be adapted both in terms of the process for its use and to offer greater clarity and reassurance on its ability to be used in appropriate cases that do not involve Cabinet-related information.

Other changes that we will introduce to improve the operation of the Freedom of Information Act will require a combination of primary and secondary legislation.

[Sir Richard Shepherd]

The whole purpose of the construct of the Act was that the final referee should be the tribunal, and that is what I think the Minister is talking about. The tribunal is now being used in a way contrary to our original understanding, which was that it was to be similar to the Supreme Court or the highest courts of appeal and look at the Government’s case when they refused information. Yet they are refusing information contrary to the tribunal’s judgment, and that is what causes concern to many commentators. As was rightly pointed out, the veto was used in a controversial case last year.

[Mrs Grant]

I have listened carefully to the concerns expressed by my hon. Friend and to his points. The veto has only been used six times in eight years, so it is used sparingly and carefully. The veto is a proportionate measure, which is not being used except to protect sensitive information. We have said simply that we will review and revise it, but absolutely no decisions whatever have been made yet. We will publish any revision that we intend to make later this year.

We do not intend to introduce any new absolute exemptions, but we have listened to the concerns of the research sector and have agreed to introduce a new qualified exemption for pre-publication research information, to provide additional reassurance that such material is adequately protected from inappropriate premature disclosure. We have also listened to the Information Commissioner’s concerns about the time available to bring prosecutions under section 77 of the Act, where people destroy, alter or hide information to frustrate requests. We do not think that that is a widespread problem or practice, but it is unacceptable that anyone guilty of such an offence should be able to evade prosecution because the Information Commissioner has insufficient time to investigate the case.

My right hon. Friend the Member for Berwick-upon-Tweed referred to the Information Commissioner reporting to Parliament. At the moment, we do not feel that making the Information Commissioner a parliamentary body is appropriate, because its work does not relate primarily to that of Parliament. My right hon. Friend also expressed concerns that FOI requests and internal reviews perhaps take too long to answer. We will revise the code of practice issued under section 45 of the Act to provide guidance on the time that should be taken to answer requests when the normal 20-day deadline is extended to allow for consideration of the public interest test and internal reviews. We do not believe, however, that the problem is sufficient to justify primary legislation.

The shadow Minister mentioned Network Rail, which is a matter of interest to the Ministry of Justice, the Treasury and the Department for Transport. There is no plan to extend the Act to Network Rail, but the scope of the Act will be kept under review.

The Government published our response to the Committee on 30 November. There is a great deal of work to be done over the coming months to work through the detail of our proposals and to consult where necessary. As that work is in its early stages, it is too soon to provide the further details that the shadow Minister requested this afternoon of the exact changes that we want to make, such as cost-limit and veto policy. However, I reassure him and other right hon. and hon. Members that we do not intend to waste time in taking our plans forward; they will see evidence of that in the coming months.

[Sir Alan Beith]

One thing that does not need to be tied in heavily with all the other things that the Minister is considering is the provision on university research. How does she hope to take that forward?

[Mrs Grant]

I am happy to write to my right hon. Friend with the exact detail about how that will be taken forward; he will hear from me shortly.

To conclude, my right hon. Friend Lord McNally said in the other place on 17 January last year that the Freedom of Information Act is

“robust enough to survive rigorous post-legislative scrutiny.”—[Official Report, House of Lords, 17 January 2012; Vol. 734, c. 548.]

The Justice Committee’s measured report on its operation, together with our response, demonstrates the accuracy of his view. As I said at the outset, the Freedom of Information Act has been a success in the accountability that it has brought. It has generally worked well. I believe that it will be further improved and will continue to make a valuable contribution to transparency and accountability.