Freedom of Information Act

Ian Mearns Excerpts

Wednesday 14th March 2012 Westminster Hall

[Lisa Nandy]

Absolutely. Evidence has emerged in the press that that is exactly what has happened in this instance, which is why I am seeking to clear up the matter today.

There is another thing that does not, so far, stand up to scrutiny. The Department for Education’s initial response to the press reports was to say that only political e-mails were sent through private accounts. The Secretary of State subsequently repeated that claim to the Education Committee. If the Department genuinely believed the e-mails were not governmental, why did it ever seek advice on the applicability of the law to private e-mail accounts? Can the Minister shed any light on that? Did he or his officials have any conversations with the Department, the Secretary of State or his advisers about it? That is why it matters so much to so many of us in the Opposition. Not only do the e-mails relate to decisions of crucial public importance to young people and their families—not least about Building Schools for the Future—but they have created a situation that looks distinctly murky. That affects and discredits us all, and must be clarified urgently.

[Ian Mearns (Gateshead) (Lab)]

As a member of the Education Committee, I attended the hearing. Has my hon. Friend reflected on the fact that in attempting to answer, or not answer, her questions at that Committee hearing, and by evading a real answer to her questions, the Secretary of State, I am sorry to say, seemed to find some amusement in the whole matter? That is a very sad thing, given the time and effort that my hon. Friend has put just into trying to uncover the truth.

[Lisa Nandy]

Indeed; and also because of the significance to the people that we represent throughout the country of decisions that were made and discussed using private e-mail accounts.

I have been seeking answers for seven months and have not been able to get any. In that time, it has been alleged that Ministers repeatedly destroyed official Government correspondence and deliberately used private e-mail accounts to avoid the requirements of the Freedom of Information Act. They may still be doing so. The failure to answer questions about this matter makes a mockery of Parliament, the Freedom of Information Act and the commitment to open government.

I realise that Governments are reluctant to share information, sometimes for understandable reasons, but I share the Government’s view that transparency is crucial. In the words of the coalition agreement, they should

“throw open the doors of public bodies, to enable the public to hold politicians and public bodies to account. We also recognise that this will help to deliver better value for money in public spending.”

If that commitment is to have any meaning, frankly, Ministers must up their game. I should be grateful if the Minister would give a commitment today that the original guidance will be published, that in light of the Information Commissioner’s ruling, clear renewed guidance will be issued urgently across the Government regarding the application of the FOI Act to private e-mails, and that if he cannot answer all my questions, he makes a decent attempt to answer those he can, writes to me about the rest and no longer seeks to hide behind the much overused phrase, “long-standing convention.”

--- Later in debate ---

[Mr Hurd]

I am getting to the meat of the debate, which raises important issues about freedom of information requests and private e-mails. That is a complex new matter.

[Ian Mearns]

Waffle.

[Mr Hurd]

The hon. Gentleman says it is waffle, but I am proud, because in less than two years we have achieved all that I mentioned—which is more than his party did in 13 years in power—in giving people information about what the state is doing in their name. I do not describe it as waffle; it is hard information that is in the public domain now.

This debate is about the use of private e-mails and their relation to the Freedom of Information Act. We have to recognise that this complex issue has been the subject, as the hon. Lady says, of a recent decision by the Information Commissioner, published on 2 March. In his decision notice, the Information Commissioner makes it clear that at the time the Department for Education received the FOI request, there was no guidance in existence. This was a new area that had, perhaps, not been anticipated. The commissioner acknowledges that the full implications of the FOI Act in relation to this issue may not have been well understood at the time. He states in his decision notice that he

“would say first of all that he acknowledges that this is a novel issue and one which may not have been anticipated when the Freedom of information Act was passed…Given the unique role played by special advisers it is not always easy to draw a clear line between official information held by a public authority and party political information.”

It is clear that the Information Commissioner’s decision notice raises important issues that the Government are taking seriously and considering.

For reasons that I am sure hon. Members will appreciate, a time period is set out in the FOI legislation within which the Government will consider whether to appeal or release the information. I cannot answer the hon. Lady’s question about whether any decision has been taken. The Government have 28 days from the date of the decision notice to decide whether to appeal. If there is no appeal, the Government have a further seven days to release the information or assert a relevant exemption. Therefore, I am sure that hon. Members will understand that it is not appropriate for me to comment on the decision while such consideration is under way.

The hon. Lady has asked me to make public the advice given by the Cabinet Office to the Department for Education on FOI and private e-mails. She asserted at the start of her speech that she had not received any answers on this, but in fact she has, although it is not necessarily the answer that she wants. In a written answer from the Minister for the Cabinet Office, she was informed that the Department will not publish any guidance on private e-mails and the Freedom of Information Act given to the Department for Education, because

“Information relating to internal discussion and advice is not normally disclosed.”—[Official Report, 6 February 2012; Vol. 540, c. 63W.]

That has been so for a long time and we will stick to that line, because the Government do not disclose what is effectively internal advice. Doing so would prejudice the conditions under which such advice was given. That is a long-standing convention, and it is entirely respectable for the Government to stand by it. Today’s debate has not changed my view and, I am sure, will not change the view of the Minister for the Cabinet Office and Paymaster General. We both believe, as Ministers before us have believed, that advice between officials and Ministers should remain confidential.