Transparency

Lord Hennessy of Nympsfield Excerpts

Thursday 10th November 2011 Lords Chamber

[Lord Hennessy of Nympsfield]

My Lords, I add my welcome for this morning’s debate, which is on a theme of daily importance to the relationship between the state and the citizen. I, too, keenly look forward to the maiden speech of the noble Lord, Lord Gold. I shall concentrate on a specific, though crucial, element of the question before us: access to public records—the paper exhaust trail left by successive Governments. I shall focus in particular on those contents of the state’s archives deemed too sensitive to be released until at least 30 years have elapsed since pens were put to paper, minutes taken, memoranda composed and the typewriters, in those days past, rattled into action.

I must first declare an interest, as president of the Friends of the National Archives and professor of contemporary British history at Queen Mary, University of London.

A key aspect of the coalition’s transparency agenda that deserves an unqualified welcome and the hosannas of a grateful historical profession is the announcement, on 7 January 2011 by the noble Lord, Lord McNally, that from January 2013 a 20-year rule for record release will replace the old 30-year rule created by the Public Records Act 1967 and brought into force in January 1972. The plan is that each year, starting January 2013, two years’ worth of archive will be opened at Kew until the 10-year gap between the old and the new rules has been closed. I am confident that this fresh documentary flow will fructify quickly in the form first of undergraduate, masters’ and PhD theses, and then in a fascinating new wave of well sourced books of contemporary British history which will swell through the bookshops.

Why am I so confident? Because this is exactly what has happened over the 19 years since the noble Lord, Lord Waldegrave of North Hill, then Minister for Open Government in the Cabinet Office, announced what contemporary British historians came to call the Waldegrave initiative. The noble Lord instructed departmental record offices across Whitehall to re-review those files of interest to scholars which had been held back longer than the 30-year norm to see if they could now be released. The staff of the Whitehall records community and the National Archives rose magnificently to the task. When counting the yield finished in 1998, 96,000 files had been re-reviewed and declassified. I am sure that the total now must be double that.

The Waldegrave product amounted to a new currency with which historians could trade. Much of it embraced once ultra-sensitive Cold War material dealing with nuclear weapons policies, programmes and release procedures, civil and home defence, intelligence and security and transition-to-war planning. To open the World War III war books that had been declassified was to peer into Armageddon.

A stream of richly documented theses and well sourced books has resulted from the Waldegrave initiative. Of course, the documents by themselves are not enough—they never are. Whatever the policy area that gave them birth, their contents must always be blended with the personalities and backgrounds of those who wrote and read them, and the context of the times in which those readers and writers lived and breathed. The files must be revisited, too, with a sympathetic awareness of the hopes that lit the minds of their creators and the fears that darkened them. The historian must always avoid what Edward Thompson once called the “enormous condescension of posterity”. One goes back to the archives to understand the minds behind those memoranda, not to sneer at them.

The old files are an indispensible part of national transparency—our theme this morning. They are a very special phenomenon, a kind of frozen history. The scholar needs to apply a touch of the cryogenicist’s craft to them: you warm up the cold papers a little bit until their limbs begin to twitch; the files then start to breathe a bit—then you can begin to talk to them, ask them questions, bring them to life for yourself and your readers.

The time may well have come, as Whitehall cranks itself up to implement the new 20-year rule, to set in train what might be called “Waldegrave II”—to set in motion another trawl for files, which it was felt in the 1990s were too hot to be released, to see if they can now be transferred to the National Archives for public inspection. If the Government in these times of fiscal constraint were to mount such an initiative, building on the great success story associated with the name of the noble Lord, Lord Waldegrave of North Hill, it would not only receive another loud hosanna of gratitude from the historical community but add lustre to the coalition’s transparency policy.

Still more might that policy be burnished if the Government accepted the Pilling report on official histories, which urged that new histories should be commissioned when funds allow, and the associated Hamilton report on the better marketing of official histories, once that is produced.

Catch-up history is a retrospective form of delayed freedom of information. A confident democracy such as ours should uncover its state paper trail as fully and swiftly as it can, warts and all. Such good practice is an antidote to conspiracy theory and the hijacking of our recent past for the purposes of crude political partisanship. The pursuit of such a policy of transparency is one of those rare activities that result in unalloyed benefit to scholars, the reading public and the quality and integrity of the state that enables it to happen.

--- Later in debate ---

[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.