FOI Requests: Scotland Office

Debate between Peter Grant and Rob Wilson

Tuesday 15th September 2015 Westminster Hall

[The Minister for Civil Society (Mr Rob Wilson)]

I congratulate the hon. Member for Glenrothes (Peter Grant) on securing the debate. I am aware that the Scotland Office received a number of freedom of information requests about the leak of a memorandum produced within the Department, and also about the investigation into the leak conducted by the Cabinet Office. I am also aware of the hon. Gentleman’s efforts in Parliament to obtain information about the matter. I hope it will help him, and others here today, if I respond to the points made by first saying—as he did—something about the Government’s general approach to freedom of information and the Freedom of Information Act and, secondly, about the operation of leak inquiries, and of this case in particular.

It is important to state clearly that the Government are committed to openness, and recognise the contribution that the Freedom of Information Act has made to greater transparency. But for any freedom of information regime to operate effectively, it is also important that it provides appropriate safeguards against the disclosure of sensitive information. The Freedom of Information Act contains a range of exemptions designed to protect sensitive material from inappropriate disclosure. Some, such as those relating to personal data and court records, are absolute, but others, such as those relating to investigation and health and safety, are qualified. Before such qualified exemptions can be applied, it is necessary to consider the public interest for and against disclosure, and only when the balance of the public interest favours withholding information can an exemption be applied.

The Scotland Office has a strong record on answering freedom of information requests. In 2014, the Department received 154 requests, 92% of which were answered within 20 working days—the equivalent figure for the Scottish Government was 77%. Of those 154 requests, 69 were granted in full and nine were declined in their entirety. In other words, the Department granted 85% of the requests received in 2014 and entirely declined just 11%. Figures for 2015 have so far been published for only the first quarter, but they are broadly consistent with those for 2014. From January to March this year, 90% of Scotland Office requests were answered within 20 working days and 82% resulted in full disclosure. That record demonstrates the seriousness with which the Scotland Office, like the rest of the Government, takes its obligations under the Freedom of Information Act, and clearly shows that when it is in the public interest to release information, that material is provided.

The hon. Member for Glenrothes raised concerns about the handling of specific cases. He is doubtless aware of the appeals route that exists under the Freedom of Information Act but it might, none-the-less, help if I said something about it now. An applicant who is dissatisfied with the response he or she receives to a freedom of information request has the right of appeal, and I understand that a number of applicants have chosen to exercise that right in relation to requests about this particular matter. An applicant may first ask the public authority to conduct an internal review of its original decision to decline a request. Should the applicant remain dissatisfied, he or she may submit a complaint to the Information Commissioner under section 50 of the Freedom of Information Act. The Information Commissioner's Office, which is independent of Government, has the power to issue a binding decision notice ordering disclosure if it concludes that information has been wrongly withheld. It is then possible for applicants and public authorities to appeal further to the first tier tribunal and, on a point of law, beyond that to the upper tribunal or courts. Freedom of information requests received about the leak and resultant investigation were answered based on an assessment of the requested information’s sensitivity. I recommend those dissatisfied with the responses they have received to appeal those decisions through the channels I have described.

I conclude my comments on freedom of information by re-emphasising that for the Freedom of Information Act to function effectively, it is important that it strikes an appropriate balance between transparency and the protection of sensitive information.

[Peter Grant]

Given that the Minister has indicated that he is coming to the end of his comments, does he intend to answer any of the questions that I asked? Are the Government prepared to answer them at any time? If not, perhaps the Minister can just say that they are not going to answer them.

[Mr Wilson]

I intend to answer all the questions that the hon. Gentleman raised. We have 10 minutes more to debate this matter, and if he gives me the time and has some patience, I will be perfectly happy to deal with the questions he asked.

The Freedom of Information Act has now been in operation for more than 10 years, and it is therefore right that we review its operation. That is why we have recently established an independent commission on freedom of information, which is looking at the protection the Act provides for sensitive information and its costs to public authorities. The commission will report by the end of November.

Against the backdrop I have described, I will address the particular concerns expressed by the hon. Member for Glenrothes on the leak of the Scotland Office memorandum. It is important to underline that the Cabinet Office completed a full and detailed inquiry into the leak, and we have been transparent about the purpose and findings of the inquiry at every stage. In response to concerns expressed by the First Minister, on 4 April 2015 the Cabinet Secretary instigated a Cabinet Office-led leak inquiry to establish how extracts from the document may have got into the public domain. The leak inquiry followed thorough and well-established procedures for dealing with such matters. In investigating the source of the leak, the investigation team searched all relevant official phone records, emails and print logs. Those who had access to the memo were asked to complete a questionnaire on what they did with the memo when they received it. They were then interviewed about that.

The Cabinet Office issued a statement on 22 May 2015 confirming the conclusions of the investigation. That statement is available on Gov.uk. It is a well-established convention that the Government do not comment on the process or conclusions of leak inquiries. However, in recognition of the particular sensitivities of this matter, the Cabinet Secretary felt it was necessary and appropriate to set out details of the approach taken during the investigation and the conclusions reached. In that respect, we have gone further than ever before in providing information on the investigation.

Members will recognise that an important balance has to be struck in handling such inquiries. It is essential that we ensure that the public have full confidence and trust in the operation of leak inquiries and are assured that appropriate action is taken where conclusions are reached. Alongside that, however, is a wider public interest in ensuring that leak inquiries take place in an environment where individuals feel able to contribute fully and frankly and have complete confidence that any evidence provided will be handled with confidentiality. Maintaining the confidentiality of the detailed operation of such inquiries is critical in ensuring that future inquiries and broader whistleblowing processes are trusted and effective, receiving the full co-operation of all.

Alongside that, the Government do not release investigation reports, which may reveal techniques used by Departments and insight into how to avoid detection. The Cabinet Office and the Scotland Office received a number of FOI requests relating to this matter. They were handled in the usual way, with full consideration given to the weight of public interest in each case. Any decisions to withhold information reflected the important need to maintain a safe space around the operation of leak inquiries and were balanced against the unprecedented amount of information already in the public domain. As I have already set out, clear routes of redress are open to any individual who feels their particular request has not been handled fairly or appropriately, either through an internal review or referral to the Information Commissioner’s Office. We will continue to handle any such cases on their individual merits.

The hon. Member for Glenrothes asked specific questions about why the Government have not released the memo in question. As the Leader of the House made clear in response to the hon. Gentleman’s questions, it is important that the Government can operate in the interests of the country, and by that I mean the UK. In considering the hon. Gentleman’s specific request for sight of the memo, the Scotland Office concluded that releasing the memo would be detrimental to international relations. Anything that would hinder the United Kingdom’s ability to work with its international partners would damage the United Kingdom’s ability to protect and promote its interests abroad, which would not be in the public interest.

As the Cabinet Office statement of 22 May made clear, the investigation team interviewed the civil servant in the Scotland Office who produced the memorandum. He confirmed under questioning that he believed that the memo was an accurate record of the conversation that took place between him and the French consul general. He highlighted that the memo had stated that part of the conversation between the French ambassador and the First Minister might well have been “lost in translation”. Senior officials who have worked with the individual say that he is reliable and has no history of inaccurate reporting, impropriety or security lapses. The Cabinet Secretary concluded that there is no reason to doubt that he recorded accurately what he thought he had heard and that there was no evidence of any political motivation or dirty tricks.

I want to see whether I can deal specifically with some of the hon. Gentleman’s questions. He asked who saw the memorandum. The Cabinet Office statement on the leak inquiry made it clear that the former special adviser, Mr Roddin, and the right hon. Member for Orkney and Shetland (Mr Carmichael), who gave his assent, were responsible for the leak, and that no one else had any involvement in leaking the memo. The Scotland Office operates within the civil service code, and the inquiry did not find any issues of propriety with Scotland Office officials. We would not normally comment on internal communications.

The hon. Gentleman asked about the common practice for civil servants to go “behind the back” of Ministers—I think that was his phrase—and speak to foreign diplomats. It is common practice for UK Government Departments to engage with diplomatic and consular corps across the United Kingdom and to share factual information about our respective activities on a wide range of issues, including Scotland. The UK Government and the Scottish Government regularly share information on engagement in international activities in a manner that is consistent with a memorandum of understanding and supplementary agreements between the UK Government, Scottish Ministers, Welsh Ministers and the Northern Ireland Executive. Officials at the Scotland Office work within the guidelines set out in the civil service code and the inquiry did not find any issues of propriety with Scotland Office officials.

The hon. Gentleman asked why the Cabinet Office has taken FOI policy from the Ministry of Justice. That is presumably because it is logical for FOI policy to sit within the Cabinet Office, given that it is the lead in transparency policy in general across Government. He also asked why the Scotland Office used an exemption relating to physical and mental health. The Scotland Office applies freedom of information exemptions to requests on a case-by-case basis. If an individual is unhappy with the handling of a case, they can go to the Information Commission or tribunal.

I think that directly handles the questions that the hon. Gentleman asked me. As I have previously set out, it was a thorough investigation and I am clear that the statement issued by the Cabinet Office in May deals robustly with the concerns that he and others have expressed.

Question put and agreed to.