Freedom of Information (Public Interest and Transparency)

Tom Brake Excerpts

Tuesday 19th January 2016 Commons Chamber

[Tom Brake (Carshalton and Wallington) (LD)]

I beg to move,

That leave be given for me to bring in a Bill to amend the Freedom of Information Act 2000 to remove provisions permitting Ministers to overrule decisions of the Information Commissioner and Information Tribunal; to limit the time allowed for public authorities to respond to requests involving consideration of the public interest; to extend the Freedom of Information Act 2000 to cover private companies, social enterprises and charities contracted to carry out work for public authorities; and the Royal Household; and for connected purposes.

I am no stranger to freedom of information ten-minute rule Bills: this is the third Bill on this subject that I have promoted in Parliament. I am hoping—without any real justification, I confess—that today will be a case of three times lucky. A country’s commitment to FOI is a clear indicator of the strength of its democracy. For that reason, I totally reject what one of Tony Blair’s former advisers in Downing Street said to the BBC’s Martin Rosenbaum, namely that

“FOI was the worst thing the Labour government did”.

I also think Tony Blair was far too hard on himself when he said about FOI:

“You idiot. You naive, foolish, irresponsible nincompoop. There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it.”

Instead, he should have saved those words to describe his decision, on the flimsiest of evidence, to drag the UK to war in Iraq.

Tony Blair’s views on the imbecility, or the alleged imbecility, of FOI legislation are well known, as indeed are those of Jack Straw, who used the ministerial FOI veto twice—once to block Cabinet minutes from the run-up to the Iraq war—and has condemned FOI legislation in the following terms:

“We’ve ended up with a freedom of information act with more access to documents than any comparable jurisdiction.”

Personally, I consider that to be something to celebrate, not denigrate. I welcome the current more enlightened view on the subject in the Labour party, and I hope that, once completed, its review will disregard the views of its dinosaur tendency and back FOI to the hilt.

Just as strong FOI legislation is a good barometer for the health of any democracy, any attempt to dilute FOI legislation represents a threat to it. With the number of MPs falling, hundreds of thousands of voters dropping off the electoral register, Short money being slashed and the Trade Union Bill being rammed through—all of which hurt the Opposition parties much more than the Conservatives—the Opposition parties’ ability to challenge the present Government is being severely curtailed. I therefore contend that we are more dependent on FOI and the Freedom of Information Act than ever before when it comes to holding the Government to account.

What, though, are the present Government’s views on FOI? In July, they established an independent commission to review the Freedom of Information Act. That “independent” commission includes Jack Straw. There is no need to submit an FOI request to Lord Burns to demonstrate that there is nothing independent about it. The Justice Secretary claims that the review is necessary because the Government needed to revisit FOI to ensure that officials could speak “candidly” to Ministers in the “interests of good government”. He spoke of a

“worrying tendency in our courts and elsewhere to erode the protections for that safe space”.—[Official Report, 23 June 2015; Vol. 597, c. 753.]

Some of those officials, including Sir Gus O’Donnell—as recently as this weekend—and the Cabinet Secretary, Sir Jeremy Heywood, dubbed “Sir Cover-up”, have made their positions known too. Sir Gus suggests that civil servants will not be writing down Brexit plans, but is that because senior mandarins have scared them into thinking that they cannot write things down because they will be exposed through FOI—when there is no such risk—or because it serves the Chancellor’s interests to require them not to? I know from my involvement with the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014 that a “chilling” effect can be achieved because someone repeats the fact that a law or measure is “chilling” often enough for people’s actions to be curtailed. In effect, people self-censor, rather than their actions being curtailed because the measure is actually chilling.

Sir Jeremy has spoken of the “chilling” effect of the Freedom of Information Act. In the interests of fairness, I should point out that now Sir Jeremy simply wants to make the FOI rules clearer, without making any substantial changes. If I can paraphrase Vince Cable, in the last few weeks we have witnessed his transformation from “Sir Cover-up” to the “Sir Lancelot du Lac” of FOI. Which incarnation is likely to have the longer shelf-life? I know where my money is.

Many legal experts point out—and the statistics confirm this very convincingly—that information tribunals that hear challenges against disclosure allow policy discussions to be revealed only in very limited circumstances, or when the arguments for disclosure are overwhelmingly in the public interest. It should also be borne in mind that the Justice Committee has already conducted a much wider post-legislative scrutiny, stating that FOI

“has contributed to a culture of greater openness across public authorities, particularly at central Government level”,

and that it

“is a significant enhancement of our democracy”.

I am disappointed by the commission’s limited scope. Its remit does not cover which types of body should be covered by the Act, which is, in my view, a major failing. As we have seen with the activities of companies such as G4S and Serco, Southern and Thameslink, and charities such as Kids Company, a growing proportion of work that was previously undertaken by the public sector, which is subject to FOI, is now undertaken by other organisations, which are not. How many Medway Secure Training Centre scandals could be prevented if FOI applied to private sector companies doing public sector work? We need to act on the Public Accounts Committee’s 2014 recommendation, and include those private contractors in its scope.

The commission should have considered the question of bringing the Royal Household into the scope of the Freedom of Information Act. It is difficult to understand why it should not be within the scope of the Act, and why FOI requests to it should not be treated like any other—subject, of course, to the public interest test. The Royal Household is surely the most public of our public authorities.

The ministerial veto must be scrapped. In the words of Maurice Frankel of the Campaign for Freedom of Information,

“The veto allows ministers for reasons of political embarrassment to overturn considered decisions of the commissioner or a tribunal. It allows them for bad reasons to overturn good decisions.”

Nor does the commission seek to consult on some of the tricks of the trade that are used to delay FOI responses, such as the absence of any time limits on internal FOI reviews. The News Media Association is pressing for such limits, and I am backing its efforts. A total of 40 days for all stages seems reasonable. Currently, the absence of time limits provides Departments with a convenient delaying mechanism, and they are already adept enough at kicking into the long grass. Andrew Lansley’s diaries from the period in the run-up to the Health and Social Care Act 2012 are a case in point. They are of interest because of what they might reveal about the number of meetings with private health companies. Their release was fought on the grounds that there might be gaps in Andrew Lansley’s diary that would have to be filled by spurious meetings to ensure that he could not be accused of laziness. That was rightly dismissed by the tribunal as “incredible”.

On the other hand, the commission does float the idea of upfront charges for FOI requests. No precise figure is given, but it could be at least £20 to recoup the cost of invoicing. The introduction in Ireland of a €15 fee in 2003 resulted in a 75% collapse in the number of FOI requests from the public, although I am pleased that the Irish Government subsequently scrapped the fee. The introduction of fees will not save money; indeed, I would argue the contrary.

FOI requests often ferret out abuse, inefficiency and waste, which can then be addressed. The most famous example was, of course, our own expenses scandal, but other examples include Network Rail, which spent £7.2 million on car allowances for senior staff last year, bringing its total expenditure on the perks over the past five years to £32 million. Incidentally, bringing Network Rail into the scope of FOI, with effect from March last year, was a welcome step, for which Norman Baker and I pressed when he was a Transport Minister. If a £20 fee were in place, investigating all 43 police forces in England and Wales would cost £860. There are more than 260 NHS trusts, which would push the cost of “FOI-ing” their performance to over £5,000.

I am also disappointed by the phrasing of the commission’s questions, all of which start from the premise that FOI is a constraint rather than a benefit.

Finally, let me bring this matter much closer to home, and mention Parliament. Parliament should always set an example when it comes to transparency, and I therefore support the Press Association’s bid to ensure that the Commons authorities disclose evidence or reports relating to alcohol consumption in Parliament—or, at least, are compelled to defend their decisions not to do so. The PA’s request was rejected on the grounds that such action would breach confidentiality, and would prejudice the effective conduct of public affairs. However, Parliament has a duty to lead on matters of transparency. It should, in all circumstances—except those involving matters relating to parliamentary privilege, to prevent the courts from trespassing on Parliament’s turf—be treated like any other public authority, and should be subject to the public interest test. That would have enabled the question of whether the release of those documents was in the public interest to be properly assessed.

Our democracy is healthier, more resilient and less vulnerable to ambush with tough and challenging FOI laws in place. The Bill would strengthen FOI to ensure that no one was above the scrutiny of FOI—not Ministers, the private sector, charities, Parliament, or the Royal Household. I urge the House to support it.

Question put and agreed to.

Ordered,

That Tom Brake, Mr Graham Allen, Mr Alistair Carmichael, Mr David Davis, Mark Durkan, Tim Farron, Norman Lamb, Caroline Lucas, Greg Mulholland, Liz Saville Roberts, Mr Mark Williams and Mr David Winnick present the Bill.

Tom Brake accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 11 March and to be printed (Bill 119).