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Constituency Correspondence (Confidentiality)

Volume 482: debated on Wednesday 5 November 2008

Motion made, and Question proposed, That this House do now adjourn.—[Ms Butler.]

I am delighted to have been fortunate enough to secure this short debate on the crucial matter of the confidentiality of Members’ constituency correspondence. We have not debated the issue for a few years and, for several reasons, which I shall outline in my remarks, the time has come to reiterate the rules and the legal implications for some of the correspondence with which we have to deal.

In many ways, Members of Parliament do a job that is similar to that of a GP or a lawyer: we not only deal with sensitive information that constituents supply to us in e-mails and correspondence when asking for our help and views, but pass it on to a variety of bodies, ranging from Departments to local authorities, local health trusts and so on, to try to find a solution to our constituents’ problems.

I treat such correspondence with the utmost confidentiality, and I am sure that that reflects all hon. Members’ attitudes. Some constituents, for a variety of reasons, seek to publicise the fact that either they are going to see a Member of Parliament or what they have told, or written to, a Member of Parliament. Sometimes they want to tell the local press—or even the national press if they feel that strongly—because they feel that it might assist them to solve the problem. That is up to them. I personally make it plain—as I am sure all other hon. Members do—that, if a constituent wants to publicise their visit to me or a problem that they have raised with me, they can, but that I shall not do so because one can get into considerable difficulties if one starts talking to the press or others about it.

However, by definition, when we take up a constituency case that involves a third party, the third party must be made aware of the problem. I believe that all constituents accept that; otherwise they could not get the Department or local authority to look into the issue and try to resolve it. Obviously, therefore, some people will see the correspondence, but we expect and demand a professional service from those third parties. For 21½ years, I have found that officials—civil servants, local authority workers or staff in other public bodies—work extremely professionally.

When I first became a Member of Parliament, however, my local authority in Chelmsford was not Conservative, but Liberal Democrat controlled and I resented the fact that, in housing cases that I took up, the bottom of every letter that the director of housing wrote to me contained a “cc” and the name of the Liberal Democrat chairman of housing. That clearly meant that the chairman saw my correspondence on behalf of constituents, and that puzzled me at the time because I did not understand why the Liberal Democrats, as well as the director of the relevant service, had to see it. I understood why the director of housing had to see it, but I did not see why they had to.

That problem was solved—at least it was in my case, to the best of my intentions—by a ruling by one of the Speakers over the past 21 years, who said that the practice must stop. It has certainly stopped in Chelmsford borough council and I have no problems with that. I do have a problem, however, with another incident that came to my attention involving a local authority. Let me make it clear from the outset that the official who did what I am about to describe did not act out of malice; they just thought that they were being helpful and doing the right thing.

I took up a case on behalf of a constituent that is primarily a local authority matter. When I had gone as far as I could in seeking information and trying to get the local authority to provide a service and the funding for it, I suggested that the person who had contacted me contact their councillor to see whether they, as an elected member of the authority, could also help.

The local councillor, who was not a Conservative councillor—he happened to be a Liberal Democrat—took up the matter, which dragged on for months. That was not his fault; it was the fault of the system. He did everything he could as a local councillor to try to get rid of the logjam and reach a resolution.

The constituent got back to me and said, “This has been dragging on. I was told that this was going to happen and that the money was there for it to happen. It hasn’t happened. Can you do anything to expedite this?” I wrote to officials in the local authority again and said, “This has been going on for so long. Couldn’t something now be done to do what it’s been suggested will be done?”

I was surprised, to say the least, to be copied into an e-mail that the Liberal Democrat sent to the person who had raised the matter with me, which said:

“I have today had sight of a letter drafted as a reply to Simon Burns setting out the situation as perceived by the local authority in some detail. This letter may be amended significantly before being sent.”

However, I think it best for the moment not to replicate what the letter—an official response from the local authority—is likely to say. That puzzled me, because it had never in a month of Sundays occurred to me that, although two levels of politicians were dealing with the same case and trying to assist the same person, my correspondence or the local authority’s response to it would be shown to the other politician or that he would be able—for what reason I do not know—to comment on whether I would be likely to receive the draft reply that he had seen.

I got on to my local authority, because I was extraordinarily concerned. It became clear that a great mistake had been made. What was done was not done for party political purposes, nor was it done maliciously. It was done by an official who, acting in good faith, thought that it was the best way of expediting the matter, because there were two politicians working on the case. Officials are party politically neutral and that official was probably not sensitive to the fact that it is not desperately good to link a Tory and a Liberal Democrat, and certainly not in my part of the world, unless they are obviously working together as one, which I can assure you, Mr. Deputy Speaker, I have great difficulty doing with Liberal Democrats, having seen how they operate. They operate slightly differently from Labour party members, who are more straightforward and honourable, even if we have considerable differences with them over policy.

To be fair, the local authority has made it plain that a mistake was made that should not have been made and that it will not happen again. However, it might be happening elsewhere. I found out only by accident, through the generosity of someone who copied me in on their e-mail—I bet they will bitterly regret it when they read this debate—but similar things may be happening elsewhere. It is important that the Government, the relevant Department or Mr. Speaker explains that that should not happen. Measures must be put in place with bodies that deal with our constituents’ correspondence to explain that it should not be shown to anyone other than the immediate officers of the body or local authority responsible for looking into the issue, seeking to get a resolution and replying to hon. Members. If people are not reminded from time to time about the rules and protocols, they can be forgotten or things can slip by accident. I am certainly not alleging that the problem was deliberate, but it can happen accidentally. Such a solution would be sensible.

I am not a lawyer, but I understand that as individual MPs we are exempt, in effect, when members of the public issue freedom of information requests that concern our correspondence. I hope that is so; otherwise there could be the most horrendous fishing into our files, which would not necessarily be undertaken by the constituent whose case or involvement with a case we were dealing with.

Sometimes, sadly, we get involved in cases where there are two sides to the argument and one side comes to the Member of Parliament. We might not—if we are wise, we will not—take a view unless it is blindingly obvious, but we will offer to use our good services to draw the person’s problem, concerns or opinions to the attention of the relevant body. If one is not careful, the other side could start to issue freedom of information requests to try to see what dealings we were having with someone with whom they might be in dispute. That would be invidious.

I do not want to go into great detail, for obvious reasons, but if I am correct to assume that our correspondence is exempt from FOI requests, there is a way around that. In effect, the sender of an FOI request could see the correspondence or half of the correspondence in which we were involved. To my mind, if one wants to have confidence in the system and for constituents to be confident in dealing with us, the information, correspondence and other problems that they might have raised with their Member of Parliament ought not to get into the public domain or the hands of other people in our constituencies who might be in dispute with them or who might merely be interested in seeing what the problem might be.

I hope that the Minister can give some clarity to a non-lawyer about the precise legal position on freedom of information. I want to know if I am correct in interpreting the law, in my amateurish way. Will the Minister accept my point about third parties trying to see any dealings that we have on behalf of other constituents? Is there any way in which that can be tightened up? Does the data protection legislation, in conjunction with the freedom of information legislation, offer enough protection for our constituents and us as we go about our work?

There is another less significant but very irritating point, on which I also want to seek the Minister’s advice. Certain public bodies, when we take up constituents’ cases with them, reply to right hon. and hon. Members and always put either “Restricted” or “Private and confidential” at the top. A classic example of such an organisation is the police. When we have dealings with the police on behalf of our constituents, they will almost always involve sensitive problems and sensitive information, but the information is equally sensitive when we are dealing with our local health trusts and our local social security or social services departments. So far as I remember, unless there is something in a letter that is genuinely “strictly confidential”, my health trust and local social services department certainly do not send the letters with “private and confidential” stamped on them. They produce letters and it is perfectly acceptable for us to be able to pass them on to our constituents. Sometimes highly sensitive issues are involved, so a telephone call is made to let me know what they are, but the vast majority of responses to sensitive issues are written in such a way that they do not have to be private and confidential.

The police, however, seem to have a fetish about stamping everything “restricted”. I keep asking Essex police to be a little more discerning before they frank the letter with this restriction. They keep assuring me that they will, but rarely does it happen. If I write to Essex police about the problem of Mr. Snodgrass of Acacia avenue—it might be that he has not seen a policeman walking down his street over the last six months and that he wants one—I might receive the response, “Thank you for your letter about Mr. Snodgrass. We will look into this matter and reply within 20 working days”, but it seems odd to me why it has to be restricted. It is an automatic, knee-jerk, bureaucratic reaction simply because it has always been done before, and the police seem to have difficulty getting out of that culture.

I would be grateful to hear the Minister’s views. Where information is not in the slightest way confidential or sensitive, is there any way of ensuring that a public body behaves more reasonably? There is, of course, an obvious answer. If something is highly sensitive, a telephone call could be made or two letters could be sent: one fine-tuned to be acceptable for sending to the constituent—it should be a factual and accurate response—and the other providing fuller details.

I do not want to detain the House further. I have made a number of points and I would be grateful if the Minister confirmed or corrected my amateur legal interpretation of the existing position on freedom of information. Will he advise me whether it is possible for the relevant sponsoring Government Department or the Speaker’s Office—or Mr. Speaker himself—to give a ruling on the first issue I raised? Finally, will he encourage some public bodies not to stamp everything automatically with a restricted notice as a matter of course?

I congratulate the hon. Member for West Chelmsford (Mr. Burns) on securing this debate, because how Members’ correspondence is dealt with is becoming an increasingly important aspect of our work and of how we relate to our constituents. When Stafford Cripps was a Member of Parliament back in the 1930s and ’40s, he did not have to worry much about his constituents’ letters, because he hardly ever got any. He went to his constituency four times a year and the brass band played when he arrived and when he left. Today, how public authorities deal with our constituents’ letters, e-mails and telephone calls is an essential part of Members’ work.

I am intrigued in that when I refer to my constituents in the generic form, I usually mention Mrs. Jones of Blaen Llechau terrace, whereas the hon. Member for West Chelmsford refers to Mr. Snodgrass of Acacia avenue. That just shows the difference between our two constituencies. Surely the starting point must be the constituent and the constituent’s needs, so if Mrs. Jones of Blaen Llechau terrace comes to see me, I presume that it is because she wants to see her Member of Parliament rather than the councillor, Assembly Member or whoever else. She may have seen all the others and not secured the outcome that she desires. Either way, she will presume a degree of confidentiality.

As the hon. Gentleman said, many MPs make it clear in any interview with their constituents that the conversation is confidential and that any resulting correspondence will be treated in a fully confidential manner. Mrs. Jones might expressly not want the correspondence circulated to councillors or council officers, for example, because her complaint might be about them. For that matter, the councillor or officer might have a conflict of interest—it could be a relative, for instance—that would make it inappropriate to know about correspondence in the case raised with the MP.

I should state that I had my own such issue when I was first elected in 2001. The local authority, Rhondda Cynon Taf, was run by Plaid Cymru, and purely for party political advantage the council leader explicitly said that all my correspondence would be circulated to all councillors of the different political party from my own who had any potential interest in it. The chief executive was instructed by the council leader to behave in what I believe was an entirely partisan fashion. Consequently, I asked for a ruling from the Speaker. It was in fact you, Mr. Deputy Speaker, who delivered it, saying:

“Mr. Speaker has asked me to say that constituents who approach their Member of Parliament are entitled to expect that the issues raised will be dealt with in a confidential manner. Where the Member considers it appropriate to refer the issue to a local government officer, it is Mr. Speaker's view that the correspondence should remain confidential between the constituent, the Member and the local government officer to whom the case has been referred, unless specific permission to make it available to other parties has been granted by the constituent.”—[Official Report, 23 July 2002; Vol. 389, c. 885.]

That is an important ruling, and it is important that all local authorities—and all other public organisations with whom Members might have to raise issues on behalf of their constituents—try to abide by it.

The hon. Member for West Chelmsford is entirely right to say that a local authority, or any other body, would be wrong to assume that it is all right simply to circulate Members’ confidential correspondence from a constituent to others within the organisation. If it wishes to do that, it should do so only if it has the specific permission of the constituent concerned. That is the case regardless of whether the issue concerned is party political or merely administrative, because this is about the confidentiality that is due to our constituents.

The hon. Gentleman raised data protection, and various elements of the law in this regard interact with the privileges of being a Member and the responsibilities and duties that attach. One of them relates to the Data Protection Act 1998. The Act does not prohibit disclosures of personal data to third parties, but it regulates the circumstances in which that may be done—I think there is help here for the hon. Gentleman. Schedule 2 lists the conditions relevant for the purposes of processing any personal data, including the consent of both constituent and Member and the necessity of the processing. In the case of “sensitive personal data”—such as racial or ethnic origin, religious beliefs or sexual life—one or more of the conditions set out in schedule 3 must be met in order for the processing to be lawful, such as consent or if the processing is necessary to protect the vital interests of the data subject.

The Data Protection (Processing of Sensitive Personal Data) (Elected Representatives) Order 2002—which I am sure the hon. Gentleman knows back to front—allows elected representatives to process sensitive personal data when dealing with requests from individuals without the need to seek explicit consent. This is important for most Members; although they might not realise that they are operating under this provision, they are doing so when they take a matter up on somebody else’s behalf and they keep personal data. However, we cannot presume that all our constituents are intimately familiar with the provisions of the order—or even know of its existence. I, and many other Members, now do the following: when people come to our advice surgeries, we ask them to grant explicit permission for data to be kept and for us as Members to take up the case on their behalf. That also gives an additional legal protection for the Member, although, because of the 2002 order, it is not strictly necessary.

The order also provides a condition allowing third parties, including Government Departments, to disclose sensitive personal data to elected representatives, but only to those who are acting at the request of the individuals concerned, and again without the need to seek explicit consent. It does not require them to do so. As I understand the hon. Gentleman’s situation, it is not that these councillors have been approached by the constituents concerned; rather, the letters were disclosed to an individual councillor directly by the council officer, and as the hon. Gentleman says, it was probably a mistake rather than something done with a sense of malice.

There is one other issue that has often been raised in the context of Members’ constituency casework and the confidentiality that should attach to it, and which relates to the privilege issue: when Members speak in the House or in a Committee of the House, they have absolute privilege and what they say cannot be used in a court of law against them, as it were. Some have argued that that should also apply to all correspondence. A case was brought in 1958 that related to George Strauss—G.R. Strauss, as he is often known—a Labour Member of Parliament. He had written making certain allegations about a utilities company, and the question arose of whether his correspondence could be considered libellous. He argued that it could not, because it was merely something that he was writing to a Minister that he was subsequently going to say in Parliament. The House decided at the time that, in fact, he did not have absolute privilege in relation to that correspondence, and that is the formal position.

However, when the issue was considered by Lord Nicholls’ Committee in 1999, the view was firmly expressed that, although Members would not have the advantage of absolute privilege in their correspondence, they would none the less have two defences in law: first, that if their letter was very closely connected with the proceedings of this House, they would have a defence; secondly, that where there is no intention of malice, there would be a much more secure defence. I doubt whether any Member would want to say that, where there was an intention of malice on a Member’s part in writing a letter or publishing a letter that somebody had sent to them, there should be a defence. That is why, historically, the House has stuck with the belief that there should be partial privilege when it comes to correspondence.

In fact, there have not been many major such issues since then, and the House does take out insurance for any Member who might inadvertently have a case brought against them for libel by virtue of having sent a letter on to a third party. Many Members may at some point have had, for instance, constituents writing to them saying that they believe that abuse is taking place in a particular house, family or organisation. Not wishing to ignore the issue and wanting to take it very seriously, Members will sometimes write to the organisation concerned or to the police to refer that issue on. If they did so in a malicious way, merely to attack a third party when they knew that there was not a real case, I do not think that they should have the protection of the law; however, where they are pursuing a decent, honourable and common-sense approach, clearly they should have protection.

The hon. Gentleman referred to the freedom of information issue, and he is right that there is such an issue. He will recall that the right hon. Member for Penrith and The Border (David Maclean) promoted a private Member’s Bill—it did quite well in this House but not so well down the other end of the corridor—that sought completely to exempt Members’ correspondence from freedom of information provisions, so that no public body could provide the correspondence of a Member as a result of a freedom of information request. I know that several Members, on both sides of the House, have raised this issue because they have had specific problems.

As that Bill did not become law, the Justice Secretary has worked closely with the Information Commissioner to produce guidance on dealing with requests for Members’ correspondence relating to constituents. Perhaps the hon. Gentleman has not seen it, but it makes it very clear that there is not a total exemption for Members’ correspondence.

However, clause 3 of that guidance says:

“In particular, the importance of consultation with the MP, as a third party to the request, should always be remembered.”

In other words, if a freedom of information request has been made about some correspondence between a constituent, an hon. Member and an organisation, the Member of Parliament has to be asked first. The Member of Parliament will almost certainly, in nearly every case, provide clear reasons why the freedom of information request would be inappropriate. The guidance continues:

“If an MP has written to a public authority passing on information from or relating to a constituent, the presumption should be that the information is not disclosed. Information is likely to be exempt under one or more specific exemptions.”

I never want to be too confident of anything, but the Information Commissioner has made sure that all public bodies have been informed, and I hope that this debate will result in further understanding of the position. The Ministry of Justice has recently written to Departments to ensure that they fully understand it too, because there has been an instance where a Department has, inadvertently, provided information.

The guidance continues:

“MPs and their constituents do not have the same confidential relationship as a doctor and patient or lawyer and client. However, MPs often assure constituents that their dealings with them are confidential and there is usually in any event a legitimate expectation by the constituent that information disclosed in their dealings with their MP will be treated as confidential. This means that letters sent on behalf of a constituent may be subject to a duty of confidence.”

I think that the situation is pretty clear, and we have arrived, through the guidance, at almost the same outcome, which is in the interests of our constituents, as we would have done through the private Member’s Bill tabled by the right hon. Member for Penrith and The Border.

The final issue to address is the one relating to Essex police. I wholly concur with the view of the hon. Member for West Chelmsford that the kind of letters that he has been receiving do not require such a high level confidentiality or are of such a restricted nature. I suspect that somebody in Essex police is being overly zealous about planting the word “restricted” on letters and not sufficiently zealous in stopping themselves doing so.

The Cabinet Office’s manual of protective security—another document that I am sure the hon. Gentleman knows inside out—which is readily available to everybody, not least to the police, gives situations where the “restricted” marking should be used on a document. Among those are instances when the release of the document would

“affect diplomatic relations adversely; make it more difficult to maintain the operational effectiveness or security of UK or Allied Forces; or undermine the proper management of the public sector and its operations.”

Somebody being overly zealous and overly jobs-worthy might want to say that literally anything that one puts in a letter to a Member of Parliament might undermine the proper management of the public sector and its operations, but a common-sense approach should be adopted, not only by Essex police but by any other organisation writing to the hon. Gentleman.

This is an informative and useful debate. Incidentally, Devon and Cornwall police do not put “restricted” on any of their letters, so I do not encounter this problem. I want to clarify something on freedom of information. If a local authority receives a freedom of information request, it is clear that they will let the person concerned know that they have received correspondence from a Member of Parliament on the issue. They will then write to the Member of Parliament asking for consent to issue the information. Given what the Deputy Leader of the House has said, would it be right for a local authority to say, in response to a general inquiry from a member of the public, that they have received correspondence from a Member of Parliament regarding an issue? For example, in the case of a letter from a constituent about the noise caused by an adjoining neighbour, should that adjoining neighbour instantly be told, on going to the local authority, that the MP had written to it about that? That issue has occurred, although not that specifically, in my constituency and, I believe, in the constituencies of colleagues.

I cannot be absolutely certain about the specific point of two neighbours who might want to play Members of Parliament off against each other. I know that at least once in their parliamentary careers all right hon. and hon. Members will experience someone coming along to their surgery who provides a cast-iron argument why they should adopt position A, only to have the next-door neighbour come through the door 10 minutes later and argue exactly the opposite. After that happens once, hon. Members are more careful about determining their position. Certainly, I have tended never to get involved in planning issues as Members of Parliament do not have a specific locus to deal with them.

A difficulty arises when people complain about antisocial neighbours of whom they are terrified. They pluck up courage to go and see their Member of Parliament, but what happens if the antisocial neighbour then writes to the local authority and is told that a complaint has been made against him? In that case, it would be a question not of the MP getting into a dispute between neighbours, but of the complainant fearing for their well-being.

As ever, my hon. Friend makes an important point. That is why the guidance has been produced. It is a matter of basic justice that when a constituent who is already suffering from antisocial behaviour, possibly including violence, complains to their Member of Parliament, the last thing that should happen is for that to become known so that they get more abuse from the person about whom they have complained. I am confident that the guidance that the Secretary of State for Justice has provided means that, in the event of a freedom of information request in such a case, the local authority would ring or write to the Member of Parliament. In that situation, the Member would immediately say that the authority should not reveal the existence of correspondence—and certainly should not reveal the correspondence itself—because that would aggravate the situation. That would be the end of the matter.

Can my hon. Friend confirm that the local authority would not reply to the inquiry until it had spoken to the Member of Parliament, after which point it would say that it was not able to reply?

The guidance makes it clear that local authorities and other bodies—such as Departments or the police—must contact the Member of Parliament before deciding what to do. That gives the Member the opportunity to put the case in context. A clerk who receives the initial request may think that it is legitimate for anyone to know the contents of an MP’s correspondence. In some circumstances—say the question of whether a new road should be built—it would be legitimate for members of the public to know the local MP’s view. That is very different from the example given by my hon. Friend, and that is why the guidance makes it possible for the individual MP to say no to the release of correspondence.

The Deputy Leader of the House makes a good point on that issue. However, what would happen if a general inquiry were made and local authorities and other bodies said that they had had a letter from the MP on a subject? That can imply that he or she has taken a view on it and, by and large, we do not take a view but usually pass on the concerns of the constituent and ask the authority to consider them.

That is another area in which all hon. Members start to develop a way of dealing with constituents’ issues. When a constituent gets in touch with us about something—let us say that he makes argument X—we might exercise our representative function by writing to the local authority and saying, “My constituent says X.” However, it would be a wholly different thing if we were to write, “My constituent says X, and I agree with him.” There are now sufficient protections in place to allow a Member of Parliament to assure constituents about their ability to raise matters that are genuinely confidential—

In fact, I am going to agree with my hon. Friend. Some years ago, I took up the case of a doctor who had been suspended. The Speaker made some rulings in the House but—without my permission—the health authority tried to use correspondence in a court of law to get the person involved dismissed. The fact that the judge would not allow that shows that a lot of what the Minister has said is right.

I am sure that, in the course of a Parliament, nearly every Member of the House will encounter an issue relating to the confidentiality of correspondence. As I said at the beginning of my remarks, the one thing that has changed dramatically in the past 100 years in this House is the nature of the relationship between constituent and Member of Parliament. It is not just that a constituent might occasionally travel here to put a point to us, but that our daily life is full of e-mails, phone calls and letters, often telling harrowing stories of a deeply personal and confidential nature. That is the bread and butter of political life today. For many of us, the main things that we campaign on, both in the House and outside it, spring from what our constituents bring to us—either when we knock on their doors, or when they knock on ours.

As the Speaker made clear in his 2002 ruling, and as the Government have been trying to achieve through the Justice Secretary’s work with the Information Commissioner, we must make sure that confidentiality is based on the needs of our constituents and not on anything else.

Question put and agreed to.

Adjourned accordingly at eight minutes to Six o’clock.