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Freedom of Information Requests

Volume 502: debated on Monday 14 December 2009

Motion made, and Question proposed, That this House do now adjourn.—(Helen Jones.)

I am very grateful for this opportunity to raise the issue of the processing of freedom of information requests. This concerns the Information Commissioner and how freedom of information requests are dealt with, and it is a very sorry tale. The Information Commissioner enforces and oversees the Data Protection Act 1998, the Freedom of Information Act, the Environmental Information Regulations 2004 and the Privacy and Electronic Communications (EC Directive) Regulations 2003. The span of responsibilities is very wide, but the Information Commissioner’s office is simply not coping. There are big issues to address in respect of how the Information Commissioner’s office is staffed, managed and resourced. Curiously, its funding comes from the Ministry of Justice, which also provides advice to all Departments on freedom of information cases and issues.

The Information Commissioner’s office has a huge backlog of hundreds of cases, which go back to 2005. I have in my hand a copy of the “case load snapshot” that the Information Commissioner published in September. It runs to about 30 closely typed pages, and about 30 to 40 cases are listed on each page. The system is just gumming up. Some of the requests seem fairly trivial. For example, information was requested about the names of individuals holding parliamentary passes from the Association of Former Members of Parliament and the Industry and Parliament Trust; that request goes back 16 months. A request relating to the use of pseudonyms by the Cabinet Office dates back 15 months; another, relating to the royalties paid to the estate of the composer of “Sailing By” on Radio 4 dates back a year. And so the list goes on, page after page.

I raised this issue in the summer Adjournment debate on 21 July, when I referred to the director of the Campaign for Freedom of Information, Maurice Frankel, who had just written a piece in The Guardian, which said that the Freedom of Information Act is “toothless”. He complained about the backlog of cases and the budget shortfall, saying that all that was making the Act toothless. He said that

“on average it takes eight months before an investigation into a complaint even begins. More than a quarter of cases wait for over a year” —

just to get started. He went on to say that

“46 per cent. of cases took between 1 and 2 years from complaint to decision notice”,

and that an astonishing quarter of all cases

“took between 2 and 3 years to”

reach a decision.

How on earth did we find ourselves in this situation? I ask that because there is a memorandum of understanding between the Government and the Information Commissioner—I suppose one could call it a protocol. It specifies how long it should take to deal with freedom of information requests. It states that the Government Department concerned should

“provide all relevant information…as quickly as possible and in any event within 20 working days”.

If the Department is asked for additional information, that should be provided

“within 10 working days of it being requested”.

That is the theory, but the fact is that these deadlines are not being met.

If the Information Commissioner believes that a Government Department is withholding information, he can serve an information notice and the Department or public authority is obliged to comply. However, the commissioner has been very dilatory in issuing these information notices. Very few have been lodged with the Cabinet Office, and I found out only a few days ago that no information notice was issued in response to delays in coming forward with information that I had requested about the noble Lord Ashcroft. My own request is listed in the snapshot I have here and is dated 4 April 2008, 20 months ago. I requested information about Lord Ashcroft, his UK residency and his subsequent elevation to the House of Lords.

I say all this in parenthesis, but we know that the story goes back nine years to when Michael Ashcroft was elevated to the House of Lords. He gave an explicit undertaking at that time that he would bring his tax affairs onshore. When he was considered for his life peerage on the recommendation of the Member for Richmond, Yorks (Mr. Hague), the then Leader of the Conservative Opposition, No. 10 Downing street issued a statement in March 2000, which said:

“In order to meet the requirements for a Working Peer, Mr Michael Ashcroft has given his clear and unequivocal assurance that he will take up permanent residence in the United Kingdom…before the end of the calendar year.”

That is, he would become a UK resident for tax purposes. The undertaking was endorsed by the Member for Richmond, Yorks, the then leader of the Conservative party. Nine years down the line, we still do not know if Lord Ashcroft is a permanent resident for tax purposes.

In a sense, I anticipated all this—sometimes I can see the future. Two years ago, I introduced my Disqualification from Parliament (Taxation Status) Bill. It received a Second Reading on 28 January 2008 but ran out of time and did not get into Committee. I have to say that the Government, at that stage, were sympathetic. Now we find ourselves in the Alice in Wonderland situation where the Leader of the Opposition wants to introduce legislation to require all Members of Parliament—Commons and Lords—to be UK taxpayers, yet only a few days ago, on 7 December, he said that the tax affairs of Members of the House of Lords were private matters for them. Now he has changed his mind. We know about Zac Goldsmith and so on, so I need not go into that; but until Zac Goldsmith I thought it inconceivable that someone who was non-domiciled would seek to be a Member of this House of Commons.

My Government’s position on this is very disappointing. I tabled a parliamentary question a week or so ago, asking them to amend their own Bill—the Constitutional Reform and Governance Bill—to exclude from membership all those who were non-domiciled. Although the Government said that they agreed with the idea, they would not table an amendment to that effect. That disappoints me. If and when the Liberal Democrats table their amendment, I shall support it. I shall table one myself, and if it is selected I shall ask my friends on the Government Benches to vote for it. It is a mystery to me why the Government are taking that position.

I shall not go through the chronology of the 20 months in which my request was in the system, but I will say that I first raised this matter with the Cabinet Secretary in November 2007. I wanted to know two simple facts—the nature of the undertaking that was given by Michael Ashcroft and to whom it was given. I was told by the Cabinet Secretary that I could not have that information because, first, it was exempted under the Freedom of Information Act 2000 because it related to the conferring by the Crown of an honour or dignity; and secondly, because information would have been given in confidence and that confidence had to be protected. So, my request was turned down. I subsequently appealed to the permanent secretary for Government communication at the Cabinet Office, and my appeal was rejected. I find that difficult to take, because I believe that if someone is placed in the legislature and if they vote and speak on matters that come before the House of Lords, they should be a UK taxpayer. If there is any doubt about whether a person is a UK taxpayer, there is a public interest in disclosure and that public interest is sufficient to override any obligation of confidence.

As my hon. Friend knows, in the United States every person who stands for election has to make a financial disclosure. Does he agree that what is good enough for the US is good enough for the UK?

I agree. It is astonishing that we in the UK Parliament tax our fellow citizens but might not be taxpayers ourselves.

Order. The hon. Gentleman has now been in parenthesis for about seven minutes. This debate, on his chosen title, is about the processing of freedom of information requests. He cannot use it to make a personal attack on a Member of the other place.

I would not dream of launching a personal attack on another Member of Parliament, whether elected or unelected. I was simply setting the context. I was going to run through the chronology of this affair, including the e-mails that have travelled between me and the staff of the Information Commissioner’s office. In some of that correspondence, I was told that I would get the information in two, three or four weeks’ time, or that the information was just around the corner and that I was to bear with the office, because it almost had the information. I have the chronology here, but I would not embarrass the individuals concerned. I would give them different names, because they are not responsible for the situation in which they found themselves. It is the people at the top, who are running the Information Commissioner’s office, who have mismanaged things. They have mismanaged staff or have not made the right decisions to ensure that when people ask the commissioner for help, they get it in a timely fashion. It is unacceptable to wait for years to get decision notices on matters of great import. The matter that I have been talking about, in parenthesis, is one of huge import.

Let me wind the reel forward to this month, when it became known that Mr. Speaker had granted me this Adjournment debate. I discovered at the beginning of the month that the staff member who had been dealing with my freedom of information request was a temporary secondee from the Ministry of Justice, and that he had gone back to the Ministry without my case having been resolved. Then the penny dropped. I was about to have an Adjournment debate; I could name names and I had the chronology. On Friday, I received a letter from the Information Commissioner, Christopher Graham—who has not been long in post; about six months. His letter is conciliatory. He tells me that “the state of affairs” in the Information Commissioner’s office is

“admittedly unsatisfactory, but there is good evidence that the situation is being turned around, albeit slowly”.

He also tells me that he will be more robust in issuing information notices that would force recalcitrant Departments and other authorities to act.

That is a good thing, but the thing that really warmed my heart—if you will allow me to say this, Mr. Deputy Speaker—was that the Information Commissioner has as good as promised that there will be a decision about the Lord Ashcroft request by the end of January. He says:

“I understand that you are frustrated by the delays at the ICO and have been pressing the new case officer, recently allocated to the case, for an indication as to when the Decision Notice might be issued. This looks likely to be sometime in the New Year. I hope this can be achieved before the end of January but the new case officer has had to seek further information”—

Can you get this? Further information—

“from the Cabinet Office in order to complete his investigation.”

After 20 months, he is seeking further information. In the long run we are all dead. In six months’ time I may no longer be a Member of Parliament—the odds are that I will not be—yet the issue drags on interminably. However, the letter gives me some hope.

What do I want? The Member for Berwick-upon-Tweed (Sir Alan Beith), who chairs the Justice Committee, is in the Chamber. The Committee held a pre-appointment confirmation hearing when Christopher Graham was appointed, and at the time it and Mr. Graham acknowledged that there was a backlog that had to be tackled. I want the Committee to bring Mr. Graham before it to quiz him about the delays, and I have written to the Member for Berwick-upon-Tweed about that. I hope the Committee responds expeditiously to my request.

The second thing I want is no further slippage in the timetable for responding to my freedom of information request about Lord Ashcroft. I really do want the matter settled next month.

Thirdly, and finally, I want my own Government to table amendments to their own Constitutional Reform and Governance Bill to ban non-domiciled persons from Parliament. If the Government do not do that, other people will.

I congratulate my hon. Friend the Member for Pendle (Mr. Prentice) on securing the debate and on raising some important points, which he did with his customary vigour.

I understand and share his views on the importance of freedom of information and its implementation. This is not a sorry tale, as my hon. Friend suggested, but something of which the Government are extremely proud. We brought in the Freedom of Information Act 2000 and overall there is no question but that the legislation has been successful in enabling the public better to understand and engage with public authorities. I have huge respect for Maurice Frankel, but one point—the quote given by my hon. Friend that the legislation was toothless—is manifestly not the case. Of all places in the United Kingdom, the House is the last place that would regard freedom of information as toothless.

That is not to say that there are not real problems with implementation, and my hon. Friend has rightly drawn attention to them. We are deeply conscious of them in Government. It is worth putting them in context. The new legislation is radical and as always with such matters, it has taken time to bed down. It is not as if anyone has been insouciant or careless about the problems that my hon. Friend described.

It is worth remembering that the freedom of information legislation gave the right to request official information from a huge range of public authorities, including all central Government Departments. It has provided unprecedented access to information held by more than 100,000 public authorities. As a result, a range of previously inaccessible information has entered the public domain.

Inevitably, that will pose challenges to all those public authorities and to the Information Commissioner’s Office. My hon. Friend is right. We must be vigilant and we must respond to the challenges. The Government, the Department and I as the Minister responsible for freedom of information are all working consistently and constantly with the Information Commissioner’s Office to meet those challenges, including the backlog of cases.

Of course my hon. Friend is right. It is unacceptable that the backlog should continue. We are giving the Information Commissioner’s Office more money. For the present financial year, the Government have given a further £500,000 of funding for the ICO, in addition to the baseline funding of £5 million. That has taken place in an extremely challenging economic context. I hope that my hon. Friend will accept that that demonstrates our commitment to making sure that the radical legislation delivers as it was meant to. Central Government also provided the ICO with additional funding above its baseline amounting to £1.3 million between 2005 and 2008.

The additional funding is complemented by the secondment of Whitehall staff to the ICO, as my hon. Friend mentioned. That is an attempt to improve the performance of the Information Commissioner’s Office. It also gives Whitehall officials a chance to experience what that is like, so they bring that knowledge back to their Departments. I hope that that will improve the performance of those Departments in responding to freedom of information requests.

My hon. Friend insinuated that the delay may have been because the secondee who was dealing with his request came from the Ministry of Justice. He is wrong. There is no question but that central Government officials who are seconded to the ICO are impartial. My hon. Friend may wish to note that all casework undertaken at the Information Commissioner’s Office, including the issuing of information notices and decision notices, is supervised by permanent staff. Decision notices are signed off by senior management, often the Deputy Commissioner or assistant commissioners. I hope that will reassure my hon. Friend that there is nothing untoward about this. It is, nevertheless, a problem.

As my hon. Friend mentioned, there is a new Information Commissioner, Christopher Graham, who has been in post for about six months. He has said that he wants to

“put a shock through the . . . system”,

and that the clearance of the unacceptable backlog is one of his top priorities. He has also said that he wants to clear the majority of the backlog by January, and he has put in place a number of measures to deliver on that. He has shown commendable resolve in tackling it.

Christopher Graham has also said that cases will be prioritised, based on the nature of information that is disputed in each case. He is concerned that too many decision notices are produced to a

“gold standard with eleven pages of legal argument that would survive a prolonged case in the European Court of Human Rights”,

where often a more concise consideration would do.

I do not think that the system is gumming up, as my hon. Friend suggests. There is a problem, but we have already seen significant improvements. Despite a significant increase in the business of the Information Commissioner this year—freedom of information appeals are up by 29 per cent.—the commissioner is closing cases at a faster rate, 34 per cent. faster in quarter 2 of 2009 compared with quarter 2 of 2008. There has been a reduction in the backlog of cases to 1,166 from 1,491 in April, including a reduction in the number of cases more than a year old from 436 to 278, which is a 36 per cent. drop in eight months. There is still a long way to go. My hon. Friend is right to raise the matter, but I hope that he will accept that the system is far from gumming up. We are beginning to see real improvements.

Clearly, if the Information Commissioner is to make the progress that we all want him to make, he will require co-operation from Departments and other public bodies. They do have to respond in a timely fashion, and the Government are responding to that challenge. We have communicated throughout Whitehall the need to work closely with the commissioner at senior levels in all Departments, and through the better freedom of information programme, which the Ministry of Justice runs, we are sharing best practice to help Departments to deal with requests and complaints more efficiently.

As my hon. Friend said, Departments are expected to respond to correspondence with the Information Commissioner’s Office in accordance with the provisions of the memorandum of understanding, which my hon. Friend set out. He may be interested to know that the Ministry of Justice is reviewing the memorandum with the Information Commissioner, and we will of course take into account the issues that my hon. Friend has raised today.

My hon. Friend referred to cases in which delays occur but the nature of the information is straightforward. Sometimes things are not quite as straightforward as they might at first appear, but even complex information must be dealt with quickly and in accordance with the memorandum. I accept that point. In extreme cases, section 77 of the 2000 Act makes it a criminal offence for any public authority or any employee of any public authority to alter, deface, block, erase, destroy or conceal any record to avoid disclosure. That is a strong deterrent to any public authority that might be minded to evade, or to seek to evade, the requirements of the Act.

We have also invited the Information Commissioner to let us know whether he believes that Departments are delaying unduly, so that we can pursue the matter. My hon. Friend is quite right to raise those delays. They are unacceptable, we need to do better and we are doing better. We are moving forward. We are publishing more information proactively, and I am trying to encourage the chief executives of every local authority to publish their performance statistics on meeting freedom of information requests, so that there is greater transparency among local authorities. They are often a source of very important information for people, and that is one of the main benefits of the Act.

We are keen to extend the benefits of the Act further, so we are consulting a number of public bodies with a view to bringing them under the legislation’s coverage. Subject to the outcome of that consultation, the Act could cover more public bodies, including UCAS, the Association of Chief Police Officers, the Financial Ombudsman Service and scores of academy trusts.

We set up the Dacre review to review the implementation of the 30-year rule, and the Prime Minister has already announced the Government’s intention, in responding to the review, to reduce the 30-year rule to 20 years. That is a significant step, and it will result in more information reaching the public domain sooner than it otherwise would have.

My hon. Friend asked for three things in concluding his remarks. The first two are not a matter for me, and I hope that he will forgive me if I do not comment on specific cases. On the third of his requests, however, I can say to him—I think that he is well aware of this—that the Government’s principled position is exactly the same as his: of course people who are not domiciled in this country should not sit in the legislature. That is a clear position of principle. My hon. Friend will be aware that we are bringing forward measures that relate to the House of Lords, so that its Members cannot be non-domiciled and still sit in that Chamber. He will be aware also that we are actively considering how best we can bring in similar measures for this House, so I hope that that provides him with some comfort.

I very much hope that my hon. Friend will get the answers—or at least an answer—that he seeks from the Information Commissioner within the time frame that he has mentioned. I accept that he has waited far too long for an answer. Whatever the answer, he should receive it in a timely fashion, and we are endeavouring to ensure that that takes place. We have a long way to go, but we are making considerable progress, and I hope that that provides some reassurance to my hon. Friend.

Question put and agreed to.

House adjourned.