[Relevant documents: Post-legislative scrutiny of the Freedom of Information Act 2000, First Report of the Justice Committee, HC 96, and the Government Response, Cm 8505.]
Motion made, and Question proposed, That the sitting be now adjourned.—(Mrs Grant.)
It is a pleasure to speak under your chairmanship, Mr Hollobone. We may be suffering today from the fact that two progressive causes are being debated at the same time, in a rather curious upstairs- downstairs situation. Upstairs, in the main Chamber, the franchise and the voting age is being debated, and here in Westminster Hall we are considering an important constitutional issue: freedom of information. I am glad that the Minister is here to reply to the debate, as she used to serve on my Committee, and we look forward to hearing from her shortly.
Many of us campaigned for years for freedom of information and against excessive Government secrecy, believing that openness is an aid to better Government, as well as an enhancement of the rights of the citizen. It was a long and hard battle. In John Major’s time, we achieved a code of practice on access to Government information, but the Freedom of Information Act 2000 was the most important step forward and its introduction is very much to the credit of the then Labour Government. So it was rather surprising that the then Prime Minister, Tony Blair, said in his memoirs that he had been a “nincompoop” to introduce it and that it was
“antithetical to sensible Government.”
The Justice Committee repeatedly asked Mr Blair to appear before us to give oral evidence about his dramatic change of view, and we deplored his failure to do so. We did not think that it was entirely justified to use the House’s powers to compel his presence, although that was a possibility, but it seemed very strange that someone with such strong views and who played such a major role in this matter should not be willing to appear before us to explain his views.
However, the right hon. Member for Blackburn (Mr Straw), who is always extremely co-operative in giving evidence to the Committee, told us that the Freedom of Information Act was Mr Blair’s idea and not his. We are all used to politicians, including Ministers and former Ministers, wanting to claim credit for things, but denying the credit for something as significant as the Freedom of Information Act seems a very strange thing to do.
To complete the chronology, I should mention the Protection of Freedoms Act 2012, which was passed under the present Government, because it extended the effect of the Freedom of Information Act to academies, to the Association of Chief Police Officers and all its public functions, to the universities admission body, UCAS, and potentially to a whole range of other bodies, too. So the extension of the role of freedom of information continues.
The Justice Committee and its predecessor Committees have been closely involved from the start of this process. We reported in 2004-05 on progress towards the then imminent implementation of the Freedom of Information Act; in 2005-06, we reported on the first year’s progress; and in 2006-07, we reported on the Labour Government’s plans to change the legislation in a restrictive way, mainly by the use of charges, which we opposed. The fact that the planned changes did not go ahead might have owed something to the transition from the Blair era to that of the right hon. Member for Kirkcaldy and Cowdenbeath (Mr Brown).
In this Session, we carried out post-legislative scrutiny of the 2000 Act, after the Government had made their own post-legislative assessment in 2011. That is a model of its kind; it is the sort of work that needs to be done in post-legislative assessments. It was thorough, well supported by research and a great help to us in the work that we did. I am happy to say that the Government and the Committee have reached a common view on most of the main issues, although there are some significant points of difference.
Our report on freedom of information was issued in July 2012, after seven evidence sessions, and the Government responded to it in November 2012. In their memorandum, the Government reiterated the well known four main objectives of the Freedom of Information Act:
“Openness and transparency: to help open up public authorities which carry out public functions, both proactively…and reactively… Accountability: to make Government more accountable to politicians, journalists and the public; Better decision-making: an improvement in the quality of decision-making…because those drafting policy advice would be aware that they would have to be able to defend their reasoning… Public involvement in decision-making…public participation…and…greater public trust in that process.”
The first two of those things—openness and accountability—have been achieved, to significant extent. The third thing—better decision making—is quite difficult to decide on, not least because many other factors determine the quality of decision making. The fourth thing—public trust—was a pretty unrealistic aim from the start, and I will refer back to it later because it would be hard to say that it has been one of the consequences of the Freedom of Information Act.
I will start with openness and transparency. We drew a distinction between reactive openness in response to requests made under the Act and proactive transparency in the publication of information by public authorities. On openness, we concluded in our report:
“We agree with the Ministry of Justice that the Act has contributed to a culture of greater openness across public authorities, particularly at central Government level which was previously highly secretive… Our evidence shows that the strength of the new culture of openness is, however, variable and depends on both the type of organisation and the approach to freedom of information of the individual public authority.”
On transparency, we made the point that
“proactive publication…cannot substitute for a right to access data because it is impossible for public bodies to anticipate the information that will be required.”
The beauty of the Freedom of Information Act is that, ultimately, the public, not the public authority, decide what information is needed. However, that is not an argument against proactive publication.
The Act encourages proactive publication, and the Government have a transparency agenda driven by the Cabinet Office, which seems to take the transparency demanded by freedom of information provisions a stage further, by encouraging raw data to be released in an open and reusable format. I welcome and encourage that, but we concluded that the relationship between the two initiatives was a bit unclear. We called on the Government to take steps to ensure that the freedom of information regime and the transparency agenda worked together, including by examining initiatives in different Departments before implementation to ensure that they are effective, as well as by assessing the existing initiatives to ensure that they
“offer value for money and do not have unintended consequences.”
On accountability, the consensus of evidence to us was that accountability had certainly been enhanced. Many examples can be produced of ways in which, for instance, spending can be challenged effectively because the information can be obtained. That has not always been a comfortable process, not least for Members of this House and the other place—I will refer to some aspects of that later—but it is a necessary feature of the control of expenditure that it should not be concealed and that the public should be able to find out what taxpayers’ money is being spent on.
One important issue raised with us by the Information Commissioner was the potential for accountability
“to be undermined if the freedom of information regime did not apply to private providers of public services.”
I will come back to that point and how we intend to deal with it later in my remarks.
Then we come to improving the quality of decision making, which can be achieved not least by creating an awareness that there will be subsequent scrutiny of the decision-making process. We enter an interesting area, because part of the background to the publication of our report was a great deal of noise being made by former senior civil servants and Cabinet Secretaries about the threat to the safe space within which policy discussions take place and the possibility that the Act had a chilling effect, both on the decision-making process and on the extent to which that process was properly recorded. These were serious people making quite serious comments, and it created a fear that the Freedom of Information Act might be threatened by a revolt by top civil servants or former top civil servants against the scrutiny under which they had been placed.
We received a lot of interesting evidence on the subject. We took evidence from former Cabinet Secretary Lord O’Donnell and from Ministers and former Ministers. A lot of it was anecdotal, and views differed among witnesses about the Act’s impact on high-level decision making. The Constitution Unit, which did research on the issue, thought that the chilling effect was negligible or marginal, and it was difficult to find any real evidence for what was sometimes claimed. The Committee recognised the problem. At paragraph 154 of our report, we said:
“Freedom of Information brings many benefits, but it also entails risks. The ability for officials to provide frank advice to Ministers, the opportunity for Ministers and officials to discuss policy honestly and comprehensively, the requirement for full and accurate records to be kept and the convention of collective Cabinet responsibility, at the heart of our system of Government, might all be threatened if an FOI regime allowed premature or inappropriate disclosure of information. One of the difficulties we have faced in this inquiry is assessing how real those threats are given the safeguards provided under the current FOI legislation and what, if any, amendments are required to ensure the existence of a ‘safe space’ for policy making.”
We accepted that some decisions by the commissioner and the tribunal that information should be disclosed have challenged the extent of the safe space for policy making. We also accepted that case law was perhaps not sufficiently developed for policy makers to be clear enough about what space is safe. We called for clarification of the statement of policy on the use of the ministerial veto under section 53 of the Act. The Government refer to the veto being used in exceptional circumstances, but it seemed that it was being used in some cases not because the circumstances were exceptional, but because it was the only way to protect the safe space. We called for senior officials, if they are concerned about the Act’s effect, to state explicitly that the Act already provides for a safe space and for high-level policy discussion. There are provisions in the Act that do that, and there is the backstop of the Government’s willingness to use the ministerial veto if necessary.
I am grateful to my right hon. Friend for fairly encapsulating the arguments that we set out in our report. Does he agree that one problem that case law and the tribunals have set for those who want to guard the safe space is determining where that space exists in the process? From a reading of at least some of the judgments, it seems that the public interest test changes according to where a decision or document comes in the policy-making process. That is a problem for civil servants and Minsters alike.
I am grateful to my hon. Friend, who is a valued member of the Committee. It is true that the agreed extent of the safe space varies according to the stage in the process, but that is right and not unreasonable; some parts of the process require confidentiality more than others, at least for a period. One reason why I and the Committee were reluctant to use any other tool to deal with the problem was that we would be in danger of creating whole areas of restriction where they need not exist. The application of common sense and, as I say, the backstop use of the veto provide for a mechanism to deal with the issue that could be more widely understood. We certainly called on the Government, and we are calling on them now, to ensure that the position is fully understood in government and by officials.
The Government said in their response that they
“were minded to review and, as appropriate, revise the policy on the use of the veto…we propose to consider how the veto policy can be adapted both in terms of the process involved in its use and to offer greater clarity and reassurance on its ability to offer appropriate protection in addition to that which it provides in the context of information relating to collective Cabinet responsibility.”
There is always a political price to pay for using the veto. Any Minister who invokes it will be criticised, challenged and questioned, and rightly so. We have seen a number of instances recently, ranging from the devolution discussions to the Prince of Wales’s letters. No Minister can undertake such a course without facing pretty severe challenge—the hon. Member for Hammersmith (Mr Slaughter) knows about that from his own experience —and that is right, because such things act as a hurdle: politicians will say, “Do I have to do this? I’m going to get a lot of stick for it in the House.” That hurdle is one means by which we ensure that the veto is not lightly used, although it does have a purpose and a potential benefit.
In our report, we made an important point that tends to get overlooked. Frankly, there is much more likelihood of the most confidential and sensitive discussions, and the papers relating to them, being released in major public inquiries, such as the Leveson inquiry or the Chilcot inquiry into the Iraq war, than through the freedom of information process. The ministerial veto does not work for Leveson or Chilcot, and thank goodness, because they dealt with very serious issues, and it is right that an exceptional process was used to probe them. People sometimes attributed to the Act the fact that some things were eventually, and rightly, found out, but in some of the most sensitive cases, that was down to the different processes, against which neither the Act nor ministerial vetoes provide any protection, and nor should they.
Does my right hon. Friend agree that, as the Committee found, using the Australian approach of a block exemption for Cabinet papers might be superficially attractive, but it could, and probably would, as in Australia, give rise to litigation over what is meant by Cabinet papers? Even worse, it could be used as a device to avoid the freedom of information regime by wrongly classifying papers in that category.
My hon. Friend’s point conjures up the picture of a civil servant armed with a rubber stamp saying “Cabinet Paper”, which can be applied wherever there is a fear that something that they do not want to disclose will be disclosed early. The Committee concluded that a common-sense approach was the way to deal with the issue. All it requires is to be reinforced through clear advice and guidance to civil servants on how the veto backstop and the other provisions of the Act afford them some protection.
In our inquiry, we heard from the Constitution Unit that the Act had not had a significant effect in increasing public participation in decision making, and we saw no great reason to disagree with that finding because other processes that increase participation, such as consultations, fall outside the Act. As I indicated, however, there is little evidence that freedom of information has had a noticeable positive effect on public trust in the Government and other public bodies, and it was always unrealistic to expect anything different. In paragraphs 37 and 38 of the report, we say:
“Evidence of irregularities, deficiencies and errors is always likely to prove more newsworthy than evidence that everything is being done by the book and the public authority is operating well. In these circumstances, the expectation of a substantial increase in public trust…was always going to prove unrealistic… Greater release of data is invariably going to lead to greater criticism of public bodies and individuals, which may sometimes be unfair or partial”,
and I am sure that some hon. Members agree with that. We continue:
“In our view, however this, while regrettable, is a price well worth paying for the benefits greater openness brings to our democracy.”
I speak as someone who, among other things, was criticised in a newspaper article for having a toilet in his constituency office repaired at public expense, so that the staff could use it. I felt like asking the journalist whether he had been asked to contribute to the cost of maintaining the toilets in his newspaper’s offices at his own expense. However, we have to live with these things, and the benefits of expenditure not being concealed outweigh any personal cost that we pay.
Complying with freedom of information requests involves costs, but it can also create savings, which accrue from the disclosure of the inappropriate use of public funds or the fear of such disclosure. Section 12 of the Act provides that public authorities are not required to comply with the duty to publish information if the cost of compliance exceeds the appropriate limit—£600 for central Government and £450 for other public bodies, which translates as 24 and 18 person-hours of work respectively.
We rejected proposals that what we regarded as more subjectively measured activities, such as reading and consideration time, should be included in the time to calculate costs, but we recommended a small reduction in that period. The Government took a different view in their response and said they would make “efforts to reduce burdens” arising from what they call the
“‘industrial’ use of the Act”.
They say that time taken to consider whether information should be released or to redact it before release should count towards the time limit. They say that they will consult on the change and will seek to develop a method of calculation that will be consistent across public authorities.
The Government say that the change will affect a low proportion of requests: 4% of those to central Government and 10% of those to other public authorities, but that is still quite a lot, perhaps more than 1,000 requests. We are concerned about that and particularly about the potential effect on local newspapers. My area has a unitary authority, and if a local newspaper wanted to follow up stories about several different local services—education, highways and social services—it could quickly fall foul of that aggregation. I should be grateful to the Minister if she thought carefully about that.
We examined charging, and we considered that it was not appropriate to go down that road. Any charge designed genuinely to recoup costs would deter genuine requests, and few kinds of charging would deter frivolous requests or, for that matter, what the Government call industrial requests. There are such things—industrial requests from large commercial companies who want to collect a lot of information and could afford to do so if there were charges; or requests from less well funded organisations, including small local newspapers, which are not going through a very profitable period at the moment. Those requests could be made in other ways. If a charging system were introduced, requests from private individuals might well be handed over to media organisations, in pursuit of a legitimate campaign, for example, to find out what was going on in government.
The Government agreed with us about charging, but they have said that they are considering charging people to go to the Information Tribunal. That would be a matter of some concern. I hope that the Minister can say more about it today. It has arisen since we published our report.
We said something about frivolous and vexatious requests. The folklore about the Freedom of Information Act tends to imply that all public authorities are completely weighed down by trivial, frivolous and vexatious requests. In practice, that is not so. A limited number of requests appear frivolous, and vexatious requests can of course be rejected, by following procedures that experienced public authorities use. We were told stories about applications for information about ghost sightings in the town hall and things of that kind, but it is not too difficult for the public authority simply to reply that it has no information at all on the subject. That is not a lengthy process.
Our view, again, was that it would be unwise to transform any aspect of the Act to deal with a problem that is not all that significant or serious:
“It is apparent from witnesses that frivolous requests are a very small problem, but can be frustrating. There is a case for adding frivolous requests to the existing category of vexatious requests which can be refused, but such requests can usually be dealt with relatively easily, making it hard to justify a change in the law.”
We gave considerable consideration to time limits and saw no need for any change to the 20-day response time within which public authorities must respond to freedom of information requests. However, we thought that time limits should be introduced for the public interest extension allowed under section 10 of the Act and that a further 20-day limit should be set in statute, which could be further extended in complex cases. The Government disagreed with us, preferring to rely on the Information Commissioner’s guidance and the code of practice under section 45, to ensure the timely completion of extensions and internal reviews.
We took evidence and made a recommendation on university research. We did not go along with the view of some people in the university world that universities should be exempted from freedom of information legislation. Universities spend a great deal of public money and carry out public functions. All those that are not wholly private in their funding are subject to freedom of information provisions. We think that should remain the case, but we recognise that there is a problem with the premature disclosure of continuing research projects. That has been dealt with in Scotland by different legislation, and we believe that there should be better protection, or pre-publication exemption, under section 22 of the Act, for research carried out by higher education institutions. There should be a dedicated exemption on the lines of the Scottish provisions. We are pleased that the Government have accepted the recommendation, and I should just like clarification of how that will be achieved.
I said that I would mention a significant problem, and it becomes more significant with each new announcement that the Government want to use the private sector as a major provider of public services. The problem is how freedom of information is applied to private organisations, commercial companies or, indeed, voluntary sector bodies that carry out public functions. There was some uncertainty about the interpretation of section 3(2)(b) of the Act, which provides that information held by a private company on behalf of a public authority with which it has a contract is subject to the Act, but other information held by such a company is not. It is quite reasonable that other information should not be covered—the Freedom of Information Act does not apply to the commercial activities in the private sector of a commercial company—but there is a genuine and appropriate concern about what happens when such a company does what would otherwise be done by a public authority.
We favoured the use of contractual terms to deal with the issue, as currently happens in many cases. The body that commissions the services, whether a probation or health trust or a Department such as the Ministry of Justice, should ensure that the contracts that it writes will protect the access that it requires to all material relevant to potential freedom of information requests, so that it can respond to any freedom of information bid.
The Government have broadly agreed with that conclusion and have helpfully gone further by suggesting that they will amend the section 45 code of practice to encourage public authorities and contractors to provide information on a voluntary basis, going beyond the minimum covered by a request to an authority. It seems to us that that openness follows the public money, in just the same way as the Public Accounts Committee wants accountability for spending to follow the public pound, and that the best way to achieve that is not to put a commercial organisation in the rather confused position of being partially subject to FOI, but to put it under contractual obligations that, if it carries out a service on behalf of the taxpayer, it is obliged to the body that commissions it to provide the information.
The Committee will take further evidence in a couple of weeks from the Information Commissioner on the work of his office. We may then follow up some of the issues that I have outlined. We welcome his work and have a good relationship with him. It has long been the Committee’s view that the Information Commissioner should be an Officer of Parliament, like the ombudsman, the health ombudsman or the Comptroller and Auditor General. That is the situation in Scotland, with the Scottish Information Commissioner. That would underline the commissioner’s independence. I was struck by the fact that in yesterday’s debate about blacklisting, which relates to another side of the commissioner’s responsibilities—data protection—my right hon. Friend the Business Secretary stressed the fact that the Information Commissioner is an independent regulatory official, running an independent regulatory body, and not a creature of the Government. That, indeed, is how things work in practice. However, it would be much better to underwrite that position, by making the commissioner fully a creature of Parliament rather than, technically, as he is now, part of the governmental system.
When considering the overall impact of the Freedom of Information Act, we need to bear in mind something that kept coming up in different ways during the Committee’s proceedings. Since the Act was conceived and then passed, a significant change has affected the whole freedom of information issue: the explosion of internet use and the new opportunities created by it. That has made access to published information easier; it has allowed published data to be searched in ways that were virtually impossible with manual searching; and it has posed a challenge to the quality and effectiveness of some public sector databases. Kent county council has explained to us that getting its database to the point at which it could effectively be interrogated by the techniques that are now available would be a major and costly task. The internet explosion has also created internet- based mechanisms for making freedom of information applications, along with organisations devoted to assisting people to make such applications. We must keep the matter under constant review.
The Freedom of Information Act set out principles that we believe should apply to Government for all time, but precisely how we apply them and the context in which we do so are things that change, and the Information Commissioner’s Office has a significant role in assisting us with that. Because of its data protection responsibilities, the office happens to have a great deal of knowledge within it about mechanisms that are relevant to data protection and to freedom of information and how information is accessed.
More generally, our view is that the Freedom of Information Act has significantly enhanced our democracy. It is working well and achieving most of its main purposes. Rewriting or restricting it and reducing its scope, effectiveness and accessibility would be far too high a price to pay for the convenience of government.
It is a pleasure to see you chairing this session, Mr Hollobone. It is also a great pleasure to follow the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), who chairs the Justice Committee with great aplomb and ability. He has eloquently summed up the Committee’s work vis-à-vis scrutinising the Freedom of Information Act 2000 and, although there will inevitably be some repetition, I hope that my remarks do not duplicate his too much.
The Act was the product of many years of campaigning, discussion and commitment from various political spheres. When the Act came into force in 2005, it proved, I believe, to be a landmark piece of legislation. I do not think that it would be hyperbole to say that the Act revolutionised how the public were able to engage with public authorities and with local and central government. It presented a radical development in the extent to which the public were able to engage, and I emphasise that because whether the Act has fulfilled that purpose is a matter of some debate.
In December 2011, the Justice Committee, of which I am a member, called for submissions to its inquiry into post-legislative scrutiny of the Freedom of Information Act. Those giving evidence were asked to consider whether the Act worked effectively, what its strengths and weaknesses were, and whether it was operating as intended. As our report sets out, the Committee received 140 pieces of written evidence and recorded oral evidence from 37 witnesses.
If we are to adjudicate on whether the legislation operates effectively, it is necessary to set out the primary motivation for introducing it in the first place. The Ministry of Justice’s memorandum on post-legislative scrutiny of the Act identifies four objectives: increasing openness and transparency, improving accountability, facilitating better decision making, and increasing public involvement in the decision-making process. In its evidence to the inquiry, the constitution unit based in University college London identified another objective—to promote better understanding of the Government’s decision making. The Committee broadly agreed with that delineation.
On the Act’s first objective, that of increasing openness and transparency, before the Act’s provisions came into force in 2005, information on decision making in central and local government and in other public- facing organisations was obtainable only through official documents and leaked information that had made its way into the press. By contrast, the new legislation provided for a statutory right to gain access to information held by public authorities, and placed a duty on the authorities to establish a proactive publication scheme that was subject to the approval of the Information Commissioner. It sought to make public authorities more transparent in a reactive sense, in that anyone would have the right to put questions to such an authority via an FOI request, and by encouraging a more general cultural change through proactively publishing information.
In our report, we quote from the speech made in the Bill’s Second Reading debate by the then Home Secretary, the right hon. Member for Blackburn (Mr Straw). He said, about the Act:
“It will transform the default setting from ‘this should be kept quiet unless’ to ‘this should be published unless’. By doing so, it should raise public confidence in the processes of government, and enhance the quality of decision making by the Government.”—[Official Report, 7 December 1999; Vol. 340, c. 714.]
In practice, of course, the proposed publication schemes did not work as the then Government intended. The duty to produce publication schemes in section 19 of the Act is accompanied by extensive guidance from the Information Commissioner’s Office on what exactly would constitute a model scheme.
The right hon. Gentleman touched on the role of the right hon. Member for Blackburn (Mr Straw). We were all present, and we have lived through the development of the Act and are very familiar with it—those of us who were friends of it and those who were not. The now Lord Clark was the initiator of the Bill. The members of the Cabinet, including the right hon. Member for Blackburn, all signed every single word of the pledge. David Clark was then dropped and despatched to the House of Lords, and the right hon. Member for Blackburn has now given us several versions of his position on the matter. I have tried to coax him to say that it was the greatest thing that the Labour party ever did while in office. He has repudiated that. He has adopted it. He has changed his view. And he was the agent who tried to limit the whole Act. So I do not hold him as the flame bearer of that essential part of the Act, and I think that that will be the view of anyone who has had any dealing with the right hon. Member for Blackburn on the question of freedom of information.
I am very grateful to the hon. Gentleman for that intervention. He has been intimately involved in this matter for many years and I defer to his greater knowledge. He will see from other remarks I shall make that although I usually hold the right hon. Member for Blackburn in high esteem, in this instance the hon. Gentleman is, I think, right. It seems, from some of the right hon. Gentleman’s utterances of late, that he is rowing like nobody’s business away from the mother ship on this issue, and I am not too sure why. Many people across the political spectrum have worked hard to get us even to where we are now. I do not attribute that progress to one particular person; it has been a joint effort by all the parties over a long period, and I know that the hon. Gentleman has played a pivotal role in that.
The view of many of those who gave evidence to the inquiry was that most public authorities had failed to make full use of the schemes into which they were supposed to enter. There was also much inconsistency across Departments. One of the principal reasons why so few schemes were successful, according to Dr Ben Worthy of the University college London constitution unit, was that technological advances have made proactive disclosure redundant. He said that
“one of the reasons why publication schemes have not taken off in the way that many had hoped is that it has been superseded by the internet search engine and the fact that people can find a way of asking a question rather than looking for the information.”
The right hon. Member for Berwick-upon-Tweed has already touched upon that.
Whereas an authority or organisation may be selective about the data that are released through a publication scheme, modern technology, as we know, has allowed anyone with an internet connection to search for the information themselves. When the Act was drafted, it did not take into account the fast-developing nature of the world wide web.
Roger Gough, the cabinet member for business strategy and support on Kent county council, said that the notion of a publication scheme was “fairly antiquated.” The Information Commissioner’s Office is holding a consultation on the publication schemes, the outcome of which I am sure we all look forward to reading.
But it is not only the internet as a medium that has altered in the years since the Act was first published. Through being used to having information almost literally at the touch of a button, the public now expect more information more rapidly. For that reason, it is doubtful that the Freedom of Information Act has improved public participation in decision making. More often than not, it is those who are already engaged in public life, or those who are acting in a professional capacity, such as journalists and campaigners, who lodge FOI requests. Lord Falconer told the other place that the Act aimed to show citizens
“how government works—and to show them how decisions are taken.”
But as the constitution unit said in its evidence to the Select Committee,
“FOI is used by people already engaged in the political process, rather than bringing new participants into it.”
By contrast, for the vast majority of the UK’s population, and certainly for those under the age of 35, the principal means of obtaining information appears to be via the Google search engine. Here, too, we see why many believe that the Act was doomed to fail in increasing public confidence in public authorities. News stories disseminated online tend to sensationalise information and to focus on the negative aspects of any given story—no surprise there. One is unlikely, for example, to read a long piece online dedicated to congratulating a local council or organisation on its commendable bookkeeping.
Perhaps unsurprisingly, Maurice Frankel, representing the Campaign for Freedom of Information, told our Committee that he had witnessed a surge in trust among those who directly seek information from public bodies but that the majority of the population were more likely to read the outcomes of freedom of information searches through the media.
Sitting suspended for a Division in the House.
On a point of order, Mr Hollobone, you will have noticed that the Division bell did not ring audibly in this Chamber, and I wondered if you could look into whether that can be put right. As it happened, it did not matter, because the motion in favour of extending the franchise to vote to age 16 won by about two to one, but I would not have liked to miss the vote.
As I mentioned, the Freedom of Information Act has developed—some might say radically—the extent to which the public are able to engage with the decisions made by public bodies. First, however, they must choose to engage.
Perhaps inevitably, the tendency of the media is to focus on the negative stories coming out of FOI requests; some say, which I believe could be true, that this may have led to a perverse incentive to hide information. The former Cabinet Secretary, Lord Gus O’Donnell, said in his evidence that he had experienced that at first hand:
“I decided to release, since I am not paid by anybody at the minute but I am a Member of the Lords, some hospitality information. I do not think anybody else does that. Surprise, surprise, you get a snidey press story in Private Eye as a result of this.”
The Select Committee, however, was very much of the opinion that the increased and, yes, sometimes unfair criticism of those in public life was a price well worth paying for greater openness.
To what extent has the Act facilitated decision making by public authorities and central Government? Regrettably, many witnesses thought that in trying to avoid the possible embarrassment of disclosure, fewer bodies were inclined to keep detailed records of meetings or to keep a log of policy information. Martin Rosenbaum, representing BBC News, argued that any change in culture brought about by the Freedom of Information Act had been inconsistent, and that the Act has done relatively little to advance transparency on account of the cumbersome nature of the FOI process. He said that
“the Act now enables us to obtain on a very crude level…facts and figures—how much was spent on this, statistics about the performance of public services and so on. The sorts of things that were harder to get previously now tend to be very easy to get, but what it has not produced, and the civil service is certainly very resistant to this, is internal discussion documents, policy discussion, minutes of meetings and so on.”
Witnesses spoke about the “chilling effect”, to which the right hon. Member for Berwick-upon-Tweed referred, that has led to civil servants being less candid in their advice to Ministers, fewer external organisations being willing to submit information to the Government and fewer meetings being held with formal minutes taken—greatly damaging the official record. As Lord O’Donnell pointed out, that “chilling effect” not only impacts on the engagement of our own generation with decision making, but will make it increasingly difficult for future historians, too, to get an accurate picture of how decisions were made, as so little evidence will remain.
Other witnesses pointed out that that unintended consequence of the Act has the potential to weaken Cabinet collective responsibility, since many key decisions will not be made in Cabinet, where formal minutes are taken, but in safe places, be it on mobile phones or behind closed doors. On the other hand, it is imperative to draw attention to the fact that the Act contains safeguards against that problem—namely, exemptions to the right of access to information in exceptional circumstances, as well as other ministerial vetoes for when information is deemed too sensitive to release.
It is worth noting that there is, or should be, a countervailing pressure in the mind of any civil servant who might be tempted not to record a reservation that he or she had about a decision or counter-argument. Frankly, if I were a civil servant and thought that the record would not reveal that I had warned the Minister that a policy was fraught with danger, my response would be that that must be minuted so that it could be seen that I had warned that that could happen.
The right hon. Gentleman is absolutely right. Not only is that based on sound common sense, I am sure that it often happens in practice. There is a counter-argument, as he rightly says.
The Committee did not conclude that such a chilling effect had come about as a result of the Act. The constitution unit has published research on the subject and suggested that its impact was insignificant, thus agreeing with the right hon. Gentleman. Although the Committee decided against recommending any major change to the Act, we were mindful that Parliament is expected to pass legislation recognising the need for a safe place for high-level policy formation. It is difficult to determine when that space will be needed because, by its very nature, the evidence for when private discussions are used is patchy. Certainly, this right must not be exploited needlessly.
It has become increasingly common for minutes of private meetings and even text messages between Ministers and representatives of external organisations to be seized and published by inquiries into Government decision making. Both the Chilcot and Leveson inquiries were examples of that, and it would be highly regrettable if it led to fewer records being kept. Yet however private or embarrassing evidence may be, it is inexcusable for people to attempt to destroy or alter data to prevent their disclosure. That is why the Committee recommended extending the time limit on charging someone with this offence under section 77 of the Act. The Information Commissioner’s Office has seen evidence of such offences, but because of the inherent difficulties of charging someone within six months of the offence being committed, no one has yet been prosecuted. The Committee has further recommended that a higher fine should be available to the Crown court to reflect the gravity of the crime.
Of equal cause for concern, however, is the inadvertent destruction of records as a result of new methods of storing information. The right hon. Member for Blackburn (Mr Straw) acknowledged that when the FOI Act was drafted, the Government
“had no serious conception about the internet, which was in its infancy.”
Lord Hennessy of Nympsfield also commented on the associated changes to archive-keeping. He said:
“If you look at the archives that were created before there was even a 50-year rule, in 1958, they are very full. The 30-year rule is still very full indeed. I do fear that historians”
“are going to have a much tougher time for two reasons. One is”
freedom of information,
“but there is also the digital revolution. It ceases to be a paper culture.”
One is put in mind of the BBC domesday project in the 1980s, when children conducted a survey of the UK to mark the 900th anniversary of the Domesday Book. The findings were stored on laserdiscs, which became obsolete within a few years. Although the material was saved after a laborious and costly process, the UK Data Archive faced heavy criticism for failing to preserve the material in an enduring format ab initio. The irony, of course, is that the original Domesday Book is still readable.
The Freedom of Information regime must be viewed in the wider context of information storage and retention. The internet is an exciting place in many respects. It is a vital educational tool, but it is also fast evolving. According to the National Archives, digital records deteriorate faster than paper records. The preservation of records is important for the accountability of officials, not just today, but for posterity. Indeed, many people—I am one —believe that one can educate oneself about the future from an understanding of the past. That is important.
On the whole, the evidence gleaned by the Committee was that the Act is operating fairly well. The costs associated with its administration are greatly outweighed, although not always, by the transparency and better accountability of those who make decisions that affect the public’s daily life. Freedom of information requests may lead indirectly to a reduction of costs because public authorities are now fully aware of the risk of exposure if they misuse funds. Although the Act has succeeded in its primary aim of increasing transparency and accountability, it is less clear whether it has facilitated decision making, and it has not gone far down the road of creating greater confidence in those of us who serve in public office.
In the light of the media’s tendency to sensationalise bad news, it was perhaps unrealistic ever to expect that the Act would contribute to greater public confidence in those in power. Individuals certainly have the tools to engage with decision making as a result of the Act, but those who choose to participate are usually those who have a professional stake in the outcome. The FOI regime offered enhanced democracy, but in the years since it was drafted, the parameters of public debate have shifted greatly, and internet search engines disclose information that the Government would rather keep hidden. The onus must be on Parliament and ourselves as individuals within it to face this brave new world and the challenges that technology inevitably presents.
I commend the work of the Committee and the contributions of the Chairman and now the membership; they have cheered me. I should declare an interest: I am co-parliamentary something-or-another for the Campaign for Freedom of Information, which has been a remarkable organisation over the past 25 years, and its guiding light, Mr Maurice Frankel, is an exceptional citizen.
I passionately believe in freedom of information. As a boy, I read Pope, who wrote
“What can we reason, but from what we know”,
and it is true. I always maintain that informed and intelligent citizens should have access to Government information that they, we, citizens and Members of Parliament pay for, so that they can play an engaged and informed part in the development of public policy and the things that affect us.
I will not go through the lengthy debates of many years ago. There are things that I object to, such as the Executive override, which has come into operation and was presented to the House of Commons by the right hon. Member for Blackburn (Mr Straw) as though it was a Cadillac, with new bells and shiny things on it. I would like to see some things shifted and changed, but my remarks today will be focused only on something that has come to me through a constituent, a respected Mr Dale, in my local community. The concerns are about commissioning in the national health service and relate to the chapter in the report on contracting out. I wanted to deliver the remarks that would have been made much more eloquently by others on the concerns that I have about contracting out.
Other organisations are obviously affected as well. A bit of a stir has been made by universities, because of the anxiety that some are publicly funded and the information is held in a particular way. Outside organisations can even apply for their own materials of the university, because they are deemed to be in receipt of public funds and are therefore subject to freedom of information. However, I seek to discuss the national health service and the Health and Social Care Act 2012.
Under the current NHS reforms, the new commissioning bodies—clinical commissioning groups and the NHS Commissioning Board—will be subject to the FOI Act. However, the private sector contractors with whom contracts are held will not be covered by the Act. The contracts themselves will contain disclosure requirements along the lines of those already found in the standard NHS contract:
“Where the Provider is not a Public Authority, the Provider acknowledges that the Commissioners are subject to the requirements of the FOIA and shall assist and co-operate with each Commissioner to enable the Commissioner to comply with its disclosure obligations under the FOIA. Accordingly the Provider agrees…that this Agreement and any other recorded information held by the Provider on the Commissioners’ behalf for the purposes of this Agreement are subject to the obligations and commitments of the Commissioners under the FOIA”.
Obviously, the term “commissioners” refers to the commissioning bodies.
Those provisions require some unpicking. The requirement that providers co-operate with commissioning bodies to comply with their disclosure requirements under the Act is circular. The commissioning body’s obligations under the Act are merely to disclose information that it holds itself or that the provider holds on its behalf. The real question is what information is held on the commissioning body’s behalf.
The contract itself specifies that various types of information are subject to FOI or have to be published or provided to the commissioning body on request. That includes information about the service specifications, prices and payments, numbers of patients treated, time taken to treat them, performance quality reports against a range of specific indicators, figures on MRSA and clostridium difficile infections, and reports on complaints, equality monitoring and certain other matters. There are also obligations to comply with NHS dataset requirements. In addition, the commissioning body may request any other information that it reasonably requires to monitor the provider’s performance in relation to the agreement. However, if the commissioning body does not consider that it requires particular information to monitor the provider’s performance, the information will not be available under FOI.
Let us suppose there are suspicions about the use of outdated, or potentially substandard, or even contaminated supplies by hospitals. For an NHS hospital, the Act could be used to obtain details of stocks of the product, analysis results, correspondence with suppliers, minutes of meetings at which the problem was discussed, concerns about the issues raised by staff and details of how they were handled, as well as information showing what measures were considered, why particular options were rejected and what was done.
Such information would not be available in relation to independent providers treating national health service patients. A commissioning body may take the view that it does not require that information to monitor the provider’s performance under the contract because it does not believe that there is a real problem, because it does not believe that the information sought by the requester would throw light on it, or because it already feels satisfied, from its knowledge of the provider, that any problem would be properly handled. In that case, it seems unlikely that there would be any contractual obligation on the commissioning body to seek the information or on the provider to produce it. In cases of doubt, we think contractors would be likely to vigorously oppose any attempt to interpret a contractual provision of that kind expansively.
A further problem is that key aspects of the Act cannot apply to contractors. The Information Commissioner’s powers relate only to public authorities. He cannot investigate a contractor’s claim that it does not hold or cannot find the information needed to answer an FOI request. His power to serve information notices, requiring public authorities to supply him with information required for an investigation, does not extend to contractors. He cannot serve a decision or enforcement notice on a contractor, or take action against a contractor that appears to be failing to comply with its contractual obligations to assist with FOI requests.
The offence that applies to a public authority that deliberately destroys, alters or conceals a requested record to prevent its disclosure does not apply to a contractor that does so to prevent the authority disclosing it in response to an FOI request. Once a contract has expired, any contractual disclosure requirement may lapse, so removing the right to information about past events. Even if the contract stipulates that disclosure requirement survives, it could only be enforced by a civil action for breach of contract against the contractor. The prospect of such action being taken for failing to assist in replying to an FOI request is highly implausible.
The FOI Act envisages that the contractors who provide a service on behalf of a public authority, which it is the authority’s function to provide, can be designated as a public authority subject to the Act in its own right. The use of that provision to make contractors directly subject to FOI should now be considered. Failing that, the Act should be reassessed in light of contracting out and amended to ensure that the public’s rights to information about public authority services and functions are fully preserved when they are provided by contractors. There is real value in that, and from the Government’s point of view, too. Confidence in the Health and Social Care Act, for instance, and the commissioning process would be reinforced.
There is a grave suspicion—this is what lies behind the idea about privatisation of services in the national health service—that there will be the opportunity for outside contractors and so on to pick and choose and that they will not be liable to provide to the public the basis on which they can judge whether a contract is appropriate. That is the whole purpose of freedom of information—that we can acquire the information that can give us the ability to make a judgment on the probity and priorities that operate within those who are essentially, if not totally in many instances, funded from the public purse. There is a direct link. They would not be in business without public moneys and contracts coming their way. That is why there is an urgency about making this point and examining this question. I commend it to the Justice Committee. Thank you, Mr Hollobone, for your patience.
It is a pleasure to be here under your chairmanship, Mr Hollobone. The fears expressed by the Chair of the Select Committee, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), about the quantity of Members in this debate have been laid to rest by the quality of the contributions. We have had three outstanding contributions by Members who are quite expert on this subject. There has also been, among the three parties represented so far, a large degree of consensus. I hope that I can make the official Opposition a fourth party to that consensus and I hope even more that the Minister will join it when she replies to the debate for the Government. I say that because I agree with what the hon. Member for Aldridge-Brownhills (Sir Richard Shepherd) said. I think that he said that freedom of information was the best thing that the Labour Government did. I had written down that it was “one of the best things” that the Labour Government did. Of course, if we were here to discuss all the good things that the Labour Government did, we would use up the rest of the time, but can we at least agree on that?
I am not surprised that we are still discussing the way in which the Act works 13 years after it was passed. It took five years for it to be introduced, and I think that that was probably right. It has taken eight years, judging by what the Select Committee says in its invaluable report, to bed in, and I think that that is also right and nothing to cause us concern, because, as the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) said, this is a major change in culture for Government—a major change to the way in which administration takes place in the public sector. It has affected, for the better, decision making, as well as the operation of the Government and the public sector.
Through the stance that the Select Committee has taken in its report but also by—if I can put it this way—flushing out the Government in their response, it has done a great service to advancing the cause of the Act and freedom of information. I find very little to disagree with on the policy issues dealt with in the report, although perhaps there is a slight degree of complacency in relation to some of the practicalities of the way in which the freedom of information system works—I have had some experience of that myself. More needs to be done to ensure that the existing system operates effectively, but before I come to that, let me just review where I think the parties are.
I looked at the manifesto commitments. The Liberal Democrats’ manifesto said that they wished to extend freedom of information legislation
“to private companies delivering monopoly public services such as Network Rail.”
That was on the same page as replacing the House of Lords with a fully elected second Chamber, but we cannot have everything.
The Conservative manifesto made no mention of freedom of information, but in some ways what it did say was more interesting. It talked about
“transforming the way the state goes about its business, using decentralisation, accountability and transparency”.
It says that
“we will bring the operation of government out into the open…we will create a powerful new right to government data, enabling the public to request—and receive—government datasets in an open and standardised format.”
It says, for example:
“We will…require public bodies to publish online the job titles of every member of staff and the salaries and expenses of senior officials”.
All of that resolved itself into one sentence in the coalition agreement:
“We will extend the scope of the Freedom of Information Act to provide greater transparency.”
What that throws up is a matter that the Chair of the Select Committee has already referred to—the difference between the voluntary publication of information and the ability of the citizen to request that information. There is general agreement that transparency and the publication of data is not only a good thing in itself, but can assist the process of freedom of information. Clearly, if more information is put into the public realm and if public authorities get into the habit of being transparent about the way they conduct themselves, that is not only complementary; it actively assists and removes some of the bureaucracy from freedom of information. However, the two things should not be confused.
It is interesting that the Liberal Democrat manifesto specifically referred to Network Rail. I had a meeting with the head of transparency for Network Rail—there is one—earlier this week, and they were gently trying to persuade me that, given that it has a proactive policy for being transparent, perhaps it did not also need to be subject to freedom of information. I do not want to put words into their mouth, because they did not go quite that far, but that was the gist of the discussion. Well, I disagree. I think that it is laudable if Network Rail has that aim, but that should not remove from it the burden of having to comply with the Act.
The Protection of Freedoms Act 2012 was mentioned. Some of the additions under that Act were simply consequential on other changes. Bringing academies into the same ambit as state schools is controversial, but it does not add much. I am sorry that we have not—
Of course, the hon. Gentleman would have complained pretty bitterly if we had not taken that action. He should be a little less churlish about the Protection of Freedoms Act, not least because, for example, it brought in the Association of Chief Police Officers, which was carrying out very significant public policing functions while also being a representative body for chief police officers. That extension was an extremely important one. I have a lot of sympathy with what the hon. Gentleman said about Network Rail, which is a very ambiguous body, created originally under the previous Government, but we are only a coalition. We get some of our proposals through, but not all of them.
I hope that, rather than being churlish, I am being balanced in saying that the Government—both parties in the coalition—have taken steps on transparency and that there is an impetus from at least some parts of the coalition to move forward the ambit of the Act. I have never been able to understand why, for example, council housing departments should be subject to it but housing associations should not and why the NHS should be subject to it but Network Rail, which is also a large public sector organisation, should not. We should be resistant to special pleading from organisations.
I addressed a conference of university officials some time ago, and freedom of information was a big concern of theirs—that is, not being subject to it. I will say a little more in a moment about the research, with which I do have some sympathy, but the idea was that universities should not be subject to it because, they were saying, it costs them money and they are relatively small organisations in the great scheme of things. I am not sure that is true, for a start, but the number of requests that an organisation receives probably bears some relation to its size and therefore to its means. I suspect that many of our universities are rather bigger than, say, some small district councils.
We should therefore resist special pleading. Where there are grey areas, we should err on the side of openness rather than exemption. In particular, we should look at the points that the hon. Member for Aldridge-Brownhills made in relation to the increasingly blurred lines between the public and private sectors.
My right hon. Friend the Member for Tooting (Sadiq Khan), the shadow Lord Chancellor and my boss, made it very clear in his Labour party conference speech last year that the next Labour Government would extend FOI to
“cover the delivery of public services”,
such as prisons, schools and hospitals, by private companies and the voluntary sector. That must be right. It is right in any event, but the contractual roles that organisations —we know the usual suspects: Capita, Serco and G4S—are taking on not only involve huge additional powers, but often mean that whole areas of Government service, policy and decision making are devolved to them.
[Mr David Amess in the Chair]
I was talking to the Public and Commercial Services Union this week about the fact that it is envisaged that the criminal fines enforcement process—collection—be passed to a private company on a very long contract that delegates not only administrative, operational and decision-making powers, but some powers that until recently were judicial.
What the hon. Gentleman says is right. The transfer of public functions to the private sector may not have been uppermost in people’s minds when the Act was drafted, but it is increasingly becoming an issue. Before we know it, much of the prison estate will be privatised, so, in that regard, it is absolutely crucial that FOI structures are in place.
I am grateful, I agree and I hope that the Minister will address that point directly when she responds.
I shall leave that aside, because we could all discuss for a long time the types and numbers of organisations that we want to add. I would rather talk about the other two issues I mentioned: how the Act is operating and how the ongoing policy issues are being resolved or not resolved. The report deals with those matters well.
I have serious concerns about how the Act operates on a day-to-day basis. I am a prolific but I hope responsible user of the Act, so I can say from experience that the quality of service one gets varies hugely. Some organisations are good: they take matters seriously, provide comprehensive information timeously and obey not only the letter but the spirit of the Act. Many do not.
I shall give one example. It is not an extreme example at all; it is very typical. On 26 October last year, I made a request to my local authority. I was aware that it had delegated to itself, from committee to officers, the ability to sell off property as it became vacant, but it was not reporting it anywhere. Simple questions: how many properties have you sold in the past four years and what is the value of those properties? Every two or three weeks after the 20-day deadline passed, we chased them. Nothing was done. There was no attempt to comply with the Act—“You’ll get it next week.” “We’re very sorry. Don’t you have that yet?” Those were the kinds of faux-amateur ways in which it responded.
I am sure that I would not have the answers now had I not written to the chief executive earlier this week and said that I was going to raise the matter in this debate. The very straightforward answers arrived yesterday. They reveal that over that period, more than 200 properties were sold, at a value of more than £88 million, which, in the past two years, represented more than 10% of the total stock that had become vacant. Those facts and figures are important, not only because of the amount of public money involved, but due to the policy and human implications of disposing of good quality property that could be re-let, when 11,000 people are on the waiting list and many of my constituents are being moved out of London because it is said that there is no affordable accommodation. Those data should and could be available, not in 20 days, but in 20 hours.
That is a mild example. In other cases, I have waited over two years for responses. If a public authority does not wish to respond, it can find myriad ways not to do so. To give another example, we have a proportionately large number of free schools and academies in my constituency and I wanted to see the financial base on which they were funded, the capital grants, the costs they were paying for land and matters of that kind. Two years on, I still do not have that information. The excuses I have been given vary from commercial confidentiality to the notion that it would be embarrassing for those organisations, lest they are not successful, to reveal what their basis for bidding is at the time. They have even been based on tiny semantic points. It was not one of mine, but another request asked what a particular piece of land was sold for, and at the end of the process the response came back after months of delay, “Although contracts have been exchanged, there has not been completion, and therefore it cannot be right to say that this property has been sold.” I thought that was slightly disingenuous given that the people who bought it were building on the land at the time.
I will not take up the House’s time with my private grievances, but I use those examples to show that if a public authority does not wish to follow the Act, it can find myriad ways not to do so, which can range from using unqualified staff and devoting insufficient resources to deliberate obfuscation and devious avoidance. The problem is, as the Committee correctly notes, that there is no immediate penalty and the elaborate process of review is, again, often used to delay rather than bring justice.
I hope I am not quoting out of context, but the Committee says:
“We were pleased to hear relatively few complaints about compliance with the 20 day response time. We believe that the 20 day response time is reasonable and should be maintained.”
I suspect that people are put off and do not go through an additional complaints procedure or use the process of internal review and appeal. I agree with the Committee that it is important that the process of internal review is also prescribed, so that what should be a method of redress is not used for further delay. I have taken cases to the Information Commissioner where that process has had to be gone through, and unfortunately, it can take one or two years—longer in some cases—by which time, saving the most important cases of national interest, the issue will almost certainly be dead. That, of course, is the objective of the defaulting party. I hope that there is more scrutiny, by Government and the Ministry as well as the Select Committee, of the simple procedural operation of the Act and whether its spirit and letter are in turn being obeyed.
The hon. Member for Aldridge-Brownhills mentioned Maurice Frankel and the Campaign for Freedom of Information. I associate myself with the hon. Gentleman’s remarks. The campaign is a fantastic organisation, which does more than anyone else to keep us on the straight and narrow. It notes that more than 44% of requests to central Government exceed the 20-day limit. That is poor, even when the correct process is followed. We could do much better.
I shall turn to some of the policy issues. I cannot better what the Committee said on the veto and the alleged chilling effect on policy development. The Chair would not put it in these terms, but the Committee has seen through those objections and does not recommend change. I hope the Government will follow that view. There is a risk, as the right hon. Member for Dwyfor Meirionnydd acknowledged, that people will try to subvert or get round the Act in many ways, and we have heard examples of using private devices or e-mails to keep things out of the public realm. The last thing that we want to do in response to that—we should acknowledge the problem and try to work out ways of challenging it—is to say, “Well, in that case, we should allow more secrecy, because that is the only way to get that balance right.” Those debates will continue, because the agenda is both moving and changing.
There are other issues, which I had hoped could have been put to rest, that the Government in their response have kept going and even revived. The first is the issue of fees. I appreciate that the Government have resisted that, which is right, and requests to cover their costs. None the less, they have introduced the possibility of fees at tribunal, which may be a slippery slope. Certainly, if a complaint has reached such a level, which is quite a challenge for any applicant to achieve, the issue of fees should be resisted.
The Newspaper Society, in its briefing for today’s debate, as well as the Campaign for Freedom of Information and a number of national newspapers, have tried to draw attention to the worrying fact that ways are being found to limit access by way of cost. Generally speaking, those are occult ways of doing it; it is not a head-on attempt to restrict. When I say occult, I am not referring to the ghosts and zombies in the Cabinet Office or in Leeds city hall. I am talking about ways that are, ironically, not open.
I have a number of questions for the Minister to answer. If the Government are thinking of reducing the number of hours beyond the marginal levels that the Select Committee proposes, what are those proposals and how can they be justified? Are they thinking of introducing the aggregate claim, whereby an individual or an organisation will only be able to put in a certain number of claims before hitting the cash limit? Moreover, in totting up the number of hours on any individual request, will the Government include thinking time? If they do, what is the rationale for that and where is the impact assessment that will show the effect that that will have? Maurice Frankel quotes an estimate that says that just the thinking time clause alone will affect 4% of requests to central Government and 10% of requests to other public bodies. Those are significant figures, but, as Maurice Frankel points out, that is based on the actual time spent and not on the estimated time, which of course could be a lot greater. Any one of those measures, let alone the aggregate of them, would have a significant effect on the number of requests that are refused on the grounds of cost, which is a route that we do not want to go down.
There is a general acceptance, I think, that there has to be a limit on costs. No one in this debate has said that the overall cost of the Act is prohibitive and I do not think that the Government have said that either. None the less, cost is a convenient way to turn down requests without having to justify things more thoroughly. As I have said, I have had every possible reason thrown at me. One very common one is commercial confidentiality, which is often presented in a nonsensical way. Let me give an example. There was a significant and controversial land sale in my constituency between two public sector bodies—part of the BBC estate was being sold to Imperial college. The whole matter was resolved; there were no outstanding issues and no ongoing negotiations. Yet both parties resisted requests on the basis of commercial confidentiality. We need to be more sceptical about some of the excuses that are used. I hope the Government will not be seduced by those arguments, and that we can have some clarity on that.
There is an argument when it comes to research. I do not accept the argument for exemption of universities, but, given what is happening in Scotland, it may well be that the Government are right on this. We want to protect genuine research, but we do not want to allow that to become a catch-all for refusal. We should consider exemptions very carefully. This is an area in which the Government, thus far, do not have a bad record.
The Minister will have heard me say very often, even in the short time that she has been in post, that the Government have a bad record on the citizen’s right to access justice and information. We have cuts in legal aid and the prospect of further cuts, the wholesale change to conditional fee agreements, a review of judicial review, and charges increasingly being introduced for courts and tribunal services. That is a poor record, and a signature of this Government of which they should be ashamed. Let us not add freedom of information to that catalogue. So much has been achieved over the past 15 years with a reasonable degree of consensus. We want to allow the citizen far, far greater access to information, and to change what has been very secretive government in this country, under all parties, into something that is genuinely open. That will be as beneficial to the Government as it will to the citizen, so let us not shy away from it now.
It is a great pleasure to serve under your chairmanship, Mr Amess. I congratulate my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) on securing this debate, and I thank all hon. Members who have contributed. I am grateful to the Justice Committee for its thorough work on the post-legislative scrutiny and to all those who contributed to its inquiries. I re-endorse the sentiments that have been made this afternoon in relation to my right hon. Friend’s great aplomb and his ability to chair the Committee.
The Government remain committed to greater transparency—the Freedom of Information Act is a key part of that—and we have been successful in our key aims of increasing openness, transparency and accountability. I agree with hon. Members that it is perhaps less clear how much of our secondary objectives of increasing trust and public participation have been met and that, to some extent, those objectives may not have been realistic ambitions. I agree with the Justice Committee that the Act has been a
“significant enhancement to our democracy.”
It is not perfect, but it is generally working well. For that reason, the Government are not proposing a radical overhaul.
Before turning to the specific issues raised by post-legislative scrutiny, it is important to say that we need to put them in the context of the Government’s wider transparency agenda. Since we came to power, we have published almost 9,000 data sets, covering a wide range of subjects connected to health, education, transport, crime and justice. In June 2012, we published the open data White Paper, “Unleashing the Potential”, which sets out how the transparency agenda can help to provide greater access to and the re-use of raw data. We have set up the Open Data Institute to promote innovation, using the data that the Government publish, and pushed strongly for more transparency internationally, including through the international Open Government Partnership.
I assure my right hon. Friend that the Government’s transparency agenda is no substitute for, and will certainly not diminish, the important work that is being done in relation to the Freedom of Information Act. As we take the transparency agenda forward, we will push for greater openness and accountability, so that people know what is being done in their name and with their taxes.
Proactive publication needs to be complimented by an effective system that allows the public to seek information for themselves about how public authorities do their jobs. That is why the Freedom of Information Act is so important and why we are taking a number of steps, following scrutiny, to strengthen and extend it.
We are reducing from 30 to 20 years the lifespan of some of the exemptions to disclosure in the Act. That reflects and is simultaneous with the changes that we are making gradually to replace the 30-year rule under which public records are released by the National Archives with a 20-year rule. We have made secondary legislation to begin that transition over a 10-year period, and it came into effect on 1 January.
We are introducing enhanced rights to access and reuse data sets under the Protection of Freedoms Act 2012. A public consultation on a draft code of practice to help public authorities to meet those new obligations concluded on 10 January, and the provisions will be commenced shortly.
We are taking steps to extend the Freedom of Information Act to more organisations that perform public functions and to companies wholly owned by any number of public authorities. We have already extended it to all academies, the Association of Chief Police Officers, the Financial Ombudsman Service and the Universities and Colleges Admissions Service.
In our response to post-legislative scrutiny, we made it clear that we intended to conclude consultations with a wide range of other bodies, including more than 200 harbour authorities, awarding bodies, approved regulators under the Legal Services Act 2007 and 2,000 housing associations. Therefore, unless there is good reason for not doing so, we can extend the Act to any public function that they carry out. Our aim will be, where possible, to introduce secondary legislation over the next two years to implement the changes that we decide are warranted.
I am aware of some Members’ concerns about the position under the Act of contractors and other companies that provide public services. The challenge that outsourcing public services poses to transparency is real, and it is one that we have sought to address proportionately. We do not currently propose the formal extension of the Act to providers of outsourced public services. We prefer the Justice Committee’s recommendation that contractual transparency clauses be used and enforced to ensure that freedom of information obligations are met.
We strongly encourage public authorities and contractors alike to go further than the minimum requirements in the Act and voluntarily to provide more information. To that end, we will issue guidance that sets out the circumstances in which we want to see further information released. My hon. Friend the Member for Aldridge-Brownhills (Sir Richard Shepherd) and the shadow Minister raised powerful concerns about this issue, but I reassure them that if our proposals do not have the desired effect, formal extension of the Act can be considered and is always possible.
We have sought to balance the need for transparency with the need to minimise burdens on business and to encourage active participation by bodies large and small in the provision of public services. Some people might not consider that enough, but it is a light-touch, good approach requiring the co-operation of public authorities and contractors alike. As I said, however, if that approach yields insufficient dividends, we will consider what other steps we need to take to ensure accountability, and that includes formal extension. I hope that provides reassurance.
Let me now turn to the Act’s cost. Despite the many benefits that the Act has brought, we cannot ignore concerns about the burdens that it imposes on public authorities. That is especially important in the current challenging financial climate and at a time when more freedom of information requests than ever are being received. Central Government received 47,000 initial applications in 2011, at a cost of £8.5 million in staff time alone. Local authorities and other public bodies are also affected. We aim to focus our efforts on the disproportionate burdens placed on public authorities by what we call industrial users of the Act.
Whether or not I am over-stressing them, these matters will be considered in great detail through consultation, and there will be ample opportunity for others to have an input and become involved.
Our research indicates that a very small number of requests contribute to a relatively large proportion of the cost of freedom of information: 8% of requests to central Government cost more than £500 to answer and make up 32% of total staff costs. The Justice Committee recognised that issue in recommending a small reduction in the cost limit beyond which requests need not be complied with. We believe that would result in only the most minimal reduction in costs, so we will consider whether to go further.
My right hon. Friend the Member for Berwick-upon-Tweed raised consideration time, and the shadow Minister raised thinking time. We recognise, of course, the practical difficulties in including such tasks, but they are worth considering to find out what might be done.
The introduction of fees for tribunals has also been raised by Members today, and we will certainly consider what we can do to recover the costs associated with the running of tribunals, but we do not think anything that we do will impede access to justice. We will also consider other ways to reduce burdens fairly and proportionately, including addressing where one person or group of people use the Act to make unrelated requests to the same public authority so frequently that it becomes an inappropriate burden.
I assure Members that whatever measures we ultimately decide to take, we will have regard to the need to reduce burdens without an excessive impact on transparency. An example of that is our decision in the post-legislative scrutiny response not to introduce new fees for answering freedom of information requests. To do so would both deter the legitimate use of the Freedom of Information Act and prove expensive for public authorities to administer.
The third key area addressed by post-legislative scrutiny was the protection afforded to highly sensitive information. The Government welcome and share the Committee’s conclusion that it was Parliament’s clear intention that the Act should protect safe space for policy formulation and Cabinet discussion. That issue has rightly been raised by my right hon. Friend the Member for Berwick-upon-Tweed, and I note his and other hon. Members’ references to the allegation of a possible chilling effect.
We agree with the Committee that the current system of protection in the Freedom of Information Act, including exemptions for the disclosure of information and the availability of the veto, has generally worked well. We share the Committee’s view that new absolute exemptions are not necessary. Although we are committed to transparency, so that any freedom of information regime can operate effectively, it is right that we keep under review the protection given to genuinely sensitive information. Effective government depends on the protection of the principle of collective responsibility and the ability of both Ministers and officials to provide advice freely, frankly and with candour.
We have announced our intention to review and, as appropriate, revise the Government’s published policy on the use of the veto. The policy is designed to assist where use of the veto is considered in respect of information that relates to Cabinet collective responsibility. However, no limitation in the Freedom of Information Act prevents the veto being used for other information. Indeed, the Government have concluded that its use was justified in other contexts on more than one occasion last year. Accordingly, we propose to consider whether the veto policy can be adapted both in terms of the process for its use and to offer greater clarity and reassurance on its ability to be used in appropriate cases that do not involve Cabinet-related information.
Other changes that we will introduce to improve the operation of the Freedom of Information Act will require a combination of primary and secondary legislation.
The whole purpose of the construct of the Act was that the final referee should be the tribunal, and that is what I think the Minister is talking about. The tribunal is now being used in a way contrary to our original understanding, which was that it was to be similar to the Supreme Court or the highest courts of appeal and look at the Government’s case when they refused information. Yet they are refusing information contrary to the tribunal’s judgment, and that is what causes concern to many commentators. As was rightly pointed out, the veto was used in a controversial case last year.
I have listened carefully to the concerns expressed by my hon. Friend and to his points. The veto has only been used six times in eight years, so it is used sparingly and carefully. The veto is a proportionate measure, which is not being used except to protect sensitive information. We have said simply that we will review and revise it, but absolutely no decisions whatever have been made yet. We will publish any revision that we intend to make later this year.
We do not intend to introduce any new absolute exemptions, but we have listened to the concerns of the research sector and have agreed to introduce a new qualified exemption for pre-publication research information, to provide additional reassurance that such material is adequately protected from inappropriate premature disclosure. We have also listened to the Information Commissioner’s concerns about the time available to bring prosecutions under section 77 of the Act, where people destroy, alter or hide information to frustrate requests. We do not think that that is a widespread problem or practice, but it is unacceptable that anyone guilty of such an offence should be able to evade prosecution because the Information Commissioner has insufficient time to investigate the case.
My right hon. Friend the Member for Berwick-upon-Tweed referred to the Information Commissioner reporting to Parliament. At the moment, we do not feel that making the Information Commissioner a parliamentary body is appropriate, because its work does not relate primarily to that of Parliament. My right hon. Friend also expressed concerns that FOI requests and internal reviews perhaps take too long to answer. We will revise the code of practice issued under section 45 of the Act to provide guidance on the time that should be taken to answer requests when the normal 20-day deadline is extended to allow for consideration of the public interest test and internal reviews. We do not believe, however, that the problem is sufficient to justify primary legislation.
The shadow Minister mentioned Network Rail, which is a matter of interest to the Ministry of Justice, the Treasury and the Department for Transport. There is no plan to extend the Act to Network Rail, but the scope of the Act will be kept under review.
The Government published our response to the Committee on 30 November. There is a great deal of work to be done over the coming months to work through the detail of our proposals and to consult where necessary. As that work is in its early stages, it is too soon to provide the further details that the shadow Minister requested this afternoon of the exact changes that we want to make, such as cost-limit and veto policy. However, I reassure him and other right hon. and hon. Members that we do not intend to waste time in taking our plans forward; they will see evidence of that in the coming months.
I am happy to write to my right hon. Friend with the exact detail about how that will be taken forward; he will hear from me shortly.
To conclude, my right hon. Friend Lord McNally said in the other place on 17 January last year that the Freedom of Information Act is
“robust enough to survive rigorous post-legislative scrutiny.”—[Official Report, House of Lords, 17 January 2012; Vol. 734, c. 548.]
The Justice Committee’s measured report on its operation, together with our response, demonstrates the accuracy of his view. As I said at the outset, the Freedom of Information Act has been a success in the accountability that it has brought. It has generally worked well. I believe that it will be further improved and will continue to make a valuable contribution to transparency and accountability.
I want to respond briefly and thank right hon. and hon. Members who have taken part in the debate. The effort that we put into the report underlines the fact that Parliament and the Government need to carry out post-legislative scrutiny—and, as I have said, the Government did indeed carry it out for the Act. That is necessary to establish whether the laws that we pass do the job for which we pass them. For years, Parliament hardly ever carried out such scrutiny, but now we do it systematically. It is a good thing, as today’s debate shows, even if the proceedings were distinguished more for their quality than their quantity, as the hon. Member for Hammersmith (Mr Slaughter) felicitously put it.
Some important points were raised in the debate. The right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), my colleague on the Select Committee, made some important points about archiving and archive practice. We shall pursue that matter because the National Archives come under the Ministry of Justice, and therefore the Committee. We shall have further discussions about some of the relevant issues when next we meet representatives of the National Archives.
The hon. Member for Aldridge-Brownhills (Sir Richard Shepherd) has been a doughty fighter for freedom in general and freedom of information in particular, and he raised some interesting points about how the provisions for private contractors can be made to work. All the examples he gave should be covered by freedom of information. The only question is whether the contracting method will work as a way of dealing with them. I am sure that he, as an experienced business man, will recognise certain difficulties: it would seem inappropriate for example, for freedom of information to apply to a company’s deliberations about whether to bid for a contract. That is the company deciding in which direction to take its private sector work. However, once it is engaged on the contract, its quality of service, the disciplinary measures that it uses to maintain that quality, and all such things are freedom of information matters. We should ensure that the contracting arrangement can cover them. If it cannot, we shall have to think again about our approach.
The whole point, though, is of course that it is about the money. For instance, when private contractors bid they would also like to know what their rivals are bidding, and the secrecy behind that process conceals true costs and is not an impetus to competition. That point was made by Tarmac in the original discussions that Rhodri Morgan had long ago in the Justice Committee’s predecessor Committee. Tarmac’s directors were advocating that they wanted their contract details and their costs—in other words, their bidding prices—to be available, because they believed that their competitors were putting in false under-bids that they could not sustain and that would fall on the public purse. That, of course, was their argument, but there are good reasons why that information should be made public.
We have also seen the implications of all that in areas such as contracting for rail franchises. However, it is a difficult balance to strike: having a healthy private sector, which can also usefully take up Government contracts, and also having a Government mechanism that properly supervises those contracts and ensures that freedom of information requirements are met. We have suggested one approach to strike that balance. We hope that it can be made to work. However, if it does not, then—as the Minister herself conceded—we will have to think again about how we satisfy that fundamental requirement in relation to public services.
My hon. Friend the Member for South Swindon (Mr Buckland) also contributed by way of an intervention, although he is sitting on a Public Bill Committee at the same time. That seems to happen to members of my Committee all the time—the Whips think that members of my Committee are especially valuable members of Public Bill Committees.
The hon. Member for Hammersmith (Mr Slaughter), the Labour Front-Bench spokesman, covered some very important points. In particular, he focused on some of the things that the Government have not yet decided. Clearly, as the Minister said, there is a lot of work still to be done. There still seems to be some uncertainty about how committed the Government are to measures that we have indicated may be difficult, but which the Government are interested in in an attempt to deal with what they see as the costs of freedom of information. We will be watching rather carefully this process of discussion that is going on from here, and I hope that the Minister will take very carefully into account all the points that have been made in this debate. On things that have a certain amount of urgency about them—I mention in particular the separate provision to protect university research—I hope that we will not find it necessary to wait for some general further measure in relation to freedom of information if other ways can be found of bringing things forward sooner.
I am most grateful to right hon. and hon. Members for taking part in this debate.
Question put and agreed to.