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Freedom of Information (Additional Public Authorities) Order 2008

Volume 702: debated on Thursday 19 June 2008

rose to move, That an humble Address be presented to Her Majesty praying that the order, laid before the House on 8 May, be annulled (SI 2008/1271).

The noble Lord said: My Lords, it may seem rather curious for a Liberal Democrat who has campaigned for freedom of information over many years to have tabled a Prayer that would annul additions to the Freedom of Information Act. I hope to explain to your Lordships’ House why I feel that this is a good opportunity to look at these additions, not to oppose them—bring them on—but to highlight the panoply of organisations providing a public service that are not in the order. To that extent, it is an inadequate order, updating what I fear is becoming a rather inadequate Act.

Let us first think about the value and categorisation that we apply to different public services. There are great institutions on which elections are fought and lost and on which our country relies to keep going, such as schools, hospitals and public transport. Perhaps Members of your Lordships’ House will be surprised to learn that in all three of those key areas there are companies and organisations that provide just such a public function whose actions, priorities, successes and failures still hide behind a cloak of secrecy.

There are some examples, such as the new academy schools, the Government’s big wheeze in education; the contractors who keep our hospitals clean or who carry out operations when the NHS cannot offer a quick service; the train operating companies, many of which effectively operate monopoly services and, of course, Network Rail. All those are outwith the terms of the Act.

There is a further area of concern, which is another issue that turns elections; our crime-fighting agencies. Whole chunks of the justice system remain enclaves of secrecy in a nascent culture of transparency. The operation of the court escort service, private prisons, immigration detention centres and even the Serious and Organised Crime Agency are outside the remit of the Act. It may seem curious to your Lordships’ House that included in the Act are such organisations as the Potato Council. I defy the Minister to explain why potatoes have to be more transparent than prisons; I find that really quite extraordinary.

Members of your Lordships’ House will also recall the curious anomaly that we encountered over the public accountability of Northern Rock when it was nationalised. The Government made strenuous efforts to exclude the bank from freedom of information legislation, even though it is wholly owned by the Treasury and therefore by the nation of taxpayers. As the order and the Explanatory Memorandum make all too clear, freedom of information legislation follows form, not function. Our right to know is predicated not on what somebody or something is doing, but on who is doing it. That is totally illogical.

I take another example. A key government contractor such as Capita carries out public functions in relation to the Criminal Records Bureau, the Driving Standards Agency, the teachers’ pensions agency, television licensing, BBC information lines and—infamously, in the context of the previous debate—congestion charging on behalf of Transport for London. All are subject to no more scrutiny than if that company were running a grocery store. These companies handle public money in pursuit of public functions. Indeed, Capita handles millions of pounds of taxpayers’ money every year, yet it has complete secrecy. I hope the Minister will be able to indicate whether the Government are now minded to bring such contractors within the purview of the Act. If they are so minded, how far have they got in deciding between the options that were enumerated in the Ministry of Justice consultation exercise that closed at the beginning of February?

For example, have the Government now ruled out the quite extraordinary prospect, suggested in Option 3 of the consultation, of simply securing contractual obligations in each case? There are surely serious questions about whether such obligations could even be investigated by the Information Commissioner. It sounds like the worst of all worlds: complexity for that contractor, which would not know where it stood, and great opacity for the public. What of the choice between Options 4 and 5 in the consultation process? Surely a single Section 5 order could never future-proof the Act, since the trend in public policy is to contract out provision of ever more services.

I suspect that when the freedom of information legislation went through this House and the other place, we did not anticipate such an extension of privatisation of services as has occurred under this Government. It was really quite unexpected. Had it been a different sort of Government, perhaps it would have been easier to anticipate this need. The Minister may not be able, this afternoon, to commit the Government to one outcome from the options put forward in the consultation, but I hope he will be able to indicate the direction in which they are heading and, crucially, that he will be able to tell noble Lords when the Ministry expects to publish its response to the consultation. After all, this has now been closed for more than four months.

The main locus of the debate on extending freedom of information is, understandably and rightly, on contractors providing public services. I hope the Minister may also be able to consider private companies which provide essential services to the public, sometimes in a monopoly situation. I take, as an example, the water industry. In Cornwall, my part of the world, people feel the pinch of their water bills more acutely than pretty much any of their other essential outgoings, except perhaps council tax. Indeed, any Member of your Lordships’ House from the south-west—and there are too few of us—knows that we pay the highest water bills in the country.

Whether one’s bills are the highest or the lowest, the local water company takes such decisions as whether to renew ageing pipe work, introduce hosepipe bans or, crucially, change how water is treated and cleaned. These are important issues about vital public services provided, practically, on a monopoly basis. All remain completely opaque, outwith the Freedom of Information Act. While electricity and gas companies are subject to some competition, there is no option to switch away from your water company if you are dissatisfied with the public service it provides. There should surely be a general principle that, if the public relies on a service and has no option to go elsewhere to obtain it, the administration of that service should be subject to full public scrutiny.

I believe in giving credit where credit is due, so there is some good news for the Government. The Freedom of Information Act has proved popular with the public. It has shone a spotlight of public scrutiny on many public bodies, and many a media story has been written as a result. That is good for democracy, even if it is a scandal that some MPs have been so reluctant to embrace the freedom of information culture themselves. Their sensitivities notwithstanding, the Information Commissioner's office found at the beginning of this year that some 80 per cent of the public felt that being able to access information held by public authorities promotes accountability and transparency. Not many government policies get 80 per cent support, so FOI has been a success, and all who campaigned for it, inside and outside Government—and we should give particular credit to Maurice Frankel and the Campaign for Freedom of Information—have every right to be proud of its achievement.

However, I hope the Minister will agree that we should not be complacent. Ministers must surely move swiftly now to close the loopholes and to make the system still more accessible to the public. After all, the third annual report on the operation of the FOI Act, which, by remarkable and delightful coincidence, came out yesterday, makes it clear that a third of requests are partially or wholly withheld. In the light of those figures, is the Minister convinced that the departmental default position, which appears to be non-disclosure, should always be to try to disclose unless there are overriding issues to be faced?

Since the number of requests fully withheld has increased steadily, if slightly, in each year since the Act was implemented, departments must be careful not to pull up the information drawbridge any further. I am thankful that the Government have consigned to the dustbin the absurd proposals we saw last year to limit FOI requests by increasing the cost of making a request. I hope the Minister will agree that this is a good opportunity to build on that constructive approach by committing unequivocally this afternoon to include, for example, the Serious Organised Crime Agency, within the provision of the Act. There cannot be any logic to its exclusion since the police and even Special Branch are already covered. Similarly, unless the Minister can think of an adequate defence for leaving academy schools outside the terms of the Act, it is surely reasonable that he should be asked to tell your Lordships' House when they will be subject to proper scrutiny.

More broadly, I wonder whether the Minister would like to touch on why the public interest test here in England is weaker than that north of the border in Scotland. Why do the Scots have a privilege that we are denied? Will the Minister consider bringing the Act into line with its Scottish counterpart? Perhaps the Minister can also take this opportunity to clarify whether the very successful present Information Commissioner is eligible for reappointment next year, when his appointment comes up for review. If he is not, why not? We know that the present commissioner's office is drastically overstretched—of course, if the Government were more open at the outset, fewer appeals would need to reach his desk. The Minister should be concerned that of the 222 appeals last year, 186—more than four in every five—were in relation to his colleagues in other departments of state.

Members of the public can wait months for their cases to be dealt with. Indeed, parliamentarians, as I know to my cost, can wait months when they put in a request on behalf of their constituents or their labours, and there is a real risk that those delays could put the hard-won public confidence in serious jeopardy. It is clearly important that the commissioner's office is properly resourced, and it is surely time to make the commissioner accountable not to Ministers, but to Parliament. I hope the Minister can touch on whether it would be appropriate to take the model of the Comptroller and Auditor-General for that purpose. Most crucially of all, I hope he will accept that it is important that the commissioner should be allowed to investigate not just bodies owned by the public through their Government but any organisation that provides a public service. If it is a public service, there is demonstrably a public interest in transparency. That is clearly a challenge to this Government and to any possible future Government. I hope that the noble Lord who will speak from the Conservative Front Bench will be able to commit his party to maintaining, not diluting, the freedom of information legislation. I look forward to hearing the Minister’s response.

We have come a long way along the freedom of information road. As public confidence in politics and political institutions has tended to wane, this is clearly no moment to stall on that movement or to turn back. We must surely press on and prove that none of our public services has anything to hide. I beg to move.

Moved, That an humble Address be presented to Her Majesty praying that the order, laid before the House on 8 May, be annulled (SI 2008/1271).—(Lord Tyler.)

My Lords, many years ago when the noble Lord, Lord Tyler, was in another place and I was where the Minister sits now, answering questions on agriculture, I was aware of the noble Lord as a thorough-going and extremely effective nuisance. He asked difficult questions on subjects such as TSE and organophosphates. It is a pleasure to find him now on the same side as me, at least on this subject.

I remember the Freedom of Information Bill coming through this House. I am delighted that this Government took it through in their first year in office; had they left it until six months later they would never have done it. Certainly they have been slow to pursue its implications and reinforce its coverage ever since. I hope that when we see the results of their review it will tend in the direction that the noble Lord, Lord Tyler, suggests. Certainly it is illogical that schools should be covered and academies should not. Their independence is merely a matter of words rather than function.

From personal experience I would also include in this such bodies as UCAS and the Higher Education Statistics Agency. They are clearly within the public sector. I have had personal experience of this and my appeals to the Information Commissioner against some universities’ refusals to provide me with information took two years to resolve—a long time—because the commissioner is underresourced. The information I was asking for, and which I have now obtained from all English universities at a cost to the public purse which must be around £10,000, has all the time been available from either UCAS or the Higher Education Statistics Agency. I have expressed myself willing to pay for it and they have refused.

This is a great waste of public money on the amour propre of some minor government agencies, just because they happen to have been left out of the Freedom of Information Act. The idea that one should have to go round schools to obtain information which the Department for Children, Schools and Families has is ridiculous. It does not happen; the DCSF is extremely helpful and responsive to freedom of information requests. Yet these outlying bits cause great cost to the public sector and great delay to me for no good reason. I hope that when we come to tidy up the Freedom of Information Act and its scope we will find that these agencies and obvious parts of the public sector are included in it.

I do not go as far as the noble Lord, Lord Tyler, in saying that the scope should go out to the fringes of privatised activity, but we should certainly think about it. I am going to listen carefully to what my noble friend on the Front Bench says, if he chooses to cover this subject. The Act should include everything that the clearly public sector does. It has been a great innovation of this Government. I am delighted that they have done it. I am grateful to them for the use I have made for it and the use I have seen made of it, and most of all in the difference it has made to the relationship between the Government and the governed. I hope they will polish it a bit.

My Lords, I very much appreciate the observation of my noble friend Lord Lucas, of Crudwell and Dingwall, that he is waiting keenly to hear what I have to say to your Lordships’ House this afternoon. However, the noble Lord, Lord Tyler, and my noble friend have covered this topic so admirably and thoroughly that they have left me very little to add.

The Opposition are entirely content with the order, as far as it goes. Should the noble Lord, Lord Tyler, choose to put this Prayer to the test, we would not support him in the Lobbies. Nevertheless, we have considerable sympathy with the concerns that he raised in his speech; indeed, they are concerns that we have raised from these Benches over the previous two or three years. I would like to hear from the Minister an explanation of the considerations that he takes into account in deciding whether to bring a matter within the scope of the Act. The order gives us an opportunity to probe him on this matter.

My noble friend Lord Lucas and the noble Lord, Lord Tyler, have mentioned the plain illogicality between the treatment of schools and the treatment of academies. I note that an organisation like the TB Advisory Group is included in the latest list, whereas there is no mention of Northern Rock. The noble Lord, Lord Tyler, quite rightly drew the Minister’s attention to the fact that a great deal of the justice sector does not fall within the scope of the Act. Equally, he drew our attention to the extremely limited way in which the Act is concerned with the public and private finance initiative.

All those matters are of great public interest; and if the Government are to exclude some of them from the Freedom of Information Act, I believe that Parliament is entitled to have a very clear explanation of the reasons why a particular matter falls within or without the scope of the Act.

My Lords, we are all deeply indebted to the noble Lord, Lord Tyler, for enabling us to have a short but, I hope, illuminating debate about the operation of the freedom of information legislation. He asked a number of fair questions about the criteria in relation to the order and went through an interesting list of organisations which he suggested ought to be included in the Act. He will know that we are undertaking a review at the moment and that, although that means I shall not answer directly some of the specific suggestions that he has made, we will be able to take account of what noble Lords have said this afternoon when considering the outcome of the consultation. The questions raised by noble Lords are perfectly reasonable.

The beauty of the framework of the legislation is that it allows for flexibility and for bodies to be added to the list covered by the legislation. That was extremely sensible and it means that one can move with the times and with new situations. While not all the organisations listed in the order might seem the most exciting of organisations, none the less, it is an example of how there is flexibility to add organisations to the list.

The noble Lord, Lord Tyler, has long been interested in—and a doughty campaigner for—freedom of information. I pay tribute to him and assure him that the Government are proud of the freedom of information legislation. We see it as a far-reaching reform to which we continue to be committed. There is no let-up in our enthusiasm for its operation. Of course there will always be legitimate reasons why some information should not be released by the Government. These matters have received a great deal of attention in relation to the Information Commissioner, the tribunal and more generally. There will continue to be cases that provoke argument and disagreement. However, the fact that this Government will find circumstances where they do not believe that information should be released does not mean that they are not committed to the principle of freedom of information. It is important that I make that clear to your Lordships this afternoon.

I have used freedom of information legislation myself. The statistics in the report published yesterday, and in previous annual reports, show clearly that many thousands of requests have been made, many have been acceded to and many members of the public, media organisations and interested bodies have benefited. It is important that we celebrate the success of freedom of information. Sometimes the controversies and the publicity have tended to obscure the success of what has been achieved.

I understand the issue raised by the noble Lord, Lord Tyler, about backlog and the role of the Information Commissioner, to whom I pay tribute. We are aware that the Information Commissioner is focusing on the backlog of cases. We have responded to his request for additional resources by increasing his funding to £5.5 million—an increase of £800,000 on the 2007-08 baseline figure. In response to the commissioner’s request for people as well as money, we have also established a scheme of secondments from central government to his office. This is already under way and it is a good thing because it is a two-way process. Staff from my department and other departments can be of assistance to the commissioner and there is also the beneficial impact, when they come back to their departments, that they help to imbue the philosophy of freedom of information more widely within government.

We are debating Section 4 of the Act. It is through Section 4 that bodies that should be subject to the Act are added to Schedule 1. Schedule 1 lists the bodies, persons and office holders that are “public authorities” under the Act. Publicly owned companies—that is, companies wholly owned by the Crown or by a Schedule 1 public authority—are also subject to the freedom of information regime. Section 5 consultation is relevant to a number of organisations to which noble Lords have referred.

However, I will start with Section 4, in response to the noble Lord, Lord Kingsland. Section 4 provides an order-making power to add bodies and office holders to the list of public authorities in Schedule 1. To be added to Schedule 1 by a Section 4 order, a body or office holder must meet both conditions set out in subsections (2) and (3) of Section 4. The first condition is that the body must be set up by the prerogative, an Act of Parliament or subordinate legislation, or by a Minister of the Crown, a government department, the Welsh Ministers, the First Minister for Wales or the Welsh Assembly Government’s Counsel General. The second condition is that bodies must have been wholly or partially constituted by appointment made by the Crown, a Minister of the Crown, a government department, the Welsh Ministers, the First Minister for Wales or the Welsh Assembly Government’s Counsel General. Similar provisions exist in respect of appointments to an office.

What are the criteria for adding or deleting? Inevitably, new bodies and offices come into existence or become defunct with the passage of time. It is therefore important that the Act is kept up to date. Between 2002 and 2005, the Government made several Section 4 orders and we intend to make more in the future to ensure that Schedule 1 remains up to date. There is no reluctance on the part of the Government to add to the number of organisations that are covered by Section 4 when those organisations meet the criteria. The simple answer to the question posed is that, if new organisations come along that meet the criteria, we will consider them and add them to the list.

Section 5 allows the Secretary of State to designate by order persons who appear to him either to exercise functions of a public nature or to provide under contract to a public authority services that are a function of that public authority. The Government published a consultation paper in October 2007 seeking views on whether this power should be used. The noble Lord, Lord Tyler, is right to say that the consultation has now closed. We received 130 responses. They are being analysed and we will present our response and proposals as soon as possible. I know that the noble Lord is tempted to ask me to define “as soon as possible”. He will know that my department is energetic and will produce the response and proposals as quickly as we possibly can, but there are issues that will need to be considered. Lots of organisations could be involved. The fact that we have not published yet means that today’s debate can be fed into the consultation. The speeches of the noble Lord and other noble Lords have proved to be of such great value that they are a bonus to the full consideration that my department is giving to these matters.

I completely understand the point that the noble Lord, Lord Tyler, makes about academy schools and some of the organisations that have been listed. These are the very matters that will be considered as a result of that work. As I said, we will consider them very carefully.

On the organisations involved in criminal investigations, my understanding is that SOCA, which the noble Lord, Lord Tyler, mentioned, is exempt from coverage as a security body. That is consistent with Parliament’s treatment of the security services, secret intelligence services and GCHQ. I understand, although I was not involved, that this matter was debated when the Bill went through both Houses. Information provided by security bodies is exempt under Section 23 of the Act. The noble Lord probably does not agree with the philosophy behind it, but that explains why such organisations are not covered.

The noble Lord, Lord Tyler, asked me about Network Rail. I have two answers. If one looks at its structure, one sees that it is a privately owned company that operates on commercial principles. Its main customers are not public authorities but train operating companies and freight operating companies. Interestingly, in July 2007 the Information Commissioner found that the structure, functions and accountability of Network Rail were unusual. The tribunal disagreed, however, with the Information Commissioner’s view that Network Rail was a public authority for this purpose on the basis that its functions were not functions of public administration. Because of that it is much more appropriate to consider whether bodies such as Network Rail should be subject to the provisions of the Act and embraced within the current consideration of Section 5. I would not like the noble Lord to think that Network Rail has simply been swept aside. Consideration is being given to it. I understand the point the noble Lord is making and we had an interesting discussion in Oral Questions this afternoon on the remuneration of directors when Members of your Lordships’ House were able to ask questions in relation to the structure of that organisation.

As for Northern Rock, the Freedom of Information Act applies to publicly owned companies by virtue of Sections 3 and 6. Under the Northern Rock plc Transfer Order 2008 made under the Banking (Special Provisions) Act 2008, Northern Rock is expressly removed from the scope of the Freedom of Information Act. The noble Lord may ask why. Bodies covered by the Freedom of Information Act generally discharge functions of a public nature. Criteria which might be taken into account in determining this include the extent to which a body’s activities are underpinned by statute and whether the body exercises extensive or monopolistic powers. Northern Rock fulfils neither of these criteria and will not be carrying out public functions. Northern Rock will remain a commercial bank. The Act was not intended to apply to purely commercial concerns and therefore it is considered inappropriate for Northern Rock to be within the scope of the Act. Government Statements have made it clear that nationalisation would be only temporary and we think it would therefore be perverse for Northern Rock to be subject to the Act for a limited period of time only for it to be removed on reprivatisation.

As the noble Lord agonises as to whether he is going to pursue this matter to a vote, I say to him that there will always be debate and argument about organisations which do not comfortably fit into Section 4 but come more into Section 5, and the extent to which they should be covered. When we see the outcome of the consultation, noble Lords will have a better understanding of the criteria we are adopting. I assure the noble Lord, Lord Tyler, that we see the Freedom of Information Act as a living, breathing organism which is subject to amendment by having organisations to be covered added to it. I hope that he will accept that, although he is disappointed that the outcome of the consultation is not yet apparent, we are enthusiastic in what we do, as the Prime Minister very clearly signalled when he announced the consultation last autumn, and that the points raised by noble Lords, all of which were entirely legitimate, will be very carefully considered.

My Lords, I am very grateful to the Minister and to other noble Lords for their contributions to this short debate. I am in the unaccustomed position of reeling from the compliments paid. I never had any compliments paid at the other end of this building, except when I left. Being told by the Minister that I am a doughty campaigner is only outshone by being accused by the noble Lord, Lord Lucas, of being a thorough-going and effective nuisance. I take that as the greatest possible compliment and I am very grateful to him.

It will not surprise noble Lords to hear that this is, if I may use the term, a probing Prayer. That does not sound very proper in liturgical terms but I think it is all right in this House. I do not intend, the noble Lord, Lord Kingsland, may be surprised to hear, to push this to a Division, but I am genuinely grateful to the Minister because I think this has proved timely. In his amazingly emollient way, he gives the impression that the Government have deliberately postponed the outcome of the review that was referred to until we had the opportunity of this debate. I take that at face value, knowing how well he can present any case in this House.

The Minister has been very helpful to your Lordships’ House, not least in his reference to monopolistic public services, because a number of the issues that we have addressed fall into that category. If that moves the Government towards considering function rather than form, that would be extremely helpful. The reference to the two sections of the Act was also helpful in that respect.

This has been a useful debate. I am extremely grateful to the Minister and to both noble Lords who have contributed. I take pride in the fact that many of us on all sides of this House and the other place, as well as others, in particular Maurice Frankel of the Campaign for Freedom of Information, who was for a long period a voice crying in the wilderness, were able to achieve success. On that basis, I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.

House adjourned at 5.01 pm.