Oral Answers to Questions

Lord Beith Excerpts

Tuesday 5th February 2013 Commons Chamber

[Chris Grayling]

Let us be clear about why we are doing this: reoffending rates in this country have barely changed in 10 years, and it is not true to say that we are getting the kind of performance across the probation service that the hon. Lady suggests. There is good work being done in the probation service, in the voluntary sector and in the private sector, and my aim is to have a package of proposals that brings to bear the strengths of all three in reducing reoffending rates.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

Why have the Government come up with the idea that the commissioning of probation services should be done by a national body, rather than a local or regional one, given that that undermines the way in which local bodies concerned with preventing crime can work together and the ability of local and regional voluntary sector organisations to take part?

[Chris Grayling]

There are two reasons. First, we do not believe that the expertise exists on a localised basis to procure payment by results in an ambitious way—the kind we are proposing. Secondly, many probation trust management teams are enthusiastic about being part of the contracted-out world themselves, so I hope and expect that we will see some of them forming partnerships and creating new bodies that will take the service forward.

Freedom of Information

Lord Beith Excerpts

Thursday 24th January 2013 Westminster Hall

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

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.

[Mr Robert Buckland (South Swindon) (Con)]

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.

[Sir Alan Beith]

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.

[Mr Buckland]

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.

[Sir Alan Beith]

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.

--- Later in debate ---

On resuming—

[Sir Alan Beith]

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.

[Mr Philip Hollobone (in the Chair)]

Thank you, Sir Alan, for that point of order. The Clerk made us aware of the Division, but I will ensure that your comments are relayed to the appropriate authorities.

[Mr Llwyd]

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.

[Sir Alan Beith]

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.

[Mr Llwyd]

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”

in future

“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.

--- Later in debate ---

[Mr Andy Slaughter (Hammersmith) (Lab)]

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—

[Sir Alan Beith]

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.

[Mr Slaughter]

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.

--- Later in debate ---

[Mrs Grant]

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.

[Sir Alan Beith]

One thing that does not need to be tied in heavily with all the other things that the Minister is considering is the provision on university research. How does she hope to take that forward?

[Mrs Grant]

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.

[Sir Alan Beith]

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.

[Sir Richard Shepherd]

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.

[Sir Alan Beith]

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.

Transforming Rehabilitation

Lord Beith Excerpts

Wednesday 9th January 2013 Commons Chamber

[Chris Grayling]

The simple answer to the latter point is that responsibility will continue to lie with the public probation service and, ultimately, the Secretary of State. The right hon. Gentleman and I know that in any system with a rate of reoffending there will be further crimes, whether a public, private or voluntary sector provider does the work. I want to ensure that the level of reoffending continues to go down and that we try every means at our disposal. The payment-by-results regime opens the way to innovation to ensure that we do the best possible job in ensuring that people do not reoffend.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

Although I understand the Secretary of State’s enthusiasm for getting on with the job without waiting for more pilots, a decision that some of his advisers might have called courageous, may I ask him to pay particular personal attention to ensuring that charities and voluntary organisations with a track record are not crowded out by how contracts are let? Will he also consider whether he should expand the role of the chief inspector of probation so that quality control over the whole of the provision is maintained?

[Chris Grayling]

The latter point is an important one and I rather agree with my right hon. Friend on that. I look forward to having discussions with him and his Committee about it. I am also strongly supportive of the voluntary sector. It is simply not the case, even though the Opposition keep saying that it is, that the voluntary sector is not involved in the Work programme. That programme supports well over 100,000 people in the voluntary sector, using the real expertise of small and larger organisations such as the Papworth Trust and the Salvation Army. I want to see more of that in this process.

Oral Answers to Questions

Lord Beith Excerpts

Tuesday 18th December 2012 Commons Chamber

[Chris Grayling]

I do not accept the hon. Gentleman’s comments about the Work programme. About 200,000 people who were long-term unemployed have started work through that programme. The Labour party has been utterly disingenuous in how it has argued around the figures. There are people with first-rate expertise out there, particularly in the voluntary sector. I will be seeing such people tomorrow to talk about how we can help offenders participate. Those people can bring real expertise to make sure that reoffending rates, which are much too high, come down.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

When are the Government going to produce a strategy on dealing with women offenders and reoffending by women?

[Chris Grayling]

Our aim is to do so early in the new year, but we do not want to rush it. I recognise that there is a need to differentiate the needs of women in prison from those of men in prison. The challenges are different and our responses should be different. One of my early steps in recognising that was to separate ministerial responsibility for men and women in prisons so that we could place a proper focus on the latter and their distinctive needs.

Voting Eligibility (Prisoners)

Lord Beith Excerpts

Thursday 22nd November 2012 Commons Chamber

[Mr Speaker]

Order. There is much interest in the statement, and I am keen to accommodate it, but I remind the House that there is a further piece of business within the hands of the Government to follow, and then three pieces of business under the auspices of the Backbench Business Committee, the last of which, in particular, is very heavily subscribed. I am keen to accommodate the interest, but I appeal to colleagues to help me to help them, and that is done through brevity.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

If the House agrees to the establishment of a Joint Committee, should not that Committee consider other options, such as restoring voting rights only in the last stages of a sentence? What makes me feel sick is the thought either of criminals cashing in from compensation because we have not sorted this out, or of Britain using the same arguments against international human rights jurisdictions as states with truly appalling human rights records.

[Chris Grayling]

Let me say in answer to the right hon. Gentleman’s question about the different options that it will be for the Committee to decide whether there are other elements that it wishes to see in a Bill. We have tried to put together a simple framework within which consultation and discussion can take place. That will undoubtedly involve considering whether there are other options, in terms of either the scope of the Bill or some of the operational issues that underpin it.

As for the right hon. Gentleman’s point about other countries, I must make clear that I do not equate a legitimate democratic debate about these matters in this democratic House of Parliament with some of the extraordinary abuses of human rights that we have seen elsewhere in the past, and all too often today. These are very different issues.

Oral Answers to Questions

Lord Beith Excerpts

Tuesday 13th November 2012 Commons Chamber

[Chris Grayling]

We will continue to do everything we can to improve the process in both Departments. I am absolutely clear that we want to get the appeals process right, both in the tribunals service and in Jobcentre Plus, where we have introduced a mandatory reconsideration process. Ultimately, the reason we are doing all that is that there are large numbers of people out there who can return to work and make a better lot of their lives, which we want to help them to do, but unless we have a reassessment process, we will never find those people to deliver that help to.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

Does the prisons Minister realise that staff at HM Prison Northumberland, who have successfully merged two prisons and earned a positive report from the inspector, are sickened and infuriated that the public sector bid will not go through to the final market testing round because of promises from private sector providers that the Department might lack the capacity to verify?

[Jeremy Wright]

I understand the disappointment that will be felt by those who put in the public sector bid at HM Prison Northumberland but, as I have explained to my right hon. Friend, the difficulty is that the difference between the public sector bid and those we are taking forward to the next round of the competition was substantial, and it would not have been responsible to ignore that gap. However, I also say to him that this is a two-stage process. It will be important that the Government are satisfied that those who go through to the next round of the competition have the capacity to deliver what they say they can deliver, and we will look carefully at the bids in that context.

Oral Answers to Questions

Lord Beith Excerpts

Tuesday 18th September 2012 Commons Chamber

[Chris Grayling]

Given my last job and my current job, I am probably pretty well positioned to ensure that the two Departments work closely together. I strongly believe in the linkage between the rehabilitation of offenders and work to try to get former offenders into employment, and I can assure the hon. Gentleman that the two Departments will work closely together to achieve that goal.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

On behalf of the Select Committee on Justice, may I welcome the Secretary of State and Lord Chancellor to his office and wish him well?

Does the right hon. Gentleman recognise that he is responsible for spending a lot of public money to ensure that people who come out of prison are effectively managed and assisted so that they give up on crime, and that we use prison for those for whom it is necessary, but use other means to get other people away from crime?

[Chris Grayling]

I am grateful to the right hon. Gentleman for his kind words of welcome. I look forward to having many dealings with his Committee, and no doubt some sharp questioning. Let me assure him that I view rehabilitation very much as a significant element of our criminal justice system. It will be a major theme of the work I do at the Ministry of Justice. Although people may have to go to prison in recognition of the offences they have committed, it is absolutely right and proper that we should do everything we possibly can to ensure that they do not go back.

Oral Answers to Questions

Lord Beith Excerpts

Tuesday 3rd July 2012 Commons Chamber

[Mr Blunt]

There are no immediate proposals to change the release test. In March, there were 3,500 IPP prisoners serving beyond their tariff, a result of the administrative chaos that followed the unwise introduction of the sentence, with wholly unforeseen numbers being given such a sentence. I draw the hon. Gentleman’s attention to the fact that, in addition to the measures I have outlined, violent offender orders and sex offending prevention orders will be available to the courts to use for public protection.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

Does my hon. Friend agree that the use of indeterminate sentences for prisoners who would otherwise have received relatively short sentences, far from enhancing public safety consumes resources in the prison system that are desperately needed for effective rehabilitation and stopping reoffending?

[Mr Blunt]

My right hon. Friend is absolutely right: such sentences consume substantial resources, not just in the offender management system but in the Parole Board and elsewhere. The prison system was having to manage a potential future disaster in the ever-increasing number of indeterminate sentence prisoners. We have finally got a grip on the problem and are now addressing it.

Family Courts

Lord Beith Excerpts

Thursday 24th May 2012 Westminster Hall

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

It is a pleasure to serve under your chairmanship, Mrs Osborne.

Few though we are in number today—it is the last day of term and there is a debate under way in the main Chamber at the same time—we are here to consider the report that the Select Committee on Justice published in June 2011, and to hear an update from the Minister, who I am glad to see in his place. The Committee’s report, “Operation of the Family Courts”, followed the publication of the family justice review’s interim report that rejected the introduction of a shared parenting presumption; proposed a legislative statement reinforcing the importance of the child having a meaningful relationship with both parents; recommended a new statutory time limit of six months in care and supervision cases; and proposed a fundamental restructuring of the family court system through the creation of a family justice service.

The Justice Committee broadly welcomed the review’s approach, although we remained neutral on the creation of a family justice service, because at that stage the evidence of how it would be constructed was limited. The Norgrove review final report was published in November 2011, and the Government’s response to it was published in February 2012. All three—the Norgrove review, the Justice Committee and the Government—considered a number of main themes: the underpinning principles, including shared parenting if it is a relevant concept; the use and promotion of mediation; the Children and Family Court Advisory and Support Service; the family court system; the use of expert witnesses; and media access to family court hearings. I will deal with them in that order.

This is a timely debate, because on 9 May, the Government announced their intention to introduce a children and families Bill in early 2013. There will be an opportunity for the Committee to undertake pre-legislative scrutiny of draft clauses before the formal introduction of the Bill. If the state in the form of the judiciary— the court system—is going to intervene in family relationships, or if the state in the form of the protection authorities is going to do so, it must promote and protect children’s safety and well-being. The family justice system considers cases ranging from the separation of a couple where the unresolved issues may be financial, to public law cases that may involve physical, sexual or emotional child abuse. In the most serious cases, a child’s life may be at risk, as we know from some chilling cases in the past few years.

In March 2010, there were 46,709 children on the child protection register because they were thought to be at risk of abuse or neglect. Private law actions deal with the consequences of relationship breakdown. Public law actions are brought by local authorities for child protection purposes. Both types of case can involve highly contested views and a great deal of emotion that is difficult to channel in the courtroom and which often makes the judicial procedures seem remote from, or inappropriate to, the circumstances being dealt with. The Ministry’s judicial and court statistics tell us that in 2009 there were 163,000 court cases involving children, of which 137,000—I am rounding the figures—were private law cases and approximately 26,000 were public law cases. We received evidence about both kinds of case.

Throughout our inquiry, the Committee found it difficult to form a clear picture of trends and changes in the family justice system because of flaws in the compilation of data. We recommended the creation of a robust evidence base for the formation and scrutiny of policy. The Committee is concerned that major changes to the system are being undertaken when there have been such gaps in the evidence base. I know that Ministers and the permanent secretary—we congratulate him on his forthcoming appointment as head of the European Bank for Reconstruction and Development—have sought to improve the quality of financial and outcome data in the Ministry of Justice. This is a major issue in the Ministry of Justice and it is being addressed, but we felt that in this area, as in others, the evidence base was not there for some of the conclusions that were being drawn. We asked the Government to report back to us, which they did to some extent in their response to the Norgrove review. Indeed, they commissioned work from one of our special advisers, Professor Judith Masson. However, this issue needs to be watched carefully and we will do so.

On the underpinning principles, the Children Act 1989 introduced three principles: the child’s welfare shall be the court’s paramount consideration; parents share not rights, but responsibilities; and in any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child. The evidence before the Committee showed that courts rarely deny contact between child and parent. The majority of applications resulting in no contact are applications that have been abandoned by the applicant parent. This is an emotive issue that has led to some intensive campaigning—some of which has been proper; some rather less commendable in its methods—on important issues.

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

I congratulate the right hon. Gentleman on the contents of the report. As a member of the Justice Committee, I am aware of his wise counsel to all of us in the preparation of the report. Does he share my concern that the concept of shared parenting is gaining traction in government, particularly as we have seen international comparators—Australia is one such country—where it had been tried and failed abjectly? Its adoption would surely undermine the paramountcy principle to which the right hon. Gentleman referred.

--- Later in debate ---

[Sir Alan Beith]

The right hon. Gentleman, who is an extremely valued member of the Justice Committee, anticipates what I am going to say. He is right to say that we looked at evidence from Australia and were very concerned by what it showed. To us it seemed obvious that a court would realise, without having to be told, that it is in the interest of the child, as far as possible, to maintain a relationship with both parents. Once some kind of shared parenting provision is embodied, we are moving away from the principle that the court starts with—that the welfare of the child is of paramount consideration. Paramountcy does not sit easily with additional presumptions or additional qualifications, and the Australian experience underlined that. Our report states:

“The Panel itself admits that such a statement is not intended to change the law but believes it could ‘guide’ parents who are splitting up. In our view it is obvious to the court that a child deserves a loving, caring relationship with both his or her mother and father. A statement which might be taken to qualify the principle that the best interests of the child must prevail could give the impression of a change in the law and could cause confusion.”

We referred to the evidence from Australia that

“the ‘shared parenting’ approach had not only confused parties about how the “best interests of the child” test should operate, but can encourage a more litigious approach by parents in private law cases. This is in direct opposition to the greater emphasis on mediation and out-of-court agreement…which both the Government and the Family Justice Panel are pursuing.”

The shared parenting presumption would be a dangerous road to go down. It would be a legal requirement for the courts to consider making orders for children to spend equal or substantial and significant time with each parent, unless that is not in the child’s best interests or reasonably practicable. Doing that would further extend the present profoundly unsatisfactory situation in which a court tries to decide whether a child should be with one or other parent on the Friday night, or whether the child is free to make their own choice to go to scouts or guides, or to a youth group in a different town from the one they are being told to go to. That would become much worse if the shared parenting principle were applied.

The alternative gaining some traction in government, as the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) said—it varies depending on which bit of Government you inquire of: that is not a statement about parties; it is a statement about individuals—is a legislative statement enshrined in legislation, reinforcing the importance of the child having a meaningful relationship with both parents, alongside the need to protect the child from harm. However, that undermines the paramountcy of the interests of the child.

When we considered the Australian experience in more detail, we found that it was mirrored by some evidence from home, which showed that the England and Wales court system does not always ensure that judges have relevant evidence in front of them relating to safety fears and violence towards a child or partner, or even relating to proceedings in another court, such as non-molestation orders or criminal proceedings, and that judges may not give appropriate weight to such evidence. Research shows that high levels of domestic violence exist in private law cases that reach court, and it is in such cases that the legislative statement is likely to have an impact.

In Australia, the presumption caused confusion and was misunderstood as mandating or entitling parents to shared care—it did not do that, but it was misunderstood as doing so by quite a lot of people—and caused concern that the child’s interests were not considered to the extent that they should be and were not paramount. In some cases, the presumption seemed to lead to parents being less willing to negotiate and resolve arguments over child contact outside the court.

We concluded that the child’s well-being must be the paramount aim and objective of the family courts and the “best interests of the child” test should remain the sole test. The Norgrove review came to the same conclusions. Because different people interpret shared parenting differently, legislating for it gives the impression of parental rights to a particular amount of time with a child and takes away the focus from the child’s well-being—the child’s rights.

We disagreed with the proposal for the legislative statement in the Norgrove review’s interim report, but paragraph 61 of the Government response says that there

“should be a legislative statement of the importance of children having an ongoing relationship with both their parents…where that is safe, and in the child’s best interests.”

The Government state that they are

“mindful of the lessons which must be learnt from the Australian experience”

and their stated aim is that the

“presumption of shared parenting will…enhance the prospect of an agreement between parents”.

The Government stated that the legislative statement will not disturb the “best interests of the child” test. It is unclear to the Committee how this can be achieved. I remain concerned that the introduction of a statement will lead to confusion and would take greater prominence than the current best interests tests.

We share the Government’s concern about early intervention, which is another important issue, not only in relation to our specific work on family justice, but much more generally, because the circumstances in which children and young people become involved in offending behaviour can develop as a result of many public and private law cases, so there is massive public interest in trying to ensure that the right advice gets to the right people at the right time.

We mentioned the signposting of advice and contact opportunities and said:

“There is no point in referring parents to services which have no capacity to cope with additional demand. However, we know that resources are scarce and that it is unrealistic to make demands for widespread increased Government spending in the current climate.”

We noted the Government’s ideas about the big society bank, or Big Society Capital as it is now called, as

“a potential source of capital for charities”

and called on them

“to confirm that such bodies which provide early intervention for families which need assistance would…be eligible for such capital”.

That related to a previous Committee report on justice reinvestment, which made the case for more funding to be spent on early intervention, with eventual consequential reductions in expensive prison places. We cannot go on as a society pouring money into an ever-expanding prison system. We would be much more likely to reduce crime if we used some of those resources at the stages that we are talking about here, when family breakdown takes place. I think the Government agree with us in principle and I should like to hear that they are making progress.

Courts are unsuited to resolving the kinds of highly emotive disputes that can arise in family cases and there are circumstances in which the authority of the court to resolve the dispute is rarely recognised by both parties. Such cases are charged with emotion and mistrust. Mediation is a better route to follow in a large proportion of cases. There is clear evidence that mediation can be effective, with a high proportion of parties reaching agreement or narrowing the issues in dispute. There will always be a hard core of cases where mediation is not appropriate and provision must be maintained for these.

I welcome the Norgrove review recommendation that mediators should meet the current requirements set by the Legal Services Commission. However, in the mediation process it is vital that the Government should ensure that the voice of the child is heard. The child is not a commodity to be negotiated over, as in a property case, but the person to whom the proceedings are most important. We look to the Government to ensure that mediators understand that and exercise that responsibility.

There is a history to our consideration of CAFCASS. The severe but necessary criticisms of CAFCASS by our predecessor Committee, as long ago as 2003, led to the resignation or removal of the entire board. In our recent report, we called on the family justice review to address directly the future structure of CAFCASS. I welcome the recommendation that CAFCASS be made part of the proposed new family justice service. We said that that would be a first step, but only a first step; in itself, it will not be enough:

“It needs to be the first step in a series of reforms designed to transform Cafcass into a less process-driven, more child-focused, and integral part of the family justice system.”

We recognise that CAFCASS operates within a cash-limited system, but it has to be able to deliver a timely, consistent service to all children—regardless of changes in the volume of cases, over which it does not have control. We welcomed CAFCASS’s recent progress in reducing the number of unallocated cases. We shared the Public Accounts Committee’s concerns about CAFCASS’s ability to sustain its progress when there was no sign of a future fall in the number of care applications. We were concerned to ensure that CAFCASS became refocused on the best interests of the child. There needs to be a safe minimum level of service during this period of difficulty when there is an increased number of cases.

We were concerned about the amount of time that CAFCASS officers spend with children, which we felt was too low—unacceptably low—in the longer term. CAFCASS officers agree with us; they want to spend more time with children, and this should be facilitated. That is consistent with what the Government are trying to do about giving police officers and other professional public servants time to do the job.

The Government intend to transfer the sponsorship of CAFCASS from the Department for Education to the Ministry of Justice. That has been out of our terms of reference for a while; when our predecessor Committee reported on it, it was a Lord Chancellor’s Department function, then it went off to the Department for Children, Schools and Families. The Government now propose to return it, which is logical, because CAFCASS’s work is close to the courts and it ought to be an integral part of the family justice system, with a strong voice within that system to champion children in the courts. However, I am afraid that the history of CAFCASS is one of inadequacy. It must continue to improve and be seen to improve by participants.

I turn now to delays in case management in the family court system. Delay, to a child, has massive consequences. Two parties to a commercial dispute may be inconvenienced by delay, but a child whose case waits for months or years is losing crucial years of contact, bonding and personal development—all the things that we take for granted, but which are completely disrupted by delay.

Delay is endemic and rising. The average case took 53 weeks in 2010, although the Children Act target is 12 weeks. The Norgrove review suggests that the average case took 60 weeks. Witnesses suggested to the Committee various causes of delay, including fixed and limited resources—not just financial resources, but sitting days available to use courts for family court business, for example, as Mr Justice Ryder mentioned—the slow speed of CAFCASS reports, which the National Society for the Prevention of Cruelty to Children told us about, along with insufficient numbers of experts of sufficient quality. I shall return to the issue of experts.

Other causes of delay were variations in the quality of case management by the judiciary, to which Sir Nicholas Wall referred, and a lack of trust between social workers, the judiciary, CAFCASS and the parties, leading to repeated adjournments to seek further evidence, to which the Public Accounts Committee referred in its report. Barnardo’s, commenting on public law cases, told us that the impact of delay on children’s ability to form relationships was harmful and long-term:

“Two months of delay in making decisions in the best interest of a child equates to one per cent of childhood that cannot be restored”.

The potential outcome of cases can be prejudiced. The opportunity to have an outcome that is in the best interests of the child is often lost by delay. By the end of the process, options that might have been available are no longer available, and are thought by the courts to be no longer available, perhaps because of the time that has elapsed since the child has had contact with one of the partners. That is a profoundly unsatisfactory state of affairs. The Norgrove review recommended the introduction of a statutory six-month time limit for the completion of care cases, which I understand the Government support. I welcome the intention, but will it happen? Is it enforceable? I would like to hear the Government’s thinking.

A related topic is judicial continuity—the same judge. Having the same judge manage and hear a case not only allows for effective case management and efficient use of judicial time, but is an important signal to parties, above all to the children, that their case is being treated with the respect that they deserve; they can establish more clearly who the authority figure in the situation is. We welcome the president of the family division’s recognition of the issue and his willingness to reconsider how things are often dealt with at the moment.

On litigants in person, the Ministry of Justice told us that the number of unrepresented litigants in the family courts was “significant” but it did not know how many—to go back to the issue of data, which I mentioned earlier. During the course of our inquiry, the Government consulted on and legislated on legal aid for family law cases, ending it except for those involving domestic violence—in certain limited categories—or if mediation was to be facilitated. The Ministry estimated that at least 210,000 cases would no longer be eligible for legal aid, such as cases in which the presence of legal aid on one side created an inequality between the parties, and they may include cases that do not involve children.

The Government believe that the removal of legal aid will force more litigants into alternative dispute resolution, which some people will no doubt use—I certainly hope so—but it is inevitable that the number of litigants in person will increase. It is self-evident that many parents are unlikely to give up applications for contact, residence or maintenance simply because they have no access to public funding.

[Mr Llwyd]

The point touched on by the right hon. Gentleman was reinforced by Sir Nicholas Wall, the president of the family division, who said that parents were not likely to pack up simply because they do not have legal aid. I did a full residence and contact case two years ago in which, at the last minute, the applicant sacked his solicitors and appeared in person. The hearing was down for three days but lasted seven. That, I am afraid, is a typical story and any reform of the family courts not predicated on that very fact will be utterly unworkable.

Finally, I apologise to the right hon. Gentleman, to you, Mrs Osborne, and to both Front Benchers that I shall not be present at the conclusion of the debate, because I must leave shortly. I am pleased to have made a brief contribution.

[Sir Alan Beith]

The right hon. Gentleman has already told me about the event he has this evening, which I understand that he must attend, so I fully accept his apology. He brings considerable court experience to our proceedings, as is evident from his interventions. He is right that in some cases the litigant in person is difficult and does not fit easily with courts. The very fact that that was someone who had legal advice and then sacked the legal advisers illustrates the kind of problems with litigants in person often seen by the courts.

I fully recognise the difficulty, but we must ask to what extent the ordinary taxpayer, going about his or her life in an economical and sensible way, should fund the legal proceedings of those who choose to do battle in the courts over separation, divorce and financial settlement. The state must get involved if the interests of the children require it—that is part of what I am saying—but neither I nor, I think, the Committee as a whole believe that we can write a blank cheque for a system of legal representation that is not in practice the best way to resolve a large number of the cases. Legal aid is necessary in some difficult cases, but I look on the situation as a non-lawyer and I see a lot of money being spent to hire two people to argue for a long time over the affairs of a child who seems distant and removed from the proceedings.

The right hon. Gentleman is right that non-lawyers accessing the family courts can find the process confusing, frustrating and baffling, and we welcome the Government review of the available support system. The courts will need to become more attuned to dealing with parties representing themselves and to develop clearer procedures and guidance. A heavy responsibility rests on the court system—not only the family courts—to facilitate that.

I turn to the use of expert witnesses. A fairly commonly held view is that many cases have too many expert reports. We noted the Minister’s comments that greater use could be made of non-expert witnesses, such as foster carers—although they have a distinct role and can provide valuable information—but in some cases there is a genuine need for expertise.

The Norgrove review recommended that expert evidence should be used only when that information was not available and could not properly be made available from the parties already involved. The review also recommended making judges responsible for instructing expert witnesses, rather than legal advisers, in order to control the scope of questions and, further, that agreed quality standards for experts in the family courts should be developed, with criteria including adherence to set time scales, membership of appropriate professional bodies and completion of specified court-focused training, peer review and continuing professional development. I understand that the Government agree with those recommendations, and so do I; perhaps the Minister can confirm how the Government will proceed.

On the access of the media to family court hearings, the witnesses who appeared before our Committee were unanimous in opposing implementation of the scheme legislated for in part 2 of the Children, Schools and Families Act 2010. There are clearly dangers to justice and to the perception of justice when courts operate in secret. The aim of ensuring that secrecy does not cause injustice or the perception of injustice to children is important, but the Act was not well thought through and went through Parliament in some haste, so there was a failure to take account of the views of children. I speak as someone who wanted more openness in the family courts.

Research shows that a clear majority of children are opposed to any details of their case being reported. Children fear being identified and bullied, and consider the details of their families and the ordeals that they have undergone to be private. Children must not be inhibited from giving vital information to family justice professionals for fear of being reported by the media. I therefore support the decision not to proceed with that piece of legislation, but that does not preclude anonymous judgments and must not be allowed to conceal from wider scrutiny the principles on which decisions are taken in the family courts or to cover up systemic failures on the part of public authorities. I welcome the Government’s acknowledgment that the current legislation is flawed, but the Ministry of Justice must try again.

Those are some of the issues brought out in our report, which are important as we proceed with the reform of the family courts, consistent with the Secretary of State’s broad objectives to make the courts serve their customers properly. Our recommendations need to be dealt with in order to have a family court system that serves the most important customer best.

The most important customer of the family court system is the child, who is either the subject of public law proceedings and may be taken away from their family—perhaps for a good reason, perhaps for a less compelling reason—or is in a family that is breaking up. The child’s complex interests and development may be profoundly affected and set back by wrong decisions and by slow and delaying processes in which they are not heard. Those are difficult challenges, but we must get them right—not only because we owe that to children, but because the future health of our society depends on getting them right.

--- Later in debate ---

[Mr Djanogly]

I will come back to my hon. Friend on that point.

We wish to see a stronger, clearer role for judges in setting a timetable for family cases and ensuring that those cases are managed and completed in a timely and efficient manner. The judiciary are therefore key partners in all of this work. I have had a number of conversations with Mr Justice Ryder, the judge in charge of modernisation, about our reform plans. I am pleased to report that we are working closely with the judiciary, with full regard to their judicial independence. For example, we have already established the Family Business Authority. It brings together the family judiciary and the administration in a decision-making forum. The group takes a strategic look at the family jurisdiction and is well placed to support the modernisation of family justice.

On private law disputes, there were very few points of difference between the Government and the family justice review panel, but there was one on the issue of shared parenting. The Justice Committee has taken a close interest in that, and the Under-Secretary of State for Education, the hon. Member for East Worthing and Shoreham (Tim Loughton), and I will give evidence next month to the Committee on the Government’s position. A ministerial working group has been looking at it and has met three times. We intend to consult shortly on options for legislation.

We need to send a clear message to parents that in the absence of any welfare concerns both should be involved in their child’s upbringing. Without pre-empting the consultation, I should like to make it clear that nothing we propose will undermine the existing principle that the welfare of the child is the court’s paramount consideration. Safety will remain an important factor. In answer to points raised by my right hon. Friend the Member for Berwick-upon-Tweed and the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), our proposed amendment to the Children Act 1989 will send a clear signal to separated parents that courts will take into account the principle that both should continue to be actively involved in their children’s lives. In doing so, it will help to dispel the perception that there is an inbuilt legal bias towards one parent. There is a real feeling among many people that that is the case, which results in a mistrust of the family justice system.

The proposed amendment will encourage more separated parents to resolve their disputes out of court and agree care arrangements that fully involve both parents. An obstructive parent seeking to frustrate contact between the child and his or her other parent should not be able to use the court system to legitimise such activity without good reason.

[Sir Alan Beith]

rose—

[Mr Djanogly]

I will just finish this point. This change is not about equality in the time that a child spends with each parent after separation. Every family and every child’s circumstances are different and the courts will continue to make decisions on that basis.

--- Later in debate ---

[Sir Alan Beith]

There have been quite intensive discussions about this issue in government. In trying to use the law as a signal, there is a danger that the courts will be obliged to take into account a further element of complexity when making a judgment. The signal that it gives some parents in dispute may be that there is another point on which they can engage the court in order to keep the case going. It is more likely to do that than to give a signal to parents about what they themselves should do.

[Mr Djanogly]

The right hon. Gentleman makes a fair point. This was what came up in Australia. The Government have looked carefully at the lessons of the Australian experience of legislating in this area, which was highlighted by the family justice review. Direct comparisons with the experience in Australia are misleading; it is certainly not our intention to mirror the structure of the Australian legislation or to create new layers of complexity in our existing system.

Contributors all mentioned the importance of early intervention. I agree with my right hon. Friend that it is an essential component in solving this issue. The Department for Work and Pensions, the Department for Education and the Ministry of Justice are working closely together on this so that a parent’s first port of call will be an online hub that will provide practical information and advice and will signpost appropriate services.

We have introduced measures to strengthen consideration of mediation and to explore how that can work alongside parenting programmes and other interventions to help parents focus on a child’s needs. I will say a bit more about mediation later. In addition, we are working to develop parenting agreements as a tool to help parents agree arrangements that are child focused and practical.

The DFE is providing an early intervention grant worth about £2 billion, which is flexible funding for local authorities to spend on their early intervention priorities from Sure Start through to crime prevention. The Justice Committee will know about the Youth Justice Board and the custody pathfinder projects, which give pilot areas custody funding up front for the under-18s. That will incentivise local authorities to intervene early before young people become serial offenders.

Many other cases could be settled away from court. Too many people go to court to resolve their private disputes and fail to grasp the fact that the court is required to focus on the child’s welfare needs. That may mean that neither parent is happy with the decisions that are made. For many such parents, the family courts are not the best way of settling disputes about a child’s future. Mediation can be quicker and cheaper, and can provide better outcomes, especially if compared with drawn-out court hearings. It is important that mediation is considered at the earliest opportunity before positions become entrenched. An amicable solution is better than a litigious one.

Referrals to mediation in publicly funded cases are up by nearly 12% since the introduction of the pre-application protocol last April. However, I remain concerned about the protocol’s effectiveness in privately funded cases, and there is a need to tackle inconsistencies in approach across the courts. That is why we will make statutory changes to make it a prerequisite that anyone who wishes to begin court action must first attend a mediation information and assessment meeting to find out about and consider mediation. We remain committed to make public funding available for mediation through legal aid for those who are eligible and expect to fund an additional £10 million for mediation services.

I should point out to the hon. Member for Hammersmith that the Government have no plans to stop making available legal aid for children where they are a party to family proceedings. Various hon. Members mentioned litigants in person. We accept that the reforms will mean an increase in litigants in person. However, unrepresented parties have always been a feature of the justice system—some because they cannot afford representation and others because they choose not to be represented. Paying for a lawyer, whether out of private pockets or public funds, is not always necessary. Judges make significant efforts to assist litigants in person, explaining procedures and what is expected of them. We estimate that about 40% of private law children’s cases involve one or more litigants in person. The proportion in divorce cases is much higher than that.

Oral Answers to Questions

Lord Beith Excerpts

Tuesday 15th May 2012 Commons Chamber

[Mr Blunt]

I am grateful to the hon. Lady for her question. I do not know the precise answer and suspect that it would be difficult to get the precise data to analyse the problem. There is such a problem, not least with sex offenders, who are often reluctant to engage with the system and often protest their innocence when they are not innocent. It is a problem to get such people to engage with offender behaviour programmes. The hon. Lady is right that there is a class of prisoner who does not engage in that way, rightly or wrongly, and who presents the system with particular problems. I will follow up that matter.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

Presuming that, even under the prescription of my hon. Friend the Member for Shipley (Philip Davies), most prisoners will eventually be released, is there not a danger that putting massive expenditure into an ever-increasing prison population would mean cutting expenditure to ensure that when people are released, they do not commit more crimes?