Freedom of Information

Elfyn Llwyd Excerpts

Thursday 24th January 2013 Westminster Hall

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

It is a pleasure to see you chairing this session, Mr Hollobone. It is also a great pleasure to follow the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), who chairs the Justice Committee with great aplomb and ability. He has eloquently summed up the Committee’s work vis-à-vis scrutinising the Freedom of Information Act 2000 and, although there will inevitably be some repetition, I hope that my remarks do not duplicate his too much.

The Act was the product of many years of campaigning, discussion and commitment from various political spheres. When the Act came into force in 2005, it proved, I believe, to be a landmark piece of legislation. I do not think that it would be hyperbole to say that the Act revolutionised how the public were able to engage with public authorities and with local and central government. It presented a radical development in the extent to which the public were able to engage, and I emphasise that because whether the Act has fulfilled that purpose is a matter of some debate.

In December 2011, the Justice Committee, of which I am a member, called for submissions to its inquiry into post-legislative scrutiny of the Freedom of Information Act. Those giving evidence were asked to consider whether the Act worked effectively, what its strengths and weaknesses were, and whether it was operating as intended. As our report sets out, the Committee received 140 pieces of written evidence and recorded oral evidence from 37 witnesses.

If we are to adjudicate on whether the legislation operates effectively, it is necessary to set out the primary motivation for introducing it in the first place. The Ministry of Justice’s memorandum on post-legislative scrutiny of the Act identifies four objectives: increasing openness and transparency, improving accountability, facilitating better decision making, and increasing public involvement in the decision-making process. In its evidence to the inquiry, the constitution unit based in University college London identified another objective—to promote better understanding of the Government’s decision making. The Committee broadly agreed with that delineation.

On the Act’s first objective, that of increasing openness and transparency, before the Act’s provisions came into force in 2005, information on decision making in central and local government and in other public- facing organisations was obtainable only through official documents and leaked information that had made its way into the press. By contrast, the new legislation provided for a statutory right to gain access to information held by public authorities, and placed a duty on the authorities to establish a proactive publication scheme that was subject to the approval of the Information Commissioner. It sought to make public authorities more transparent in a reactive sense, in that anyone would have the right to put questions to such an authority via an FOI request, and by encouraging a more general cultural change through proactively publishing information.

In our report, we quote from the speech made in the Bill’s Second Reading debate by the then Home Secretary, the right hon. Member for Blackburn (Mr Straw). He said, about the Act:

“It will transform the default setting from ‘this should be kept quiet unless’ to ‘this should be published unless’. By doing so, it should raise public confidence in the processes of government, and enhance the quality of decision making by the Government.”—[Official Report, 7 December 1999; Vol. 340, c. 714.]

In practice, of course, the proposed publication schemes did not work as the then Government intended. The duty to produce publication schemes in section 19 of the Act is accompanied by extensive guidance from the Information Commissioner’s Office on what exactly would constitute a model scheme.

[Sir Richard Shepherd (Aldridge-Brownhills) (Con)]

The right hon. Gentleman touched on the role of the right hon. Member for Blackburn (Mr Straw). We were all present, and we have lived through the development of the Act and are very familiar with it—those of us who were friends of it and those who were not. The now Lord Clark was the initiator of the Bill. The members of the Cabinet, including the right hon. Member for Blackburn, all signed every single word of the pledge. David Clark was then dropped and despatched to the House of Lords, and the right hon. Member for Blackburn has now given us several versions of his position on the matter. I have tried to coax him to say that it was the greatest thing that the Labour party ever did while in office. He has repudiated that. He has adopted it. He has changed his view. And he was the agent who tried to limit the whole Act. So I do not hold him as the flame bearer of that essential part of the Act, and I think that that will be the view of anyone who has had any dealing with the right hon. Member for Blackburn on the question of freedom of information.

[Mr Llwyd]

I am very grateful to the hon. Gentleman for that intervention. He has been intimately involved in this matter for many years and I defer to his greater knowledge. He will see from other remarks I shall make that although I usually hold the right hon. Member for Blackburn in high esteem, in this instance the hon. Gentleman is, I think, right. It seems, from some of the right hon. Gentleman’s utterances of late, that he is rowing like nobody’s business away from the mother ship on this issue, and I am not too sure why. Many people across the political spectrum have worked hard to get us even to where we are now. I do not attribute that progress to one particular person; it has been a joint effort by all the parties over a long period, and I know that the hon. Gentleman has played a pivotal role in that.

The view of many of those who gave evidence to the inquiry was that most public authorities had failed to make full use of the schemes into which they were supposed to enter. There was also much inconsistency across Departments. One of the principal reasons why so few schemes were successful, according to Dr Ben Worthy of the University college London constitution unit, was that technological advances have made proactive disclosure redundant. He said that

“one of the reasons why publication schemes have not taken off in the way that many had hoped is that it has been superseded by the internet search engine and the fact that people can find a way of asking a question rather than looking for the information.”

The right hon. Member for Berwick-upon-Tweed has already touched upon that.

Whereas an authority or organisation may be selective about the data that are released through a publication scheme, modern technology, as we know, has allowed anyone with an internet connection to search for the information themselves. When the Act was drafted, it did not take into account the fast-developing nature of the world wide web.

Roger Gough, the cabinet member for business strategy and support on Kent county council, said that the notion of a publication scheme was “fairly antiquated.” The Information Commissioner’s Office is holding a consultation on the publication schemes, the outcome of which I am sure we all look forward to reading.

But it is not only the internet as a medium that has altered in the years since the Act was first published. Through being used to having information almost literally at the touch of a button, the public now expect more information more rapidly. For that reason, it is doubtful that the Freedom of Information Act has improved public participation in decision making. More often than not, it is those who are already engaged in public life, or those who are acting in a professional capacity, such as journalists and campaigners, who lodge FOI requests. Lord Falconer told the other place that the Act aimed to show citizens

“how government works—and to show them how decisions are taken.”

But as the constitution unit said in its evidence to the Select Committee,

“FOI is used by people already engaged in the political process, rather than bringing new participants into it.”

By contrast, for the vast majority of the UK’s population, and certainly for those under the age of 35, the principal means of obtaining information appears to be via the Google search engine. Here, too, we see why many believe that the Act was doomed to fail in increasing public confidence in public authorities. News stories disseminated online tend to sensationalise information and to focus on the negative aspects of any given story—no surprise there. One is unlikely, for example, to read a long piece online dedicated to congratulating a local council or organisation on its commendable bookkeeping.

Perhaps unsurprisingly, Maurice Frankel, representing the Campaign for Freedom of Information, told our Committee that he had witnessed a surge in trust among those who directly seek information from public bodies but that the majority of the population were more likely to read the outcomes of freedom of information searches through the media.

--- Later in debate ---

[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 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.

[Mr Llwyd]

What the hon. Gentleman says is right. The transfer of public functions to the private sector may not have been uppermost in people’s minds when the Act was drafted, but it is increasingly becoming an issue. Before we know it, much of the prison estate will be privatised, so, in that regard, it is absolutely crucial that FOI structures are in place.

[Mr Slaughter]

I am grateful, I agree and I hope that the Minister will address that point directly when she responds.

I shall leave that aside, because we could all discuss for a long time the types and numbers of organisations that we want to add. I would rather talk about the other two issues I mentioned: how the Act is operating and how the ongoing policy issues are being resolved or not resolved. The report deals with those matters well.

I have serious concerns about how the Act operates on a day-to-day basis. I am a prolific but I hope responsible user of the Act, so I can say from experience that the quality of service one gets varies hugely. Some organisations are good: they take matters seriously, provide comprehensive information timeously and obey not only the letter but the spirit of the Act. Many do not.

I shall give one example. It is not an extreme example at all; it is very typical. On 26 October last year, I made a request to my local authority. I was aware that it had delegated to itself, from committee to officers, the ability to sell off property as it became vacant, but it was not reporting it anywhere. Simple questions: how many properties have you sold in the past four years and what is the value of those properties? Every two or three weeks after the 20-day deadline passed, we chased them. Nothing was done. There was no attempt to comply with the Act—“You’ll get it next week.” “We’re very sorry. Don’t you have that yet?” Those were the kinds of faux-amateur ways in which it responded.

I am sure that I would not have the answers now had I not written to the chief executive earlier this week and said that I was going to raise the matter in this debate. The very straightforward answers arrived yesterday. They reveal that over that period, more than 200 properties were sold, at a value of more than £88 million, which, in the past two years, represented more than 10% of the total stock that had become vacant. Those facts and figures are important, not only because of the amount of public money involved, but due to the policy and human implications of disposing of good quality property that could be re-let, when 11,000 people are on the waiting list and many of my constituents are being moved out of London because it is said that there is no affordable accommodation. Those data should and could be available, not in 20 days, but in 20 hours.

That is a mild example. In other cases, I have waited over two years for responses. If a public authority does not wish to respond, it can find myriad ways not to do so. To give another example, we have a proportionately large number of free schools and academies in my constituency and I wanted to see the financial base on which they were funded, the capital grants, the costs they were paying for land and matters of that kind. Two years on, I still do not have that information. The excuses I have been given vary from commercial confidentiality to the notion that it would be embarrassing for those organisations, lest they are not successful, to reveal what their basis for bidding is at the time. They have even been based on tiny semantic points. It was not one of mine, but another request asked what a particular piece of land was sold for, and at the end of the process the response came back after months of delay, “Although contracts have been exchanged, there has not been completion, and therefore it cannot be right to say that this property has been sold.” I thought that was slightly disingenuous given that the people who bought it were building on the land at the time.

I will not take up the House’s time with my private grievances, but I use those examples to show that if a public authority does not wish to follow the Act, it can find myriad ways not to do so, which can range from using unqualified staff and devoting insufficient resources to deliberate obfuscation and devious avoidance. The problem is, as the Committee correctly notes, that there is no immediate penalty and the elaborate process of review is, again, often used to delay rather than bring justice.

I hope I am not quoting out of context, but the Committee says:

“We were pleased to hear relatively few complaints about compliance with the 20 day response time. We believe that the 20 day response time is reasonable and should be maintained.”

I suspect that people are put off and do not go through an additional complaints procedure or use the process of internal review and appeal. I agree with the Committee that it is important that the process of internal review is also prescribed, so that what should be a method of redress is not used for further delay. I have taken cases to the Information Commissioner where that process has had to be gone through, and unfortunately, it can take one or two years—longer in some cases—by which time, saving the most important cases of national interest, the issue will almost certainly be dead. That, of course, is the objective of the defaulting party. I hope that there is more scrutiny, by Government and the Ministry as well as the Select Committee, of the simple procedural operation of the Act and whether its spirit and letter are in turn being obeyed.

The hon. Member for Aldridge-Brownhills mentioned Maurice Frankel and the Campaign for Freedom of Information. I associate myself with the hon. Gentleman’s remarks. The campaign is a fantastic organisation, which does more than anyone else to keep us on the straight and narrow. It notes that more than 44% of requests to central Government exceed the 20-day limit. That is poor, even when the correct process is followed. We could do much better.

I shall turn to some of the policy issues. I cannot better what the Committee said on the veto and the alleged chilling effect on policy development. The Chair would not put it in these terms, but the Committee has seen through those objections and does not recommend change. I hope the Government will follow that view. There is a risk, as the right hon. Member for Dwyfor Meirionnydd acknowledged, that people will try to subvert or get round the Act in many ways, and we have heard examples of using private devices or e-mails to keep things out of the public realm. The last thing that we want to do in response to that—we should acknowledge the problem and try to work out ways of challenging it—is to say, “Well, in that case, we should allow more secrecy, because that is the only way to get that balance right.” Those debates will continue, because the agenda is both moving and changing.

There are other issues, which I had hoped could have been put to rest, that the Government in their response have kept going and even revived. The first is the issue of fees. I appreciate that the Government have resisted that, which is right, and requests to cover their costs. None the less, they have introduced the possibility of fees at tribunal, which may be a slippery slope. Certainly, if a complaint has reached such a level, which is quite a challenge for any applicant to achieve, the issue of fees should be resisted.

The Newspaper Society, in its briefing for today’s debate, as well as the Campaign for Freedom of Information and a number of national newspapers, have tried to draw attention to the worrying fact that ways are being found to limit access by way of cost. Generally speaking, those are occult ways of doing it; it is not a head-on attempt to restrict. When I say occult, I am not referring to the ghosts and zombies in the Cabinet Office or in Leeds city hall. I am talking about ways that are, ironically, not open.

I have a number of questions for the Minister to answer. If the Government are thinking of reducing the number of hours beyond the marginal levels that the Select Committee proposes, what are those proposals and how can they be justified? Are they thinking of introducing the aggregate claim, whereby an individual or an organisation will only be able to put in a certain number of claims before hitting the cash limit? Moreover, in totting up the number of hours on any individual request, will the Government include thinking time? If they do, what is the rationale for that and where is the impact assessment that will show the effect that that will have? Maurice Frankel quotes an estimate that says that just the thinking time clause alone will affect 4% of requests to central Government and 10% of requests to other public bodies. Those are significant figures, but, as Maurice Frankel points out, that is based on the actual time spent and not on the estimated time, which of course could be a lot greater. Any one of those measures, let alone the aggregate of them, would have a significant effect on the number of requests that are refused on the grounds of cost, which is a route that we do not want to go down.

There is a general acceptance, I think, that there has to be a limit on costs. No one in this debate has said that the overall cost of the Act is prohibitive and I do not think that the Government have said that either. None the less, cost is a convenient way to turn down requests without having to justify things more thoroughly. As I have said, I have had every possible reason thrown at me. One very common one is commercial confidentiality, which is often presented in a nonsensical way. Let me give an example. There was a significant and controversial land sale in my constituency between two public sector bodies—part of the BBC estate was being sold to Imperial college. The whole matter was resolved; there were no outstanding issues and no ongoing negotiations. Yet both parties resisted requests on the basis of commercial confidentiality. We need to be more sceptical about some of the excuses that are used. I hope the Government will not be seduced by those arguments, and that we can have some clarity on that.

There is an argument when it comes to research. I do not accept the argument for exemption of universities, but, given what is happening in Scotland, it may well be that the Government are right on this. We want to protect genuine research, but we do not want to allow that to become a catch-all for refusal. We should consider exemptions very carefully. This is an area in which the Government, thus far, do not have a bad record.

The Minister will have heard me say very often, even in the short time that she has been in post, that the Government have a bad record on the citizen’s right to access justice and information. We have cuts in legal aid and the prospect of further cuts, the wholesale change to conditional fee agreements, a review of judicial review, and charges increasingly being introduced for courts and tribunal services. That is a poor record, and a signature of this Government of which they should be ashamed. Let us not add freedom of information to that catalogue. So much has been achieved over the past 15 years with a reasonable degree of consensus. We want to allow the citizen far, far greater access to information, and to change what has been very secretive government in this country, under all parties, into something that is genuinely open. That will be as beneficial to the Government as it will to the citizen, so let us not shy away from it now.

[The Parliamentary Under-Secretary of State for Justice (Mrs Helen Grant)]

It is a great pleasure to serve under your chairmanship, Mr Amess. I congratulate my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) on securing this debate, and I thank all hon. Members who have contributed. I am grateful to the Justice Committee for its thorough work on the post-legislative scrutiny and to all those who contributed to its inquiries. I re-endorse the sentiments that have been made this afternoon in relation to my right hon. Friend’s great aplomb and his ability to chair the Committee.

The Government remain committed to greater transparency—the Freedom of Information Act is a key part of that—and we have been successful in our key aims of increasing openness, transparency and accountability. I agree with hon. Members that it is perhaps less clear how much of our secondary objectives of increasing trust and public participation have been met and that, to some extent, those objectives may not have been realistic ambitions. I agree with the Justice Committee that the Act has been a

“significant enhancement to our democracy.”

It is not perfect, but it is generally working well. For that reason, the Government are not proposing a radical overhaul.

Before turning to the specific issues raised by post-legislative scrutiny, it is important to say that we need to put them in the context of the Government’s wider transparency agenda. Since we came to power, we have published almost 9,000 data sets, covering a wide range of subjects connected to health, education, transport, crime and justice. In June 2012, we published the open data White Paper, “Unleashing the Potential”, which sets out how the transparency agenda can help to provide greater access to and the re-use of raw data. We have set up the Open Data Institute to promote innovation, using the data that the Government publish, and pushed strongly for more transparency internationally, including through the international Open Government Partnership.

I assure my right hon. Friend that the Government’s transparency agenda is no substitute for, and will certainly not diminish, the important work that is being done in relation to the Freedom of Information Act. As we take the transparency agenda forward, we will push for greater openness and accountability, so that people know what is being done in their name and with their taxes.

Proactive publication needs to be complimented by an effective system that allows the public to seek information for themselves about how public authorities do their jobs. That is why the Freedom of Information Act is so important and why we are taking a number of steps, following scrutiny, to strengthen and extend it.

We are reducing from 30 to 20 years the lifespan of some of the exemptions to disclosure in the Act. That reflects and is simultaneous with the changes that we are making gradually to replace the 30-year rule under which public records are released by the National Archives with a 20-year rule. We have made secondary legislation to begin that transition over a 10-year period, and it came into effect on 1 January.

We are introducing enhanced rights to access and reuse data sets under the Protection of Freedoms Act 2012. A public consultation on a draft code of practice to help public authorities to meet those new obligations concluded on 10 January, and the provisions will be commenced shortly.

We are taking steps to extend the Freedom of Information Act to more organisations that perform public functions and to companies wholly owned by any number of public authorities. We have already extended it to all academies, the Association of Chief Police Officers, the Financial Ombudsman Service and the Universities and Colleges Admissions Service.

In our response to post-legislative scrutiny, we made it clear that we intended to conclude consultations with a wide range of other bodies, including more than 200 harbour authorities, awarding bodies, approved regulators under the Legal Services Act 2007 and 2,000 housing associations. Therefore, unless there is good reason for not doing so, we can extend the Act to any public function that they carry out. Our aim will be, where possible, to introduce secondary legislation over the next two years to implement the changes that we decide are warranted.

I am aware of some Members’ concerns about the position under the Act of contractors and other companies that provide public services. The challenge that outsourcing public services poses to transparency is real, and it is one that we have sought to address proportionately. We do not currently propose the formal extension of the Act to providers of outsourced public services. We prefer the Justice Committee’s recommendation that contractual transparency clauses be used and enforced to ensure that freedom of information obligations are met.

We strongly encourage public authorities and contractors alike to go further than the minimum requirements in the Act and voluntarily to provide more information. To that end, we will issue guidance that sets out the circumstances in which we want to see further information released. My hon. Friend the Member for Aldridge-Brownhills (Sir Richard Shepherd) and the shadow Minister raised powerful concerns about this issue, but I reassure them that if our proposals do not have the desired effect, formal extension of the Act can be considered and is always possible.

We have sought to balance the need for transparency with the need to minimise burdens on business and to encourage active participation by bodies large and small in the provision of public services. Some people might not consider that enough, but it is a light-touch, good approach requiring the co-operation of public authorities and contractors alike. As I said, however, if that approach yields insufficient dividends, we will consider what other steps we need to take to ensure accountability, and that includes formal extension. I hope that provides reassurance.

Let me now turn to the Act’s cost. Despite the many benefits that the Act has brought, we cannot ignore concerns about the burdens that it imposes on public authorities. That is especially important in the current challenging financial climate and at a time when more freedom of information requests than ever are being received. Central Government received 47,000 initial applications in 2011, at a cost of £8.5 million in staff time alone. Local authorities and other public bodies are also affected. We aim to focus our efforts on the disproportionate burdens placed on public authorities by what we call industrial users of the Act.

[Mr Llwyd]

I am listening carefully to the Minister, especially on this part of her speech. I do not recall any local authority that gave evidence to the Committee saying that the costs were prohibitive. Perhaps she is over-stressing that aspect.

[Mrs Grant]

Whether or not I am over-stressing them, these matters will be considered in great detail through consultation, and there will be ample opportunity for others to have an input and become involved.

Our research indicates that a very small number of requests contribute to a relatively large proportion of the cost of freedom of information: 8% of requests to central Government cost more than £500 to answer and make up 32% of total staff costs. The Justice Committee recognised that issue in recommending a small reduction in the cost limit beyond which requests need not be complied with. We believe that would result in only the most minimal reduction in costs, so we will consider whether to go further.

My right hon. Friend the Member for Berwick-upon-Tweed raised consideration time, and the shadow Minister raised thinking time. We recognise, of course, the practical difficulties in including such tasks, but they are worth considering to find out what might be done.

The introduction of fees for tribunals has also been raised by Members today, and we will certainly consider what we can do to recover the costs associated with the running of tribunals, but we do not think anything that we do will impede access to justice. We will also consider other ways to reduce burdens fairly and proportionately, including addressing where one person or group of people use the Act to make unrelated requests to the same public authority so frequently that it becomes an inappropriate burden.

I assure Members that whatever measures we ultimately decide to take, we will have regard to the need to reduce burdens without an excessive impact on transparency. An example of that is our decision in the post-legislative scrutiny response not to introduce new fees for answering freedom of information requests. To do so would both deter the legitimate use of the Freedom of Information Act and prove expensive for public authorities to administer.

The third key area addressed by post-legislative scrutiny was the protection afforded to highly sensitive information. The Government welcome and share the Committee’s conclusion that it was Parliament’s clear intention that the Act should protect safe space for policy formulation and Cabinet discussion. That issue has rightly been raised by my right hon. Friend the Member for Berwick-upon-Tweed, and I note his and other hon. Members’ references to the allegation of a possible chilling effect.

We agree with the Committee that the current system of protection in the Freedom of Information Act, including exemptions for the disclosure of information and the availability of the veto, has generally worked well. We share the Committee’s view that new absolute exemptions are not necessary. Although we are committed to transparency, so that any freedom of information regime can operate effectively, it is right that we keep under review the protection given to genuinely sensitive information. Effective government depends on the protection of the principle of collective responsibility and the ability of both Ministers and officials to provide advice freely, frankly and with candour.

We have announced our intention to review and, as appropriate, revise the Government’s published policy on the use of the veto. The policy is designed to assist where use of the veto is considered in respect of information that relates to Cabinet collective responsibility. However, no limitation in the Freedom of Information Act prevents the veto being used for other information. Indeed, the Government have concluded that its use was justified in other contexts on more than one occasion last year. Accordingly, we propose to consider whether the veto policy can be adapted both in terms of the process for its use and to offer greater clarity and reassurance on its ability to be used in appropriate cases that do not involve Cabinet-related information.

Other changes that we will introduce to improve the operation of the Freedom of Information Act will require a combination of primary and secondary legislation.