Freedom of Information

Richard Shepherd 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.

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

I commend the work of the Committee and the contributions of the Chairman and now the membership; they have cheered me. I should declare an interest: I am co-parliamentary something-or-another for the Campaign for Freedom of Information, which has been a remarkable organisation over the past 25 years, and its guiding light, Mr Maurice Frankel, is an exceptional citizen.

I passionately believe in freedom of information. As a boy, I read Pope, who wrote

“What can we reason, but from what we know”,

and it is true. I always maintain that informed and intelligent citizens should have access to Government information that they, we, citizens and Members of Parliament pay for, so that they can play an engaged and informed part in the development of public policy and the things that affect us.

I will not go through the lengthy debates of many years ago. There are things that I object to, such as the Executive override, which has come into operation and was presented to the House of Commons by the right hon. Member for Blackburn (Mr Straw) as though it was a Cadillac, with new bells and shiny things on it. I would like to see some things shifted and changed, but my remarks today will be focused only on something that has come to me through a constituent, a respected Mr Dale, in my local community. The concerns are about commissioning in the national health service and relate to the chapter in the report on contracting out. I wanted to deliver the remarks that would have been made much more eloquently by others on the concerns that I have about contracting out.

Other organisations are obviously affected as well. A bit of a stir has been made by universities, because of the anxiety that some are publicly funded and the information is held in a particular way. Outside organisations can even apply for their own materials of the university, because they are deemed to be in receipt of public funds and are therefore subject to freedom of information. However, I seek to discuss the national health service and the Health and Social Care Act 2012.

Under the current NHS reforms, the new commissioning bodies—clinical commissioning groups and the NHS Commissioning Board—will be subject to the FOI Act. However, the private sector contractors with whom contracts are held will not be covered by the Act. The contracts themselves will contain disclosure requirements along the lines of those already found in the standard NHS contract:

“Where the Provider is not a Public Authority, the Provider acknowledges that the Commissioners are subject to the requirements of the FOIA and shall assist and co-operate with each Commissioner to enable the Commissioner to comply with its disclosure obligations under the FOIA. Accordingly the Provider agrees…that this Agreement and any other recorded information held by the Provider on the Commissioners’ behalf for the purposes of this Agreement are subject to the obligations and commitments of the Commissioners under the FOIA”.

Obviously, the term “commissioners” refers to the commissioning bodies.

Those provisions require some unpicking. The requirement that providers co-operate with commissioning bodies to comply with their disclosure requirements under the Act is circular. The commissioning body’s obligations under the Act are merely to disclose information that it holds itself or that the provider holds on its behalf. The real question is what information is held on the commissioning body’s behalf.

The contract itself specifies that various types of information are subject to FOI or have to be published or provided to the commissioning body on request. That includes information about the service specifications, prices and payments, numbers of patients treated, time taken to treat them, performance quality reports against a range of specific indicators, figures on MRSA and clostridium difficile infections, and reports on complaints, equality monitoring and certain other matters. There are also obligations to comply with NHS dataset requirements. In addition, the commissioning body may request any other information that it reasonably requires to monitor the provider’s performance in relation to the agreement. However, if the commissioning body does not consider that it requires particular information to monitor the provider’s performance, the information will not be available under FOI.

Let us suppose there are suspicions about the use of outdated, or potentially substandard, or even contaminated supplies by hospitals. For an NHS hospital, the Act could be used to obtain details of stocks of the product, analysis results, correspondence with suppliers, minutes of meetings at which the problem was discussed, concerns about the issues raised by staff and details of how they were handled, as well as information showing what measures were considered, why particular options were rejected and what was done.

Such information would not be available in relation to independent providers treating national health service patients. A commissioning body may take the view that it does not require that information to monitor the provider’s performance under the contract because it does not believe that there is a real problem, because it does not believe that the information sought by the requester would throw light on it, or because it already feels satisfied, from its knowledge of the provider, that any problem would be properly handled. In that case, it seems unlikely that there would be any contractual obligation on the commissioning body to seek the information or on the provider to produce it. In cases of doubt, we think contractors would be likely to vigorously oppose any attempt to interpret a contractual provision of that kind expansively.

A further problem is that key aspects of the Act cannot apply to contractors. The Information Commissioner’s powers relate only to public authorities. He cannot investigate a contractor’s claim that it does not hold or cannot find the information needed to answer an FOI request. His power to serve information notices, requiring public authorities to supply him with information required for an investigation, does not extend to contractors. He cannot serve a decision or enforcement notice on a contractor, or take action against a contractor that appears to be failing to comply with its contractual obligations to assist with FOI requests.

The offence that applies to a public authority that deliberately destroys, alters or conceals a requested record to prevent its disclosure does not apply to a contractor that does so to prevent the authority disclosing it in response to an FOI request. Once a contract has expired, any contractual disclosure requirement may lapse, so removing the right to information about past events. Even if the contract stipulates that disclosure requirement survives, it could only be enforced by a civil action for breach of contract against the contractor. The prospect of such action being taken for failing to assist in replying to an FOI request is highly implausible.

The FOI Act envisages that the contractors who provide a service on behalf of a public authority, which it is the authority’s function to provide, can be designated as a public authority subject to the Act in its own right. The use of that provision to make contractors directly subject to FOI should now be considered. Failing that, the Act should be reassessed in light of contracting out and amended to ensure that the public’s rights to information about public authority services and functions are fully preserved when they are provided by contractors. There is real value in that, and from the Government’s point of view, too. Confidence in the Health and Social Care Act, for instance, and the commissioning process would be reinforced.

There is a grave suspicion—this is what lies behind the idea about privatisation of services in the national health service—that there will be the opportunity for outside contractors and so on to pick and choose and that they will not be liable to provide to the public the basis on which they can judge whether a contract is appropriate. That is the whole purpose of freedom of information—that we can acquire the information that can give us the ability to make a judgment on the probity and priorities that operate within those who are essentially, if not totally in many instances, funded from the public purse. There is a direct link. They would not be in business without public moneys and contracts coming their way. That is why there is an urgency about making this point and examining this question. I commend it to the Justice Committee. Thank you, Mr Hollobone, for your patience.

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[Sir Richard Shepherd]

The whole purpose of the construct of the Act was that the final referee should be the tribunal, and that is what I think the Minister is talking about. The tribunal is now being used in a way contrary to our original understanding, which was that it was to be similar to the Supreme Court or the highest courts of appeal and look at the Government’s case when they refused information. Yet they are refusing information contrary to the tribunal’s judgment, and that is what causes concern to many commentators. As was rightly pointed out, the veto was used in a controversial case last year.

[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.

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[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.