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Freedom of Information (Amendment)

– in the House of Commons at 4:51 pm on 7th September 2010.

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Motion for leave to bring in a Bill (Standing Order No. 23 )

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Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington 4:52 pm, 7th September 2010

I beg to move,

That leave be given to bring in a Bill to amend the Freedom of Information Act 2000 to remove provisions permitting Ministers to overrule decisions of the Information Commissioner and Information Tribunal;
to limit the time allowed for public authorities to respond to requests involving consideration of the public interest;
to amend the definition of public authorities;
and for connected purposes.

The day when Members of this House backed the Freedom of Information (Amendment) Bill put forward by the right hon. David Maclean, the then Member for Penrith and The Border, will rightly go down in history as one of the most embarrassing days of the previous Parliament. The arguments deployed in favour of that Bill were spurious and specious and collapsed after the most cursory scrutiny. In an article in The Daily Telegraph headlined "House of Knaves", the Bill was described as "an abysmal decision", with MPs

"Acting in a way uncomfortably reminiscent of Communist officials in East Germany".

A Daily Mail headline at the time was no more flattering. It said "MPs' freedom of information cover-up is a dark day for democracy". The Sun was characteristically blunt, saying "MPs back 'squalid' secrecy bill". Members of this House-not only those who were whipped into voting for the Bill, but those who failed to anticipate the skulduggery and subterfuge that the Front-Bench teams were willing to contrive, and who were therefore attending to important constituency business on that Friday-have had ample opportunity to consider the damage caused by that capricious and self-serving vote.

It is timely to revisit the issue in the week in which our former Prime Minister, Tony Blair, chose to denounce the Freedom of Information Act as a "blunder". I would be more inclined to agree with his assertion in 1996 that

"information is power, and any government's attitude about sharing information with the people actually says a great deal about how it views power itself and how it views the relationship between itself and the people who elected it."

It was with that view in mind that I sought to introduce the Freedom of Information (Amendment) (No. 2) Bill in 2007, so that I might demonstrate to our constituents that Members were committed not only to protecting FOI legislation but to reinforcing it. In the spirit of the coalition's pledge both to extend the scope of the Freedom of Information Act and to provide greater transparency, I have introduced today's Freedom of Information (Amendment) Bill, which will strengthen FOI powers in four key areas. I make no apologies for the sense of déjà vu that some Members may have. The Bill is, broadly speaking, identical to my 2007 Bill, because the weaknesses of the FOI Act remain, with one exception, as academies will now be covered by the Act.

The four key areas that I seek to address are the removal of the ministerial veto; an extension of the time limit within which proceedings can be brought for the offence of deliberately altering a record to prevent the disclosure of information; a limit on the time allowed for public authorities to respond to requests involving consideration of the public interest; and an extension of the range of bodies covered by FOI legislation.

In 2007, I noted that the ministerial veto had never been exercised. Furthermore, I entertained the idea that Members might consider that that was a reason for maintaining it, because Ministers had shown considerable self-restraint in not exercising it.

That argument is now sadly redundant. In the intervening period, the ministerial veto has been used twice by Mr Straw, in his then role as Justice Secretary, in the first instance, to block the release of minutes of Cabinet meetings in the run-up to the Iraq war, because releasing the papers would do "serious damage" to Cabinet government and outweigh public interest needs. In the second instance, it was used to block the disclosure of minutes of the Cabinet Sub-Committee on Devolution to Scotland, Wales and the Regions from 1998.

The exercise of the ministerial veto introduces a veil of secrecy and affords an opportunity for arguments in favour of the public interest to be dismissed out of hand. Furthermore, its deployment sets a dangerous precedent and paints a worrying picture of a disdainful relationship between Government and the electorate.

Similarly, it may appear that there is no need to extend the period during which proceedings can be brought for the offence of deliberately altering a record to prevent disclosure of information under section 77 of the FOI Act-that is a new proposal. There do not appear to have been any prosecutions for the offence.

In the wake, however, of the climatic research unit e-mail controversy-or "Climategate", as it is known to the tabloid media-the Information Commissioner's Office found evidence that the CRU tried to avoid disclosure by deleting information. In a letter from the ICO to the CRU, the deputy commissioner confirmed the fact that

"elements of a section 77 offence may have been found here, but cannot be acted on because of the elapsed time", and said that that was "a very serious matter."

In its subsequent report, the Select Committee on Science and Technology recommended that the six-month time limit between offence and prosecution for breaches of section 77 of the Freedom of Information Act be reviewed. The amendment proposed by my Bill would allow a prosecution to be brought within six months of sufficient evidence of the offence coming to the prosecutor's knowledge, rather than within six months of the offence being committed. However, a prosecution could not be brought more than three years after an offence had been committed.

I would now like to move on to the subject of time limits within which public authorities must respond to public interest FOI requests. In 2009, 1,551 requests to central Government Departments and other monitored bodies were subject to an extension beyond the 20-working-days period, so that the issue of whether information should be disclosed on public interest grounds could be considered. That is allowed, as public authorities can use whatever additional time is "reasonable in the circumstances" to consider the Act's public interest test. Figures from a Ministry of Justice publication, "Freedom of Information Act 2000: 2009 Annual Statistics on implementation in central government" show that of those extensions, in 155 cases, the extension was between 21 and 30 days; in 129 cases, it was between 31 and 40 days; and in 276 cases, it was over 40 days, but how far over is not known. If the Bill is introduced, all those requests, totalling more than 500, would receive a response in fewer than 40 days. Departments such as the Home Office, which set a record in 2007-I do not know whether that is still the case-of 18 months for tardiness in answering an FOI request would no longer be able to use delaying tactics to postpone the release of embarrassing information.

Finally, the Bill proposes an extension to the definition of public authorities to include publicly owned companies, publicly funded "not for dividend" companies, and private contractors delivering high-value public sector contracts. At present, a company that is wholly owned by a public authority is subject to the FOI Act in its own right under section 6(1) of the Act. However, where a company is jointly owned by two or more public authorities, it is not subject to the Act. Equally, where a public authority owns 99% of the shares and someone else owns only 1%, the company is not covered. The proposed amendment would bring within the scope of the Act any company where at least 51% of the shares were owned by one or more public authorities. Not-for-dividend companies such as Network Rail, which are not covered by FOI although the Government are the sole shareholder, would have their secrets revealed if the Bill were to become law.

The argument about private contractors doing public work for public authorities is less clear. The Secretary of State has the power to designate private contractors under the Act, but has never done so. The Bill would include only a very small number of very large private contractors working for a public authority-organisations such as Capita or Serco, for instance-which had contracts of a value exceeding £1 million and covering a period of more than 12 months. Clearly, such organisations are in effect quasi-public authorities delivering public services and they must not be allowed to avoid the scrutiny provided by FOI legislation. They must be covered by FOI rules too.

I have set out today in this Bill four simple measures that demonstrate the Government's commitment to extending FOI and demonstrate that the decision taken three years ago to support the FOI (Amendment) Bill was an aberration. This Bill will strengthen FOI legislation, not emasculate it. I urge Members to support the Bill.

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Mr Brake's attempt to make these same changes in 2007 can be seen at:

http://www.theyworkforyou.com/debate/?id=2007-06-12b.658.1

Submitted by Richard Taylor

Photo of Denis MacShane Denis MacShane Labour, Rotherham 5:01 pm, 7th September 2010

I congratulate Tom Brake on a vigorous speech. I found little in it with which I would disagree, but I think his Bill should be taken much further forward. My only slight worry was the way in which he so enthusiastically prayed in aid at the beginning of his speech quotes from The Sun and the Daily Mail. I gently say to him, even if he is now sitting on the Government Benches, that if he lies down with those papers, he may end up getting very flea-bitten indeed.

However, the hon. Gentleman is right to bring to the House concerns about the Freedom of Information Act, and he is right to quote the former Prime Minister, Tony Blair. I have his book, which says:

"Freedom of Information. Three harmless words. I look at those words as I write them, and feel like shaking my head till it drops off my shoulders. You idiot. You naïve, foolish, irresponsible nincompoop"- and that is only on freedom of information. I find it rather touching and a healthy thing that we have a former Prime Minister prepared so to describe himself. I have searched in vain in the memoirs of Baroness Thatcher or Sir John Major for any similar recognition that they now have the slightest scintilla of doubt about something that they did.

I suggest gently to the House that the Freedom of Information Act, which became fully operational in 2005-some five years ago-was meant to lead to better government and better journalism. It has been an article of my faith since I first joined the National Union of Journalists about 40 years ago; in the 1970s, it was loony lefties like me who argued for freedom of information. Bit by bit we won the argument. We could not persuade the then Labour Government, we could not persuade the 1979-1997 Government, but we did persuade Tony Blair, and we now have freedom of information on the statute book.

I ask the question again: have we better government as a result? In May, the British people gently suggested that they were not quite so sure that their Government were a paragon of virtue who should be re-elected. If any right hon. or hon. Member in the House is prepared to aver that we now have much better journalism and newspapers as a result of freedom of information, I kindly ask them to put up their hand. Quite.

Freedom of information has coincided-I am not saying that it is cause and effect-with poorer government, and I very much hope that the hon. Gentleman gets his turn with a company car, because then he will find out what I am talking about. In large areas of government, the written discussion and advice that are now on offer to the Ministers who have to make decisions are weaker, because the deciders-the policy makers-are looking over their shoulders and saying, "Will one tiny section of what I am writing appear on the front page of the Daily Mail, The Sun, The Daily Telegraph or any other paper?" As a result, they hedge their bets.

I started to see that happening during my time as a Minister in the Foreign Office, when it was a privilege to receive, frankly, some of the most brutal assessments of what was happening in the world from very, very able foreign service officers. As the dawn of freedom of information approached, however, those assessments became softer and more careful, because, although there are provisions for not revealing policy and the rest of it, they were not sure whether some of what they might write might, in some other context, be made available for the delectation of our journalists.

I do not have a solution to the issue. Freedom of information is still my article of faith, but we may have imported the model in America, where there is a clear separation between the legislature and the Executive and, on the whole, newspapers are more sensitive about facts, to our system, where the Executive and the legislature are fused and a great number of requests-not all, because many diligent journalists use FOI very effectively-are made purely to seek out sensationalist tittle-tattle. I look at the disgraceful story about the Foreign Secretary last week, in which some of those blog rats, those blog boys, used freedom of information only and exclusively to try to peddle innuendo, smear and rumour. I do not know the answer, but I do believe that we need a serious review of the Act. We need to have a discussion, because the employer of the UK Information Commissioner is, according to Wikipedia, the

"Parliament of the United Kingdom".

But is he in any way accountable to us? Does he make formal reports to us? Is there a Committee to which I might put questions about what he does? The answer is no, and we as a House need to look into that.

I would go further than the hon. Member for Carshalton and Wallington. He is a radical and a liberal, but he is in this wretched coalition, so suddenly we can see his liberalism being slowly vitiated as he becomes more and more conservative. We saw that process yesterday, when there was absolutely no intervention from senior Liberal Democrats on the Andy Coulson affair. It was left to Mr Sanders to raise the issues.

I would like to see the Freedom of Information Act extended to all those organisations and companies that have any formal status within the public realm. We have referred to the fourth estate, and it is time for freedom of information laws to extend fully to all our media organisations. They have far more power than many public agencies, local councils and the rest, which are covered by FOI legislation. What our media organisations and the oligarchs-often from overseas-who own them decide to do has a huge impact on our public life, and any company that is in receipt of taxpayers' money should also be covered by FOI. [ Interruption. ] I am glad to see the hon. Member for Carshalton and Wallington, from a sedentary position, giving me some gentle support; I hope that we can secure some cross-party agreement on the matter and, perhaps, even consider temporarily re-forming the old alliance.

We also need to look at the UK Information Commissioner. That distinguished gentleman spent the early part of his life serving as a Liberal Democrat councillor, and he has twice stood as a Liberal Democrat candidate for Parliament. I wonder whether the Information Commissioner should be so connected, in such a direct political way, with one of the parties now in government.

We also need to discuss the exact gap between freedom of information and the freedom to have a private life, although I do not want to repeat my remarks about last week's appalling slurs against the Foreign Secretary. We now have the extraordinary example, well known to the House, of our own Independent Parliamentary Standards Authority, which has been leaking details about right hon. and hon. Members to the press. When the sensationalist press have applied to it under freedom of information, the authority has given details of secret notes kept about MPs.

Perhaps Ministers are all good gentlemen who never use swear words, blow their tops or get cross; I certainly know that the Minister for the Cabinet Office, who is sitting opposite me, has never, ever used naval language in his life and is a paragon of niceness to his subordinates when he is feeling upset. Frankly, however, if his subordinates kept secret notes about him that were released every other week under FOI, there would be the most wondrous headlines to amuse us. IPSA did that. It did not stand up for a modicum of privacy and it allowed FOI information to be used against hon. Members.

My hon. Friend Mr Harris has asked IPSA for some information but it has refused to provide it, so he put in a freedom of information request, but IPSA has refused to comply with that. This public body is willing to put FOI information into the public domain to the detriment of right hon. and hon. Members, yet tries to shelter itself from and refuses to co-operate with FOI requests.

Those are some of the paradoxes. We need a debate and a review. The hon. Member for Carshalton and Wallington has done the House a great service. Now let us have a wider debate on the reform of how FOI works.

Question put (Standing Order No. 23) and agreed to.

Ordered,

That Tom Brake, Caroline Lucas, Dr Julian Huppert, Dan Rogerson, Tim Farron, Mike Crockart, Stephen Lloyd, Mr Richard Shepherd and Simon Hughes present the Bill.

Tom Brake accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 12 November and to be printed (Bill 68).

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