Examination of witnesses (Questions 480
- 501)
TUESDAY 31 MARCH 1998
MS D WHITWORTH,
MS M WINFIELD,
MR B MIDDLETON
AND MS
O KLEVAN
Chairman
480. There are two questions really. One
is whether there is a file still being kept on you and then if
there is, what are its contents. If the contents were finished
20 years ago, then should that then be disclosable or ten years
ago or whatever time period one thought was relevant.
(Ms Winfield) Yes. The point is that that is a
decision which should be made not something that is automatically
excluded.
Mr Campbell
481. I can imagine all those old papers
are now being shredded.
(Ms Winfield) Under the Act there are severe penalties
for that.
Mr Campbell: We do
not have the Act yet. Obviously the Act is not in force yet but
I am sure that people along the road will be shredding everything
they can get out of the way which does not mean any harm before
the Act comes in. I am sure that will happen.
Dr Clark
482. May I ask firstly a bit about the situation
in Scotland because I represent a Scottish constituency? I understand
that there is a Scottish Consumer Council and I presume you have
links with it. Is it a totally separate body?
(Ms Whitworth) The Scottish Consumer Council is
part of the National Consumer Council in administrative terms
but in policy terms it is independent.
483. So far as the Consumers' Association
is concerned, do you cover Scotland?
(Mr Middleton) We try to, but not always with
as much success as we should like.
484. One of the issues which is of some
concern to me is that the Freedom of Information Bill, as we understand
it, is not going to apply to Scotland and the situation in Scotland
will be regulated in due course, if at all, by the Scottish Parliament.
If that is correct, do you have any views about that?
(Ms Winfield) I discussed this with our Scottish
colleagues. It was not clear to me from reading the White Paper
whether or not it was going to apply to Scotland, whether there
was going to be some transitional arrangement. We passed that
concern on to our colleagues at the Scottish Consumer Council
who in their response have asked that there be some sort of clear
transitional arrangement so that FOI did apply to Scotland until
such time as there was devolution and then there would be a decision
at that point about what status it would have.
485. What about Consumers' Association?
(Mr Middleton) I do not know what the details
are but I should be extremely concerned if it were not going to
apply to Scotland in some way.
Dr Clark: My understanding
is that it is not unless we change the Bill as it proceeds.
Mr Campbell: Richard
Shepherd has already written to Mr Dewar on this point.
Dr Clark: Yes, I have
written as well.
Mr Campbell: He said
he had written as well. It is going to have to be put in the legislation
going through now.
Chairman: It is going
to relate to the timing of the coming into power of the Bill and
the coming into power of the Scottish Parliament and whichever
comes first.
Dr Clark
486. Yes, that is right. The problem is
that the philosophy, in so far as I understand it, is that the
Scottish Parliament will be allowed to deal with this as part
of their broad powers which I have no quarrel with particularly.
The assumption is that the Scottish Parliament will be up and
running and be able to do it right away. That assumption may be
ill founded because the Scottish Parliament will have a whole
range of issues to deal with. From our experience of trying to
deal with the Freedom of Information Bill, it is not straightforward.
Would you agree with that?
(Mr Middleton) Yes. I was interested to hear my
colleague's comment that there may be some transitional arrangement
whereby the Bill could be applied.
487. It could be applied and then the Scottish
Parliament would have the power to amend it or deal with it.
(Mr Middleton) That would certainly seem to be
the most obvious. If that were a possibility that would be the
most obvious way forward.
(Ms Whitworth) It is absolutely essential that
Scottish consumers have the same rights that any other consumers
in the United Kingdom have.
488. That may be a different matter. The
other interesting thing is you probably know that the whole subject
of the Data Protection Act which will apply to both Scotland and
England, will be a reserved issue but my understanding is that
freedom of information will not be a reserved issue, it will be
a matter which the Scottish Parliament will be able to deal with
as a devolved matter. It would follow logically from that that
Scottish consumers and English consumers may well have different
rights in relation to freedom of information and that there will
not necessarily be a level playing field as there will be with
the Data Protection Act. I just wondered whether your organisations
had given any consideration to the consequences of that?
(Mr Middleton) Not to the consequences but assuming
that this is to do with data protection, which is the implementation
of a new directive rather than the Freedom of Information Bill
which would explain why there was that difference of approach,
we would totally concur with the NCC that all consumers should
have the same rights of access to information.
489. Is that necessarily the case in the
sense that the Scottish Parliament, for instance, might well take
the view that from their perspective the Scottish consumers, as
they do under private law aspects of Scottish law, may have different
rights—you may argue about whether they are better or more
extensive or whatever—but they are certainly different under
private law? What is the necessity for having identical rights
in relation to freedom of information?
(Mr Middleton) There may be differences in the
way those rights are expressed but the essential issue is the
right to gain access to information relating to decisions which
are made affecting you and about helping you to make informed
choices in the marketplace as well.
490. Yes, but it is quite possible.
(Mr Middleton) They may be interpreted and applied
in different ways, and obviously if a separate Bill is introduced
in Scotland at a later date then we shall obviously also be campaigning
on that as vigorously as we campaigned on this one to try to make
it as far reaching and wide reaching as possible.
(Ms Whitworth) May we help the Committee by going
back to our colleagues in the Scottish Consumer Council and asking
them to write to you on this subject?
Dr Clark: Yes, that
would certainly be useful.
Chairman: That would
be very helpful. Obviously I represent a Welsh constituency not
a Scottish constituency but you can envisage circumstances in
which because of the frequency of the E. coli outbreaks
in Scotland that the demand for information about food hygiene,
food safety or meat safety might be much greater in Scotland than
in England or Wales for example, simply because of the circumstances
which have applied over the past five years and the demand to
know why E. coli is such a plague in at least parts of
Scotland. There would be a greater demand on that front than there
would be in England and Wales. That is a natural response to events,
is it not? It is not a matter of worse or better information,
it is different priorities because of different events which have
brought an issue to the forefront, is it not?
Dr Clark
491. I am quite interested in how you see
the role of the MP in relation to freedom of information and also
how you envisage the charging system working. These two may have
a connection. What I am thinking about is if there are charges,
and we do not know whether an MP might be charged and I dare say
there will be some considerable parliamentary persuasion to make
sure MPs are not charged, but we do not know exactly how that
will work yet, but if there are charges, and there certainly will
be charges for most people, do you think that will have an effect
on the way in which consumers use the MP to obtain this information
or do you think that really the MP does not have much of a role
in all this so far as representing the consumers is concerned?
(Mr Middleton) We would prefer not to see charging
at all. There is a possibility of widening the charge on public
interest grounds and presumably an MP might be able to argue that
line if it became a normal route. If I as a consumer came to you,
my MP, and asked you to get the information for me then obviously
it may become harder to start waiving it on public interest grounds.
We have not considered how it will actually start working in practice
and it is certain that at the next stage, once the Bill is there,
once the Act is in place, is the time to start looking at how
it is working and try to make it work properly.
492. Do you have any views about charging?
(Ms Winfield) We were concerned at the possible
deterrent effect of even a £10 charge. One of the things
we said was that if there were going to be a £10 charge it
should be a one-off charge and there should not be a separate
£10 charge for every request which related to the same search
for information; there should be a once-for-all £10.
Chairman
493. A flat rate.
(Ms Winfield) Yes, a flat rate.
Dr Clark
494. Bearing in mind that if there were
no charging whatsoever and it were completely free, at least to
individual consumers, perhaps not to organisations, this might
pose a very substantial public cost which the public would have
to pay for by a different route. They might not particularly want
to find themselves paying for this at the expense of other services.
(Ms Whitworth) There is an area of confusion in
this. The National Consumer Council is a public body. We publish
our reports, we give them free to those we are trying to influence
but we sell them to mitigate our losses. Some of them go for £14,
some of them are cheaper. We also give a lot of information away
free. If a student rings up and asks for information, wants a
report, we give it to them free. Copies of our agendas of our
Council meetings and things like that will be made available free
to people who want copies. One of the problems is that a lot of
people who have been in the practice of giving things away free
may suddenly introduce charges. This could suddenly be a money
spinner for the National Consumer Council. There is an area of
ambiguity about what we are actually going to be doing with our
publications.
(Mr Middleton) There is a danger sometimes of
assuming that there will be more spurious abuses of the system.
We have come across this with the issue of complaints where people
quite often want to introduce a charge for complaints handling
processes to deter vexatious use of complaints. I would actually
argue that the benefits of increasing access to information outweigh
the potential costs you may get from some extra and vexatious
attempts to get information. At the same time, if active disclosure
is taken further and more information is regularly put into the
public domain about important decisions and so forth, hopefully
that would in the long run decrease the number of requests you
are receiving for specific bits of information.
495. Do you have any experience of the use
in America of freedom of information legislation by lobbying groups
or by big organisations like yourselves? If you do, could you
perhaps give us a quick overview of how they use the Act in America?
(Mr Middleton) We have used the Act but I am afraid
I cannot give you details. We can supply you with that information
afterwards.[1]
(Ms Winfield) Maurice Frankel is one of the most
active users of the Act on both sides of the Atlantic. He would
probably be able to give you much more information than we can
about how things are used.
Chairman
496. May I ask a few questions before we
finish on the question of the competing interests between the
need for privacy and the right of freedom to information as it
will be conferred under the White Paper if it becomes law? Let
me ask some questions about third party rights to privacy. The
Data Protection Registrar gave us evidence that if information
were disclosed in breach of Article 8 of the European Convention
on Human Rights this would create the need for a tribunal to be
established. Do you think it will be legally necessary to have
some form of appeal to a tribunal for third parties if they feel
that disclosure of information under the Freedom of Information
Act is a threat to their personal privacy?
(Ms Winfield) We certainly think that they should
have the same rights to appeal to the Information Commissioner
as the applicant. They should be subject to the same process.
Where we have difficulty, reading the evidence of other witnesses
to the Committee I think it is an area of common difficulty, is
the seamlessness between access to information and privacy and
what happens in that grey area where the two come into conflict
and how those conflicts are going to be resolved and who is going
to take the lead and what is going to take priority. Does personal
privacy take priority over access? These are questions we have
been discussing with our colleagues at Consumers' Association.
We have not come up with a magic answer.
Mr Campbell: Should
there be a Privacy Act? Most countries have Privacy Acts. I do
not think we have one and are not contemplating one anyway.
Chairman: Lord Irvine
said we were not having one.
Mr Campbell: Canada
has one alongside the Freedom of Information Act, so has Australia.
Chairman
497. You have to run the two priorities
in parallel somehow, do you not? Have either of you given much
thought to how you do it and whether you settle these issues by
resort to the courts or a tribunal or by what means or if you
have thought about it have you come up with solutions to it rather
more importantly?
(Ms Klevan) That is key. We have recognised the
crucial competing interest but we ourselves have not come up with
what the answer is. We would agree with the NCC that where possible,
if third parties could take their appeal to the Information Commissioner
then we would want to see that. We do recognise that there may
be a need for some kind of independent decision, whether that
be through a court or a tribunal. We, like the Committee I am
sure, recognise the difficulties but have not necessarily come
up with the answer.
498. The kinds of cases which you may have
as either the Association or the Council where the latent conflict
which is already apparent. From the sort of cases you deal with
do you have cases you could quote to us where you can see this
kind of problem coming up? Talking off the top of my head, and
I am not sure it is relevant really, for instance natural parents
who have given their baby away for adoption, although there is
the right in this country but not in the USA I believe to find
out once you are 18 who your natural parents are.
(Ms Klevan) It is not an area we have looked at
and we ourselves could not really think of a specific example
from the consumer perspective in our remit. We certainly have
not looked at the example you have given.
499. You will be aware as well of the stalker's
charter issue which we have discussed in this Committee where
prisoners can use the information to find out who shopped them;
you might be able to find out information about a person you wished
to stalk when you come out of prison and so forth by using freedom
of information. The third party would not necessarily, unless
there is a clearly set out right of appeal, have the right to
deny that information to the person who wants to make a fairly
malign use of it or a perfectly proper use of the third party
information which has been disclosed. This is an area where the
more research we can have so as to point towards the possible
solutions to it, if there is a solution, the more valuable that
would be for the Committee.
(Ms Whitworth) If we have some wonderful ideas
we will let you know.
500. I know I am asking you to supply the
Holy Grail wrapped in brown paper by next Monday but if you come
across a Holy Grail in one of your cupboards the Committee would
be very grateful because we have heard evidence from the Data
Protection Registrar and the Ombudsman in this area and we have
discussed it with Lord Irvine and so on and we are still unclear
as to how this is to be resolved. That is not a criticism of those
who have given us evidence because it is an incredibly difficult
issue. One of the issues which is not actually covered in the
White Paper is how easy it is going to be for the Government to
implement the legislation, assuming the Bill goes through Parliament
some time during the next legislative year starting in November,
finishing in July 1999 let us say, and then with a date for implementation
from 1 January or 1 April 2000. Have you given much thought to
the idea of whether it is a big bang thing and on 1 January or
1 April 2000 it all happens, or whether the Government will have
a huge training problem or task in reorienting the culture of
secrecy to become a culture of openness and a whole range of government
departments, local authorities, privatised utilities, all the
other bodies covered by this very comprehensive White Paper? Have
you given thought to a staged introduction of it or do you think
the big bang is better?
(Ms Klevan) We have waited this long for a Freedom
of Information Act we would not like to see any lengthy process
of waiting. We recognise there are budget issues and training
issues but we would hope that departments were gearing themselves
up now for the implications of the legislation. We would not want
to see any delays, where they were unnecessary. Obviously we do
recognise there are training implications.
(Ms Whitworth) There is a danger that if you allow
government departments to set the pace and the style in which
this happens you then actually end up with a complex and complicated
and possibly even expensive bureaucracy to deliver it rather than
something which actually is delivering the needs of consumers
or those who represent consumers and academics and the press and
so on and so forth. I would suggest, and we have not discussed
this in the Council, that we would tend to agree with Consumers'
Association that there should be more of a big bang because there
is not going to be a huge demand. It has been demonstrated in
the past that it is a slow trickle. What we are looking for is
a cultural change and we want that cultural change to be driven
by the needs of the users of the information rather than the providers
of the information.
(Mr Middleton) We have had the code of open government
for some time now so various measures should already be in place.
501. And we will have draft legislation
as well, or at least we hope we will have draft legislation so
that in the legislative process there will be two bites of the
cherry which gives people more time to adapt. Any final words
on this issue?
(Ms Winfield) There are several things which do
need to be in place: training, there needs to be a strategy for
public awareness, there needs to be good guidance to decision
makers and to people who are going to use the Act. All of those
things do have to be in place. The decision about when the big
bang comes needs to be informed by how long it will take to get
those systems up and running and those systems really need to
be in place at the same time as the Act, but to have a target
to shoot at is extremely important.
Mr Campbell: I have
just come back from Canada. I was there for two weeks. One of
the questions I asked the Information Commissioner there was how
it was when they started freedom of information. He said they
had a turbulence of trying to get departments to do it; it was
not the requests coming in, it was just getting every department,
hundreds of them, actually to do it because they had so many requests
turned down which should not have been that the tribunals were
overrun. That happened over a period of 18 months and he says
now it is as smooth as anything. No problem. Obviously we have
to expect problems at the beginning but after we get these people
out there, the civil servants who do not want to give the information
and they have to, that is going to be our problem until we get
their minds trained that under the Act they have to give this
information out. That is a problem the Canadians found. Hopefully
we can get across that very quickly.
Chairman: I am not
sure whether we will be better than the Canadians or worse than
the Canadians when it comes to the British Freedom of Information
Act but whichever we prove to be I should like to thank both bodies
and both persons from both bodies for giving evidence to us in
such an exemplary fashion this morning. Thank you very much for
coming.
1 See Appendix, p. 119. Back
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