Examination of witnesses (Questions 502
- 519)
TUESDAY 7 APRIL 1998
THE RT
HON JACK
STRAW, MP,
THE LORD
WILLIAMS OF
MOSTYN, QC
AND MR
LEE HUGHES
Chairman
502. May I welcome you, Home Secretary,
and Lord Williams. I do not know, before we actually start the
questioning, whether you would like to make an opening statement
to us first. If you want to, please do so now. Then we will get
into questions and you can introduce the other member of your
team whom we obviously do not know.
(Mr Straw) Thank you very much, Chairman. As you
have already noted, I have Lord Williams of Mostyn on my left.
On my right is Lee Hughes, who is the official in the Home Office
who deals directly with freedom of information. I would like to
make a brief opening statement, if I may. As I think colleagues
here will know, I worked in government in the 1970s—albeit
in a different capacity—as a political adviser in two government
departments: at least known to two in your Committee, in the Department
of Health and Social Security, as it was then, and in the Department
of the Environment. Coming back into government after an interlude
of 19 years, I am struck that the climate is very much more open
than it was 20 years ago. There has been very considerable sea
change in openness. There are reasons for that. In the 1970s this
was a period when the Cold War was still on, and the Cold War
was used as the excuse for secrecy for almost every area of government,
including those which had no defence implications at all. There
has been a general shift in the climate of opinion since then.
What I have sought to do, since taking office on 2 May last year,
is to make a greater reality of openness. There are five examples
I want to give you. One was that in the preparations for the Crime
and Disorder Bill, I issued a number of consultative documents
setting out where we thought we were going, but asking for opinion
from the public and other interested groups. Each of those consultative
documents led to some hundreds of responses. The process was taken
seriously. I think the Bill is better for it. That was the first
example. The second is on the publication of statistics. I was
very concerned, in opposition, about the way in which some departments—not
all—sought to manipulate the dates on which official data
was issued and also sometimes the data itself. It was for that
reason I took a lead, in the opposition, in our developing a commitment
to a more independent national statistical service, which found
its way into the manifesto. Quite early on I decided, and in advance
of the publication of the White Paper on Statistics, to improve
the openness and integrity of Home Office statistics. I decided,
first of all, that we would have set dates for the publication
of the major series, including the crime statistics. Secondly,
they would be published by officials and not by Ministers. If
Ministers made a comment that would clearly be seen as separate.
As it happens, they are being published today. The third example
is in respect of the Chief Inspector of Prisons. The Chief Inspector
of Prisons is appointed by the Secretary of State and reports
to him. There is no legal duty on any Secretary of State to have
the Inspector's reports made public. They have been made public
in the past but as I discovered when I came into office there
were a great pile of reports, some of which were 18 months old,
being held up waiting Ministerial decision on publication. I have
changed that. I have established a protocol with the Prison Service
and with the Chief Inspector of Prisons, Sir David Ramsbotham,
under which those reports on the inspection of prisons are published
after a ten-year period. There is a period for checking that they
are factually accurate. Then they are automatically published.
Fourth, on individual decisions on citizenship, I announced in
late December that in future we would tell people why their application
for citizenship had been refused, save on national security grounds
whereas the law does not require that. I have long thought that
was wrong and I have changed that. Yesterday, in answer to a Parliamentary
Question by one of your members but she is absent, Fiona Mactaggart——
Chairman: She is no
longer a member of this Committee.
Mr Shepherd
503. She is now a PPS.
(Mr Straw) In that case I am sorry I am behind
the times but it just goes to show what elevation can happen to
members of this Committee! I published four volumes of the Immigration
Directorates' Instructions to our own caseworkers, volumes
1, 2, 3 and 4. I have not published the Instructions which
relate to national security or to the evasion of immigration control.
That leads me to a last point, which I daresay will form the basis
of discussion. I think I have showed that over the last ten months,
where there is a case for it, then information should be in the
public domain, more than has been in the past. However, that has
to be balanced against the need for good government, and you have
to have confidentiality if you are going to have good government.
Also, in the public's genuine interest with some information remaining
confidential. That is particularly true of law enforcement.
Chairman
504. Thank you very much, Home Secretary.
You have, in your general introductory remarks, praised the increasing
trend toward openness in government, that has occurred since you
ceased to be a political adviser in the late 1970s. You have almost
portrayed your present department as a bastion of liberalism,
and perhaps a picture of the Home Secretary with which we are
not entirely familiar from its past history. We are not claiming
that it is not a correct picture but you will not mind, of course,
as we ask you questions, if we test that picture of the Home Office
in that unaccustomed light.
(Mr Straw) May I say, Chairman, the famous criticism
of some of my predecessors was that the Home Office was too liberal.
My immediate predecessor was trying to get it on to an illiberal
path.
Mr Shepherd: Some
thought with your support in some instances!
Mr Ruffley: Your predecessor,
not so.
Chairman
505. I think we should try and avoid that
track, but I was interested in your introduction being along that
track. Government, in general, has become more liberal and you,
yourself, have led the Home Office into that direction enthusiastically
during your 11 months as Home Secretary. Now, one of the things
that puzzles this Committee, particularly in the light of those
opening remarks of yours, is that there are certain areas where,
for instance, the Code of Practice on Open Government that was
established over the past three or four years has established
that trend towards more information; yet there are certain areas
where in the Government's Freedom of Information White Paper a
few steps backwards have been taken. One of those is in the area
of immigration information which is no longer disclosable and
is completely excluded, if I understand it correctly, whereas
previously under the Code it was not. So, therefore, in spite
of this improving trend which you have enthusiastically adopted,
there are some areas where you have chosen to take a step backwards
in your section, as I take it, in the Freedom of Information White
Paper.
(Mr Straw) First of all, may I say aside of levity,
about the Home Office there is an openness there. I have not found
any resistance by officials to my suggestions of being more open.
A great deal of information is put into the public domain by officials
in the Code at the moment. The Home Office deals with areas of
very sensitive business. It is about law enforcement. National
security. Keeping 63,000 people in prison who do not want to be
there. There is a necessary degree of both secrecy and confidentiality
involved in those areas. On your precise point, I do not accept
what you say. It is for this reason. That the Code had only a
simple harm test in it. Aside from policy, the proposal in the
White Paper had a substantial harm test. That is a higher test
to me. That, in turn, requires that some information, which previously
could have been covered by a simple harm test, has to be excluded
altogether. However, I do not accept for a second, that the overall
effect of the package in the White Paper, as far as it affects
the Home Office, will be more restrictive than that in the Code.
506. Right. Can we look at this issue of
law enforcement and the total exclusion. That is, no exceptions;
no testing in the courts; no reference to the commissioner; total
exclusion of any matters relating to law enforcement. The USA,
for some years, has operated with freedom of information legislation,
in which the same concern is expressed but in a more liberal way
through using the much weaker, if you like, form of denial of
information; namely, by exemption and not exclusion. With exemption
then it is testable in the courts. You can protest against it
via the Commissioner and so on. If the USA can manage with an
exemption, why do we have to go all the way to a total exclusion
of law enforcement information?
(Mr Straw) The first point I make is this. When
you are coming down to detail you have to be very, very careful
on drawing on overseas analogies. This is because unless there
is not only the same information base in those overseas countries
as in this country, but the same understanding about the practice
of the law and the culture in which we are operating, then you
can end up by making false comparisons. I am struck from many
visits overseas by the fact that although many of our overseas
allies have freedom of information arrangements and all the rest
of it, nonetheless they place a high premium on confidentiality
and secrecy when it comes to law enforcement activities.
507. But the USA leaves it testable in the
courts, whereas your proposal is that it would not even be testable.
There is no reference to the Commissioner.
(Mr Straw) I come back to the issue of the tests.
I am not certain whether the US has a simple harm test or a substantial
harm test.
508. Either way, at least it means it is
challengeable, does it not?
(Mr Straw) If you have a simple harm test, then
it is possible to have more things testable in the courts. If
you go for a substantial harm test, then as far as I am concerned
the public interest requires that matters relating to law enforcement,
investigations and prosecutions have to be exempted altogether.
The question I put back at you is this: are we seriously suggesting
that criminals should be able to gain access to potential investigations
into their criminal activity? You are smiling, Chairman, but that
is an issue.
Chairman: No. That
is where the comparison with the USA is so important. They manage
with an exemption and not a total exclusion. Therefore, it is
still challengeable and they still catch criminals.
Mr Shepherd
509. Home Secretary, who is suggesting that
anyone can have access to that information that you narrowly pointed
to?
(Mr Straw) Well, you are suggesting. The implication
is that there is information which is contained currently within
the proposed exemptions which ought to be in the public domain.
We should have less clarity about this. I would be grateful if
members of this Committee could give some examples. What is it
that you feel specifically could be placed in the public domain?
On what point could a challenge take place? For example, it is
accepted by Mr Shepherd and yourself, Chairman, that we would
not have the investigation files made public.
510. May I give a couple of instances then.
The adequacy of policing arrangements outside a football ground
following an incident in the crowd, for instance. Why have the
police failed to respond promptly to a 999 call? The possibility
of excessive use of CS gas in inappropriate circumstances, or
an improper disclosure of confidential information by the police,
in respect of a spent conviction, to an employer. I just give
these "for instances" of areas which do not impinge
upon the central protection of that which is essential in the
investigation.
(Mr Straw) With great respect, they all impinge
upon the central issue. Questions, for example, which appear to
be prosaic, like the numbers of police officers who are outside
a football ground, go to the strength of that force in that area.
The general information is in any event available about the number
of officers in a force and within a sub-division. Those are well
known. There is also information about what is known as the attrition
rate. That information is likely to be available at any one time.
But if you are involved in policing a highly sensitive activity
like a football crowd, where there is a violent element in it,
you are in a situation where the numbers of police officers are
almost always going to be very many fewer than the number in the
crowd. If you openly provide intelligence about the total numbers
of police officers available, then that would be used by the criminals
involved.
511. This is a retrospective piece of information.
It is not prior.
(Mr Straw) What is retrospective and what is prior
cannot be wholly disentangled in a situation where you have one
police force. They police the area in a particular way because
that is the available resource they have. There would be very
serious objections raised to having the numbers of police officers
available for any particular operation made public. So far as
use of CS gas is concerned, typically those questions arise following
a complaint against the police. There is a wholly separate system
for dealing with complaints against the police. Let me say there
ought to be greater openness, as far as the release of some reports
of the Police Complaints Authority, and we are looking at that
in the context of the Freedom of Information Bill. You had two
other examples, Mr Shepherd.
512. 999 calls. The police have failed to
respond promptly to a 999 call, for instance.
(Mr Straw) There is published data on the number
of 999 calls which are responded to overall. That is plainly administrative.
Mr Tyrie
513. We are not discussing that. We are
discussing why they have not responded to the 999 call.
(Mr Straw) That is a matter on which there is
considerable openness at the moment. If you write to the police
superintendent, generally speaking they will give you a very adequate
answer.
514. Why is it covered by this Bill?
(Mr Straw) I am not even certain it will be, as
a matter of fact, as far as that is concerned.
Mr Bradley
515. Are you not making here a case for
disclosure? If you are saying that it is worrying that in the
case of crowd control, where outside a football match or outside
a demonstration it is damaging to know how many police were on
duty, do you not think it is a matter of public interest that
if something goes wrong, much as happened at Hillsborough, or
when complaints were made in the context of the Poll Tax demonstration
in London and the policing of the Miners' Dispute, do the public
not have a right to know whether the police were there in adequate
numbers? Whether the instructions they received and the operational
activities in which they were involved were proper?
(Mr Straw) Quite often, in those examples you
use, the question of how the police acted in the situation are
the subject of judicial inquiries and judicial proceedings. You
could not have a situation where information generally was disclosed
in advance of those proceedings. My point is not that this information
is always kept secret or confidential, but that it has to be extracted
by a different route. If you ended up with a situation where this
information is generally put into the commission, then you often
prejudice the judicial proceedings.
516. Nobody is suggesting that this information
should be made available before the police operation is taking
place. Few would be interested in that information after the operation
had taken place, unless something had gone wrong. And if something
goes wrong, then surely the public have a right to know why it
went wrong because the impulse is to ensure that it does not happen
again. We do have a substantial harm test. I can accept that in
certain circumstances, even after the event, that it would be
ill advised to broadcast too widely details of police operations,
but then there is a test which can be applied to determine that.
(Mr Straw) What you are under-estimating is how
difficult it would be to pass a substantial harm test. If you
have a simple harm test, then there is a case for including matters
like the investigation of prosecution of crime within the overall
structure of the scheme rather than excluding it. If you have
a substantial harm test, it is too dangerous to do so.
Mr Tyrie
517. The introduction of the simple harm
test has, therefore, forced you back to a general exclusion?
(Mr Straw) Yes.
518. On all these sorts of issue, where
otherwise we would think it quite logical not to be?
(Mr Straw) I can see the case that is being made,
but there is a very sensitive balance here which all members of
the Committee recognise. They could maybe argue where you exactly
strike the balance but there is a clear balance here. If you have
a simple harm test, then what follows is one set of exclusions.
If you have a substantial harm test, then what follows is another
set of exclusions.
Chairman
519. But in the issue of striking a balance,
it is much easier to achieve the striking of the balance, which
you say is the fundamental principle by which the Home Office
works, when you have an exemption which is still testable, and
not a total exclusion which renders it beyond the scope of any
testing and is one hundred per cent excluded.
(Mr Straw) But it depends entirely on what the
test is.
|
