Examination of witnesses (Questions 60 - 74)
TUESDAY 2 DECEMBER 1997
MR MICHAEL
BUCKLEY and MR
JOHN TATE
Mr Shepherd
60. Can I just ask about the structure. You mentioned
- I had not thought of it in these terms - devolution. There are
some, what I will call, union ministries, I had not appreciated
too, if I am an Ulster citizen or a citizen resident in Ulster
and I had just the complaint I was outlining to you, it relates
to a report on atomic or nuclear matters, I take it through as
a resident of Ulster, this is not really the expertise or competence
of the man that fulfils the functions in Ulster. Does the Ulster
citizen come to you?
(Mr Buckley) Yes.
61. Exactly. In fact the structure for a United Kingdom
freedom of information piece of legislation, other than perhaps
having what one might call branch offices or regional offices
in Scotland, Wales and Ulster, surely that ought to come under
an umbrella because there needs to be coherence and one central
authority that deals with the ministries or the departments that
cover subjects which may not be particular to the area in which
the resident lives but have general applications?
(Mr Buckley) I think there are two issues, if
I may say so here, Chairman. The first is that my jurisdiction
depends on the particular department or Agency. So, for example,
if a resident of Ulster wants to find out material from the Department
of Trade and Industry then he applies to me, similarly if he has
a complaint about the Inland Revenue or Customs and Excise which
are central UK Government departments then again it is a matter
for me. I think we should see what the Devolution Bills propose
but I would assume that a similar approach would be adopted in
the devolution legislation, that I would continue to be responsible
for reserved matters and there would have to be some separate
system for devolved matters. What I would argue is that given
that I think it is fair to say the majority of complaints involve
a complaint about the way in which a particular department or
agency is handling one's own personal affairs, there is a lot
to be said for tacking that freedom of information jurisdiction
on to that. So if somebody wants to make a complaint about the
department of the future Scottish Executive, it seems to me -
and that involves a freedom of information matter - it would be
more convenient for the aggrieved citizen to treat that as a single
matter. I take the point, however, separately, that one does need
to have some sort of consistency of approach, maybe one might
take the word "commissioner" and literally have a commission.
We are all called commissioners and here we are without any commission
to our name. Why not have a commission which looks after freedom
of information? We could have PCA for matters involving Government
departments, the Commission for Local Administration for matters
involving local authorities and so on. We could make sure then
that things were both I hope reasonably convenient to the citizen
and there was reasonable consistency in approach.
Chairman
62. The Welsh Assembly Bill is published but I have to
admit that I have not dug into the schedules yet to see what it
says about the rights of the Parliamentary Commissioner for Administration
and evidently from your answer you have not?
(Mr Buckley) I have had that pleasure.
63. You have?
(Mr Buckley) The answer is, as far as I am aware,
the Bill is silent on that point. The Government is proposing
to bring forward proposals in due course.
64. Finally, to wind up this morning's session, can I
pick up on your answer to Fiona Mactaggart's last question. In
that you expressed some confidence in the ability of your office
to continue the improved speed with which you dealt with inquiries
under your Parliamentary Commissioner for Administration hat and
your Health Service Commissioner hat as well but perhaps ignoring
for the moment the fact that the time taken to do the work under
the Code of Practice on Access to Government Information has been
going up, we understand, from 32 weeks in 1995 to 45 weeks in
1996. Why is the average time taken to complete a complaint coming
down as regards your two other functions but going up with respect
to your latest acquired function on open access to government
information?
(Mr Buckley) It will probably continue to go up.
The way we score is to bring a complaint into the books, as it
were, or investigation into the books when it is completed. Therefore
if it has been going on for a long time and we complete it that
will push the average up as we show it. What we are saying is
that new cases, cases after June 1996, are coming down but we
do have a backlog of some old cases. If we bring those into the
books, I am afraid the time will go up. It is happening similarly
on the Parliamentary side. We have reduced the backlog of investigations
from 479, if my memory serves me correctly, at the end of 1996
- -
65. 479 weeks?
(Mr Buckley) No, 479 cases, the average throughput
time is 88 weeks, near enough. We have the investigation backlog
down and within that a number of cases over 12 months also down
but it may well be if we showed you the average time for investigations
as we score it, they would go up because we had this dreadful
backlog from before 1 January 1997. It is a statistical artefact
but what I am saying is that as for new cases we are getting them
through quicker and we shall continue to do so.
66. Would you agree with me that what we need in the
interim period before we have freedom of information legislation
is a strategy? It seems that strategy ought to be something along
the lines that Melanie Johnson was referring to earlier, that
if we are going to have a national Code for access to information
then there should be national ground rules for that Code. The
department should express their objectives and tests that they
set, the charging policy and so on, to a common format, that it
should not sometimes refer to pounds, costs that you are going
to have free and should not other departments use hours and so
on? There should be a common format for that kind of thing because
although you could say: "Well, it does not matter anyway
because we are going to have the statutory format in two years'
time" but nevertheless we have got this interim period where
we will still be relying on a national Code but a national Code
very much does not seem national at the moment. It is a total
patchwork quilt of departments deciding how to opt in, opt out
or opt sideways to their own preference. Do you think it is worth
putting in the effort, given that we are going to have a statutory
framework for all of this in about two years' time, is it still
worth yourself, this Committee, etc, trying to make the department
abide by a genuine national Code that everybody can understand?
I do not know whether that would have any bearing on the number
of complaints you get. Do you think it is worth putting in the
effort given that it would be for only two to two and a half years?
(Mr Buckley) I think the experience abroad has
been that when there has been freedom of information legislation,
there is the statute and it is usually expressed to come into
effect some time later in order to give departments the chance
to instal the systems that they will need, there may be a charging
system to conform with whatever the statute may lay down. I think
the first question is what would the freedom of information legislation
provide. If that provides for some sort of uniformity on charging
policy then I would have thought that strengthens the argument
for getting departments to prepare the way. They will need to
do that for their own management reasons. Separately, however,
I think there is a perfectly valid case for saying the existing
patchwork quilt is too confusing and unhelpful to components and
I would hope the Cabinet Office and the Treasury between them
could encourage departments to have somewhat more uniformity but
ultimately it is a matter for Government.
67. I was about to ask that as my next question really.
Whose job is it to decide that? Obviously we can chivvy, you can
contribute, but at the end of the day it is a matter for the Government
to make its own decision. Presumably recommendations from yourself
- I do not know if you have made any recommendations or expressed
dissatisfaction about the present tangled web - and if this Committee
was to think about the possibility of making a recommendation
as well, would that be helpful in sorting out the present disparity
between departments, not just on charging policies, which is an
easy one to pick up because it is all there in black and white,
but more really on what is their attitude, positive or negative
or somewhere in the middle, over release of information in the
interim period before they are theoretically obliged to do so
by law?
(Mr Buckley) I think all I can do, as you do,
is to remind departments of their obligations under the Code.
I do think that those obligations include to make things as easy
as possible for the citizen.
68. Can you do that by referring them to how another
department does it better or does that produce a very adverse
reaction: "I do not care about the Department of Health or
Northern Ireland Office" or whatever it might be?
(Mr Buckley) I think part of the difficulty is
that so much does depend on individuals' attitudes.
69. Individual Permanent Secretaries?
(Mr Buckley) Yes, perhaps to an extent.
70. Is there a generational difference between the 59
year olds and the 40 year olds on this?
(Mr Buckley) I do not detect one at all. Things
can go wrong.
71. I say this as a 58 year old!
(Mr Buckley) For example, there is one department,
a case we are considering at the moment, which has got a perfect
decent system installed and there is an explicit instruction from
on high to deal with the request under the Code and when it got
down to working level that request simply got overlooked. It is
very hard to see what one can do through the systems. If people
have the instructions genuinely in a specific case and ignore
them it will get picked up later but that is not much benefit
to the individual complainant.
72. My last question is to try and make a synopsis of
what we have learned this morning. Would it be fair to say that
to achieve the freedom of information banner that we are all looking
towards is a three stage process. We are now reaching the end
of stage one where each department has been allowed under the
Code to decide for itself what its charging policy is and what
its release of information, body language, general attitude is.
We are now coming to the beginning of stage two where they have
had the chance now to use their experience, look at the charging
policies, look at the number of complaints and the way these complaints
are dealt with by your office and so on. So we could be at the
stage of a standard stage two where we say "Right, we have
now had a couple of years' experience of departments deciding
for themselves how to interpret the open information Code but
now is the time when the Ombudsman, the Cabinet Office, the Select
Committee here decides "let us try and make the national
Code more national by saying there is best practice here and it
is clear that on charging policy the Welsh Office is best but
on release of information the Scottish Office is better"
or whatever, "can we all bring that to the standard of the
best?" Finally, in 1999 we move forward to actually the statutory
operational freedom of information legislation. Is that a fair
way of looking at the three stages to the banner?
(Mr Buckley) I would go along with the spirit
of what you say, Chairman. It seems to me that assuming the Government
does produce a White Paper fairly soon that will need to outline
its plans and one would have thought the departments will start
putting their own house in order so they can fulfil those plans
in due course as soon as the legislation passes. I am not sure
whether on charging policy I would want to say that any one particular
of these departmental practices is better than the other, what
I do say is it does seem to me unnecessarily confusing to have
such a wide variety of practice.
73. It is absolutely absurd at present. There is not
even the same basis for charging.
(Mr Buckley) Indeed.
74. We want convergence as with everything European.
I should not say that really. A measure of convergence would be
helpful to the public.
(Mr Buckley) Indeed. The Code is supposed to apply
to all those it covers, there should not be any difference. If
there are differences in things like response times it probably
simply reflects departmental management situations rather than
any deliberate decision to be unco-operative. I do not think there
is any ground to suspect that. What one could do is certainly
to point to good practice. As I said, the Health and Safety Executive
seems to us, from what we have seen, to be a very good example.
I do not see why all departments cannot work towards the best
standard.
Chairman: Perhaps the Committee will take that suggestion
up and provided it does not create a very adverse reaction amongst
the bigger departments we will indicate to all of the government
departments, or to the Cabinet Office for them to indicate to
all of the departments, that if they looked at the Health and
Safety Executive they might find good practice and if it can be
achieved in HSE why can they not achieve it in their departments
and so on. I think that might be very helpful for the next two
years. We are very grateful for the evidence you have given this
morning. Thank you.
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