Examination of witnesses (Questions 75 - 89)
TUESDAY 16 DECEMBER 1997
RT HON
DR DAVID
CLARK MP and MR
CHARLES RAMSDEN
Chairman
75. May I say to David Clark, a warm welcome both to
him, as the Chancellor of the Duchy, and also to Charles Ramsden,
who, I believe, David, is the Head of the Freedom of Information
Unit in your department. May I, therefore, open the questioning
by making a general comment to you, that you must be basking in
the very warm glow of commendation that has come from all quarters,
for the content of the White Paper and the spirit of it. Obviously,
I hope you will not take any of our questions amiss, because it
is against that background that many of us will be asking those
questions. In spite of the general commendation we all feel about
the White Paper in general there are still, nevertheless, some
areas which we will wish to tease out with you this morning. If
I may start by asking you about the issue of how you exclude the
area of policy advice to Ministers from freedom of information,
I do not know whether you would agree with me that you could categorise
advice to Ministers under three headings. It is only one of those
that you are proposing to disclose; namely, factual background.
You then go on to specify a category, what you call analytical
information; and, finally, there is policy advice. Most people
would agree that policy advice should be excluded, and is excluded
in most other jurisdictions which have freedom of information
legislation. However, is there not a case for not only disclosing
factual background information, but also what you call analytical
information as well? Should that not be disclosed?
(Dr Clark) Chairman, thank you very much for the
opportunity to come before you. May I say I was very pleased proactively,
as soon as I received the invitation, to come and talk to you
as a group before I spoke to any other group. It is right and
proper. It is right and proper that Parliament is involved in
this right from day one. I am delighted to be here. Indeed, I
anticipated this relationship and apologise, in a sense, that
in the White Paper - and I do not think this is very usual - I
actually make reference to this Committee as one of the bodies
whom I would hope to be involved with very closely in the consultative
period. I was very conscious that this body should be involved
and would be involved. That is why I am so pleased to be here
today. May I deal with your specific question. First, let me make
it quite clear, we are not excluding it. We are not excluding
policy advice. It is included within the scope of the Bill. That
is very, very important. If it were excluded, it would mean that
the Information Commissioner would not have access to it. In other
words, if you requested access to some documents relating to policy
advice, and if it were refused, you are allowed to appeal to the
Information Commissioner against that refusal. That, in essence,
means that the Information Commissioner can look at the papers
and see whether the refusal to release the papers was justified
or not. That gets round the problem in Canada where they have
an overall exclusion. They call it "Cabinet confidence".
That means that once they are designated "Cabinet confidence"
by a department, nobody can second-judge that. Therefore, all
the department needs to do is to stamp "Cabinet confidence"
on the paper. So it is very, very important that we brought it
within the scope of the Bill. It is an exception in that sense.
It is a specified interest. It then leads me on to the second
point. Not only will the Information Commissioner be able to look
at the papers and give a second opinion on this - or a third opinion,
as it will be - but it also leads us on to the next point, which
you have quite rightly indicated, that we do distinguish between
what I would call opinions given to Ministers in terms of policy
advice, and the factual background papers. We are very keen that
the factual background papers should be made available. I make
the point quite clearly that, indeed, we are hoping to get officials
to think carefully, when they are presenting information to Ministers,
to try to divide up their advice to Ministers between policy,
in terms of opinions, and factual background. That will make it
very much easier, practically, to release the information. I would
make one more point before I go on to deal with your specific
point and it is this: we generally have taken a view that we would
not have any class exemptions; in other words, papers as a whole
which would not be exempt because they were of a certain class.
Specific documents and any exemption will be on a case by case
basis. This was a point which came up in the whole of the Scott
Inquiry. In answer to your very narrow question but very correct
one, the analytical part of advice given to Ministers: we believe
this is somewhat of a grey area. If there is one theme, one word
which is running through the White Paper - and it is probably
not in there - this is the word "progressive". I talk
about a culture change. It is going to be a culture change but
it will not happen overnight. We have to change gradually the
workings and thinkings of the people. I hope as we go on, and
officials become more comfortable in the use and working with
the system, that this grey area of analytical (or much more of
it) will be made available; but, at the end of the day, it will
be subject to the judgment of the Information Commissioner.
76. You do refer in paragraph 3.20 to - what I will read,
the words of the White Paper - "We therefore see the decision
making and policy advice interest as designed primarily to protect
opinion and analytical information, not the raw data and factual
background material which have contributed to the policy making
process." We would all agree that raw data and factual background
material should be disclosable under the Act. I suppose there
is a very strong case - and there is a widespread international
practice - about policy advice. What I am asking you is: do you
think it is easy to have analytical information also protected
in the same way as policy advice is?
(Dr Clark) Of course, it would be subject to the
specified interest test. If it is withheld, it should be shown
that it would show damage in this case. In a sense, what I am
saying is that this is very much a grey area. If the Information
Commissioner felt that the analytical advice, as opposed to the
more detailed opinion advice, were to be withheld, but he felt
here that it should not be withheld, he clearly could overrule
it in a case because, as I say, it has to be measured against
a simple harm test and against this one of specified interest.
77. It will come as no surprise to you that the reason
for asking that question is that we are trying to anticipate to
what extent a Freedom of Information Act - on the assumption that
it becomes an Act by 1999 - whether there will be an adaptation
in the way civil servants, particularly senior civil servants,
give advice to Ministers. Whether, in anticipation of freedom
of information, they will suddenly start committing less and less
to paper. It will be more lunches at the Reform Club rather than
circulating an actual document to other departments, or between
section heads between the departments, in order to formulate the
final policy advice. Have you anticipated that freedom of information
does change the behaviour of civil servants and Ministers as they
come to finalise a policy initiative? If so, how do you get round
that problem? How do you prevent civil servants suddenly committing
less to paper so that a document cannot be requested under the
Freedom of Information Act?
(Dr Clark) I have tried to look at this paper
and to be as honest and frank as possible. There are ways that
you can appear very, very liberal but at the end of the day you
have not been truthful or liberal. You have highlighted one of
the examples. Certainly I take the view that open government is
one of the key criteria for good government but, at the end of
the day, it is good government that it is all about. I believe
that government does need space in which to consider problems;
consider policy and reach decisions. It is better that space is
done outside the goldfish bowl scenario, although perhaps you
and I do not want to dwell too much on that particular point.
You then come on to the point about advice of senior officials,
as you say. One of the things that concerned me was that it was
suggested to me that in certain countries - or one particular
country, Australia was the example given to me - where there was
access to policy advice, the tendency was for the policy advice
submitted to Ministers, as you quite rightly described, not to
be put on paper. It was done by telephone. It was done in corridors.
I do not think that leads to good government. It certainly does
not lead to any disclosure of information because there is no
information to disclose. So that was one of the balances we actually
took into account when we came up with this simple harm test.
One of my experiences on my travels, which were much criticised,
was talking to officials; that over a period of time you get a
change of attitude amongst officials as they get used to working
with the new system. Certainly in New Zealand and Australia I
had it put to me on a number of occasions that as senior officials
began to get used to the system of more openness, they actually
felt they were giving better information to the Ministers because
they knew that eventually the advice they were committing to paper
may appear in the public domain. It might be a few years afterwards
but that concentrated the mind enormously. I come back to the
word I mentioned before, that this is the progressive aspect
of the legislation, that I hope is the spirit running right through
that legislation.
78. On the issue of the progressive development of the
freedom of information attitude of mind, if I can put it that
way, it has been said that the United States freedom of information
legislation did not by itself, actually on its own, launch freedom
of information as a mind-set, in the whole United States government
process; it was as much the sunshine acts which came six, seven
or eight years later, and were themselves more as a consequence
of the Watergate scandals, impeaching the President and so on.
I am not suggesting that in order to make this legislation we
have to impeach the Prime Minister and have a British Watergate,
but it may be that we have to have a sunshine act as well as freedom
of information of itself, in order to change the culture of government
towards openness.
(Dr Clark) That has not been the experience. This
was why I was very keen to look at the Westminster model in New
Zealand, Australia and Canada, and that has not been their experience.
The American situation is quite different in that respect. As
I say, that was one of the advantages of going round and discussing
it with people. The other point, which is important - imperfect,
though it is, and I do think it is very imperfect - we have the
Code. It does deal with several thousand cases in a year.
(Mr Ramsden) It is 2,000.
(Dr Clark) It is about 2,000 cases a year. We
have not started from tabula rasa in central government.
Then, of course, we have the environment legislation which requires
a certain amount of disclosure. We have local government, much
more open than central government, coming into the Act. Of course,
we have the National Health Service, which is a kind of freedom
of information, coming into the Act. We are not starting completely
from cold. We have slowly got the snowball rolling, so to speak.
That is quite important. What this piece of legislation will do
will really get the snowball rolling, and the whole progressive
effect of freedom of information will develop. We do not specifically
need sunshine acts in themselves, but this is something we have
to look at because if the culture does not change very quickly
we may have to look at other ways.
79. This is, in a way, a version of the question that
I asked you on the Floor of the House last Thursday, during your
Statement to the House launching the White Paper, about the kind
of person you would be looking for in the Information Commissioner,
and the kind of appointment process that you envisage. Have you
given thought to what you are looking for, to get the right kind
of attitude towards open government? I suppose we would agree
that you need a knowledge of the Whitehall machine, but you also
need a very proactive attitude in the Information Commissioner
towards open government. That leaves one with a mental picture
of the choice which you and the Prime Minister would have to make.
Whether or not you choose a Sir Humphrey type figure, who has
become thoroughly disillusioned with Whitehall and now believes
it is not totally corrupt but that the secrecy culture is very
corrupting, and therefore wants to open up the system but knows
how the system works from within; or whether you choose an outsider
- an academic or campaigner from one of the single issue groups,
or something of that sort - who knows the issue really well but
possibly could find himself having rings run round him from the
existing Sir Humphreys, because they will be anxious to defend
their turf and traditional ways of working. Have you given much
thought to that, and as to how you seek this Olympian figure,
who will do this job for the whole country, of opening up Whitehall
and the other areas which will be covered by this Act?
(Dr Clark) No, I have been more concerned about
how we would formally go through the mechanism. That is another
point put to me. I have drawn up in a paper here how various other
people are appointed like the Parliamentary Commissioner for Administration,
the Comptroller Auditor General, the Commissioner for Public Appointments,
the Data Protection Registrar, and the Parliamentary Commissioner
for Standards. I would be very happy to leave that for you to
see. Quite clearly, at the end of the day, the formal process
will almost certainly be by Her Majesty, by letters patent, or
by an address to the House of Commons or something like this,
but that sort of detail we can actually work out. This is a matter
of consultation on which we would like to hear the views of this
Committee on the various ways forward. As regards the individual,
that really is going to be one of the key decisions, whether a
man or a woman. In Canada it is a senior journalist. I can think
of some very good senior journalists in this country whom I would
be very content to be considered for this particular post. There
are people who know the way round Whitehall. There are people
who know the key players. A senior journalist is a possibility.
Equally, you certainly do not want a Sir Humphrey figure in the
way Sir Humphrey is presented, but having said that, there are
obviously senior officials who actually are very proactive in
arguing for more openness. If I can put in parenthesis here, I
would like to pay tribute to my experience with the Civil Service
who at no time have held me back in trying to put forward this
legislation. Indeed, I say that if it had not been for Mr Ramsden
on my right-hand side here, who has worked almost night and day
- certainly this weekend, but also the last six or seven weeks
- in getting this thing right, we would not have done it. We owe
a great debt of gratitude to the officials in the way they have
helped us, so I hope Sir Humphrey is a thing of past. However,
I do take your point. It has to be somebody who understands Whitehall
but is actually basically on the side of the Act, which is there
to promote more openness. That is the raison d'etre of
the Bill. If it were anyone who is not on the side of the Act
it would not work because we see the Information Commissioner
- and you may want to come back to this - as being the facilitator.
He is charged with the job of trying to have as much openness
as possible, which is compatible with good government.
80. On that point, in the preparation of the Bill, you
mentioned that the civil servants, by and large, did not block
you or provide obstacles to you. But were there different ministries
or particular departments which were more enthusiastic than others?
On the other side of the coin, were there some departments which
were less enthusiastic than the average in getting the White Paper
out in the form that it has finally emerged?
(Dr Clark) Clearly there was a great deal of debate
amongst Ministers because as you say - and you have indicated
in the introductory remarks - this is a very, very complicated
issue. What seemed so simple in opposition, in government became
much more difficult. We had to argue that at the end of the day
it is a question of balance as on so many of these things, to
argue out these issues. Certainly they were argued very forcibly
in the Cabinet Committee which dealt with this. I am sure that
was the right way to go about it. It took a little longer but,
as one of our colleagues said, in his judgment it was worth waiting
for. I quote that as a consensus of the House of Commons basically.
All I can say is - it is worth getting on record, if I may - when
I came into the job eight months ago, I was given a list of our
manifesto commitments as it affected our department. One of the
key things was freedom of information. I was told quite straight
by my Permanent Secretary that very little work had gone on in
preparation for such a Bill because the previous administration
had decided they were not going to follow the legislative route
and were content with the Code. I was then faced with the option
that we could instead have a short-cut Bill, which would have
meant putting the Code in a legislative framework. However, I
did not think this was right and I thought it was worth waiting
in the House for an all-singing, all-dancing White Paper and the
Bill. As soon as I took that decision, which was literally in
days of assuming office, I asked that we had a special unit established
within the Department to deal with freedom of information. Mr
Ramsden was appointed head of that and has worked with a small
team ever since. There has always been, certainly within the department,
enthusiasm. Of course, shadowing the Ministerial Committee, there
has been the official committee. I must say that the officials
have followed the line of the Ministerial Committee and have been
working out the details of what we decided and minuted at the
Cabinet Committee.
Mr Hancock
81. First of all, I am sure that if your press cuttings
are anything to go by, some of the senior journalists are already
fishing for the job, if you feel that one of them might be the
appropriate person. I am also delighted that you prevailed over
the way in which you were going to bring this piece of work into
the country and for the people to discuss it. I think you are
right not to go for a short-cut Bill. The way you have adopted
it is something you personally should be congratulated upon. However,
there are a couple of drawbacks to what you have said. People
out in the country, who are reading this White Paper for the first
time, will be a bit concerned about how various bodies will be
covered. Will they all be covered in the same way? My first question
is on your interpretation of how you feel this Act will cover
the bodies that you have suggested. Will they all be treated in
exactly the same way? If not, why not? On what experience did
you draw to suggest that they should be treated differently? Then
I will go on to expand on that.
(Dr Clark) First of all, may I thank you for your
kind words. May I say I do think openness is very important. One
of the first things we have done with this White Paper is not
only to put it on the Web, the Internet, but we have also been
putting on the replies we get from the consultation on the Internet
as well; so people can be interactive and reply to the consultations
if they so wish. This is the first time it has happened in the
United Kingdom. It is a sign of openness. It is my determination
to make sure we are absolutely open in this because we have got
to get it right and we have enough time to get it right. On your
specific points, I expect that the core requirements of the Act,
including the harm tests, must apply to all bodies within the
scope of the Act. These are absolutely fundamental. Having said
that, there may be times when there are small variations. For
example, we say that when we are looking at the appeal system,
we would generally expect there to be an internal review, an internal
appeal, within the department, which would be via a more senior
official, before we went on to the Information Commissioner. We
have found that by utilising the Code, that there is about a 30
per cent increase in the release when you have an internal review,
so we want to retain that normally. Of course, there may be some
very small departments where the compliance officer receiving
the application will be the most senior person. In cases like
that there will be slight variations in the scheme of things.
In that sort of thing the review procedure would be straight from
the department, straight through to the Information Commissioner.
Also, there may be different information available because clearly,
if you are looking at the private companies undertaking statutory
functions, it is only that part of their role relating to the
public aspect which is public; whereas dealing with the public
body, it is the totality of it. So generally, there may be slight
variations in the theme, but I actually see the core principles
and the core requirements of the Act as applying to everyone.
82. We come to this very strange suggestion that the
administrative functions of some departments, like the police
authorities, are the only things that would be open for scrutiny
here. Some of us might feel that this has always been a problem
of getting beyond the police. Those of us who have served on police
authorities will know that we can only set a budget and the appointment
of the Chief Constable. After that the Chief Constable has full
discretion on how it is spent and what operations are carried
out, with very little accountability. Some people, particularly
lawyers and others, who might have felt that a miscarriage of
justice had happened, would want to see the reasons behind the
way police carried out certain investigations. I would be interested
to know on what experience you and Mr Ramsden have drawn, to suggest
that only the administrative functions of the police and the police
authority are open to question; and why.
(Dr Clark) You have highlighted and identified
one of the key points and one of the key difficulties, let us
be frank about this. This is about balance. The whole thing is
basically about balance. However, none of us would want to hinder,
in any way, the prosecution and the prevention of criminal activity.
We are absolutely at one on that. Therefore, what we have tried
to do is to ask ourselves the question: what is the right balance?
It is a question which we have to debate further in that sense.
If we are too open: for example, if you find that the police cars
are suddenly in a particular area and at certain times of the
day over a certain period of time, it would not be too difficult
for the criminal fraternity to work out the consequences of this:
either what the police are doing or, in fact, if they are always
there on a Saturday night or a Friday night it is safe to perpetrate
crime in another area. So it is a very difficult balance. We are
also limited by section 98 of the Police and Criminal Evidence
Act of 1984 which sets limits on what can be disclosed in this
area. This then moves us on to a greater problem. We have identified
more than 200 Acts of Parliament which may prevent disclosure.
Now, we wrestled with this issue. How can we deal with this? Clearly
this is incompatible with freedom of information. What we have
done and highlighted in paragraph 3.20 of the White Paper is that
we intend that all these Acts should be looked at; should be reviewed.
As we say in 3.20, we intend that Act would repeal or amend many
existing statutory bars to disclosure, first identified in the
1993 Open Government White Paper, bringing them into line with
harm and public interest tests set out above. So our intention,
wherever possible, is to bring those 200 separate bits of legislation
within the scope of this Act, where it will be challengeable against
substantial harm in most cases.
83. Does that include the police?
(Dr Clark) We have actually said that we would
exclude the non-administrative side of the police.
84. That flies right in the face of what most reasonable
people would say. Once a case has been concluded, and a decision
by a jury has been made, there should be no impediment then why
the information that was put together and the way in which the
investigation was carried out, should not be put into the public
domain. I would be interested to know what experience you found,
or what advice you took, which said that we should be treated
differently to some of the other regimes in the world, which exist
at the moment in freedom of information, where the police and
the way in which investigations are carried out, by immigration
services and social security departments, are open for public
scrutiny. Why is that opportunity going to be denied to the community
here? Someone must have exerted some pressure to say, "We
want to be treated differently."
(Dr Clark) No. I think we are very conscious that
there is deep, deep concern about the rising level of crime in
this country. I do not think there are any problems with that.
Our judgment was that the British people would really, as a generality,
not understand. It was a question of balance and a question of
judgment that, in fact, were too much information available, which
might help the criminal against the police in their efforts to
prosecute a criminal activity, or to stop criminal activity, that
balance ought to be on the side of non-release of the document.
It is on that basis that we decided to do it. You raise a point
about social security. We all know that there is a considerable
amount of fraud in the social security system. I know you would
be at one with me to try and ensure that people who perpetrate
these frauds are brought to justice. We felt that if it were made
available, and if the means and the methods by which the police
sufficiently stopped crime, or the DSS officials stopped fraud,
if there was too much information available about this, it ironically
might prompt the people who are perpetrating the crime to find
other ways and even follow the same system of doing it. It is
a question of balance.
85. Was your experience, when you visited other countries,
that that freedom had actually, in any way, impeded police investigations
and had been seen as a disadvantage? I am all at one in what you
are saying about fighting crime and investigating fraud and all
of those things. They are things which all of us legitimately
believe to be right. However, I am talking about after the event;
the way in which the investigation was carried out. The background
that should be made available to lawyers who might be trying to
defend or bring to light a miscarriage of justice. Something which
would undoubtedly be in the public interest. I know from my own
experience as a constituency Member of Parliament, who deals regularly
with immigration cases, a number of my constituents will be bewildered
by the fact that the background to why certain people are excluded
from this country, for very trivial reasons, is not now going
to be open for them to scrutinise, and why their family members
are not allowed to visit the United Kingdom. I am bewildered by
that suggestion that this should not be part of a Freedom of Information
Act.
(Dr Clark) Clearly we are talking about a consultative
document, but you ask a specific question. I have in mind a meeting
we had in Wellington in New Zealand, where it was put to us that
where they had been more open in this legislation, in this sense
it actually had created difficulties for the police. That was
put to us very forcibly. The whole discovery issue, which we operate
in a different system in this country, the FOI had been used to
augment the discovery mechanisms for various legal cases and barristers.
The police there felt it was handicapped.
86. Had they found that it had been extensively used?
That people had sought that information?
(Dr Clark) Yes. Very much so.
87. As mature to appeals and to investigations of miscarriage
of justice?
(Dr Clark) Even for initial cases.
(Mr Ramsden) Yes, indeed.
88. In New Zealand it is actually available in advance
of a case going forward to court?
(Dr Clark) As I understand it, yes.
(Mr Ramsden) Yes. Certainly the situation in New
Zealand appeared to be, from what we were being told, that their
Access to Information Act was used quite extensively in the discovery
mechanism in legal processes at all stages, including convicted
criminals re-opening cases by making appeals under the Act from
prison. A lot of the ramifications of this had not been foreseen,
it appeared, when the Act was originally passed in the early 1980s.
We also draw on certain experience in places like the United States
where there had been cases of legislation which enabled people,
for example, to find out the names and addresses of individuals
as a result of their car number plates. As a result of that, people
had tracked individuals across the country and eventually assaulted
or, in one or two cases, murdered them. There was quite a bit
of concern as a result of some of these experiences, which we
were told from overseas FOI legislation, about the extent to which
the Governments saw the freedom of information as a discovery
mechanism and a legislative approach in this area.
89. The final point is this one on immigration cases.
Were you under pressure from the Home Office to exclude their
background papers to public scrutiny?
(Dr Clark) There was a long debate on this issue
because a number of departments, as you have indicated, were obviously
involved - not only the police, as you say, and the Home Office,
but also immigration and DSS - so there was a long debate on this
issue. At the end of the day the Committee took a collective decision
on it, and the collective decision is the one which appears in
the White Paper.
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