Examination of witness (Questions 133 - 149)
TUESDAY 20 JANUARY 1998
MR MAURICE
FRANKEL
Chairman
133. Welcome to this morning's session, Maurice. I do
not know whether you have got a prepared written statement that
you would like to deliver to us of a kind of abbreviated version
of your paper which we have obviously got in front of us or whether
you would like to talk through your paper first before we start
the question and answer session, that is entirely up to you.
(Mr Frankel) I think it is better if I do not
start because sometimes it is difficult to stop me otherwise.
134. In that case I will start. Let us get on with the
formal questioning, first by way of thanking you for the paper
for this morning, which is quite lengthy but it is very much to
the point. This is the first session of our inquiry into the Government's
proposals other than the evidence that we have had directly from
the Chancellor of the Duchy himself. I would like to put a few
questions to you to get the ball rolling this morning. Some of
the points you have made I would like to ask you about. For instance,
from your knowledge of how the freedom of information legislation
works in other countries, do you believe that the fear of disclosure
actually reduces the incentive for either civil servants or other
people working within the government machine to record minutes
and do aide memoires and people try to do more in their
heads because then there is nothing you can disclose when challenged?
(Mr Frankel) I think there may be a tendency in
that direction but I think the reality of running any organisation
prevents that being taken very far. Even in our own organisation,
which is three people, you cannot get very far if you do not keep
proper records of what you are doing. It would be impossible in
a government department, particularly where the career structure
involves people moving on to new posts after a period in one post,
if records of what you have decided are not kept.
135. That would apply even though we are supposed to
be moving towards the paperless office and all the rest of it,
there would still be computerised records substituting for written
records and they would still be disclosable. Do you think there
is an interim problem where people attempt to do without aide
memoires because they think that is the clever way to get
round FOI?
(Mr Frankel) That probably already exists, to
a degree, because of the possibility of a leak or because of the
possibility that documents may be required in litigation at a
later stage. I am sure that if there is something very sensitive
people will think twice before being very frank about how they
record it. I do not think you can get away from that problem altogether
but I do not think it should be exaggerated.
136. Negotiations with the European Community and the
Commission: do you believe there is a serious problem in getting
at information under the FOI because although the UK Government
would be obliged to follow FOI principles, they could not actually,
even if they wanted to, because it would possibly cause embarrassment
to other Member States who have been involved in a negotiation
or if the European Commission itself had approved a deal which
might be regarded by some parties as a dirty deal and so on because
they may not have freedom of information legislation of exactly
the same type or they can deny disclosure even when the UK Government
wants to disclose?
(Mr Frankel) I think there is a lot of scope for
a robust approach by individual national governments to that kind
of problem. It may not involve releasing the views of particular
individual other governments but certainly what the proposals
are and how they would affect Britain is something which our Government
can take a lead in disclosing. I think you only have to look at
the degree of - -
137. You do not think the European Commission could deny
the right to disclose something the UK Government wanted to disclose
about some sort of negotiation or bargain that has been struck?
(Mr Frankel) I think it is very difficult for
the Commission to dictate what the British Government does in
these matters. If the Government wants to disclose it and thinks
it is necessary and justifiable I am sure it would find a way
of doing it.
138. Let me put the question the other way round now.
Let us say the British Government does not want to disclose but
would in theory be obliged to disclose other than the fact that
it could claim that this would cause a breach of trust and therefore
is covered by the exclusion under the international relations
section of exemptions and exclusions?
(Mr Frankel) I think that is the more likely scenario.
139. Perhaps it is.
(Mr Frankel) I think in our dealings with the
European institutions we need to be more robust than in discussions
with individual governments on other things. I think this is part
of our legislative process. If we are talking about draft proposals
that are going to be enacted in British legislation certainly
we want as much advance notice of what is going on in time to
influence the decision making process, in time to influence the
British Government's stance, in relation to those discussions.
Clearly there are limits to how far one can go. I think one could
look at how Sweden is handling this under its Freedom of Information
Act - -
140. What does that tell us?
(Mr Frankel) What has happened has been that people
who attempted to get information from the Commission and the Council
under Commission and Council provisions for disclosure of information
have been denied a large amount of information which they have
been able to get from the Swedish Government under Sweden's Freedom
of Information Act. If a precedent is established by any one Member
State I think we are entitled to look very seriously at how far
we should be ready to follow suit in that kind of area. It will
lead to pressure for a greater degree of openness across the board.
Mr Shepherd
141. Could you say something about the harm test there
that is already applying to the area of international relations?
Just to put it in a very simple way, this is a legislative body,
we do not get the minutes for instance or any detail of how the
arguments went across nations, if I may use that expression, within
the Council of Ministers and yet we hear conflicting reports,
each one has the Minister coming out as a triumph which cannot
be reconciled with the outcome. We are interested in trade-offs
obviously. Did we surrender fishing for a quid pro quo on something
else? None of this is now available to our assessment or weighing
of these things. How does the harm test under the Code of Practice
and then the harm test posed under the White Paper affect this?
(Mr Frankel) The first thing to say is that the
analogy that is very often used is to Cabinet discussions and
internal discussions within the UK Government. That seems to be
a wrong analogy because we do not abide by any principle of collective
responsibility in relation to European wide decisions. That principle
does not exist. All Member States follow their own national interests.
Secondly, the White Paper does propose that there is going to
be an exemption to do with breach of confidence across the board.
Chairman
142. It looks very wide, does it not?
(Mr Frankel) It may well be very wide and that
is certainly potentially capable of catching all of this kind
of material. I am encouraged by the fact that the Government is
proposing that breach of confidence should be subject to not just
the harm test but the substantial harm test. I think that must
require something other than simply saying this has been given
to us in confidence by the European Commission or even another
government and therefore by definition substantial harm would
follow. I think we are entitled to expect a meaningful substantial
harm test in those areas.
143. Richard Shepherd mentioned this question of trade-off,
can I throw this at you as an example possibly. According to my
memory when Britain was seeking to do the deal to get European
Commission approval for the electricity privatisation scheme they
had a couple of knotty problems, one of them was over the part-constructed
Sizewell B nuclear power station. My memory is that the European
Commission did a nice little trade-off with the French Government
and the British Government in which it said: "Okay, we will
not disapprove of what you are proposing for Sizewell B, that
it will have a guaranteed load when it comes on stream three years
later ..." etc, but they had to get the support of one other
Member State and the French agreed to support that which was sufficient
to help the Commission to say: "Okay, we will do the deal
on this basis so long as the French can have a one way flow of
electricity into the United Kingdom under the inter-connector".
Now, I do not know whether any of this is true of course because
without freedom of information you cannot find out. Do you think
that one would be able to find out in the future whether my suspicions
are well founded or not under freedom of information or under
the breach of confidence is that likely to be an excluded area?
(Mr Frankel) I think that there may well be a
distinction between what you can find out while those negotiations
are taking place and what you can find out afterwards.
144. Five or six years later.
(Mr Frankel) There is greater scope for damage
to be done while the negotiations are in place but afterwards
I cannot see any justification at all for withholding that type
of information.
145. You not seeing a justification and the Government
not seeing a justification or the European Commission not seeing
a justification are two different things. Under the powers in
the White Paper do you think one would be able to, or if not how
would you strengthen those powers in the White Paper so that we
would be able to see whether my suspicions of a dirty deal are
true or not?
(Mr Frankel) I think we have to treat the European
institutions as different in many respects from other international
negotiations and relations.
146. That is not clear in the White Paper.
(Mr Frankel) No, it is not.
147. It should be.
(Mr Frankel) It is not clear.
148. It is part of the Government of this country.
(Mr Frankel) We have a provision that policy advice
will be disclosed and subject to a harm test. One could regard
this as equivalent to policy advice in some sense. This is about
internal considerations which lead to the taking of the position
and the making of a decision. I think we ought to be able to see
that information under particular circumstances under this Act.
Mr Shepherd
149. It is a lower test though, it is harm, is it not,
not substantial harm?
(Mr Frankel) I look at this in two entirely different
ways depending on how I feel at the time. One is to do with the
fact that the Government has set as its norm substantial harm
which is actually a rather bold test of harm. It would be rather
harsh to criticise them for not being able to live up to that
across the board. The other way I look at it is saying "We
do not know what either harm or substantial harm will mean in
practice and if substantial harm turns out to mean not much more
than harm would have meant what is the effect of having a signal
that this test is intended to be lower than the norm?" I
do not know, one can look at it in both ways and I think certainly
in relation to policy advice the issues are different. I think
the fact there is so much anxiety within government on this issue
may mean that by presenting it in this way they are overcoming
serious political objections to the whole measure. So it may have
been a necessary trade-off to get the measure through. I would
be concerned if it led to a removal of the pressure to justify
in rigorous terms why it was necessary to withhold that information,
why it could not be disclosed.
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