House of Commons - Public Administration

Select Committee on Public Administration Third Report

INTERNAL AND EXTERNAL REVIEW

83. The White Paper proposes a two-stage system of appeals against a refusal to disclose information. The first stage will be an internal review, by the authority which is the subject of the request.[120] The second stage will be to an independent Information Commissioner.[121] The Commissioner will have: powers to order disclosure of records and information which are subject to the Act; the right of access to any records within the scope of the Act and relevant to an investigation; the power to review and adjust individual charges or charging systems, or to waive a charge; and the right to resolve disputes via mediation.[122] The Commissioner will be able to report any failure by a public authority to comply with a disclosure order, or to supply records relevant to an investigation to a court: such cases would be treated by the court in the same way as a contempt of court.[123] There will be no right of appeal to the courts against the decisions of the Information Commissioner except by way of judicial review.[124]

84. The White Paper says this on the type of official that the Information Commissioner will be:

"We envisage that the Information Commissioner will fulfil a role similar to that performed by the Parliamentary Ombudsman under the Code. However, we intend to make the new Commissioner an independent office holder (like the Data Protection Registrar) rather than an officer accountable to Parliament (like the Parliamentary Ombudsman). We believe that an independent officer is the more appropriate model given the wide coverage of the Act which will include very large numbers of bodies (for example schools and local authorities) that are not directly accountable to Parliament. An independent office holder will be answerable to the courts for his or her decisions. In this way, the appeals system will be (and will be seen to be) independent and in particular not subject to any form of political override which might ultimately be used to resolve contentious cases in favour of the Government".[125]

85. The Ombudsman has made it clear how misleading an account of his Office this is. The Ombudsman is no less independent than is the Data Protection Registrar. The Parliamentary Commissioner Act 1967 establishes his independence with force and clarity. The Ombudsman, like the Data Protection Registrar, is appointed by the Crown; reports to Parliament, and may be dismissed "only for cause and in consequence of addresses by both Houses of Parliament".[126] The House of Commons does have a Select Committee—this one—whose purpose is to examine the reports of the Parliamentary and Health Service Commissioners. But in no sense does it have the power to interfere with the work of the Ombudsman. The Ombudsman described our Committee's relationship with his Office correctly as follows: "Like my predecessors, I greatly value the advice and support of the Committee. But the Committee does not give the instructions regarding the conduct of investigations, nor on how I should exercise the discretions vested in one by the Parliamentary Commissioner Act 1967 and the Health Service Commissioner Act 1993; nor would it be lawful for me to allow any such instructions to be the sole determinant of my actions".[127] The Ombudsman has said that the statement in the White Paper implies that he is subject to political influence or direction, and has pointed out that neither of these are true, and both claims would be extremely damaging to the work of the Ombudsman's Office if they ever gained widespread currency. We agree; and we recommend that the Chancellor of the Duchy of Lancaster should, in his response to this Report, correct the statement in paragraph 5.7 of the White Paper—and cease to draw the wrong inferences from it.

86. The White Paper appears to suggest that the Information Commissioner will be an entirely new Office, rather than one grafted on to another Office—as it has been in Ireland and a number of other Freedom of Information regimes, where the Ombudsman holds the job. There are some cogent reasons for combining the work of the Information Commissioner with that of Ombudsman. Many complaints about refusals to disclose information are part of more complex complaints about maladministration. It is simpler to deal with both aspects of a complaint at once, as the Ombudsman has been able to do under the external appeals system under the Code of Practice. However, there are some counter arguments too, against combining the two jobs. The Ombudsman, as presently constituted, has no coercive powers (except as regards obtaining evidence); he may only recommend disclosure. It is fair to say that his recommendations have nearly always been accepted. But it is questionable whether a power such as is proposed in the White Paper—to make binding disclosure orders—sits well with the traditions of the Ombudsman's Office, which are more mediatory. A new Office may therefore be the best solution, subject to resolving certain issues.

87. We are concerned by a problem put to us by both the Ombudsman and the Data Protection Registrar. An Information Commissioner will add another to the list of public sector complaints authorities in the UK. As the Ombudsman wrote in his evidence to us, "creating another authority in the form of an Information Commissioner is bound to further complicate the task of the ordinary citizen in seeking redress".[128] "It does not sit as comfortably as it might with concepts of better government and one-stop shops for citizens", the Data Protection Registrar told us.[129] Furthermore, appeals to the Information Commissioner about refusals to disclose information may also involve complaints about maladministration; some may involve complaints about a number of different authorities—for example a National Health Service Trust and a local authority. The Ombudsman points out that "there is provision for cooperation between the Ombudsmen in these circumstances; but it does not make the matter any simpler for the complainant or the Ombudsmen. To add yet a third complaints authority and to require the complainant to deal with both the Ombudsman and the new authority on what may be, for the complainant, one grievance with several causes would put him or her to unnecessary trouble, risk confusion, and be wasteful of public funds".[130] The relationship between the Data Protection Registrar and the Information Commissioner is another source of confusion for the complainant which, the White Paper acknowledges, will need to be carefully handled.[131]

88. Both the Ombudsman and the Data Protection Registrar propose, as a solution to this problem, that all of the public sector complaints authorities are brought together into a collective body. The Registrar proposes that "to facilitate cooperation ... and to economise on the resources used by investigative bodies" in cases where issues of maladministration, data protection and disclosure are related, "it might be possible to bring the Registrar and the Commissioners together in some collegiate body. The separate formal jurisdictions would remain, but the collegiate body could jointly look at issues crossing jurisdictional boundaries".[132] The Ombudsman's solution is to make each public sector complaints authority responsible for dealing with Freedom of Information matters in relation to the bodies within its jurisdiction—so the Local Government Ombudsman, for example, would deal with appeals to the Information Commissioner that had arisen within local government. Consistency of treatment across the various Ombudsmen could be ensured by establishing an Information Commission made up of the individual complaints authorities and with an overarching responsibility for achieving such consistency. The Lord Chancellor countered that "these suggestions are very often put forward in the name of symmetry, as if symmetry is a good thing in itself. I actually do not think so". The job of the Information Commissioner was sufficiently different to that of the Data Protection Registrar and the other authorities concerned, and therefore did not need to be combined.[133]

89. Without adopting either of the specific models proposed, there are strong arguments for bringing together the various complaints authorities within some form of collegiate structure. We do not intend to make firm recommendations on this subject in this Report, for it is one to which we intend to return; but we are keen that bringing greater coherence to the structure of the UK complaints system should be energetically pursued. We note that a similar interest has informed part of the Government's proposed reforms to the financial regulatory system. It has called the current Ombudsmen schemes in the financial services part of the private sector a "patchwork quilt" of differing schemes which is confusing for the consumer. It has decided that it would "like to see the various [financial services] Ombudsmen consolidated into a single Ombudsman scheme".[134] We recommend that the Government likewise review the system of public sector complaints authorities in the UK with a view to bringing them together—or at the very least making it easier for people to complain without having the difficulty of working out precisely which complaints authority they need to deal with.

90. Although the White Paper has rejected the model of the Parliamentary Ombudsman, and particularly the Ombudsman's relationship with Parliament, we believe that that relationship is a proper and useful part of the Ombudsman's armoury. The Committee performs a useful role in encouraging compliance by the bodies subject to his jurisdiction. This may be less necessary where a Commissioner has powers to enforce compliance. But even the Data Protection Registrar told us that she felt that a similar relationship with a Select Committee to that enjoyed by the Ombudsman would be useful in her own job.[135] Maurice Frankel said to us that the Campaign for Freedom of Information did not have any objection to a Select Committee having a monitoring oversight role: "I think it would be extremely valuable. If your Committee wanted to do that we would be absolutely delighted, we think it would be a very important function which would do a great deal to assist the legislation meeting its objectives".[136] The Ombudsman described his meeting with the Committee as like "an energetic workout, very tiring at the time, but it is good for one in the long run". He added that "It seems to be entirely right that, like any other aspect of public administration, freedom of information should be subject to Parliamentary scrutiny and examination".[137] We believe that the publicity and profile and awareness of public opinion which could be given to the Information Commissioner through regular contact with a Select Committee would be useful; and we recommend that a Select Committee be established to examine the reports of the Information Commissioner; or that the function be added to those of this Committee.

120 paras. 5.8-5.9. Back

121 para. 5.10. Back

122 para. 5.12. Back

123 para. 5.13. Back

124 para. 5.16. Back

125 para. 5.7. Back

126 Min of Ev. p.73. Back

127 ibid. Back

128 Min of Ev. p.72. Back

129 Q.203. Back

130 Min of Ev. p.72, para. 7. Back

131 para. 5.15. Back