ENFORCEMENT
Information Commissioner and the Information Tribunal
129. The Bill establishes an Information Commissioner
to enforce the obligations placed on authorities under the Bill.
The job will be combined with that of the Data Protection Commissioner
under the Data Protection Act 1998, thus combining responsibility
for access to personal information and access to other information.
The term of office of the current Data Protection Registrar expires
at the end of August this year, and the Government expects to
reappoint her for a further five year term thereafter.[240]
As with the Commissioner, the Bill borrows its tribunal from the
Data Protection Act 1998. The provisions relating to the Tribunal
are identical with those in that Act. By combining the functions
of the Commissioner and Tribunal under the Bill with those of
the Data Protection Commissioner under the 1998 Act, the Bill
brings together the systems for Freedom of Information and Data
Protection.
The Commissioner's powers
130. The powers of the Information Commissioner and
Information Tribunal are closely related to those given to the
Data Protection Commissioner under the Data Protection Act 1998.
We have already referred from time to time in this Report to her
powers, especially in relation to discretionary disclosures under
clause 14 of the Bill (see above, paragraphs 30-37). Here
we comment more generally on the Commissioner's powers.
131. There will be two ways in which the Commissioner
enforces the Bill's provisions. First, through practice recommendations
issued under clause 41, she may indicate to an authority that
it is failing to follow one of the Codes of Practice issued by
the Secretary of State or the Lord Chancellor, or to conform with
its own Publication Scheme, made under clause 7 of the Bill. A
practice recommendation must be given in writing. It has no direct
coercive force. If an authority fails to act in response to a
practice recommendation the Commissioner cannot force it to do
so except in rare cases by means of judicial review. As the Home
Office have suggested, however, she could draw attention to an
authority's lack of adherence to the Code in a report to Parliament
(see below, paragraph 140).[241]
132. Second, the Information Commissioner has a more
effective means of resolving complaints that an authority has
failed to deal properly with a Freedom of Information request
by improperly withholding information, by not communicating its
decision to the applicant in the proper way, by not considering
the public interest, or by failing to explain the refusal properly.
In such a case she may issue a decision notice. Such notices can
order the authority to disclose information, or to take any other
steps that she thinks appropriate. If the authority fails to comply
the Commissioner could report to the court, which could "deal
with the authority as if it had committed a contempt of court".
We have already considered in some detail the extent of the Commissioner's
powers to oversee the way authorities consider the public interest
under clause 14 (see above, paragraphs 30-37).
133. The Commissioner is given powers to obtain information
from any authority whose conduct she is investigating, by means
of an information notice under clause 44 of the Bill. If she has
reasonable grounds for suspecting that an authority has failed
to comply with the requirements of Part 1 of the Act, or with
a decision notice or an information notice, she is also given
powers under clause 47 and schedule 3 to apply to a judge for
a warrant to enter and search premises, to inspect and seize documents,
and to inspect, examine and test equipment. These powers are essentially
the same as those given to the Data Protection Registrar under
the Data Protection Act 1998.
Self-incrimination (clause 44(7))
134. Clause 44(7) releases a public authority from
the duty to furnish the Commissioner with information "if
the furnishing of that information would, by revealing evidence
of the commission of any offence other than an offence under this
Act, expose the authority to proceedings for that offence".
The same provision exists in the Data Protection Act, referring
to individuals (s.43 (8)). The Home Office explains it thus: "The
privilege against self-incrimination in the 1998 Act was designed
to have due regard to the rights of private data controllers under
the European Convention on Human Rights not to be required to
produce incriminating information under penalty, but made no distinction
in this respect between public and private data controllers".[242]
The provision does not apply in any case to a public authority
which is part of the Crown: "since the Crown cannot be made
subject to criminal prosecution, the issue of self incrimination
does not arise".[243]
The provision should not, the Home Office stressed, work to prevent
the disclosure of information to the public, if the information
was not exempt. It deals simply with cases where the Information
Commissioner "seeks to exercise her powers to force information
out of an authority over and above what it would be required to
disclose under clause 8".[244]
135. Lord Lester said that the provision was not
required by the Convention: "It is in conflict with the public
interest in enabling the media and NGOs in acting as public watchdogs
in exposing the misuse of power by public authorities. In my view,
the fundamental right to a fair trial can be effectively protected
without an exemption of this breadth". As an alternative,
he pointed to section 52 of the Race Relations Act 1976, in which
the Commission for Racial Equality is given strong powers to obtain
information by compulsion, but is prevented from disclosing information
it has collected in the course of an investigation except "on
the order of any court", or with the individual's consent,
or in the form of a summary "which does not identify the
informant", or "in a report of the investigation",
or "for the purpose of any civil proceedings. . .to which
the Commission are a party, or any criminal proceedings".
Lord Lester suggested that this alternative showed how it was
possible to design a provision which would not enable the authority
to withhold evidence from the Commissioner to avoid criminal misconduct
coming to light.[245]
He went on to explain: "Article 6 of the European Human Rights
Convention, which is the one that guarantees a fair trial says,
in subsection (2) that everybody is entitled to the presumption
of innocence, and as part of the presumption of innocence in a
criminal trial one is protected against self-incrimination. That
is a vital principle of English law as well as European law...
So the Home Office are perfectly right in pointing to the need
to protect the individual's right to the presumption of innocence
and the privilege against self-incrimination. However, that does
not mean that an entire organisation must be protected against
self-incrimination; it means that when a particular named individual
is prosecuted for criminal misconduct evidence must not be used
against him which has been obtained by compulsion from him orally".[246]
Similar provisions do exist in overseas Acts to avoid evidence
obtained by the Commissioner being used to prosecute an individual
for an unrelated offence.[247]
One of the difficulties with which the draft Bill has had to contend
has been its wide application: some of those to whom it applies
are in fact individuals. Lord Williams of Mostyn has accepted
that there might be a case for making a distinction between the
right as applied to individuals (an example given was a doctor,
who would be a public authority for the purposes of Schedule 1)
and as applied to bodies or corporations.[248]
We believe that an authority should not be able to withhold
information from the Commissioner on the grounds that it might
provide evidence of the commission of an offence by the authority.
If it is necessary to protect an individual's right to be presumed
innocent, this must apply only to individuals. We recommend that
the Bill be amended accordingly.
The Information Tribunal
136. Under the White Paper proposals, there was no
right of appeal beyond the Information Commissioner to the courts
(although a disclosure order would have been subject to judicial
review). It said that "overseas experience shows that where
appeals are allowed to the courts, a public authority which is
reluctant to disclose information will often seek leave to appeal
simply to delay the implementation of a decision. The cost of
making an appeal to the courts would also favour the public authority
over the individual applicant".[249]
In the draft Bill, both the requester and the public authority
are entitled to appeal to the Information Tribunal against a decision
notice. The authority may appeal against a notice requiring it
to pass information to the Commissioner—an "Information
Notice"—or against an Enforcement Notice. There is
appeal from the Tribunal to the High Court (or Court of Session)
on a point of law. The Tribunal can also hear appeals either from
the Commissioner or an applicant against a certificate by a Minister
indicating that information is exempt under clauses 18 or 19 (in
other words either because it was supplied by one of the security
services or else because exemption is required for the purpose
of safeguarding national security). The Tribunal may quash the
certificate.[250]
137. We asked the Data Protection Registrar whether
she could predict, from her experience of the Data Protection
Tribunal, the number of appeals that would be made to the Information
Tribunal, and how long they might take to determine. As she told
us, few data protection cases go as far as the Data Protection
Tribunals, and in any case it would not be normal to settle a
case before it got to a hearing. Since the Data Protection Act
came into force in 1987 only 36 formal enforcement notices had
been issued of which 15 went to appeal. Although the Tribunal
would not take long to decide a case, it may be a long time before
it went right through the system.[251]
Undoubtedly there is some risk that recourse to the Tribunal may
be used to delay disclosure of information. Also, because no legal
aid is available, it may be difficult for many people to make
a case before a Tribunal. However, adding a Tribunal stage
to the enforcement system does provide a necessary element of
procedural fairness to the system. We would expect systems of
informal resolution to prevent all but the most intractable cases
proceeding as far as the Tribunal, and we would expect no case
to take longer than 9 months to settle. Lord Lester welcomed the
addition of a Tribunal to the Bill,[252]
and so do we. The Tribunal represents a relatively simple and
quick form of appeal, based on precedent.
The Commissioner and other complaints authorities
138. The Parliamentary Ombudsman has on a number
of occasions brought to our attention the difficulties that already
exist for those who wish to complain about public sector services.
The proliferation of public sector Ombudsmen and other complaints
adjudicators means that its often unclear to whom the complainant
should address his or her complaint. The often complex rules governing
the jurisdiction of these authorities make the problem worse.
Adding another authority—the Information Commissioner—to
this might further confuse the situation. Combining the functions
of Information Commissioner and Data Protection Registrar at least
limits an unnecessary growth in the number of authorities involved
in complaints to do with information. But there need to be (as
the White Paper said) clear lines communication between the Commissioner
and the others who handle complaints.[253]
As the Ombudsman told us, many complaints which come to him about
maladministration also involve, in one way or another, a failure
to pass on information to the complainant which he or she thinks
himself or herself entitled to. The Ombudsman makes a strong case
for the need to be able to continue to pursue a case fully: "What
I want to be able to continue to do is to investigate what, after
all, is the main thrust of the complaint, which is maladministration,
but to bring in any information aspect. It may well be, for example,
that what I shall need to do will be to consult the Information
Commissioner or her Office about my interpretation of the new
legislation, so that I can say that this was or was not in accordance
with the legislation".[254]
The point would apply equally to the operation of other Ombudsmen,
in particular, the Local Government Ombudsman. We agree that it
is important to get this right: as the Ombudsman says, it "would
put an unreasonable burden on complainants to expect them to separate
out elements of what will be to them a single complaint, and then
to apply to different bodies to have them dealt with".[255]
We note that a current review of public sector Ombudsmen by the
Cabinet Office is looking in general at some of these issues.
Meanwhile, we recommend that if there is any deficiency in
the Parliamentary and Health Service Commissioners Acts which
will prevent the Ombudsmen from dealing with complaints even where
these involve some element of a Freedom of Information request,
this should be remedied.
The Commissioner and Parliament (clause 42)
139. It was suggested to us that there should be
some form of Parliamentary process for the appointment of the
Information Commissioner[256]
and we agree. The post of Information Commissioner, and the ability
of its holder to confront obstruction in public authorities, will
be vital to the success of the Act, and will profoundly influence
how great a difference to the culture of government the Act will
make. Parliament has a large interest in the Act's success, both
because of its own interest in strengthening the general accountability
of government services. Some Committees have already made progress
in asserting their right to take evidence from appointees to senior
public service positions. The Treasury Committee has already instituted
a regime of hearings with people who are appointed to the posts
of Governor or Deputy Governor of the Bank of England, or to the
Bank's Monetary Policy Committee.[257]
We repeat our earlier recommendation that this Committee should
have the right to interview the prospective appointee about the
post before he or she takes up the appointment, and to make recommendations
to the House.
140. The Commissioner is required, under the Bill,
to lay annually before each House a general report on the exercise
of her functions under the Act. The Commissioner is also enabled
to lay other reports from time to time. The power to lay reports
before Parliament gives the Commissioner a means of encouraging
authorities to follow her practice recommendations. Our experience
with a similar system operated by the Ombudsman suggests that
there would be value in a specific Parliamentary link whereby
such reports could be discussed, and especially a Select Committee
which could take evidence where required from recalcitrant authorities,
as well as keeping the Freedom of Information regime under continuous
review. We made the case in our previous report for such a Parliamentary
link, and we restate it here.[258]
The point was made by Mrs France herself that it would be helpful
to have a Committee which could give attention to "information
issues". As she pointed out, her remit, as Data Protection
Registrar, goes beyond the public sector, and she was uncertain
whether the role could easily be taken on by this Committee.[259]
We do not share her doubt. It would indeed be unusual for a private
sector organisation to answer to a Committee of the House for
its failure to fulfil an obligation imposed by law. Yet that,
it seems to us, should not stand in the way of such an arrangement.
If it is felt that that would be improper, the Committee's oversight
of her role could be limited to her functions under the Freedom
of Information Act (as opposed to the Data Protection Act). We
recommend that this Committee become the Parliamentary focus for
the work of the Information Commissioner.
Reviews
141. It is not only the Commissioner who should be
obliged to report annually on her functions under the Bill. The
Government at present publishes an annual report on the operation
of the Code of Practice. The governments of some of the other
countries with Freedom of Information laws publish reports on
the operation of their Acts. The obligation to publish a report
is important. Such a report should contain information about how
Departments deal with requests and on their volume and variety.
It also helps to maintain the pressure for openness from the units
and Ministers who are responsible for Freedom of Information.
We recommend that the Home Secretary be obliged in the Bill
to publish an annual report on the operation of the Act. Some
overseas Freedom of Information Acts have explicitly required
the government, or another body to review the operation of the
Act after a specified period.[260]
There have been influential and important reviews of the Australian
Act and the New Zealand Act by the respective Law Commissions
of these countries. It may be thought inappropriate to place such
a requirement in the Bill itself. We believe, however, that it
is important for there to be post-legislative, as well as pre-legislative,
scrutiny; and although we would not wish to discourage any other
form of consideration of the effectiveness and operation of the
Bill by others, we will certainly wish to review these matters
ourselves on a continuing basis.
240 Annex 6, Note 16. Back
241 Annex
6, Note 82. Back
242 Annex
6, Note 87. Back
243 ibid. Back
244 Q.795. Back
245 Q.205. Back
246 Q.233. Back
247 e.g.
s.36(3) of the Canadian Access to Information Act. Back
248 HL
(1997-98) 97, Q.38. Back
249 Cm.
3818, para. 5.16. Back
250 See
Annex 6, Note 97. Back
251 Q.191;
see also Annex 6, Note 96. Back
252 Ev.
p.109. Back
253 Cm.
3818, para. 5.15. Back
254 Q.108. Back
255 Ev.
p.24. Back
256 Q.240. Back
257 See
First Report of the Treasury Committee, The Accountability
of the Bank of England, HC (1997-98) 282; Third Report of
the Treasury Committee, Confirmation Hearings, HC (1997-98)
571; Sixth Report of the Treasury Committee, The Monetary Policy
Committee of the Bank of England: Confirmation Hearings HC
(1997-98) 877. Back
258 HC
(1997-98) 398, para. 90. Back
259 Q.203. Back
260 e.g.
Canada's Access to Information Act, s.75, which requires a Committee
of the House of Commons or Senate, or a joint Committee to do
this. Back
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