Select Committee on Public Administration Third Report


MINUTES OF PROCEEDINGS RELATING TO THE REPORT


TUESDAY 15 JUNE 1999

Members present:

Mr Peter BradleyMs Margaret Moran
Mr Desmond BrowneMr Mark Oaten
Mr Ronnie CampbellMr Brian White
Ms Helen JonesDr Tony Wright

* * * * * *

Dr Tony Wright declared a non-pecuniary interest as a former co-chairman of the Campaign for Freedom of Information.

* * * * * *

[Adjourned till Monday 21 June at Six o'clock.


TUESDAY 22 JUNE 1999

[MORNING SITTING]

  

Members present:

Dr Tony Wright, in the Chair

Mr Peter BradleyMs Margaret Moran
Mr Desmond BrowneMr Richard Shepherd
Mr Ronnie CampbellMr Brian White
Ms Helen Jones

* * * * * *

Mr Richard Shepherd declared a non-pecuniary interest as a co-chairman of the Campaign for Freedom of Information.

* * * * * *

  [Adjourned till this day at a quarter past Two o'clock.


WEDNESDAY 28 JULY 1999

Members present:

Dr Tony Wright, in the Chair

Mr Peter BradleyMr Richard Shepherd
Mr Desmond BrowneMr Andrew Tyrie
Ms Helen JonesMr Brian White

* * * * * *

The Committee deliberated.

Draft Report (Freedom of Information Draft Bill) proposed by the Chairman, brought up and read.

Ordered, That the draft Report be read a second time, paragraph by paragraph.—(The Chairman.)

Paragraphs 1 to 6 read and postponed.

Paragraphs 7 and 8 (now paragraphs 2 and 3) read and agreed to.

Paragraph 9 (now paragraph 4) read, amended and agreed to.

Paragraphs 10 to 15 (now paragraphs 5 to 10) read and agreed to.

Paragraph 16 (now paragraph 11) read, amended and agreed to.

Paragraphs 17 to 19 (now paragraphs 12 to 14) read and agreed to.

Paragraph 20 (now paragraph 15) read, amended and agreed to.

Paragraphs 21 to 26 (now paragraphs 16 to 21) read and agreed to.

Paragraph 27 (now paragraph 22) read, amended and agreed to.

Paragraphs 28 to 48 (now paragraphs 23 to 43) read and agreed to.

Paragraph 49 (now paragraph 44) read, amended and agreed to.

Paragraphs 50 to 54A (now paragraphs 45 to 50) read and agreed to.

Paragraph 55 (now paragraph 51) read, amended and agreed to.

Paragraph 56 (now paragraph 52) read, amended and agreed to.

Paragraphs 57 to 92 (now paragraphs 53 to 88) read and agreed to.

Paragraph 93 (now paragraph 89) read as follows:

'The existing class-based exemption in the Bill is certainly far too broad and not tightly enough defined. Some other countries limit their class-based exemption to Cabinet Papers. This can, however, lead to some abuse, with documents becoming spuriously identified as Cabinet papers in order to gain the benefit of the exemption. We accept that communications between Ministers, Cabinet and Cabinet Committee proceedings, as well as the provision of advice by law officers should be covered by a class-based exemption in the Bill. We doubt, however, that information relating to "the formulation or development of government policy" is a sufficiently well-defined class. Nor do we believe that a class-based exemption for the operation of a Ministerial private office is appropriate. We recommend, instead, that information that needs to be protected under these two headings should be covered under the contents-based exemptions in subsection (3).'

Question put, that the paragraph stand part of the Report.

The Committee divided.

Ayes, 5Noes, 1
Mr Peter BradleyMr Andrew Tyrie
Mr Desmond Browne

Ms Helen Jones

Mr Richard Shepherd

Mr Brian White

Paragraphs 94 to 96 (now paragraphs 90 to 92) read and agreed to.

Paragraph 97 (now paragraph 93) read as follows:

'We believe that the drafting of a provision allowing for the disclosure of factual background material should not be too taxing. Similar provisions exist in other Freedom of Information Act. The box opposite shows the Irish example. We accept that there may be difficulties in defining where background material stops and policy advice starts, but suspect that in practice public authorities and the Information Commissioner will together be able to come to a workable definition. We therefore recommend that the exemption for decision-making and policy formulation should specifically not be taken to apply to purely factual information held by public authorities, nor to analysis, if that information has been created in order to inform policy decisions, and that this distinction should be clearly drawn in the Bill.'

Question put, that the paragraph stand part of the Report.

The Committee divided.

Ayes, 5Noes, 1
Mr Peter BradleyMr Andrew Tyrie
Mr Desmond Browne
Ms Helen Jones
Mr Richard Shepherd
Mr Brian White

Paragraphs 98 to 109 (now paragraphs 94 to 105) read and agreed to.

Paragraph 110 (now paragraph 106) read as follows:

'As with most of the other exemptions, it would be possible for an authority to release information which is exempt under this clause on consideration of the public interest in doing so under clause 14. Clifford Chance say that this is unacceptable to many businesses. "The legislation should be concerned with disclosure of public information, not private commercial information". Therefore they say that clause 14 should not apply to information exempt under this clause, as it does not to information exempt under clauses 18 and 27. We reject this argument. Mr Thomas argued that how the public interest will be interpreted creates uncertainty which, Mr Amos told us, is uncomfortable for business organisations: "I think the level playing field is the critical thing. An unpredictable, uneven playing field is very, very uncomfortable. I do not believe there is any real risk of secrets or serious commercial information becoming available in terms of the clauses in this Bill, in terms of other laws and in terms of customer practice and attitudes of people who would implement it. Openness is less of an issue than this predictability question". Yet, as he went on to say, case law would provide fairly quickly a basis for that predictability. It would do so, we might add, much more quickly if the interpretation of the public interest were something open to argument before, and determination by, the Information Commissioner and Tribunal. We recommend that in this clause there should be an explicit public interest test to be balanced against the prejudice arising from disclosure. One thing which might speed up the process of generating certainty on this point is, as our witnesses told us, an effective appeals system.'

Question put, that the paragraph stand part of the Report.

The Committee divided.

Ayes, 5Noes, 1
Mr Peter BradleyMr Andrew Tyrie
Mr Desmond Browne
Ms Helen Jones
Mr Richard Shepherd
Mr Brian White

Paragraphs 111 to 142 (now paragraphs 107 to 138) read and agreed to.

Paragraph 143 (now paragraph 139) read, amended and agreed to.

Paragraphs 144 to 156 (now paragraphs 140 to 152) read and agreed to.

Paragraphs 157 and 158 (now paragraphs 153 and 154) read and agreed to.

Paragraphs 159 to 160 (now paragraphs 155 to 156) read, amended and agreed to.

Paragraph 161 (now paragraph 157) read, amended and agreed to.

Paragraphs 162 to 164 (now paragraphs 158 to 160) read and agreed to.

A paragraph—(Mr Brian White)—brought up, read the first and second time, amended and inserted (now paragraph 1).

Postponed paragraph 1 again read, as follows:

'The publication of the draft Bill on Freedom of Information is a historic moment in the long history of the debate in this country about openness in government. We welcome the commitment of the Government to legislate on this subject, and we welcome the publication of the draft Bill. It sets a foundation upon which an effective statutory right to information can be built.'

Paragraph disagreed to.

Postponed paragraph 2 again read, as follows:

'The principal aims and benefits of Freedom of Information are well known. They are:

·  Members of the public can participate in an informed way in the discussion of policy issues, and so improve the quality of government decision-making;

·  Members of the public can find out what information government and other public bodies hold about themselves;

·  Members of the public, politicians and journalists can hold the Government and other bodies to account;

We have heard from Ireland about how their recent Freedom of Information Act was introduced as part of a package of measures designed to reform the Civil Service and the machinery of government. Here, too, the introduction of a Freedom of Information Bill should be seen as an important and integral part of the Government's agenda for modernising the way the country is run. But to achieve the aims we have set out, the Bill must be clear in its purpose and ambitious in its range.'

Paragraph disagreed to.

Postponed paragraph 3 again read, as follows:

'The Bill is undeniably ambitious in its scope. It will affect almost every public sector body in the country and many private sector ones as well. Its impact will be felt by universities, police forces, hospitals and quangos, as well as by central government departments.'

Paragraph disagreed to.

Postponed paragraph 4 again read, as follows:

'4. It is rather less clear in its purpose. As we have said above, it strikes a balance between the right to know, the right to privacy and the need for confidentiality, but in a way which errs on the side of privacy and confidentiality. The need for a proper balance is crucial. Without greater incentives to openness, there will be little change in the degree to which government in this country is open, efficient and "joined-up".'

Paragraph disagreed to.

Postponed paragraph 5 again read, as follows:

'5. We have fixed upon six key principles against which the Bill should be measured. We have attached to them our views of how the Bill matches up to them; and a brief summary of the way in which we have proposed amendments, where necessary, to bring the Bill more closely in line with them. Our principles, together with a summary of our verdict on the Bill and proposed changes, are:

There should be a clear presumption in favour of disclosure as a right of citizenship

·  Beyond stating the right to information, the Bill does not make any emphatic presumption in favour of disclosure.

-  We propose that within the Bill there should be a clear statement indicating a presumption that information should be made available in response to requests.

The public interest in disclosing particular information should be balanced against the prospect of harm in doing so, with decisions about where the balance lies in particular cases being transparent, and reviewable by an independent person, whose decisions are enforceable.

·  The Bill balances the right to know against the prospect of harm in providing information and makes those decisions reviewable and reversable by an Information Commissioner. But the authority's decision on where there is a public interest in disclosing exempt information cannot be overridden by the Commissioner.

-  We propose that authorities should in each case be required to weigh the public interest in disclosure against the possible harm caused by it, and to release the information if the public interest is greater; and that the authority's decision on the public interest should be clearly open to review and alteration by the Information Commissioner.

The right of access to information should apply as broadly as possible, and exemptions to it should be drawn as narrowly and precisely as possible.

·  The Bill's regime of class-based and contents-based exemptions is over-protective and over-elaborate.

-  We recommend a much more tightly drawn set of exemptions with, where appropriate, a more demanding harm test.

A statutory Freedom of Information regime should be based, as much as possible, on enforceable rights of access to information; not on undertakings to consider the discretionary release of information.

·  The Bill contains an enforceable statutory right to much information; but in the more difficult areas, there is no right to information, only a duty on the authorities concerned to consider releasing information using their discretion.

-  Our proposals are designed to ensure that individuals, through the Information Commissioner, can query and overturn authorities' decisions on where the public interest lies in particular cases.

The right to information should be simple to understand, to access and to exercise, and it should be possible to obtain information reasonably speedily and at reasonable cost.

·  The Bill provides a reasonably clear regime for applicants, and the Government have proposed a liberal charging regime. But it allows authorities a long time to deal with requests, and imposes no duty on them to help applicants.

-  We propose that authorities should be obliged to give reasonable help to requesters and suggest some practical steps the Government can take when setting up systems to deal with applications.

There should be independent systems of reviewing and appealing against decisions which balance the interests of applicant, authority and other parties (and the public interest) fairly and effectively.

·  The Bill provides an effective system of reviewing and appealing against decisions in the shape of the Information Commissioner and the Tribunal.

-  We recommend increasing the Commissioner's powers, particularly in relation to the public interest; and, to remove uncertainty, we recommend that there should be a duty to consult third parties about disclosures, with a right to appeal to the Commissioner and the Tribunal.'

Paragraph disagreed to.

Postponed paragraph 6 again read, as follows:

'6. With these improvements we believe that the Bill will provide a balanced and effective right of access to information for the citizen, and deliver the kind of benefits of Freedom of Information which we have identified. A full list of our detailed recommendations is given at the end of the Report.'

Paragraph disagreed to.

Annexes agreed to.

Resolved, That the Report, as amended, be the Third Report of the Committee to the House.

Ordered, That the Chairman do make the Report to the House.

Several Memoranda were ordered to be reported to the House.

  [Adjourned to a day and time to be fixed by the Chairman.



 
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