Select Committee on Public Administration Memoranda


MEMORANDUM 3

Submitted by the Parliamentary Commissioner for Administration and the Health Service Commissioner

  1.  The Code of Practice on Access to Government Information ("the Code") came into effect on 6 April 1994. My predecessor accepted an invitation from the then Government to act as monitor of the Code. He did so on the basis that he could investigate complaints about the Code under the jurisdiction of the Parliamentary Commissioner Act 1967, although the Code and the Act do not sit together very comfortably. Since then my Office has received approximately 200 complaints, around half of which have led to investigations. Many of these investigations have resulted in the release of information which would otherwise have been withheld. Anonymised versions of the investigations carried out by my Office under the Code have been made available in volumes of Selected Cases, which are laid before Parliament approximately twice a year. I welcome the fact that access to government information is now to be made the subject of legislation. The content of that legislation is, of course, a matter for Parliament. I should add, for the sake of completeness, that as Health Service Commissioner I also monitor the 1995 Code of Practice on Openness in the NHS. Very few complaints have been made to my Office under the NHS Code.

  2.  The draft Bill creates an Information Commissioner, who will consider complaints that information has been refused contrary to its provisions. Many complaints of "orthodox" maladministration which arrive at my Office contain within them elements relating to withholding of information: we term these "hybrid" complaints. At present, I can deal with the information elements of such complaints under the Code. Even when the Code disappears, it will be the case, as indeed it was before the Code came into existence, that unreasonable (and, a fortiori, unlawful) refusal to provide information can be regarded as maladministration under the 1967 Act. Should the Bill become law, it will cease to be appropriate for my Office to be involved in the consideration of complaints which are what I might call "pure" information cases: these will clearly be for the Information Commissioner; and section 5(2) of the 1967 Act (which precludes my considering complaints in respect of which there is a remedy by way of proceedings before a tribunal or a court of law, unless I think it unreasonable to expect the complainant to resort to such a remedy) would prevent my involvement. It is, however, my view that "hybrid" complaints should normally continue to be dealt with by my Office, as 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. Mrs France (the Information Commissioner designate) shares my view that whatever arrangements are devised should be as simple and convenient as possible for complainants. We are discussing how this can be achieved.

  3.  I note that the position under the proposed legislation of bodies reporting to Parliament, of which my Office is one, has yet to be finalised. I see no difficulty in general terms, and subject of course to the operation of the exemptions in any given case, in information contained in the policy files of my Office being made available to those requesting it. I would also see no difficulty in principle if people who have been interviewed by my staff in the course of one of my investigations are entitled to see the subsequent interview note that is produced. I should, however, draw attention to the 1967 Act which contains (in sections 7 and 11) provisions governing the procedures under which my investigations are carried out. There are closely similar provisions in the Health Service Commissioners Act 1993. Those provisions include a requirement that investigations should be carried out in private, and that information obtained in the course of such investigations should not be disclosed otherwise than for the purposes of the investigation, for any report produced under the Act, or in respect of possible breaches of the Official Secrets Act (and one or two comparable situations). On that basis, my Office's investigative activities would come outside the scope of the proposed legislation; and I am clear that this must remain the case if my ability to undertake investigations is not to be seriously handicapped.

  4.  I also wish to stress the importance of ensuring that, when the legislation takes effect, appropriate arrangements are made for dealing with those complaints which are, at that time, still under consideration in my Office under the Code. Such arrangements could be similar to those proposed for handling cases I am currently dealing with which will, if not concluded by that date, come from 1 July 1999 within the responsibility of the Scottish Parliamentary Commissioner for Administration. This will ensure a smooth transition. It is also my understanding that the legislation is intended to be introduced in stages. The Bill covers many more bodies than presently fall under the Code. It would greatly simplify matters, from the point of view both of the public and of my Office, if those bodies over which it currently has jurisdiction could be dealt with en bloc when they come under the jurisdiction of the Information Commissioner.

June 1999





 
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