Submitted by the Consumers' Association
1. Consumers' Association (CA), publishers
of Which? and other consumer books and magazines, is an independent
consumer organisation with over 700,000 members. It has campaigned
in the consumer interest for over 40 years. CA receives no funding
from government nor does it take advertising from industry; it
is funded by its range of magazines and other publications, and
is therefore totally independent.
2. We welcome the opportunity to submit
our evidence to the Committee on such an important piece of legislation.
In the time available, we have focussed on our main concerns with
the draft Bill; we will be responding in further detail to the
Home Office as part of its consultation process.
3. CA has had a long involvement in campaigning
for a Freedom of Information Act. Information is one of the core
consumer principles and is a fundamental building block in promoting
the consumer interest. Without adequate information, consumers
and their representatives are limited in their ability to exert
influence or to ensure that their interests are reflected in the
decision making process.
4. Many of the issues relating to freedom
of information legislation are seen as "citizen" issues
such as civil rights, or law enforcement, and are not generally
considered "consumer" issues. However, the distinction
between consumers and citizens is becoming increasingly blurred
as the nature and role of the state changes. As a result of government
policy and social and economic developments, large sections of
the population are being asked to become "citizen-consumers"
for the first time in key areas of their lives. These include
the retreat of the welfare state, private sector pension provision
and health care replacement, education, public/private sector
partnerships and so on.
5. Meaningful freedom of information legislation
is crucial in recognising citizens as consumers in public life.
The public bodies and government departments that the legislation
covers have a huge impact on every aspect of citizens' lives,
and are funded by taxpayers' money, so it is important that the
decisions these bodies make are suitably transparent.
6. In many key areas, we have no choice
but to use the services of public authorities and government departments,
and we have to rely on and trust public servants and elected representatives
to make critical decisions on our behalf which impinge on our
quality-of-life. This is the essence of the much-vaunted contract,
or partnership, between citizen and public sector. However, what
is often missing from the public sector are the external factors
which force the pace of change and improvement, raise standards,
and secure the chain of accountability. Managers in the private
sector are faced with the threat of competition and the threat
of losing business from dissatisfied customers. This concentrates
the mind and is a powerful incentive to improve performance and
raise standards. In contrast, when we deal with a public sector
organisation or government department we cannot take our business
elsewhere. It is therefore critical that alternative mechanisms
and structures are employed to ensure these organisations are
held accountable and answer to the people they serve. In the absence
of the principle of choice, it is all the more important we strengthen
the principles of redress and access to information.
7. This should not be seen as merely an
academic debate about theoretical consumer principles. These principles
are grounded in the real life experiences and rights of consumers
and citizens. Any suggestion that this is an issue of significance
only among the "chattering classes", or academics, or
pressure groups betrays a disregard for the very nature of government
and public service. It has very real implications for people's
everyday lives. It is ironic, and hopefully illuminating, that
on the day the Committee began its inquiry into the draft Freedom
of Information Bill, the second stage of the inquiry into the
handling of the BSE crisis got under way. The essence of that
crisis is the transparency of the decision making process and
the quality of advice on which decisions were based.
8. Our response to the draft Bill echoes
that of many other commentators, and we find it difficult to reconcile
the Bill with the original White Paper, Your Right to Know.
The Bill starts from a different presumption than the White Paper;
it overturns the original purpose of freedom of information legislation;
it is structured differently; and is imbued with a contradictory
and opposing set of principles. The White Paper recognised citizens
as consumers in public life and was universally welcomed by consumer
and campaign groups. We had hoped that it heralded a new open
approach to government and public life.
9. Our disappointment with the draft Bill
cannot be overstated. The lowering of the key test from substantial
harm to prejudice and introduction of new exemptions and catch
all exclusions will entrench rather than banish the culture of
secrecy in public life. In our experience, these proposals will
encourage officials and ministers to automatically think of ways
to get out of disclosing information to the public they serve
and should answer to. The effect will be to ensure that any determined
official will be able to easily resist any request for disclosure
by employing one of the barriers or traps contained in the Bill.
10. Some of the proposals introduced into
the draft Bill show a blatant disregard for and contradiction
of the principle of openness. They are a throwback to the attitude
that officials and government know best; and to an age of unenlightened
protected self-interest that regards information collected in
the course of public duty to be the property of officials rather
than the citizens on whose behalf they govern. The proposals are
designed to protect officials from being held accountable, and
shield the process of government and public administration from
11. The Home Secretary seems to be under
the impression that critics of the draft Bill are simply annoyed
because they haven't secured everything they wanted. That simply
isn't the case. What we, and others, are asking of the Government
is for them to stand by their own White Paper, prepared only 18
months ago. We have seen no evidence of anyone calling for a retreat
from the White Paper and can only ask the Government again what
responses they have received to the effect that the White Paper
went too far and should be watered down.
12. CA will be making a more detailed response
to the proposals in the draft Bill as part of the consultation
process. However, there are a number of specific provisions of
concern which we would highlight at this stage of the process.
13. Class exemptions: class exemptions have
no place in a Freedom of Information Bill. All exemptions should
be subject to a test of harm.
14. Substantial harm and prejudice tests:
The original test in the White Paper that authorities would have
to show that disclosure would cause "substantial harm"
has been removed. In areas that haven't been caught by the class
exemptions and other get-out clauses, this has been replaced by
the less stringent test of "prejudice". It will be much
easier to demonstrate that disclosure would merely cause prejudice
than substantial harm, for example to commercial interests. This
also reduces the authority of the Information Commissioner.
15. Discretionary disclosures: Clause 14(4)(6)
is unacceptable in allowing authorities to pry into the reasons
an applicant has requested information, and for what purpose he
intends to use the information. If the applicant refuses to reveal
the motive, then the information need not be disclosed. The authority
determines the public interest. And the clause effectively acts
as a gagging order in that the authority can impose "reasonable"
conditions on the use of the information.
16. Investigations and proceedings conducted
by public authorities: Clause 25(2)(a)(iii)(v) allows authorities
to withhold any information that has been held at any time for
the purposes of certain investigations including investigations
into accidents or action relating to health and safety. This means
that all reports into major transport accidents, fires, dangerous
products and so on will be kept hidden. We are extremely concerned
that it includes information held at any time, even after investigations
have been completed and final reports published. This is an unacceptable
restriction on the public's right to know either from the viewpoint
of campaigning groups or on a more personal or tragic level from
a relative of a person killed in an accident. Disclosure of information
must be seen as part of the redress process.
17. Decision making and policy formulation:
Clause 28(1)(3)(5) provides that information held by government
department is exempt, as a class, if it relates to the formulation
or development of government policy. It also provides that information
is exempt if in the reasonable opinion of a qualified person it
would prejudice or be likely to prejudice the exchange of views,
and the effective conduct of public affairs. It then goes on to
provide that the qualified person who would have discretion over
the disclosure of non-exempt information is the minister or the
public authority. This is an extremely disconcerting catch-all
clause, as we have no idea how far that might extend. How can
we define formulation and development of government policywhere
does it begin and end? For example, it could be taken to include
the research data and results used to formulate policy, and on
which decisions are based. On this reading this would exempt information
relating to BSE, or GMOs.
18. The advisability of releasing actual
advice from civil servants and other advisers may well be open
to debate. But we cannot accept that releasing the raw data and
information which is fed into the decision making process would
be harmful to the working of government. Opening up the decision
making process can only raise the quality of the decision making
process in the long run. We are better off under the existing
Code, which allows the Parliamentary Ombudsman to weigh up the
benefits of disclosure in the public interest. As it stands, the
draft Bill provides no opportunity for the proposed Information
Commissioner to undertake a similar assessment as information
of this type is exempt as a class.
19. Information provided in confidence:
Clause 32we appreciate that protection must be given to
individuals who supply information in confidence to public authorities.
However, we would welcome clarification on how this might apply
in relation to companies supplying information and data to public
authorities and regulators, where there is no legal obligation
for them to do so.
20. Commercial interests: Clause 34 exempts
information which would, or would be likely to, prejudice the
commercial interests of any personincluding those of the
public authority holding the information. We are concerned that
such a catch-all exemption could be used to refuse disclosure
of important information in a number of cases. Safeguarding commercial
interests has to be weighed up against the public interest in
disclosing sensitive or potentially damaging information. The
test in the draft Bill has been lowered to one of prejudicing
commercial interests. Would this prevent disclosure of, for example,
details of disposal of sewage by water companies; details of GM
foods; or results of drug tests on medicines? It is not difficult
to imagine producers of these products preventing the release
of information on the grounds that disclosure would have an adverse
knock-on effect on sales, public image or brand awarenessit
would be easy to argue that this would prejudice commercial interests.
21. Moreover, the Bill prevents the Information
Commissioner from ruling that information should be disclosed
if the public interest outweighs the prejudice to commercial interests
(see clause 45).
22. Effects of disclosure: clause 37 allows
authorities, when asked for apparently harmless information, to
consider whether, if the applicant were to combine this information
with another completely separate piece of information, it would
fail the prejudice tests for discretionary disclosure. CA and
Which? magazine regularly collect information on companies and
products in the course of research. We also make requests for
information from various regulatory authorities. The regulator
could use this clause to refuse our request on the grounds that
we might combine the information with our own primary research.
It could claim that the net effect of our analysis would fail
the prejudice test on commercial confidentiality.
23. For example, we are concerned about
the lapse rates on the sales of personal pensions and endowment
plans. When personal pensions are lapsed (ie transferred or payments
suspended) consumers often face high transfer penalties. In the
past, we have been able to combine figures on lapses obtained
from the regulator with data on charges our researchers have collected.
We have demonstrated that there is a link between high lapse rates
and high transfer charges. The charges on these plans are structured
such that if lapse rates on a product are high (through poor product
design, or poor advice) then this is offset by high transfer charges.
This information is not disclosed to the consumer when buying
a personal pension or endowment. We are concerned that this clause
37 could be used as grounds to refuse to release this type of
data in future, and prevent CA from undertaking similar analyses
of products in other sectors.
24. Information notices: clause 44(7) allows
authorities to withhold incriminating information from the Information
Commissioner which might lead it to being prosecuted for an offence.
This type of provision flies in the face of legislation which
is meant to promote openness and accountability.
25. Enforcement notices: clause 45the
effect of this clause means that the Information Commissioner
cannot force authorities to disclose exempt information if it
might be in the public interest to do so. The White Paper recognised
that decisions on some requests for information are complex and
require fine judgement to weigh up whether disclosure in the public
interest outweighs the case for withholding information. It also
recognised the need for an expert review body to undertake such
critical judgements. We agree with this approach, and are concerned
that the removal of the Information Commissioner's public interest
override will jeopardise the wider public interest.
26. Appeals: clause 49we understand
that there needs to be a thorough and fair appeals process. But
we would welcome clarification of who could appeal. For example,
does a company which has provided information to a government
department have a third party right of appeal against the release
of that information?
27. For the past 40 years now, CA's has
been campaigning in the consumer interest, and working to achieve
measurable improvements in goods and services. We focus on the
key issues which affect the day-to-day well being of consumers
in the UK today. We believe that the draft Bill undermines, rather
than underpins, our work in these key areas.
28. CA performs two broad functions: we
provide independent and thorough research based information to
help consumers make informed choices and decisions about goods
and services; and we represent the interests of consumers to policy
makers, regulators and other opinion formers.
29. For us to empower consumers, we need
to be able to provide information which allows them to weigh up
the options, or risk, before making an informed decision or choice.
It goes without saying that we need access to this information
if we are to pass it on to consumers. This is particularly important
where consumers' safety or well-being is at risk, for example
in areas such as food, health and transport. In the past we have
had to battle to obtain risk information on areas such as BSE,
genetically modified foods and Channel Tunnel Safety.
30. For us to undertake our consumer representation
role, we need to compete on a level playing field. Access to information
is critical if we are to be able to counteract entrenched positions,
the power of vested interests and heavyweight industry lobbies.
Information is a form of capital that allows consumer representatives
to buy in to the decision making process.
31. When we prioritise issues for campaigning,
or identify areas where improvements need to be made, we use the
following principles to assess whether needs are being met: access,
choice, information, redress, safety, and quality and value for
money. In many cases we focus on making markets work to promote
improvements in key areas. But in other areas we have to address
more fundamental problems such as safety, redress, and access
to raise standards to minimum acceptable standards. These problems
are usually the domain of the public bodies, regulatory authorities
and government departments who control the dissemination of such
critical information those very areas of public life which
we hoped the draft Bill would address.
32. The proposals in the draft Bill will,
in our view, undermine our ability to investigate and assess consumer
issues. In purely practical terms, we envisage that the Bill as
it stands would affect our research processes in two basic ways:
(1) some of the class exemptions and get
out clauses mean that areas of legitimate consumer and public
interest will be off limits; and
(2) in practical terms, the sheer number
of exemptions and get out clauses, the dilution of the power of
the Information Commissioner, and the removal of the substantial
harm test introduce barriers and pitfalls in to the process of
obtaining information. We are concerned that it may prove extremely
difficult for us and other campaign groups to extract critical
or contentious information from public authorities and government
departments if officials do not wish to disclose it.
33. Overall, we were supportive of content
and approach of the White Paper. We considered that the right
balance had been struck between the need for certain information
to be withheld, and the need for the wider public interest to
be considered when making information available for disclosure.
It also recognised the true nature of the relationship between
the public sector and the citizens it serves. It understood that
accountability and transparency serves only to improve the quality
of the decision making process. For the legislation to live up
to the commitment and ethos in the White Paper, we believe that
the structure of the Bill should be revised to incorporate the
following core principles:
(1) The basic presumption should be that
information should be disclosed unless it can be shown to cause
harm. The lower test of simple harm could be used for key areas
such as government policy where there is sensitivity to disclosing
"advice" as opposed to research supporting that advice;
(2) The Information Commissioner should be
able to force authorities to disclose information if it is in
the public interest. There is a clear need for an independent
authority to balance competing interests and enforce disclosure;
(3) We are concerned about the general use
of class exemptions and functional exclusions. We would prefer
to see requests being considered on a case by case basis.