Select Committee on Public Administration Memoranda


MEMORANDUM 5

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.

 OUR DISAPPOINTMENT WITH THE DRAFT BILL

  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 scrutiny.

  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.

SPECIFIC CRITICISMS

  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 policy—where 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 32—we 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 person—including 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 awareness—it 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 45—the 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 49—we 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?

THE EFFECT OF THE DRAFT BILL ON CA'S RESEARCH AND CAMPAIGNS

  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.

WHAT WE WOULD LIKE TO SEE

  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.

June 1999


 
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