Select Committee on Public Administration Minutes of Evidence



Examination of witnesses (Questions 20 - 39)

TUESDAY 22 JUNE 1999 (morning)

THE RT HON JACK STRAW, MR LEE HUGHES and MR TIMOTHY MIDDLETON

  20. It is, but I hope we never have that experience arise again.
  (Mr Straw) I hope I do not have to listen to a speech like that again.

  21. Your business managers must be—

  Chairman: Perhaps this exchange is over and we can move on.

  22. I was not intending to be personal in any way, but I enjoy the personalities of the Home Secretary. Three: "The White Paper `Conclusions of the Review of Energy Sources for Power Generation' contained facts and analysis behind a policy decision on consents for gas-fired power stations and related issues, including summaries of four consultancy studies commissioned by the Government as part of the review." That is not available under the terms of this Bill. Is that right?
  (Mr Straw) It is available under the terms of the Bill, but again under the discretionary provisions, which are of course clause 14, not under the mandatory provisions. As one says in The Strand, I make an admission about this. I admit the gravamen of what you are saying, Mr Shepherd, which is that most of these (although some of them are not and I will ensure that we go through them and offer the Committee a view on each of these) would be available under the discretionary provisions, under clause 14, and not under the mandatory provisions. Whether they should be or not is another matter but that is how it stands at the moment.

  23. This is advice: "papers relating to the work of the Advisory Group on Openness in the Public Sector are placed on the Home Office website." Clause 28(1) states: "Information held by a government department is exempt information if it relates to (a) the formulation or development of government policy." That would seem that advice for excluding both what the Prime Minister in that address to the campaign for freedom of information on the 25 March 1996 said and the items that are identified and what are clearly at present discretionary, not being within the regime as of right.
  (Mr Straw) I made the point about why they are not in the regime as of right at the moment. I would also make the point, and it comes back to the Prime Minister's speech, he was talking, as we are proposing by this Bill, to change the culture of openness and the culture of government. That is being changed, not only by the specific terms of legislation but also by the practice of government and that is what we are doing and have already started to do, which is why I said that it is a minor irritation to be told as it were that one is a Prince of Darkness in this field when in fact I have had the spotlights on the inner crevices of the Home Office from the very first day that I got there. It is a terrible life, being Home Secretary. That was a joke.

Mr Campbell

  24. I did not catch it.
  (Mr Straw) All the time what we have been trying to do is square some circles. There really is a very strong case indeed for government being able, as we said in the White Paper very clearly, to develop its policy in private. That applies to every institution that I know of, but it particularly applies to government. Government simply becomes impossible if you do not have that privacy. If I may quote the White Paper, at page 19, paragraph 3.12, it says: "Now more than ever, government needs space and time in which to assess arguments and conduct its own debates with a degree of privacy. Experience from overseas suggests that the essential governmental functions of planning ahead, delivering solutions to issues of national importance and determining options on which to base policy decisions while still maintaining collective responsibility can be damaged by random and premature disclosure of its deliberations under Freedom of Information legislation." We then go on to say that we are proposing restrictions because of that. If you do not do that then you end up with the policy making process being hobbled. This is a really important point: you end up with the reverse of what you actually intended, with government becoming less accountable because policy makers at an official and ministerial level resort to various devices to reduce record keeping. I understand that in one Commonwealth country there was what one of your members described as yellow peril: if officials or ministers wished to ensure that the audit trail is cut then policy advice is put on post-it notes so that things can be lifted. In other administrations much decision making is done orally without proper record keeping, which again means that, far from the executive becoming more accountable, it is less accountable. For all the jokes about sampling and all the rest of it, one of the impressive things about the British public administration is that a huge amount of it is recorded, it is committed to writing. Every night when I go through my box I commit to writing all sorts of decisions and instructions and comments that I make, and even though they are within what amounts to an exemption at the moment, if there is the equivalent of a BSE inquiry, all that becomes disclosable. Sometimes they become disclosable in court but, because of the way the system works at the moment, I am expected and required to commit them to writing and it makes our accountability better.

Mr Shepherd

  25. The Code of Practice on Access to Government Information, in giving reasons for confidentiality (which in a sense was what you were giving us a view on) says, Part II, page 5: "In those categories which refer to harm or prejudice, the presumption remains that information should be disclosed unless the harm likely to arise from disclosure would outweigh the public interest in making the information available." Therefore there is a balancing act. Most freedom of information regimes have a public interest test, that is, not the executive itself, saying, "I have weighed this up and I have concluded outside, external, a commissioner or an independent review . . .". That element is missing from this Bill.
  (Mr Straw) The Code has certainly palpably not led to a disclosure of proceedings in Cabinet Committees, of internal opinion and advice, recommendation, consultation and deliberation, and all these other things, and indeed it was when I gave the Freedom of Information awards, as I have said to Dr Wright, an honour which I was delighted to have bestowed on me two weeks ago, I mentioned an effort which I have made to secure the publication of a document which in any event had been given to a wider world by The Guardian newspaper, I think, which was partly policy advice but mainly an analysis of boot camps in America, a copy of which has since come my way. I read this and it seemed to me that part of it was policy advice and should fairly not be disclosed, and the rest of it was information which could easily and readily be put in the public domain and was outwith these categories. The reply I received back from the then Secretary of State was no, it was all covered by this Code. This is where it is ludicrous to suggest that the Code is somehow better than the Bill. The Code has not delivered the things which the critics of the Bill implied that the Code has delivered. We considered closely whether we should have a harm test for policy advice or whether we should go for a class exemption. The reason we went for a class exemption, when everybody seeks—and by "everybody" I mean those who accept the case for policy advice being outwith the freedom of information regime—was to create some certainty here. If we had not done that, if we had raised the prospect in law as opposed to in a non-statutory Code, that all these things, including procedures in Cabinet Committees, could be made available even when no-one had any intention of them being made available, this would have been disingenuous. The one thing I have not been criticised for is for not being straightforward enough. That is why we have set it out in the way we have.

  26. You are the lawyer. The general presumption under most freedom of information regimes is that information must be public, or that it is the right of the public to obtain it, unless the Government can show that disclosure would be harmful. That I would argue resonates in the White Paper. You seem to have reversed this presumption.
  (Mr Straw) I do not think we have. If you turn to clause 8 of the Bill, page 5 of the annex to the consultative document, clause 8 declaims: "Any person is entitled, on making to a public authority a request for information (a) to be informed by the public authority whether it holds information of the description specified in the request, and (b) if that is the case, to have that information communicated to him." That is a very clear statement.

  27. With a large number of exemptions attached to it.
  (Mr Straw) That is also true in every other FOI regime I am aware of.

  28. I knew you were going to make that observation.
  (Mr Straw) This is not a simple equation; that is the point. First of all, we have to balance the rights of access of information effectively to third parties against the rights of privacy. We have to do that because it is morally correct but to do so, but it is also that we are required to do so—I hate to mention the word in your presence—by a directive of the European Union as well as by an earlier convention agreed by the Council of Europe. Data protection provisions are bound to override those relating to freedom of information for reasons I can explain that relate to section 2 of the 1972 European Communities Act. Then we have to balance those two competing interests against the third, which is the need for confidentiality which may arise in respect of private bodies and may also arise in respect of government.

  29. The Canadian Commissioner for Freedom of Information said in his last annual report that the White Paper had left Canada trailing in Britain's dust. It was perhaps a key signature that the White Paper was perhaps the most liberal regime that he had encountered anywhere. The Chairman had made comment on what has been almost universal criticism of this draft Bill. Prima facie it would seem that there is some considerable slippage between on the one hand a very liberal regime (and I would go along with that and indeed this Committee did in its report on the White Paper) and this very strict regime. Members here will identify any issues as they arise under the sections because the point of this introductory one was to enquire how much weight we can place on any consultation process when the usual parliamentary processes were undertaken in respect of the White Paper: consultation open to the wider public, published on the Internet, parliamentary debate, all supportive of the major principles enshrined in the White Paper. And yet, when we come to a Bill published in this section, I am trying to be as cautious with my language as possible but this to me is just like a doughnut: it is empty in the middle. This is the very heart of the business, the freedom of information, to secure the information relating to how government policy is formed, how we are governed, ie what the Prime Minister talked about, the partnership, that this is the people's information, and therefore the judgements that are reached and the formulation of public policy under which all our lives are lived would be within the public domain and contribute to informed public debate in the generation of policy.
  (Mr Straw) I have sought to explain the process in answer to one of Dr Wright's early questions, leading up to the publication of the White Paper and the time it has taken to publish this draft Bill. This is a continuing process of consultation and dialogue. I am aware of the fact, of course, but in a sense I have had the benefit of many months of argument about aspects of the Bill debate.

  30. Not undermining the confidentiality of Ministers in committee in the process.
  (Mr Straw) No. The whole point about protecting the generation and formulation of policy in government is so that colleagues can have argument. I use argument in the best sense of the word.

  31. The dialectic?
  (Mr Straw) The dialectic, yes. I am glad that you and I share that Hegelian tradition. I am talking about the dialectic, yes.

  32. I got the message.
  (Mr Straw) Of course I am talking about the dialectic, robust arguments; it is one of the attractions of government. I take part in them every day, and if I cannot find anybody else to argue with, I will argue with myself.

  33. Not hard enough in this.
  (Mr Straw) You do not know what might have been. Of course there has to be argument about these things and the case has to be tested. It has to be tested and tested. This process continues. I am aware of the fact that to some extent my testing of some of these cases is further advanced in terms of hours devoted, not necessarily in terms of intellect deployed, because I have been involved in this for such a long time. If I were coming here to say "No, we are not going to listen to any comments", then I would have said so and taken the consequences. I am not saying that. Can I say on policy advice that there was never the least suggestion that I was aware of, including by the many pressure groups and distinguished departments of universities, that policy advice and formulation, that whole area at the centre of government, should be the subject of a right of information, never the least suggestion. That point was made by the Prime Minister, he could not have made it more clearly, in his speech in March 1996 and every other speech that I am aware of that he made also on the White Paper. The issue is how you achieve that in a sensible way without raising expectations that this information is going to be available when it is not. On the other hand, I accept we need to do more work, whilst ensuring that background documents, factual papers and material of that kind, which can safely be made available without compromising this key area of protection should be made available. My last point on this is that if your colleagues, Dr Wright, turn to table 2 of the White Paper on page 16, they will see—and I accept that this is in very short order—that each of the countries surveyed to a greater or lesser extent has an exemption, in most cases a class exemption, for policy formulation and decision making.

Helen Jones

  34. We all accept that there are going to be difficulties in drawing up a Bill like this because you have to get a balance between access and privacy and public interest. We also accept that we are in a new area of legislation, something this country has not had before. Bearing that in mind, why should we not have in the Bill a purpose clause which sets out clearly how the exemptions in the Bill are to be interpreted in the light of the intention of this legislation? We realise, and we have discussed this in committee, that that does not often happen in English legislation, but that does not seem to us to be a good reason for ruling it out. What discussions have you had on that?
  (Mr Straw) We had quite a lot of discussions about a purpose clause. There is in one sense a clear purpose clause in clause 8 which sets out this right to information. It is principally a matter of drafting and of clarity. That is the judgement that we came to in the end. I am not clear what it would do except to muddy the waters. What we sought to do is to say, "Here is a right to information which is set in clause 8, a general right to access of information held by public authorities." That is the default setting for this Bill, that is, the presumption of the Bill. The purpose is also described by the Long Title which in this case is relatively anodyne, with phrasing about making provisions about the disclosure of information. Then there are exemptions and it is about class exemptions and exemptions subject to the harm test and processes. What would a purpose clause say other than, with respect, what is effectively in clause 8, which is that people have a right to information, except where this is subject to other provisions of the Act? I do not understand what it would add to this. If there is an issue, which there may be, where public authorities, ministers or others, are subject to a judicial review by this and the matter goes to the higher courts, then if there is an issue of interpretation of what particular words and phrases mean in the Act, then following the Appellate Committee's decision in the leading authority of Pepper v Hart, the courts will be able to take account of that in terms of interpreting any ambiguity of what Ministers have said to explain the meaning of these words.
  (Mr Middleton) The effective purpose would be to provide an overall interpretation but, as the Home Secretary has said, the purpose is effectively set out in the balance in the Bill between clause 8 to the right and the exemptions in Part II.

  35. I understand what you are saying, but is it not the case in Australia and New Zealand and in some other jurisdictions that it has helped appeal authorities to say to departments, "Where does the balance come down?" where there is any doubt about the information being disclosed, that they should be in favour of disclosure. I think the Data Protection Registrar has also said that it would help clarify the purposes of the legislation. There may be no ambiguity then about what was intended. What is your response to that?
  (Mr Straw) My instinct is that the purpose of the Bill is pretty clear anyway under clause 8. Even where a public authority refuses, and is on firm ground, to provide the information as of right under Part II of the Bill, that authority still has to consider a discretionary disclosure under clause 14 of the Bill. You first have got the right to information set out clearly at the beginning of clause 8. You then have the exemptions, which in some cases are class exemptions; in other cases are exemptions subject to a harm test set out in Part II. Then the authority has to come back to clause 14 where the authority has to balance the public interest in favour of disclosure against any public interest against disclosure. My very clear guess is that even if the Bill goes through entirely unamended, and there are bound to be some changes, clause 14 would come to be a very important part of the machinery to effect this cultural change of which the Prime Minister spoke.

  36. I think I understand where you are coming from. Can we leave it to look at some of the exemptions, in particular the use of class-based exemptions in the Bill. The White Paper actually criticised the use of class-based exemptions in the Code of Practice and yet there are eight class-based exemptions in the draft Bill. Why is it necessary to have so many of those? Could not many of these areas be covered by what we call content-based exemptions based on a harm test? Is it necessary to exempt so many classes?
  (Mr Straw) I think so. One of the criticisms of this Code of Practice is that it is a non-statutory Code. There is a profound difference between a non-statutory Code which is there by the grace and favour of Ministers, and a statutory framework which is there whether Ministers like it or not and which has been passed by Parliament and has all the force of law. The second point I would make is that so far as these class exemptions are concerned, leaving aside policy advice in clause 28, I do not think, and I will ask officials to correct me if I am wrong, that there are any key areas where we have provided a class exemption which is not flagged up in the White Paper. Paragraph 2.3 of the White Paper on page 5 makes clear that the Security Service, the Secret Intelligence Service, GCHQ and the Special Forces "could not carry out their duties effectively in the interests of the nation if their operations and activities were subject to freedom of information legislation." They would be excluded from the Act, as will information about these organisations held by other public authorities. We have actually added to that list so far as the security areas are concerned the National Criminal Intelligence Service, and I am happy to explain the reasons for that but I do not think anybody is seriously arguing about that, and then, as I referred to earlier, paragraph 2.21, the White Paper said that FOI "should not undermine the investigation, prosecution or prevention of crime, or the bringing of civil or criminal proceedings by public bodies." Because of this the Act will exclude information relating to those areas. There are other areas where we had to have exclusions on further consideration. One was on court records. They are accessible separately. The second is under data protection but let me make this clear. Our data protection legislation by the way goes further than the Data Protection Directive itself in giving individuals the right that where the Data Protection Act permits disclosure of personal information the Bill creates a right to it. There are two areas where there is a wider class exemption than that flagged up in the White Paper. One is under clause 28 which is policy advice, and I have already gone into that in detail, and the other is under clause 25 which includes accidents, and again I have accepted that we are going to have to look at that again.

  37. Can we have a look at clause 25 again in some detail? This is one which gives most of us cause for concern. We accept of course what has been said about the need to protect criminal investigations or the possibility of civil actions, but do you not accept that in clause 25, particularly subsection (2), there is a lot more than that in that it exempts disclosure of any information if it has at any time been held by the body for the purpose of, and then it goes through and outlines the various purposes. That exempts information, does it not, even when all the investigations, all the civil proceedings, all the criminal proceedings, have been concluded? Is that not the effect of that?
  (Mr Straw) Subject to the public records regime, that is true. As I have said, for some areas that is quite right and there has not been much argument that I am aware of that, for example, the results of criminal investigations should be disclosable once the investigation is concluded other than through the rules which apply to disclosure in court for very good reasons, which is that the provision of such material could seriously compromise law enforcement and its techniques. In respect of some of the other areas, and again this is to some extent to repeat myself, 2(a)(iii), for the purpose of ascertaining the cause of an accident, we have to look at this again.

  38. I am very concerned about all the things that this clause might cover. For instance, in subsection (a)(ii) where it refers to information held for the purpose of ascertaining the person's fitness or competence in relation to the amount of bodies corporate or in relation to any profession or other activity, would that not cover things like the investigation into what happened at Bristol with the heart operations, for instance, and cover them for all time?
  (Mr Straw) No. It relates to a point which Mr Hughes has made. With regard to Bristol, obviously I know what you are talking about but I have of course had no Ministerial involvement in the detail of these investigations. But where you have, as I say there has been, the investigation, certainly by the health authority and I think by the General Medical Council as well, where you have a statutory investigation it is extremely important for the integrity of that investigation and its satisfactory conclusion that information which they are using should not also be available by a separate regime because otherwise what will happen is that defendants or respondents to disciplinary proceedings will be able to argue that their right to a fair trial effectively has been undermined by the premature release of information. That, amongst other things, is the reason why the sub judice ruling applies in this place, for the very good reason why there are all sorts of rules relating to reporting restrictions which apply indeed to courts themselves whilst proceedings are pending. I am open to argument about that but I think the case for that is much stronger than is the rather wide terms of the case for (iii) and I accept that there is a good case for review.

  39. I accept what you are saying about premature disclosure of information. The clause talks about more than that. Perhaps you could look at this because the way I read that clause, that would exempt that information from disclosure subsequently, even after all the enquiries were concluded, the reports published and so on.
  (Mr Straw) I will invite Mr Hughes to add something to that.
  (Mr Hughes) Any information which is made available during the course of the trial or the investigation or the hearing, whatever it is, depending on the circumstances, would of course be made public. It would not be covered by this. It is there in the public domain. There is a question about the information which is gained during the course of the investigation but not used in subsequent proceedings I think is probably the generic phrase for it, and, as to whether it is fair and reasonable, for that to be available as a matter of right to everybody. The policy behind this is that this should be disclosable under the clause 14 disclosures where the public authority question should weigh up the public interest in disclosure against the prejudice that would be caused. Clause 14 would come into play and the public authority would have to weigh up public interest disclosure against the prejudice that would be caused if the information were disclosed, and that is the reason for that particular provision.


 
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