Examination of Witnesses (Questions 40-59)
RT HON
LORD FALCONER
OF THOROTON
QC AND ALEX
ALLAN
18 OCTOBER 2005
Q40 Jessica Morden: Is it true that
government departments have been told that they may choose `to
neither confirm nor deny' whether they even hold information that
has been requested, which I think relates to some press reports
in memos that have been given by the clearing-house to civil servants?
One quote says that whether information is or is not held in itself
is information and that confirmation of this fact alone may be
damaging. Do you concur that whether information is held or not
is in fact information?
Lord Falconer of Thoroton: Whether
information is held or not is information.
Q41 Chairman: Oh, Sir Humphrey!
Lord Falconer of Thoroton: The
Act itself recognises that there may be occasions when it is inappropriate
either to confirm or deny. The best example I can give is where
the police are surveying a particular building which they do not
want to identify. If you are asked to provide all the information
you have got about surveillance of a building it would be a perfectly
appropriate answer to say, "We neither confirm nor deny that
we have got any information relating to that particular building."
Q42 Chairman: It is covered by different
exemptions so you would not need to.
Lord Falconer of Thoroton: If
you look at the way the Bill operates, the first thing you have
got to say is whether or not you hold that information. The reason
why the Act is structured in that way is so that normally you
can provide a basis for determining whether you will appeal against
the refusal of that information. Where, however, saying whether
you have got that information could give rise to revealing, for
example, the police are surveying a particular house, in those
exceptional circumstance the Act, passed by both Houses of Parliament,
said you did not have to say whether you held that information.
That seems to me to be necessary and perfectly sensible. The way
it is done also reflects the fact that normally you should say
whether you have got such information. I am sorry to give such
a Sir Humphrey-esque answer!
Q43 Jessica Morden: Is there enough
feedback from your Department and the Information Commissioner's
Office to inform best practice?
Lord Falconer of Thoroton: Yes.
We started in January. I have to tell you that some people in
public authorities and government departments were not that keen.
Some officials were not keen, some politicians were not keen,
but we all accept there is an Act of Parliament that determines
how it works and we have got to work within it. Best practice
is very, very important and providing genuine help is very important
and we are getting there. There have been difficulties along the
way, but I think we are getting to a point where the culture is
changing. You can see that from the fact that one very frequently
opens one's newspapers now and sees lots of material that is coming
out as a result of the Freedom of Information Act that would not
have come out before.
Q44 Jessica Morden: There are 1,299
complaints relating to Freedom of Information currently with the
Information Commissioner's Office and only 55 cases have been
dealt with. Are you satisfied about the speed of dealing with
these complaints?
Lord Falconer of Thoroton: He
has dealt with a lot more than 55 cases since he was set up. He
may have dealt with 500 cases. There are quite a number of cases
waiting with the Information Commissioner. I am extremely keen
that there be no delays in the operation of the Act as a result
of a pinch point with the Information Commissioner. I have made
it clear repeatedly to the Information Commissioner that if he
has got any difficulties with resources he should come and speak
to me and we will discuss what, if any, further resources should
be made available. I think the position is that the Information
Commissioner thinks it is an inevitable consequence that when
an Act starts to operate you get flooded at the beginning and
that gradually over time the numbers go down. If you look at the
numbers, in the first quarter there were a very large number of
requests, in the second quarter it had gone down by something
like 38 to 40% and it is on a downward and now plateauing level.
Q45 Jessica Morden: Is he happy that
he has enough resources?
Lord Falconer of Thoroton: I see
him every month and I say, "Have you got any problems about
resources? If you haven't, please talk to me," and he has
not talked to me about it. I read a thing in The Times
where there was an issue about resources. It has not been raised
with me.
Q46 Jessica Morden: Given that it
was a new thing, you must have anticipated that there would be
a large number of cases.
Lord Falconer of Thoroton: We
did. We prepared ourselves with the clearing-house. The Information
Commissioner took very sensible steps in relation to it. I think
we all expected there to be a surge at the beginning and then
a plateauing and that is what has happened.
Q47 Jessica Morden: And you are confident
that things will speed up?
Lord Falconer of Thoroton: Yes,
I am.
Q48 Jessica Morden: In the recently
updated statistics on Freedom of Information requests it is only
central government departments which are logged. What is the progress
in dealing with requests that have been made by bodies outside
central government?
Lord Falconer of Thoroton: There
are something like 100,000 bodies covered by the Act. There is
no overall system for every individual public authority having
to make public returns and indeed for many bodies that would not
be a sensible use of their time. We have set up in DCA something
called sector panels on health, education and crime in which we
bring together representatives of a particular sector, for example
health bodies, and use those sector panels to spread best practice,
to get feedback on how the Act is working and to try to monitor
progress in relation to each of those individual sectors. Alex
knows more about it than I do.
Alex Allan: We have got a whole
series of mechanisms. Through the clearing-house we operate with
the individual departments like the health department, they clearly
have a responsibility for all health related bodies and this is
partly following a recommendation the Committee made in a previous
report in terms of, as the Lord Chancellor said, spreading best
practice and getting information. The panels meet regularly and
we are getting feedback. We do not aim to collect statistics and
that level of detail because of the bureaucracy that would be
involved and especially since technically any request for information
is a Freedom of Information request and so I think it would be
very burdensome to try and collect that level of detailed statistics.
Q49 Jessica Morden: So it is never
going to be available at that level?
Lord Falconer of Thoroton: I do
not think we are ever going to be able to say across the 100,000
bodies the total number of Freedom of Information requests. They
will certainly get some overall impressions about the numbers
of requests and whether they are going up or down.
Q50 James Brokenshire: Obviously
we have the issue of electoral administration and the new Bill
coming through. Part of the issue associated with that is about
sharing information and how electoral registration officers will
impart that information to other people. How much data sharing
do you foresee in terms of the changes that are taking place and
what issues do you think that will throw up?
Lord Falconer of Thoroton: I think
there should be more data sharing than there is at the moment
in the context of preparing the electoral register. Currently
the electoral registration officers are entitled to use information
in the hands of the relevant local authority, for example council
tax lists and I think it would be sensible for them to use that
more. Some already do, but I think those that do not should use
it more because the more you have got information about who might
be living in the particular local authority area or the constituency
the better because when you send letters for the annual canvass
you can give the names of everyone you think is in the dwellings
house to assist returns being made. So more data sharing is needed
in that respect. In addition to that, you will know that the Electoral
Administration Bill contains permission for something called the
CORE national electoral register which will be accessible by electoral
registration officers to see, for example, where there is duplication
throughout the country, so you get a more accurate list. As a
matter of good practice I would like to see more data sharing,
though there is not a specific provision in relation to the Bill
for that more generally. I think the national electoral register
will also help EROs in getting more accurate registers.
Q51 James Brokenshire: Do you foresee
there being any privacy issues or further protections that would
be needed to protect individuals in this case at a time when identity
theft is becoming an increasing problem? What sort of protections
would you be looking at to try and address those sorts of issues?
Lord Falconer of Thoroton: In
relation to data sharing within material held by the local authority
the Data Protection Act would apply, so the Data Protection Act
would ensure that electoral officers can only use the material
for a purpose which is legitimate, namely creating an accurate
electoral register. In the context of elections I think the protections
currently are satisfactory. We need to think in relation to data
sharing generally about how one clarifies what the law is because
I think the difficulty in all data sharing activity is the fact
that everybody agrees you should only have the information you
have given used for a legitimate purpose by the State. Neither
the people who share data nor the public quite know what the law
is and I think we need to take steps to try to clarify that. I
do not think the problem is with the substance of the law, it
is the fact that nobody knows how it works, those who have to
operate it and those who are supposed to be protected by it.
Q52 James Brokenshire: How would
you go about doing that?
Lord Falconer of Thoroton: I think
the first thing we need to do is to identify across Government
where there are problems in relation to that and then I think
we need to set out clearly and simply what the principles are.
Q53 James Brokenshire: Obviously
in terms of the actual Bill itself, which will come for Second
Reading next week, there are a number of issues in terms of the
challenge between encouraging people to vote as against the issue
of having integrity within the system itself. Obviously there
is a balance that has to be struck between the two. Your Department
says you intend to trial a number of projects in the use of personal
identifiers at registration. Can you talk about that a little
bit more?
Lord Falconer of Thoroton: Yes.
This Committee along with the ODPM Select Committee produced a
pretty influential paper about the problems of fraud but also
the problems about a lack of legislation. Members of the Committee
were very interested in both those problems as we are. We do want
to increase security and we do want to address the particular
problem of postal voting. The Electoral Commission have said if
it is no longer possible to return the form with just the head
of the household filling in the names of everybody and that instead
everybody should have to sign and put their date of birth, which
is what the Electoral Commission say, that would provide greater
security in postal votes because you would have a signature against
which to compare when the application for a postal vote came in.
The danger of that is that you may get to a situation where that
reduces the number of those registered. The statistics produced
by this Committee were accepted as quite out-of-date, but the
more up-to-date statistics produced by the Electoral Commission
show that there is quite a worrying decline in registration. What
is the right course to take in order to balance it? We think the
right course to take is to pilot what the effect would be of requiring
an individual signature and an individual date of birth to see
whether or not there is a significant decline in registration
because you have got to strike a balance there.
Q54 James Brokenshire: Obviously
one suggestion is the helpful use of national insurance numbers
as a further means of combating fraud. Is that something that
you would consider further?
Lord Falconer of Thoroton: I think
that is a very bad idea and I do not think even the Electoral
Commission think that is a good idea anymore. Mr Brokenshire,
I imagine you have got your national insurance number at your
beck and call, but if you have, for example, in your household
two or three people who are just reaching the age where they can
vote, one or other of them may be away at university or a further
education establishment and in order to get them onto the electoral
register you have got to find out what their national insurance
number is. Do you think that would have an effect on reducing
registration? My own view is that it probably would without commensurate
benefits in relation to security. I think we need to look carefully
at how we increase security. We need to see where the balance
lies. I am not in favour of national insurance numbers.
Q55 James Brokenshire: I think there
is this issue in terms of whether it is household registration
or individual electoral registration. Do you foresee things moving
more towards the individual side? Is that something you would
promote?
Lord Falconer of Thoroton: The
security issue is the critical thing. Postal voting is where the
big issue is. If you want a postal vote, you have got to make
an application for a postal vote, then you will get your postal
vote back and then you send your postal vote filled in. So there
are two signatures anyway in relation to a postal vote. Is that
enough for security reasons? I do not know whether it is enough,
but I am very sure that you can never invent a system that is
completely secure against fraud. So the question is what additional
steps you put in.
Q56 James Brokenshire: I think you
have said that the main issue is with postal votes, but clearly
there is an issue in terms of the integrity of the register itself
and hence the reason for the debate and argument about individual
registration and how to get on the register in the first place.
You said that effectively you see postal voting as the main issue.
Lord Falconer of Thoroton: When
you say there is a problem about the integrity of the register,
do you mean the register might be too full? There is an issue
about that, I agree. I think the bigger issue about registration
and the one that causes the most difficulty in practice is under-registration.
I think you are right, some people who have moved still remain
on the register, but the work of the Electoral Commission, the
work of my Department and the work of this Committee sitting with
the ODPM Committee concluded that particularly in areas of social
exclusion but also in particular racial groups there was significant
under-registration and I believe in registration terms that is
the particular issue that needs to be looked at. The other issue
of under-registration which is quite worrying is those between
eighteen and twenty-four years old. If you end up with people
of eighteen to twenty-four not registering then obviously they
cannot vote. There is research which suggests that if you do not
vote on the first or second occasion when you can vote legally
then you do not tend to vote later on. I think those problems
of registration give rise to great difficulties about the way
democracy develops over a period of time because nobody involved
in democratic politics wants a situation where there is a correlation
between your racial group, your age, your socio-economic grouping
and whether you are registered and, therefore, whether or not
you vote.
Q57 Chairman: So do we conclude that
for all these reasons the Government is holding back from individual
registration not just at this stage but in its picture of where
we are going to?
Lord Falconer of Thoroton: What
we are not committing ourselves to at the moment is compulsory
individual registration, because I think there is one view that
says it might take you time to get there for administrative reasons,
but that you should commit yourself now to the proposition that
in order to be on the electoral register each individual has got
to provide a signature and a date of birth. We are investigating
that position by saying, in the Electoral Administration Bill
that Mr Brokenshire referred to, that we are going to pilot that.
Q58 James Brokenshire: Do you agree
with the Leader of the House of Commons, in comments that are
attributed to him, that we should be moving towards a system of
compulsory voting?
Lord Falconer of Thoroton: For
me it is very painful to have to disagree with the House of Commons.
I do not favour moving towards compulsory voting. I do not think
the problems of democratic engagement can be solved by making
it compulsory for people to vote. We have got to make it easier
to vote, we have got to make it easier to register subject to
all the fraud issues, but above all we have got to make politics
attractive to people. I think the way you do that is not by making
it a criminal offence not to vote, I think it is by the substance
of what politicians say. I think there would be resentment about
people saying they were being compelled to vote.
Q59 James Brokenshire: I think that
neatly moves us on to the European Court of Human Rights and the
recent decision about prisoner voting and whether prisoners should
be entitled to vote. In the light of this decision the Government
said that it will look at it. What is the Government minded to
do?
Lord Falconer of Thoroton: What
the European Court of Human Rights have said is, "You have
a blanket ban on convicted prisoners being able to vote. You have
never considered a proper justification for that, so consider
a proper justification for that." We need to review the law.
The principle that has underlined it in the past has been that
if you are convicted of a criminal offence so serious that you
are sent to prison it is not wrong in principle that you should
also lose your civic right to vote. That sounds a perfectly sensible
principle to me. We reflect that as being the principle by excluding
from the ban on voting people who are remanded in custody but
who are not convicted because you do not know whether they are
guilty or not at that stage. We have also excluded from the ban
on voting people who are in prison because they have not paid
their council tax or something similar because they are not convicted
prisoners. The judgment says you should consider whether or not
things like seriousness should be relevant before you prevent
people voting, but if the position is you only go to prison in
this country if you have committed a serious offence or you are
a very, very persistent offender, might that not be sufficient
a basis to say once you are a convicted prisoner in prison you
should not have the right to vote? We need to consider all these
things because the European Court of Human Rights has said that
we must. They are making it clear we have got quite a wide margin
of appreciation.
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