Key policies and priorities - Constitutional Affairs Contents


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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