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20 Apr 2007 : Column 613

Norman Baker: That is absolutely right. Members of Parliament also have extra protection, in the sense that we have greater access to personal data than, say, a local councillor would have. If we write to an NHS trust on behalf of a constituent, for example, the trust will take us at our word that we are acting on behalf of the constituent. If a local councillor were to write to the trust, they would need an authorisation form from their constituent to say that the trust was authorised to respond to the councillor. So the law already allows us to go further in our representation of others. It could be argued that that would make problems more likely to arise, but no such problems are arising, even though the arrangements are more flexible for Members of Parliament than they are for, say, local councillors.

Simon Hughes: The hon. Member for Walsall, North (Mr. Winnick) is correct. Furthermore, part of the solution is in our own hands. If I am writing a letter about an allegation of crime, for example, I write it in a way that does not put anyone at risk. I do not put a reference or a name at the top of the letter, and I do other things to protect people. We can solve the problem, and clearly colleagues are doing so, because there have not been any complaints.

Norman Baker: That is exactly right.

I mentioned earlier that if information is leaked or inadvertently released, that is already an offence under the Data Protection Act 1998 and can be dealt with under existing regulations. There is no need for further legislation to deal with that problem. I challenge the right hon. Member for Penrith and The Border—and, indeed, the Minister, who seems to be supporting him on behalf of the Government—to come up with some cases to show why changes to the present arrangements are necessary. If they cannot do so, they should support the amendments tabled in my name.

Any official with even the most modest understanding of the freedom of information regime would immediately recognise that an MP’s correspondence about a constituent’s personal affairs could not legitimately be disclosed. Unauthorised disclosure of such information would be likely to involve a breach of the Data Protection Act 1998, or a breach of confidence at common law. This could lead to enforcement action by the Information Commissioner under section 40 of the Data Protection Act. As far as I am aware, no such cases have been brought by the commissioner in respect of MPs’ correspondence. Such breaches could also lead to action for compensation under section 30 of the Act, if the individual concerned had been damaged by the disclosure. I am aware of no such cases involving the disclosure of MPs’ correspondence. They could also lead to action for damages at common law if an individual had suffered damage as a result of a breach of confidence. Again, I am aware of no such cases involving MPs’ correspondence.

The Bill seeks to deal with a problem that does not exist, and the amendments seek to recognise that, and to support the Government’s own legislation, which the Government themselves now seem to be abandoning. Amendment No. 2 deals with communications with a public authority. There might be other issues that do not involve constituents but which would involve
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discussions between Members of Parliament and public authorities. There is a concern that material produced by a Member of Parliament in his or her constituency role with a public authority might be released, inadvertently or otherwise, and that that would be damaging. The right hon. Gentleman told the Public Bill Committee:

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Now that we know what is driving the right hon. Gentleman, I hope he will accept that the amendments deal with the problem that he identified. What concern him are issues related to data protection rather than to freedom of information. I would have understood his intentions better had he sought to identify and articulate the problem, cited examples, and then tried to remedy deficiencies in the Data Protection Act, if there are any. The problem that he identified relates not to the freedom of information regime, which is ostensibly what the Bill is about, but to data protection. If that problem does indeed exist, the right hon. Gentleman is seeking to amend the wrong Act.

Personal information of the kind that the right hon. Gentleman described in Committee is not disposable under the Freedom of Information Act. It is as simple as that. As my hon. Friend the Member for North Southwark and Bermondsey pointed out a moment ago, it might, in theory, be available under the Data Protection Act, but that would not constitute a public release of information. An individual has the right to go to his or her Member of Parliament and ask to see information that is held by that Member of Parliament, or a public body, in a particular file. Members of Parliament are not covered by the Freedom of Information Act in the same way as public authorities, but we are subject to the Data Protection Act. The regimes are different, in terms of the way in which they operate, their purposes and whom they cover.

Even the right that is granted by the Data Protection Act, which is what concerns the right hon. Gentleman, is subject to exemptions. For example, disclosures likely to prejudice law enforcement or, in the case of health or social work records, seriously to harm the physical or mental health or condition of the individual or some other person are exempt even from the permissive provisions of the Act, which allow people to view their records. However, an opinion expressed about an individual—this may be what the right hon. Gentleman was referring to in Committee—is not as such protected, whether it is expressed by a Member of Parliament, a member of a public authority’s staff or anyone else. The right hon. Gentleman wishes to deal with that, but the Bill would not affect disclosures under the Data Protection Act, and therefore would not deal with his concerns. He may wish to consider
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amending the Data Protection Act, but what the Bill deals with is the freedom of information regime, and what information about public bodies can be released as a result of requests from individuals, Members of Parliament and the media.

Simon Hughes: We all have massive experience of dealing with these matters. We know that if people complain to us about having been unlawfully sacked, one way of assisting them is to consult their files to establish whether procedures were followed properly. There may be revelations about something that was said inappropriately, but if we think a complaint is entirely self-delusional, there are perfectly proper ways in which we can say that, sometimes to the constituents themselves. We must accept that we cannot say one thing to a constituent and another to an authority, and not expect to be accountable for that.

Norman Baker: That is true, and it brings me to my next point, on correspondence between Members of Parliament and public bodies. I do not think we should have the right to make libellous or slanderous comments about individuals. It is entirely proper to pass on concerns to, for instance, the police or a law enforcement agency about certain information that has been received and needs to be checked out; but it is a very serious matter for a Member of Parliament to make allegations about an individual in a letter to a public body, and I do not think we should be able to do that in a cavalier fashion. We would be able to do that if we were exempted from the requirements of the Freedom of Information Act. I personally do not have a problem about letters that I send to public authorities being made public. They are accountable. They use public money. They are listed in the Freedom of Information Act as public bodies that are subject to the Act. I am elected, as we all are in the House, to represent the public. We spend public money. We are publicly accountable, so the idea that there should be some problem with correspondence from a public MP to a public authority being released seems to be difficult to sustain.

There may be occasions when there is sensitive information that needs to be conveyed from one to the other. If that is the case, I believe that that is already covered by the exemptions in the Data Protection Act which relate to health and social work, mental health conditions or other matters of that nature. It is possible to pass on information without libelling or slandering someone. If we are going to exempt MPs from having correspondence scrutinised, the danger is that we will all become loose in our language about individuals who are our constituents. That would be entirely improper.

Mr. Winnick: Would not it have been useful if the right hon. Member for Penrith and The Border (David Maclean) in introducing his Bill had given examples of where abuse has occurred concerning MPs’ correspondence? If he had given example after example after consulting colleagues as well as perhaps his own cases, we would be in a better position to decide whether there is any justification for what is being proposed.

Norman Baker: That is absolutely right. In referring to the right hon. Gentleman and his contributions, I keep hoping that he will intervene to say, “Here is a
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cast iron case. Will you deal with that?” I invite him to do so. It is a most curious Bill and debate. Arguments are advanced in these amendments and in the previous group of amendments. We do not hear much against them, but there is a vote, with 46 MPs coming from nowhere to decide that the law should be changed. However, that is one of the curiosities of the House of Commons. That is open debate—so far as we have it. The votes are recorded. It shows the value of accountability and openness that we know the result. Accountability and openness are certainly worth preserving in terms of how we operate in the House and how we deal with public authorities.

Simon Hughes: These are important matters, as everyone who is here testifies, but there is huge merit in the present system being retained. If I think that my police force, the Metropolitan police, has far too few police and I write to the commissioner of the Met police saying that I think that Southwark should have 200 more police, surely I must expect that to come into the public domain. If I am saying one thing privately and writing another thing publicly, I should be exposed for doing that. If on the other hand I want to say to the commissioner that one of his deputies is corrupt, presumably, I should have the intelligence to ask to see the commissioner privately to say that to him face to face and not put it in a document, which could then be released, with all the implications that would follow.

Norman Baker: Yes, or indeed in an e-mail that might be subject to investigation by the Metropolitan police under certain circumstances for particular alleged offences, as we may find out shortly.

The main impact of the proposed exemption in the Bill, which the amendments that I have tabled with colleagues seek to negate, would be to exempt MPs’ correspondence with public authorities on matters other than constituents’ personal affairs, as well as that relating to constituents. That is the point that my hon. Friend has referred to. The Bill as drafted would protect classes of information, including, for example, a response by a Member of Parliament to a public consultation exercise. By definition, public consultation exercises are public and it is generally the habit of public authorities to publish, sometimes individually, the responses that they have received to a public consultation.

In my constituency, we have had a very controversial proposal for an incinerator, which has been agreed, I am sorry to say, by the Conservative county council. I have been vociferous, along with the population of Newhaven and others, in opposing that. I have opposed that publicly and written to make representations to the county council and to the Minister responsible in the Department for Communities and Local Government. How would it be if I said—I hasten to say that I have not done this—to my constituents in Newhaven, “This is terrible and I will do everything I can to fight the incinerator,” and then wrote to the county council and said “Actually, chaps, it is not too bad, go ahead but do it quietly, and if we get there quietly, we will be all right”?

Mr. Bellingham: That is the Liberals all over.

Norman Baker: Well, no.

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If I, or any other Member of Parliament, had behaved in that way, that would be reprehensible and should be exposed. I would be very happy for my correspondence with my county council or a Minister on any issue to be available for public scrutiny, provided it did not cut across the data protection legislation protecting constituents. If I am writing on general issues of relevance to my constituents, of course my views should be on the record. My constituents want to know what my views are, as do constituents of all MPs, and they have the right to know them—they have the right to receive a full view. If MPs are to be given the capacity to say one thing in public and then separately to write something very different to a public authority, that will be a dangerous road to go down and it could bring parliamentary democracy and individual MPs into disrepute, as will exempting the House of Commons from the Freedom of Information Act 2000.

Mr. Winnick: Should not the distinction be made between when we are writing on behalf of constituents, where it is essential that the information should be confidential, and when we are writing on broader policy matters? When Members of Parliament engage in criticism, we are the first to send out press releases expressing our opinions and the last thing we want is for such information to be kept confidential. If we write to the chief executive of our local authority saying what we feel should or should not be done, we are the first to let the press know about that. Therefore, we should be a little careful about being sensitive about our correspondence being so confidential.

Norman Baker: That is right. It would be easy for public bodies—such as Government Departments, NHS trusts or individual MPs—to present a rosy picture of their activities when there might be something less rosy underneath the skin. The Government are appointing hundreds of new press officers at vast cost and yet they are also telling us that the Freedom of Information Act cannot be afforded. In a democracy we ought to be able to access all relevant information, except in respect of the proper exemptions on which we are all agreed, rather than merely the information that the public authority feels that it is beneficial to it to release. The key test of freedom of information and of accountability of MPs—which is being threatened by the Bill, and which the amendments would negate—is whether information that the body concerned, such as the Government Department or the MP, does not wish to be released can be accessed under freedom of information legislation. If we move to a position where MPs are able to put out a line that is popular and to cover up that which is not popular, that will be dangerous, and it could bring MPs into disrepute. Further lessons should be learned about how we are perceived by the public.

I mentioned public consultation exercises. A planning application might be called a public consultation exercise. If an MP writes to a planning authority about a planning application, at present what happens is that the MP’s representation is included in the file of representations made on that application, which is available for public inspection. That is what should happen. We might have written on behalf of
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our constituents because there is a perceived wider issue. There might be particular adverse effects on the neighbours which the MP feels so strongly about that they wish to support them. There might even be an issue that personally involves the MP. There might be a planning application next door to where the MP lives. If that is the case, we are perfectly entitled—and so we should be—to exercise the same rights as anybody else and to submit comment on that application.

However, if there is a planning application for a House next door to an MP and the MP then sends in a representation—which might be libellous and include many unfounded allegations in respect of the property or the applicant—if the Bill is passed unamended by the amendments in this group that representation will be exempt. It, uniquely, will not be on the planning file and will not be available for inspection by the public. Therefore, we will not be accountable to anybody for what we put in such a planning representation. Why should we be exempted from legislation relating to planning matters, unlike anybody else in the country? There is no case to be made for such an exemption.

2.15 pm

Simon Hughes: Sometimes there are difficulties. Someone wrote to me the other day saying, “You have written to the police and the council saying that I’ve been guilty of being a nuisance neighbour”. I replied that I had not done that, but had in fact written to the police and the council saying that an allegation had been made and asking for the facts. If we tell people the facts, they normally understand; these are not problems that cannot be dealt with by intelligent communication, which most MPs are well able to undertake.

Norman Baker: I am sure that we can. As and when such situations arise, we can all deal with them sensibly.

Let us suppose, however, that an issue arises about jobs in our constituency; for example, the employment consequences of the possible closure of a factory in the defence industry—I use that illustration to depersonalise my argument, as there is no such industry in my constituency. Clearly, if we had such an industry on our patch our constituents would expect us to protest vigorously in defence of those jobs. We have to represent local views, so we would have to say that the closure was wrong. We would try to find either a way of protecting the jobs or, if there were to be job losses, alternative employment for the work force. All MPs recognise that we have to do our best to represent our constituents and we all try to do so.

What if the Government line was different, however? If one was a Labour Back Bencher at present, or a Back Bencher in a Conservative or Liberal Democrat Government, what would happen if the Government took a different view? What if they had a policy of closing defence establishments? For example, if there had been a Labour Government in the early 1980s, they might have wanted to close defence establishments. In such a case, the consequences for the individual constituency would not matter; the important thing would be to carry through a national policy of winding down defence expenditure. If that was the policy, the Member of Parliament would have a conundrum—
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should they support their constituents, or their Government who want to make cuts that affect the constituency?

Such dilemmas arise time and again. Do MPs support their constituents who want better flood defences—a problem that I face in my constituency—or, if they are in the governing party, do they support their Government, even though the Government want to cut the DEFRA budget so that there is no money for flood defences? Do Government MPs support more police on the beat because there are antisocial behaviour problems in their constituency, even though that year’s Home Office budget has been redirected towards something else?

Such political dilemmas, where the constituency and parliamentary interests are different—

Mr. Winnick: Keep me on board.

Norman Baker: I shall do my best. Those dilemmas are difficult and I do not envy anybody who finds themselves in such situations—although we all do in various regards—but if it happens we have to take a view. Do we say, “Yes, I shall support my Government”—whoever they are; I assure the hon. Member for Walsall, North (Mr. Winnick) that I am not talking about the present Government—or do we stand up for our constituents and say, “No, this is wrong”? I am sure that all Members of whatever party find themselves in situations where they have to make such choices. Whatever they do, they will make somebody unhappy—either in their party or their constituency.

The choices are tough, but we have to make them. What we cannot do, however tempting it may be, is to say one thing to our constituents and something entirely different to Ministers in the House. Of course, the matter may be flushed out by a vote, but not always; not everything is put to a vote. Things may be dealt with in Committee or in other ways. It is thus possible that an MP could paint a picture of his or her constituency activities that is wholly at variance with the position that they take in discussions with Ministers. I think that is improper and that it should not be allowed. The way we stop it is by—

Mr. Deputy Speaker: Order. I have listened carefully and attentively to the hon. Gentleman, but he is making the same point over and over again—it may have different clothing but it is the same point. He is in danger of being unduly repetitious. I think the House has probably understood his argument, so to produce 100 or 200 examples of the same thing is not necessarily to advance it.

Norman Baker: I am grateful, as always, for your guidance, Mr. Deputy Speaker. I concede that there are hundreds of examples, but in the light of your comments I will not outline them to the House today.

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