 House of Commons |
Session 2006 - 07 Publications on the internet General Committee Debates Freedom of Information (Amendment) Bill |
Freedom of Information (Amendment) Bill |
The Committee consisted of the following Members:Chris
Shaw, Committee
Clerk
†
attended the Committee
Public Bill CommitteeWednesday 7 February 2007[Mr. Martin Caton in the Chair]Freedom of Information (Amendment) Bill10.30
am
The
Chairman:
I understand that it is hoped that the Committee
will conclude its consideration of the Bill at this sitting. Should
that not prove possible, I shall invite Mr. Maclean to move
a sittings motion specifying the date and time of our next meeting
before we adjourn. In the event of a second sitting, I do not intend to
call starred
amendments.
Clause 1Exemption
of House of Commons and House of
Lords
David
Maclean (Penrith and The Border) (Con): I beg to move
amendment No. 1, in clause 1, page 1, line 3, leave out subsections (2)
and (3) and insert—
‘(2) In
Part 1 of Schedule 1 (public authorities) omit paragraphs 2 and 3
(which relate to the House of Commons and House of
Lords).
(3) After section 34
insert—
“34A
Communications with members of the House of
Commons
(1) Information is
exempt information if it is held only by virtue of being contained in
any communication between a member of the House of Commons, acting in
his capacity as such, and a public
authority.
(2) The duty to
confirm or deny does not arise in relation to information which is (or
if it were held by the public authority to which the request is made
would be) exempt information by virtue of subsection
(1).’.
(4) In section 63
(removal of exemptions: historical records generally), in subsection
(1), after “33”, insert
“34A,”.
(5) Omit
the following—
(a)
section 2(3)(e),
(b) section
36(5)(d) and (e) and (7),
and
(c) in section 81(4), the
words “on behalf of either House of Parliament
or”.’.
David
Maclean:
Since the Bill received its Second Reading on the
Floor of the House I have taken further legal advice on drafting
technicalities, knowing that we would be coming to Committee. The
amendments that I have tabled keep the Bill in substantially the same
format but make technical, sensible drafting changes which I commend to
hon. Members.
Proposed
new subsection (2) in amendment No. 1 is a drafting change, deleting
the references to the House of Commons in my first draft and using
slightly different legal, parliamentary language. Proposed new
subsection (3) would make a few sensible changes. First, it would
insert a new section on MPs’
correspondence after section 34 of the Freedom of Information Act 2000.
I originally placed it after section 37, but this position is more
sensible. Secondly, it would change the word
“correspondence” in my Bill to
“communication”, to include e-mail and other forms of
communication. Again, that is sensible.
Thirdly, proposed new
subsection (3) makes it clear that the provision applies to a Member of
the House of Commons, whereas originally I used the term “Member
of Parliament”, which would include the House of Lords. If those
in the other place consider that there is a problem with their
correspondence of the same magnitude as we have discovered with ours, I
leave it to them to amend the clause. I recommend to the Committee that
we change the wording to
“member of the House of
Commons”,
because the
main problem with correspondence has related to MPs.
Fourthly, the proposed new
subsection would add the
phrase
“acting in his
capacity as such”
to make
it clear that the Bill refers to MPs’ correspondence when we
write in our official capacity to a public authority, not in a private
or ministerial capacity, which are covered in other parts of
the2000
Act.
Proposed new
subsection (4) would sensibly add the 30-year rule, which I neglected
to put in my first draft. It means that even protected communications
will be available after 30 years. Proposed new subsection (5) is simply
consequential and would remove references to MPs, the House of Commons
and Mr. Speaker from other parts of the 2000 Act, as those
references will no longer be necessary if the Bill becomes an
Act.
As we are also
considering clause stand part, I shall say a few words on the
principles behind the Bill. I hope that colleagues will wish to address
those rather than the technicalities of the amendments.
Membersof the Committee are quite experienced. I calculate
that between us we have 272 years’ parliamentary experience and
76 years’ ministerial experience. I make that point because if I
can persuade colleagues of all parties that the Bill is sensible, it
will carry a lot of weight when we take it back to the Floor of
theHouse on Report and when it goes to the other place. This
is not a Committee of brand new Members of Parliament touching on the
matter for the firsttime. We have considerable experience, and
I shallgive particular weight to the comments made by
experienced colleagues of all
parties.
I hope that
the Minister and the Government will stay neutral on the Bill. Having
been a Minister I understand that when a Government introduce an Act,
as this Government did with the 2000 Act, they feel an ownership of it
and do not like people interfering with it. However, the Bill does not
touch on any other aspect of government or public authorities; it deals
with the House of Commons and the House of Lords.
Perhaps there is a case for
saying that we should not have been included in the first place and
that the matter should have been left to the internal regulations and
procedures of the House of Commons and the House of Lords, but we were
included, and I hope that the Minister will take the view that the
matter is for those in Parliament to determine individually without
there
being a Government view. The same applies to other parties: I stress to
my hon. Friends that the matter is not one for the Conservative
leadership and Whips to get involved in, nor for the Government Whips.
Let us leave it to the
House.
Mr.
Greg Knight (East Yorkshire) (Con): What will be the
effect of the Bill on the range of information that is placed in the
public domain by the House authorities? Will it be more
restricted?
David
Maclean:
That is a key point, which I am just about to
come to. If my right hon. Friend can contain himself for a moment, I
shall read out a letter that I have received on the matter from
Mr. Speaker. First, though, I want to conclude my point
about whether Parliament should have been included in the
Act.
When the White
Paper “Your Right to Know” was published in 1997, it
stated that Parliament would not be included in the freedom of
information legislation. It
said,
“A very
few public bodies, because of the nature of their role, will be
completely excluded from the Act. Parliament, whose deliberations are
already open and on the public record, will be
excluded.”
However, when
the Public Administration Committee considered the matter it thought
that some aspects of Parliament could be included, and recommended that
that happen. Responding to that, the Government said,
“The
Government notes that in making this recommendation the Committee had
particularly in mind information which relates to the various
administrative functions carried out within Parliament. The Government
has no objection in principle to including these functions within the
scope of the Act and would be guided by the views of the House itself
on the issue. If, as is suggested, the Joint Committee on Parliamentary
Privilege wishes to express a view, the Government will of course
consider that Committee’s views
carefully.”
So
initially the Government were not mindedto include Parliament
in the 2000 Act, the Public Administration Committee said that some
aspects of Parliament should be included, and Parliament was then
included. However, I do not think that the Act has operated in the way
that we anticipated. In fact, according to the House of Commons
Library, when the legislation was debated in the House, we never
touched on schedule 1—in other words, we did not consider the
matters relating to
Parliament.
If this
Bill becomes an Act, it will delete the House of Commons and the House
of Lords from the 2000 Act. Theoretically, as my right hon. Friend
suggests, that could result in less information relating to Members of
Parliament being published. However, I am pleased to tell the Committee
that last week I received a letter from Mr. Speaker, because
I had asked him whether he had a view on the Bill. On 30 January he
wrote:
“Dear
David,
Thank you for
your letter of 26 January about your Private Member’s
Bill.
As you will
understand, neither I as Chairman, nor Members as Members of the
Estimates Committee, have a view about the merits of the
Bill.
What the
Committee does have an interest in, is making sure that the public is
duly informed about information relating to Parliament. In that
respect, as you know, the House has issued a
publication scheme which, I can confirm, the Committee has no intention
of withdrawing whatever changes may occur in its formal
obligations.”
Mr.
Speaker has confirmed that even if the Bill becomes an Act, and even if
technically or legally we will not have to publish information, the
view of the House of Commons Members Estimate Committee and
Mr. Speaker is that we should continue every October to
publish the same information on travel, allowances, accommodation and
secretarial costs that we have published in the past few years. That is
right. I commend that view to the Committee and hope that it will be
satisfied that it is the right thing to do.
The other main point of
principle is the new vexed problem relating to our correspondence. I am
sure that colleagues of all parties have become aware of it. In theory,
our correspondence is protected. If somebody asks to see copies of
letters that we have written to a public authority we can, if we wish,
say no. However, some people are now going to the public authority by
the back door—albeit legitimately—and asking for copies
of files relating to individuals. Theoretically, if that public
authority carries out all the procedure in the official advice and
guidance issued by the Government—I have circulated copies so
that hon. Members can see just how complex it is—and consults
the Member of Parliament, who gives a view; and takes legal advice; and
comes to the right decision; then it is possible that our confidential
correspondence to the public authority will not be published. However,
we are not in charge of that and there is no guarantee.
Put simply, that is my concern.
I am not making a political point, but the new Bill on the probation
service will permit many other organisations—perhaps small
charities—to provide probation-type services. One person in that
little organisation could be the arbiter of whether a confidential
letter that one of us has written to the authority that used to be the
probation service, but has been devolved to a charity, will be released
into the public domain. If that person carries out all the procedures
and gets it all correct, our correspondence, if we think it is
confidential, might not be released, but we have no guarantee of
that.
I take the view
that when we write on behalf of constituents or when a constituent
comes to us we must be able to look them in the eye and say that in all
circumstances, what they tell us will not get out—it is like a
relationship with a priest. We will write to an authority with their
problem but we guarantee that that information will not be leaked by us
or get into the public
domain.
I would not be
able to function properly in fighting for my constituents if I could
not give them a guarantee that when I write to the tax credit people or
the Child Support Agency on their behalf, no one else will see what
they have said. Of course we must have the right to do that.
Theoretically there are provisions in the current Act which may protect
that correspondence, but we are not the final arbiter on that. That
decision may be made by someone else who decides that it is safe to
release our correspondence. We must have that absolute
protection.
I have
experience on the House of Commons Commission of more problems like
that arising and colleagues complaining that they have to jump through
enormous hoops to guarantee to their constituents that
the letters that they write on their behalf are not
released. This does not apply to us as Members of Parliament writing to
a local authority complaining about our own community charge or a
personal matter. It does not apply to Members of Parliament writing as
Ministers in their ministerial capacity. It relates purely to us as
Members of Parliament in our official capacity dealing with public
authorities.
Peter
Luff (Mid-Worcestershire) (Con): Do I understand my hon.
Friend to say that he is seeking absolute clarity on this point? I am
interested by a letter I received from the Campaign for Freedom of
Information by e-mail this morning. It
says:
“If
correspondence containing personal data about identifiable constituents
have been released then, on the face of it, this information is already
exempt under section
40(2).”
It seems that
even there, there is a qualification. Is my hon. Friend seeking to
remove that doubt from the
provisions?
Mr.
Tim Boswell (Daventry) (Con): To qualify slightly the
intervention by my hon. Friend the Member for Mid-Worcestershire, does
my right hon. Friend agree that the test is, as much as anything else,
about simplicity? If the correspondence is absolutely privileged, that
is a clear message that will be understood by anybody, however large
their compliance department or degree of sophistication. If there is a
doubt, it is likely that confusions will happen and occasionally
confidences will be
breached.
David
Maclean:
I agree entirely. Clearly if one writes to a
public authority and gives the personal details of a constituent, such
as their CSA claim, information relating to their children and so on,
that information should be protected. It should quite clearly be
protected under the current Act. However, inadvertently, someone may
release it. This measure would remove that small problem. When I write
to the chief constable about a constituent—it may be wise or it
may be foolish, and some colleagues may not wish to put it in
writing—I will often say that I think my constituent has a
genuine case. There will be times when I will say, “That is what
my constituent told me. You may have a different view or side to the
story.”
We
must have the freedom to express to chief constables, the tax
authorities and so on, our personal view about the veracity of a
constituent. That may not be protected information in all
circumstances. If that information is released accidentally by a police
clerk releasing the file, it puts us in an enormously difficult
position. We must have the right, as Members of Parliament, to express
a personal opinion about a constituent or someone else when we write on
behalf of a constituent and we must have a guarantee that that is
protected. That is my motivation. It is what is driving me and I hope
to convince the Committee that it is a problem that has to be
remedied.
Peter
Luff:
My hon. Friend makes an interesting point about
chief constables. From time to time, I have to write to the chief
constable or other police officers
with information relating to criminal activity in my
constituency. Recently, information that I passed in relation to one
case led to prosecutions and successful convictions.
The individual who passed that information to me needs the guarantee of
total anonymity. A freedom of information request could destroy that
guarantee.
10.45
am
David
Maclean:
I agree entirely. That guarantee has to be there.
There may be other occasions when one writes to the chief constable,
saying, as I have done, “I think your plans to amalgamate with
Lancashire are all wrong. You’re barking mad.” Now, in
such instances, one is not necessarily dealing with a constituent and
so, it could be argued, it is more about policy and more in the public
domain. Most Members of Parliamenthave press-released that
information, because such comments are for public consumption. We have
to be trusted to know when to put things in the public domain and when
things should be
confidential.
Jim
Dowd (Lewisham, West) (Lab): I congratulate the right hon.
Gentleman on introducing an excellent private Member’s Bill. For
the avoidance of doubt, to use the words of the hon. Member for
Daventry, we are not seeking a blanket exclusion for everything that
MPs do. We are seeking, for the benefit of our constituents, a
necessary protection on their
behalf.
David
Maclean:
That is correct. The hon. Gentleman has put it
very succinctly, as I should have done
myself.
I
think that I have covered the technical amendments, which offer a
sensible redrafting of the Bill, and I am grateful for the legal advice
that I have received. May I emphasise the principles and the motivation
behind the Bill and commend the amendments to the Committee? I hope
that colleagues are convinced, and I look forward to their
comments—hopefully not on the technical amendments, but on the
principles behind the
Bill.
Mr.
George Howarth (Knowsley, North and Sefton, East) (Lab):
I, too, congratulate the right hon. Member for Penrith and The Border
on the Bill and on the admirably clear way in which he presented it
this morning. He made it absolutely clear where he is coming from, as
well as giving some indication of the circumstances that make it
necessary. I want to cover three issues of which I have experience, as
they are relevant and point up the need for such legislation.
They demonstrate why limits on freedom of information
are needed in communications with
constituents.
First,
every Member of the House will have had experience of media intrusion,
as the right hon. Gentleman suggested. As a Member of Parliament, I can
think of a number of occasions when somebody has come to me to talk
about problems in confidence as far as I was concerned. One case is now
a matter of public record, so I will refer to it. One of my
constituents inherited money from her late father and was the executor
of his will. She shared the money out among members of her family, but
it emerged that her father had been involved in social security fraud.
She came to see me and gave me all the details honestly and clearly.
She felt that it was slightly unfair that the information about how the
money had been obtained did not come to light until after she had
distributed the funds among the members of her family. The case
subsequently became a matter of public record, and the media came to me
at one point in the proceedings and asked me for information about what
I had done and to whom I had referred the case. I refused, on the
grounds that my constituent had not wanted me to give all that personal
information to the media. She came to me, as I understood it, safe in
the knowledge that the information would remain between us and would be
passed on only to those to with whom I chose to communicate on her
behalf. In such circumstances constituents would reasonably assume
that, unless otherwise stated, the information would be a confidential
matter for them and their Member of
Parliament.
Secondly,
people sometimes seek medical procedures or treatments that are not
readily available on the national health service. They offer all sorts
of arguments and reasons why their particular condition should entitle
them to treatment, so that their Member of Parliament can make a case
to the primary care trust that covers their constituency. The media may
learn about such cases, and journalists have occasionally asked me to
discuss somebody’s personal medical details, not as an expert on
medical matters but as a politician involved in the case. I refuse to
do so, because it would be improper to discuss such details without the
consent of the constituent involved. It is for them to discuss their
personal details, not a third party, even if that third party is their
Member of
Parliament.
Thirdly,
the right hon. Gentleman delicately referred to the important question
of nuance. Constituents will occasionally come to us with a particular
grievance to which we are entirely sympathetic, and we make that clear
in our correspondence. However, although constituents are entitled to
contact their Member of Parliament and expect their concerns to be
passed on to the relevant authority, they are not entitled to assume
that we will automatically think that they are right. This is quite a
complex area. Unless someone makes a completely bizarre
request—from time to time, we all receive such requests, but we
would probably stray outside the scope of the Bill if we discussed our
stranger experiences as constituency MPs—people who contact
their MPs have the right to expect us to pass their concern on to the
relevant authority.
It all depends on the way in
which the letter is phrased. Members who have served as Ministers will
be aware that a letter from an MP that says, “I would be
grateful for your observations on this matter” does not
necessarily imply that Mr. or Mrs. So-and-so is
correct in their assumption, merely that an explanation of the policy
behind a decision is sought. When matters of justice or fairness are at
stake, we may decide that the policy behind the decision is wrong, and
we wish to draw attention to it. If such correspondence became
routinely available—I am a great admirer of the British media,
but some reporting standards fall rather low—the media, to put
it bluntly, might selectively report a piece of correspondence rather
than explain its overall meaning. That would be unfair to the
constituent, and it would give Members of Parliament a little less
scope in their communication with authorities. That would be
detrimental for our constituents, because we would have to make a
judgment in every case about whether they were right
or wrong before communicating with the relevant authorities. That would
not be fair to our constituents, as we would be asking them to accept
our personal judgment instead of carrying out the representational role
that they expect us to
perform.
To return to
a point made by the hon. Member for Mid-Worcestershire, if a
constituent comes to me and says, for example, “The family at
No. 60 are drug dealing,” I make it a practice—and I am
sure that I am not unique in this—to say, “I will pass
that information on to the local police inspector, and I will not give
your name or address, or mention the fact that we have had this
conversation.” That is important but, equally, drug dealers and
individuals involved in low-level organised crime have the capacity to
put two and two together. If they had access to privileged
correspondence sent to a senior police officer, they could work out by
a process of elimination who was in the frame. In one incident in my
constituency—I have referred to this on the Floor of the
House—a family was hounded out of their home by local gangsters
on mischief night because they were thought to be grasses, although
there was no evidence that they were. In other words, local gangsters
involved in drug dealing thought that they were passing information on
to the police.
Mr.
Howarth:
Indeed. As my hon. Friend says, gangsters do not
observe any kind of due process. Once they have made up their mind,
violence takes over. Members who have experience of Northern Ireland
will be familiar with that phenomenon. Although gangsters do not
believe in due process, they are quite capable of working out who might
be the source of that information and they act accordingly, and often
violently. People facing such circumstances have a right to expect
their Member of Parliament to pass information on without mentioning
them, and to expect that that information will be protected so that
those against whom it is used will not be in a position to put two and
two together and make four or five. That is a hugely important
principle to which every hon. Member should adhere. With those few
observations, which I hope are helpful, I commend the right hon.
Gentleman on this
initiative.
Mr.
Boswell:
Now that the subject has been helpfully
introduced by my right hon. Friend the Member for Penrith and The
Border, I wish to offer the Committee two basic preconceptions, which I
shall then challenge. First, I have a fairly strong sympathy for
libertarian issues and an interest in civil and human rights. My hon.
Friends have not always shared those characteristics, but I own up to
them because I believe in them. Secondly, I have a fairly strong
prejudice against what could be called “parliamentary
exceptionalism”. We are human beings and citizens. Wherever
possible and sensible, we should expect to conform to the same rules as
everybody else, whether those rules are the laws that we make ourselves
or otherwise. Having approached the debate with those prejudices, I
have sought to reconcile them with the
present facts and the argument of my right hon. Friend’s Bill,
and I find myself in sympathy with what he is trying to do.
Sometimes in Parliament, a
remark is made out of the blue in a quiet debate that strikes a chord
and goes into one’s mind and body of belief. When Bob Sheldon,
now Lord Sheldon, was chairman of the Public Accounts
Committee—that identifies the fact thatthe incident
took place under the Conservative Government—he once said very
quietly but memorably in an extremely dull debate on PAC reports,
“The one thing about a constituent is that when they come
through the door of your advice bureau or surgery, you are on their
side.” That message will be accepted by every single Committee
member and every Member of Parliament. We interpret it in different
ways—we may do so well or badly—but that is what they
expect of us and it is what we expect to be able to do for
them.
One aspect of
that trust has been well rehearsed. I shall not discuss it at length,
but of course constituents entrust to us some very sensitive personal
details and life histories. We have all had experiences such as the
ones described by the right hon. Member for Knowsley, North and Sefton,
East. We have a duty of trust: we are expected to discharge that
confidence—and generally we do so—by making further
confidential inquiries on behalf of our constituents. In that
respect—and I think that this is the point of Bob
Sheldon’s remark—we have a rather special and different
role from conventional public
authorities.
11 am
For Ministers acting within
legislation in a formal position and for officers or civil servants of
a local authority, there are set procedures, policies, obligations and
the law underlying them, and they dischargethem. However, as
my right hon. Friend the Member for Penrith and The Border has said
already, the relationship between constituent and Member, whatever
their politics—this has absolutely nothing to do with party
politics—is more like that with a parish priest. Members seek to
advance the interests of the
individual.
I do not
know how we should be judged, for good or ill—we will all do it
in different ways. However, I support the Bill because I do not want us
to be inhibited in our task. Let me dispose of the matterthat
I touched on and then left: parliamentary exceptionalism. I would not
be supporting the Bill if I thought that it was a charter for the
removal of the reporting of our expenses in the form in which they are
currently available. I declare an interest: I am a rather low-expense
person, except in one regard, which I am prepared to defend and explain
to anyone who asks me about it. Of course, that information should be
open. That is my
preconception.
The
relationship between constituents, Members of Parliament and public
authorities is a sensitive one, however, and it is important,
therefore, that we put nothing in the way of it. The question is not
simply about the formal legal position after one has gone through the
interaction of the various caveats, safeguards, exemptions and other
protections under the Freedom of Information Act. It is simple: a
constituent comes to see us, we listen to their caseand do
something about it in our own way, usingall the nuances that
we want and advising public authorities—it is our show, on their
behalf! It is as simple as that. We want to maintain that relationship
and our unique role. It is not always successful, but it is a
traditional backstop for citizens that we are proud to discharge. That
is why we should support my right hon. Friend’s Bill
today.
Mr.
Kevan Jones (North Durham) (Lab): I lend my support to the
Bill and I should like to demonstrate how the Freedom of Information
Act has been interpreted by public bodies and extended into areas not
provided for in law. I shall do that with reference to the Law Society,
which one might think would understand the law. Its interpretation
affects all Members of
Parliament.
Many
Members will know that since being elected in 2001, I have fought hard
on behalf of many of my constituents who have been defrauded by claims
handlers and lawyers in miners’ compensation cases. That has
involved a lot of correspondence with the Law Society, some of which
contains confidential information that raises serious accusations put
to me. Some of those allegations were against law firms accused of
defrauding my constituents—and they have been
proven.
On 31 January,
I received a letter dated 24 January.I shall read it to the
Committee:
“Dear
Minister”—
they
promoted me to a rank that I never
held—
“The
Law Society has received a request from a solicitor's firm for a copy
of a letter sent to you by Alison Crawley, Director of Regulation
Compliance on 25 October
2006”—
it provides
a reference
number.
“I have
enclosed a copy for your consideration. The Law Society is not covered
by the Freedom of Information Act”
—
this is the important
thing—
“but has
adopted its own Code of Practice to voluntarily comply with FOI. After
considering the letter's content, The Law Society has
decided”—
decided!—
“that
it should be released by the 30 January
2007”.
So I got the
letter a day too late. It continued:
“I am contacting you to
make you aware of this
decision”—
again,
it was a decision. It was not asking for my thoughts. The letter
continued:
“and provide
you with an opportunity to raise objections, if any, to this decision.
I apologise for the short notice, but please do let me know if you have
any objections before the
deadline.”
But I received
the letter after the deadline.
I say again that I am quite
happy for the letterin question to be released to Watson
Burton—a disreputable company in Newcastle, which in my opinion
has stolen £350,000 from victims in miners’ compensation
cases in pursuit of justice. Also included is a freedom of information
code from the Law Society, which sets out exemptions. It is interesting
that lawyers always seem to look after themselves. Paragraph 14.6 of
the code of practice exempts information
if
“it is about
appointments by the President of the Law Society of arbitrators and
experts in specific cases (but we will supply general information about
our procedures).”
Clearly information about how the Law
Society works and appoints people is exempt but our correspondence is
not.
The letter was
sent to Watson Burton and I make no objection to that, but if I did,
what would be my recourse to action? Could I stop it from happening? I
could have objected, but paragraph 17 of the code of practice, under
the heading, “What to do if you think we have denied you
information unreasonably”, says that I could appeal to the
independent freedom of information arbiter, who deals with disputes in
such cases. That person, or persons, clearly has more power than we do
as individual Members of Parliament and no doubt could override any
objections to any of our correspondence being released to a
solicitor’s firm. In this case I have no objections to anyone
seeing the reply, but there are cases that I have raised with the Law
Society in which I have been given confidential information, about the
money that people have or disputes between siblings, that I would not
want in the public domain. Neither would I want someone to go back to
the solicitors to alert them to the way in which I have come by such
information.
Mr.
James Arbuthnot (North-East Hampshire) (Con): I, too, have
received representations, not least from Index on Censorship,
and I have been troubledby the argument that this element of
the Billbefore us is redundant because correspondence and
communications are already protected. From what the hon. Gentleman
says, that is not the case, or at any rate it is not clear that it is
already protected. Any legislation that clarifies such an important
matter could well be beneficial.
Mr.
Jones:
I thank the right hon. Gentleman. We all know that
lawyers like to look after themselves; the Law Society has come up with
its own code of conduct, over which we have had no scrutiny, for
dealing with our correspondence. If the Law Society has done that, how
may other public bodies, which are exempt under the Act, interpret it
in a way that allows our correspondence freely to be passed to a third
party, when we perhaps would not want that to
happen?
I accept the
headline-grabbing nature of the Bill, given what we are trying to
protect, but it relates to serious issues of confidentiality of
information, which my right hon. Friend the Member for Knowsley, North
and Sefton, East has highlighted with reference to constituency cases.
We have to make it clear that if we correspond with public bodies such
as the Law Society, our correspondence must be protected. If we want to
release it personally and we allow it, that is fine. We should not,
however, have public bodies interpreting the Act as they want and
saying to us that we can appeal, but that ultimately we have no right
to protect confidential correspondence relating to our constituents.
For those reasons, I commend the
Bill.
Nick
Harvey (North Devon) (LD): I congratulate the right hon.
Member for Penrith and The Border on giving Parliament the opportunity,
through his Bill, to address the problems that we have heard about this
morning. It gives us the chance to review for the first time how the
Freedom of Information Act 2000 is working in relation to
Parliament.
I agreed to serve on the
Committee to provide some of the insight that I have gained through my
work on the House of Commons Commission and the Members Estimate
Committee. I am not here as a party spokesman; I agree with the right
hon. Gentleman that this is a House matter on which Members must make
their own judgments. I would not expect party Whips to seek to get
involved in it.
The
idea that Parliament might be excluded from freedom of information
legislation could be expected to raise eyebrows. We are desperate to
get into the public domain the vast majority of what goes on in
Parliament—deliberations, the passing of law, the scrutiny of
Government, the work of Select Committees. Much of our time on the
House of Commons Commission is spent discussing investment in
Parliament’s website, having more press officers, webcasting and
all manner of devices to try to make the public more aware of what we
are doing. The last thing that any of us would wish is that Parliament
should or would want to shroud itself in secrecy and mystery.
However, in the past year or so
we have grappled at opposite extremes with an issue that illustrates
the difficulties with the legislation as it is now framed. At one
extreme is the matter of correspondence. As hon. Members have said in
the debate, MPs’ correspondence has a clear status.
Correspondence about individual constituents should have the confidence
of the confessional and should be protected under the Data Protection
Act 1998. If local authorities, health authorities or other public
bodies have been failing to implement that Act in certain cases, they
need more help to do so and more pressure should be placed upon
them.
At the other
extreme are the big local issues in which MPs get involved—for
example, the amalgamation of health trusts, matters concerning police
authorities, the closure of hospital wards, and the reconfiguration of
local services. We are then absolutely desperate for anything that we
say on such a matter to have a good public airing and we go to every
length to get it into the public
domain.
However,
between those two extremes is a grey area. We get involved in a variety
of things in our constituencies and there is a lack of clarity about
the status of the representations that we make. The hon. Member for
Mid-Worcestershire said that he had given information to the police
that led to prosecution; I have done likewise as, I am sure, have other
hon. Members. Similarly, I have often given the director of social
services information that might be significant in family
proceedings.
All
sorts of information finds its way to an assiduous constituency Member
of Parliament and we have to exercise judgment on that information. In
our own way, we drop the right word in the right ear to try to ensure
that something productive is done about the matter. Perhaps we should
do that by telephone, but the head of the local police, the head of the
local hospital trust, directors of the local authority and so on are
busy people who are difficult to get hold of, as are Members of
Parliament.
I find
e-mail a particularly effective way of getting hold of those people
and, in a discreet manner, with what I hope is a deftness of touch,
giving them
information on an issue that they need to resolve. For example, I may
have to tell a local authority chief executive that a unit or section
in his organisation seems to be malfunctioning and that he needs to do
something about it.
It
will become increasingly the case that such representations are
disclosable under the Freedom of Information Act 2000 and that will
seriously impinge on my ability to do my job as a constituency MP. I
confessed that e-mail is one of my preferred methods; so is the yellow
Post-it note stuck on to the letter, although I never know whether the
Post-it note finds its way into the file at the receiving end. Suffice
it to say that I am sometimes more candid on the Post-it note than I am
in the typed letter.
11.15
pm
It is worrying
if all such representations will be disclosable under the Freedom of
Information Act. Members of the Committee will have received a letter
from the freedom of information campaign asking whether we really want
MPs to have a special status that does not apply to the rest of the
population, and I see what that campaign is getting at. Perhaps it is a
fundamental flaw of the Freedom of Information Act that representations
on sensitive matters, wherever they come from, need a categorisation
that they do not have at
present.
Mr.
Fraser Kemp (Houghton and Washington, East) (Lab): The
hon. Gentleman talks about special status for Members of Parliament,
but what we want is really special protection for our constituents. An
FOI case was brought against me last year involving the complex
immigration case of a family that had fled persecution for its
religious beliefs. I do not know who brought it, although I suspect,
given the correspondence that I had, that the far right was after the
family. However, neither I nor the family should even have been
putin that position if there was any doubt whether information
should be released about the family members, and particularly the
teenage children. What we want, therefore, is protection for such
families, not for ourselves.
Nick
Harvey:
The hon. Gentleman is quite right and makes his
point effectively. The response from other members of the Committee
clearly suggests that we can all see the problem.
One or two hon. Members have
touched on the other issue with which we have found ourselves
grappling: the release of information about MPs’ expenses. Of
course, it is entirely right that such information should be put in the
public domain: it is public money, and we are working on behalf of the
public. Indeed, we have a comprehensive publication scheme, which puts
into the public domain exactly what MPs’ expenses are for, the
rules that pertain to those expenses and how much each Member has
claimed against each expense each year. Shortly, the information will
go a little further than it does now. I believe that we have got the
balance about right. That is not to say that it is perfect or that it
could not be improved on, but broadly it is about right.
The problem,
however, is that requests under the Freedom of Information Act are
becoming increasingly intrusive, particularly on issues such as the
additional costs allowance. In that respect, they are getting into very
personal realms—they are going behind the front door and into
Members’ homes. I have found myself having to defend Members on
the radio against the proposition that the public have the right to
know exactly what is spent in each bedroom of their homes if the money
is claimed under the additional costs allowance. That is too intrusive
and is going too far.
Again, that is perhaps a wider
deficiency in the legislation, beyond the way in which it applies to
Parliament. However, I should tell those who press and press such
issues that, sooner or later, the allowances will be rolled into our
salary, handed out without any claim mechanism or dealt with under some
other device, because it is intolerable that this intrusion into
Members’ private lives should have to be endured or should be
permitted, and something will happen to prevent it from going too far.
We can see what will happen: local news reporters and local political
opponents will start trying to air these issues in public, which will
be demeaning, as well as reducing the stature of Parliament and
damaging our democracy. It cannot be right that things should reach
such lengths.
I
confess that I am slightly queasy about the suggestion that the
solution is to take Parliament out of the Freedom of Information Act
altogether, and I can imagine that some of my colleagues, not least my
hon. Friend the Member for Lewes (Norman Baker), will have strong views
on the issue on Report. However, it is up to those who do not believe
that the Bill, which has the advantage of clarity and simplicity, is
the way to address these very real issues to come up with a better
suggestion.
Mr.
Arbuthnot:
The hon. Member for Lewes complained
vociferously that the Government Whips had not objected to the Bill
going through, but was it not open to him to
object?
Nick
Harvey:
I take the right hon. Gentleman’s point. If
my hon. Friend pops up on Report, he might make it, too.
I commend the right hon. Member
for Penrith and The Border on giving us the opportunity to have this
useful debate. Whatever position Parliament takes, I am perfectly clear
that some real problems have been identified and that solutions need to
be found.
Mr.
John Whittingdale (Maldon and East Chelmsford) (Con): I
shall be brief, because I do not want to repeat the arguments that hon.
Members have made. First, let me place on the record my thanks to my
right hon. Friend the Member for Penrith and The Border for introducing
the Bill, which is important. Much attention is given to our work in
Parliament, but the work that we do in our constituencies, although it
is not given the same attention, is just as important and it is based
on trust.
My right
hon. Friend talked about the trust between an MP and his constituent,
but the trust between MPs and the authorities with which we deal is
also vital. When I write to my local health service, the police and
the local authority, I am frank in my exchanges. I am aware that I am
putting one side of the story and that I have not necessarily heard the
other side. I expect people to be able to reply to me with equal
frankness. If I am to do my job properly, people need to have
confidence and trust that they can set out the true position to me. If
people think that information might be made public, they will not be
able to respond inthat way.
It is difficult to give
specific examples, but I will give one in general terms. I was
approached by the close relatives of the victims of a particularly
notorious multiple murder that occurred in my constituency. The
perpetrator is serving a life sentence—I expect that he will
never be released. However, he remains active and has approached me on
several occasions, as have the victims’ relatives.
The victims’ relatives
expressed to me their distress at some of the things that the
perpetrator was continuing to do. I have contacted the police, Prison
Service and Home Office on their behalf. I received a freedom of
information request from the perpetrator, and I was able to tell him
that MPs were not covered by the Freedom of Information Act. Had I been
obliged to divulge that information, even greater distress could have
been caused to my constituents. If there is any element of
doubt—I think that the debate has indicated that there
is—about whether an MP’s correspondence is exempt, it
must be clarified. That is the reason why I think that the Bill is
tremendously important.
The
Chairman:
Before I call the Minister, let me say that
because I think that we can complete our deliberations today, I intend
to extend the sitting by up to 15 minutes.
The
Parliamentary Under-Secretary of State for Constitutional Affairs
(Bridget Prentice):
Thank you very much, Mr.
Caton, and I welcome you to the Chair. I shall begin be congratulating
the right hon. Member for Penrith and The Border on getting his private
Member’s Bill as far as the Committee. As has already been
expressed, the Bill could have been blocked on Second Reading by a
single Member of Parliament, so he has done extremely well to get it
here.
The Freedom of
Information Act 2000 is a significant success. It has resulted in the
release of information of real interest to the public and, most
importantly, it has increased the transparency of public authorities.
The Bill does not in any way undermine those principles. As the hon.
Member for North Devon pointed out, we have had a lot of open
disclosure by the House already, and it has heavily used websites.
There are positive effects of freedom of information, and the
Government are committed to openness.
However, we have to strike a
balance. Inevitably, after a little while in opposition, hon. Members
reflect on whether an Act of Parliament is working, and whether it is
working as well as intended. Clearly, I recognise the increasing
concern of Members of Parliament about the disclosure of
correspondence—some very serious examples have been given today.
MPs must be free to write to public bodies on behalf of their
constituents and be confident that the private
affairs of their constituents will remain so. That must be unarguable.
It is therefore essential that the 2000 Act has credibility among the
people whom it is designed to benefit—our constituents. If they
feel that they are being undermined, the 2000 Act itself is
undermined.
We should
not allow the 2000 Act to disrupt thevital relationship
between an MP and his or her constituents, and the time has come to
address the issue. Several hon. Members have registered objections to
public authorities that are considering releasing their correspondence.
My hon. Friend the Member for North Durham gave an example of a public
authority that will remain exempt even under the Bill. I am aware,
also, that there have been several fishing expeditions that have no
serious purpose beyond the scoring of points against Members. That is
not in keeping with the spirit of the Act—freedom of information
should not be used against the interests of Members and of their
constituents and against the valuable work that Members undertake in
their constituents’ names. All Members who have spoken today
have spoken with passion about the way in which they want to deal with
constituents’ issues, problems and concerns. That shows that MPs
throughout the House value the relationships that they have built up
with constituents. It would be tragic if we accidentally undermined
that in any way.
Some
information is already exempt. However, the Government take the same
view as that expressed by the right hon. Member for Penrith and The
Border in his opening remarks: the issue deserves discussion; it
directly affects Parliament and is therefore a matter for Parliament to
decide. I have listened carefully on behalf of the Government to the
concerns that have been expressed today, but it is for the Committee
and for Parliament to continue the debate and to decide howto
proceed.
David
Maclean:
I am grateful for the Minister’s wise
remarks. She is right: we all support the success of the Freedom of
Information Act, but after six years it is right to examine its impact.
We have discovered that in Parliament it has potential to cause
problems in the relationship between MPs and constituents. I detect
unanimity in the Committee, and if we were to sit here for another two
hours I do not believe that there would be any dissent from right hon.
and hon. Members on either side of the Committee. We might, however,
hear more telling examples of the danger of allowing people to go on
fishing expeditions, to get access—through third parties and
public authorities—to files that might contain letters written
by Members on behalf of our
constituents.
I am
glad that the Minister acknowledged that there is a problem in relation
to Parliament and Members’ correspondence, and that she has
decided that the Government should rightly stay neutral and leave the
decision to a free vote of MPs and of colleagues in another place. I am
glad also that Members support the view that there should be no rowing
back on the information that is currently published by the House of
Commons on MPs’ allowances. I assume that, when the new
communication allowance takes effect, the Members Estimate Committee
and the Speaker will want to publish details of that too. We shall
continue to publish every October—or thereabouts—the full
details that have been published in the past. There will be no cover-up
and no secrecy.
The
Bill will permit us to deal with the vexed problem of correspondence,
and will ensure that there is no doubt on matters in any circumstances.
I am grateful for the support of colleagues and I commend the amendment
to the Committee.
Amendment agreed
to.
Clause 1,
as amended, ordered to stand part of the
Bill.
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