Justice Committee - Minutes of EvidenceHC 96-ii

Back to Report

Oral Evidence

Taken before the Justice Committee

on Tuesday 27 March 2012

Members present:

Sir Alan Beith (Chair)

Steve Brine

Mr Robert Buckland

Jeremy Corbyn

Nick de Bois

Chris Evans

Ben Gummer

Seema Malhotra


Examination of Witnesses

Witnesses: Lord Hennessy of Nympsfield and Lord O’Donnell of Clapham GCB, gave evidence.

Q244 Chair: Lord Hennessy and Lord O’Donnell, welcome. We are very glad to have you with us to help us with our inquiry into the Freedom of Information Act and how it has been working. I have to declare an interest that might be relevant to the second part of the proceedings as a member of the court of the university of Newcastle upon Tyne. I do not think that affects the first half of our proceedings.

Let us start by looking back. What was the approach of central Government, both politicians and civil servants, to the release of information prior to the introduction of the FOIA? You may both have something to say about it but I will perhaps start with Lord Hennessy.

Lord Hennessy: Thank you, Sir Alan. Can I declare a swift fistful of interests because I have some that are relevant? I appeared as a witness for the Information Commissioner in the pre-Iraq war Cabinet minutes case under section 53. As Attlee Professor of Contemporary British History, Queen Mary university of London, and President of the Friends of the National Archives, I have a professional interest in access to both 20 and 30-year old stuff as well as the current FOI material.

It is a different world from when I first started writing about Whitehall. If you leaked a Cabinet Committee, which I used to do to annoy people mainly rather than necessarily informing the public, there was very often a leak inquiry. One of the great pleasures of being in the House of Lords the other day when we had a debate on freedom of information archives was that the National Archives had just declassified a leak inquiry into me that Lord Armstrong had instigated in 1980-81. It got nowhere, I am glad to say, but, as I think I said in the debate, it was a bond between us. It is one of the beauties of the ancien régime in this country that you can end up in Hogwarts in the House of Lords sitting with somebody who authorised a leak inquiry into you when you were a precocious youth.

It really was a very closed world. If you read Estacode, the civil service bible, you could not divulge any information, whether classified or not, unless specifically authorised to do so. That requirement went to the grave with you. It was an absolute business. If you look at the evidence to the Franks Committee on section 2 of the old Official Secrets Act-the complete catch-all where 2,500 charges could be brought under it or something ridiculous-the evidence is amazingly evocative of a closed society. William Armstrong, the head of the civil service, gave evidence that there is the notion of self-authorisation for Ministers and one or two senior officials but otherwise it was closed. It also produced this wonderful line from Jim Callaghan, "I brief, you leak", which again summed up so much of the world in which we were operating.

I am pretty Pollyanna-ish about the world that you are examining. Compared with the one when I was a young journalist on The Times, it is almost cornucopic in its openness for all the problems and the bumping and grinding. It is a different world. You will remember this, Chair, because you came into the House in 1973. I used to think that Lady Thatcher, for whom I had a great admiration, would have classified Hansard if she thought she could get away with it; so things have got better.

Q245 Chair: Ironically, it was Mrs Thatcher who first brought forward legislation to open meetings of local authorities to the public, some aspects of which she later repealed.

Lord Hennessy: Indeed.

Lord O’Donnell: I would like to comment on where we have got to in terms of openness, but I would also like to put forward some ideas about how you would improve things from where they are now.

Q246 Chair: They will probably come into the picture as we move further on. Let us deal with the past initially by way of comparison, if nothing else.

Lord O’Donnell: It was dramatically different. If you go back to the days when I was a press secretary briefing the lobby back in 1990, the Prime Minister, then John Major, decided to release "Questions of Procedure for Ministers", which was the forerunner of the Ministerial Code. That was a big step forward. It had never happened before and now it is just routinely done.

The degree of openness and transparency now, thanks to successive Government policies, has increased quite dramatically, but I stress that that probably has very little to do with FOI. The degree of openness has expanded partly because of technology, the internet, mobiles and all the rest of it. Things have changed quite dramatically so there is a lot more openness and transparency. I think it is an excellent thing. I would like there to be even more. I have lots of suggestions as to how you can improve it.

Chair: We shall explore those as we go along.

Lord O’Donnell: Good.

Q247 Chair: Given the fundamental change that you say has happened, it almost makes you wonder what scope there is left for leaks and whether the extent to which Ministers can use leaking as a way of influencing how things are perceived and journalists can make a living out of receiving leaks has receded; it does not appear to have receded at all.

Lord Hennessy: I do not think it ever will recede because the highest classification in human terms is politically embarrassing. Also, with regard to the emotional geography of the coalition-on which you are an expert and I am not-your party is essentially herbivorous, Sir Alan, and the Conservatives are essentially carnivorous. It must be absolute hell living together. As a result it has produced a most amazing flow of leaks. It is a sort of displacement activity for the semi-disturbed, which in some ways it always has been.

Q248 Chair: How can you speak of your sources in such an unfriendly way?

Lord Hennessy: Candour is the basis of friendship. The other great motivation for leaking was schadenfreude. In the old days, if the Treasury went in the manure when I was an operating journalist, Departments would almost line up to tell you about it if they were on the circulation list or on the relevant Cabinet Committee. The trick was to go in-to try and find out what was happening-to the Department least affected by the particular row but which was there because it had to be on the Cabinet Committee, although it was not central to their interests. They took immense pleasure in dropping the Treasury and one or two other Departments in it. The old civil service Department, of which I was very fond, was thought to be so hopeless at management by the big Departments that had big managerial tasks that they would line up to leak about it. A combination of schadenfreude and the need to tell somebody is the real source of leaks.

The current picture is just wonderful. It needs a social anthropologist, not me, to write about the pleasures and pains of coalition. It is fascinating.

Q249 Chair: I thought for a moment you were posing as a social anthropologist. Lord O’Donnell?

Lord O’Donnell: I would say openness and transparency is almost a separate subject from leaks. It is great fun, but let us not go down the route of thinking that this is really that important. It goes on and it is political. I am very strongly of the view that civil servants should not leak. We have amended the Code so that they have better ways of handling information. Let’s concentrate on improving Government policy decision making and accountability. That is about the serious stuff of transparency. It is not about leaks.

Q250 Steve Brine: Good morning and thank you both for coming. The former Prime Minister Tony Blair’s comments about creating the Act in the first place are well known and on the record in his autobiography. He uses the word "nincompoop" to describe himself, which is an excellent word. When the Second Reading of the Bill was in the House in 1999, Jack Straw said that it would "transform the default setting from ‘this should be kept quiet unless’ to ‘this should be published unless’. By doing so, it should raise public confidence in the processes of government and enhance the quality of decision making by the Government."

Has the Freedom of Information Act achieved its objectives of improving transparency and accountability in central Government?

Lord Hennessy: Information is a currency with which people can trade. It is "request blind". Even the most difficult fruit cakes in the United Kingdom have rights when it comes to FOI, which is as it should be. Generally speaking, information is a currency with which you trade. Certainly historians do. The Waldegrave Initiative, which came out under the John Major Open Government Initiative, which was much more successful than people ever remember, produced 96,000 very sensitive files that had been held back beyond 30 years until 1998, when they stopped counting. It is well over 200,000 now. It enabled contemporary historians of the UK to open up all sorts of areas, cold war related, that were immensely secret at the time. For the first time we got really good intelligence history being written, for example. Information is a currency with which you can trade.

You may think I am naive about this, but I always thought that the Freedom of Information Act, which is why I disgree with Tony Blair, was the completion of the circle that began with the extension of the franchise. It took from 1832 to 1948 to get to one person one vote, but the remaining arc was the knowledge bit, the test being whether an elector could cast an informed vote if he or she wanted to and really tried hard to find the stuff. The answer was that until the Freedom of Information Act very probably not. It has to be seen as part of completing the virtues of the franchise in an open society. I am getting a bit preachy, but that is why I disagree with Tony Blair.

Lord O’Donnell: I will, all the time, distinguish between openness and transparency and the Freedom of Information Act. Greater openness and transparency will have all the effects that Lord Hennessy said in terms of improving democracy and the way Governments operate. The question is whether FOI enhances openness and transparency. It does in some areas. In others it does the reverse.

I would say the biggest problem for FOI, and why Tony Blair said what he said, is that it creates perverse incentives. If you are open, you get criticised for the things that you are open about. I had an interesting example myself. On the conflict of interest point, the only conflict I have is that I appeared as a witness for the Government in FOI cases. I decided to release, since I am not paid by anybody at the minute but I am a Member of the Lords, some hospitality information. I do not think anybody else does that. Surprise, surprise, you get a snidey press story in Private Eye as a result of this.

The fact is that we are, all the time, setting up perverse incentives to openness. We have to be really careful. The problem we all know about with FOI is the absence of a safe space. The problem is the multiplicity of grey areas. Those are the two things you need to crack. There are very simple ways of doing it. That, I think, is what you should concentrate on.

Q251 Steve Brine: Linked to that, I listened one dark Sunday night to your interview on Radio 4, which I thought was very interesting. You were pressed about risk registers, which of course have been a subject of some debate in this House in recent months. You talked about that open space and about conversations around preparing for war, for instance. You talked about conversations that may be going on at the moment in Government around a possible nuclear Iran. I just wondered whether you would care to expand on that point for the Committee for the record.

Lord O’Donnell: Sure. The problem about these things is that we need some principles. At the moment the great cost from FOI is uncertainty. Nobody knows whether a piece of paper-something that is going to be written down-is going to be public or not. There will be a panel of people who may never have worked closely with Ministers or in central Government who make this decision. That is what worries me. It is the uncertainty element. We need to have clarity. Get rid of the grey areas. This is either exempt or it is not. You can decide where you want to put the line, but, for goodness sake, that is where all the cost comes from and that is where all the judgment and senior time come up.

When you are talking about principles, these are the principles that I would apply. First, it is a really important principle that we have collective Cabinet responsibility. You should allow a space where Ministers can disagree with each other, violently if necessary, in a safe space, and we can record it so that Professor Hennessy can write his history accurately.

There is a real problem about history. Again, I have a real anecdote about the coalition. The Conservatives and the Lib Dems coming together to meet in the Cabinet Office during those five days in May had to decide whether to have a civil servant in the room to record the negotiations. One of the members of the negotiating team said to me, "So, if we did this and the civil servant wrote something down, would it be FOI-able?" My answer was, "We haven’t got a clue because there is a public interest test to everything and you just don’t know." The net result was that there was no civil servant in the room.

Q252 Steve Brine: What is the impact of the fact that that grey area is there in terms of good government?

Lord O’Donnell: You saw it from what Tony Blair did. Tony Blair thought it was a problem. Therefore, how do you avoid this problem arising? You basically find a medium that is not covered by FOI. The cost of our mobile phone bills goes up between Ministers. They are going to find ways around it. Things are not going to be written down. That, to me, makes for much worse government and it makes it impossible for the likes of Peter to try and recreate accurately what has gone on when there are no records. All you get is people’s versions of events ex post.

Q253 Steve Brine: Wasn’t that always so? I am delighted for historians to have an easier life-I am thrilled for them-but I am more interested in public confidence in government and good government. Has the Act improved or damaged public confidence in government?

Lord O’Donnell: If you come up with the work that Robert Hazell has done-and I think it is impossible to come up with firm conclusions on this yet, to be honest-he says he does not think it has enhanced public accountability, trust or any of those things. It is too early to say. The one thing I would say is that it has damaged the view of former Ministers about government. One of the really pernicious parts of FOI was the fact that it was retrospective. As Treasury officials, we spend our lives saying, "You should not do retrospective legislation." What we did with FOI was a massive piece of retrospective legislation. I had to write to former Ministers, as Cabinet Secretary, saying, "By the way, when we were operating, you thought we were operating under these rules, the 30-year rule, and all of that. Curiously enough, we have changed all the rules. The game has finished. The referee has blown his whistle, but we are changing the rules now and I am writing to you now saying, ‘Could you kindly let us publish this stuff?’"

Basically, I am very anti retrospective legislation. In terms of what you do, I would say that quote of "Do no evil" is really important. Kindly try very hard not to make the retrospectivity problem worse.

Q254 Chair: I want to clarify the point. You spoke earlier about Ministers finding other ways to communicate with each other and the threat this might pose to the safe space for collective Cabinet responsibility to allow discussion. We will come back to this later, but can I take it that you were talking about Ministers then and not about officials? You were talking about the effect of the Freedom of Information Act on channels that Ministers use rather than those that officials use between each other and between themselves and Ministers.

Lord O’Donnell: What has happened is that, with regard to some conversations that might well have taken place in a more formal setting with Ministers and officials, Ministers might well decide to have those conversations on their own, on their mobile phones. By definition, there are no officials at those sorts of things.

Q255 Steve Brine: Just to conclude, Lord Hennessy, was it ever realistic that this Act would improve public confidence in government?

Lord Hennessy: I rather hoped it would, but I must admit that, if you have something like the expenses business intruding in the same period, that is going to trump everything else in terms of public perception. Even though, if you average the figures out, one in 5,000 of the population has put in an FOI request, it is still minuscule compared with the impression of the political class and the quality of government that is given by the expenses business. The laboratory conditions in which we can judge that are very limited.

I have a good deal of sympathy with much of what Gus was saying. Within the section 35 element of the Act, I do think there needs to be a safe house. Just as the secret intelligence service has safe houses, I think Whitehall does. The question is, can you so delineate the safe area that the uncertainty goes and everybody knows where they stand? It is very difficult because there has to be a public interest defence in all this-there has got to be-but, also, there has to be a safe house. Indeed, it is only anecdotal for me, but less is being written down. If you look at the archives that were created before there was even a 50-year rule, in 1958, they are very full. The 30-year rule is still very full indeed. I do fear that historians are going to have a much tougher time for two reasons. One is the fact that Gus was so eloquent about, but there is also the digital revolution. It ceases to be a paper culture. Again, it is a trade-off. Do you want information now to enhance the quality of public conversation about government and politics, or do you want a more pure archive? It is a difficult one.

Q256 Jeremy Corbyn: Lord O’Donnell was talking about the change in the style of government and both of you talked about the need for the confidentiality of Cabinet meetings. Is it the end of the world if the public as a whole knows there has been a debate in Cabinet openly and publicly rather than by a series of leaks by various parties that are at war with each other? I will give you an example. Had we known, for example, the extraordinary efforts that the Prime Minister Tony Blair went to over legal advice to the Cabinet in the run-up to the Iraq war, would the Iraq war have actually happened? Would the parliamentary vote not have been different? Was Parliament not entitled to know on that occasion that there was a serious debate about the legality of the war of which we were denied knowledge? We were asked to take a vote on whether Britain should be involved in the Iraq war. It was a pretty seminal decision.

Lord Hennessy: That was the argument I put, if I remember, to the Information Tribunal. The public interest override should apply because there is nothing greater than peace and war, but you can judge this, Mr Corbyn, better than I because you were there. If you had had the longer Attorney-General’s advice, not the little shrivelled bit that was given in a written answer to the House of Lords on 17 March, as an outsider I thought it could well have made a difference to some people in the Labour Party, who voted with heavy hearts for the Government, if they had seen Lord Goldsmith’s longer, much more caveat-laden opinion, which did not even go to the full Cabinet. My argument to the Information Tribunal was that this overrode anything else. This is where we disagree. On peace and war, if public interest override does not come in, what is it going to come in on? That was my argument. So I sympathise with your-

Lord O’Donnell: That is where I would do it differently. I would say up front: let’s decide what is exempt and what is not. For me, Cabinet should be a safe space.

Q257 Chair: Is there not an inherent problem there? If you give the Executive an unchallengeable ability to classify whether a document falls into the safe space category or not, you do not actually have freedom of information because the Executive may make unsound decisions about whether something is covered by the general exemption if it cannot be taken to a commissioner and a tribunal.

Lord O’Donnell: Because you are rightly thinking about FOI, I think the answer to that problem is completely different. What I would suggest for all major policy decisions-and let us take going to war-is that you should require that the full legal advice is made available to Parliament. When we do budgets-

Q258 Jeremy Corbyn: Would you exempt legal advice on a question of going to war from FOI requests, or would you include it?

Lord O’Donnell: What I am doing is coming up with a principle-based approach. I would say the principles for me are maintaining collective Cabinet responsibility and the ability of the civil service without fear or favour to put the pros and cons in clear, vivid language. Those are the two things I would apply. The point you are getting at is a different point. You are saying that, when a major policy decision comes up, you want all the relevant information there. I strongly agree with that, but don’t confuse that with FOI.

When it comes to the budgets, we now have all the policy decisions out there put forward by the Treasury. Very importantly, now, you have the Office for Budget Responsibility corroborating whether those costings and analyses stand up. There is an independent body doing that. If you want really to improve Government decision making, take that example and extrapolate it across all major policy decisions. Make that information available, then Select Committees could challenge that basis of information and cross-examine the body that independently looked at it. In the case of the Treasury, it would be the OBR or it could be something else for other policies. For example, if you are talking about going to war, you would say, "A major policy decision, absolutely agree; let’s get the legal advice out there", and then cross-examine that.

I am for more openness but I do want my safe spaces as well. That is where I think you can manage the exemptions as long as you go with the principles. You forget about FOI for a minute and talk about improving the quality of major policy decisions.

Q259 Jeremy Corbyn: Would you say then that legal advice should be open and public and the political debate should be confidential in the Cabinet?

Lord O’Donnell: There are some difficult issues about legal advice in terms of LPP and the like. Legal advice is slightly more technically difficult. You should get proper lawyers before you to discuss that point. I am a mere economist.

Q260 Ben Gummer: Lord O’Donnell, on minutes, which is a subset of the problem, you mentioned the problems for historians. Surely the purpose of minutes is also to refer back within days, weeks or months of a decision to remind oneself of what has been decided precisely. There is good anecdotal evidence that minutes are now being fudged across Government and very anodyne minutes are being written. Do you agree with that assessment? If that is happening, is it affecting the quality of decision making because people cannot refer back? Is the only loss to historians or is it to the process of decision making?

Lord O’Donnell: Where there is a formal meeting like a committee meeting or a Cabinet meeting, certainly as far as I was concerned when I was in charge of Cabinet minutes, we did not reduce the coverage of those minutes. They were accurate. The one thing we tended to do-and Peter hates this-is that we were a bit more boring. We stopped the quotable quotes. We tended to put it in rather plain prosaic language because there could be leaks. It is a real worry. That case on the Iraq war meant that the Information Commissioner thought the minutes of the highest body in the land-Cabinet-were fair game. If they are fair game, what isn’t? We were stuck, basically.

I told everybody to try to keep the minutes as relevant and as accurate as possible and to avoid inflammatory language and possibly potentially future embarrassing language. At the moment I do not think the damage has been there. What has happened is that there is a great risk of people saying, "Look, if we have a formal meeting, it is all going to be minuted and it is all going to be accurately there. So let’s find a way not to have that formal meeting", or, "Let’s not ask for advice on this issue." Those are the areas where you will find it has a debilitating effect on the quality of Government decisions. That is real.

This is where it comes back to the evidence and Robert Hazell again. My standards of evidence are quite high. As an economist, you can imagine that I want something objective. You talked about anecdotal evidence.

Q261 Ben Gummer: I should qualify that. Especially in local government it has now become famous for the minutes to say, "X controversial issue was discussed and deliberated upon."

Lord O’Donnell: Absolutely. The only way you could properly test this is if you found an area that was clearly exempt-some of the national security areas-versus a similar area that was not exempt, and you looked at the quality of the recording of minutes and all the rest of it in those two areas and compared and contrasted since FOI-and since FOI has evolved. Some people at the start of FOI thought of sections 35 and 36, as is quoted in Hazell’s minutes. Civil servants said, "We are all right because we have exemptions for policy advice." Actually we now know we do not have exemptions for policy advice. Everything is conditional; everything is uncertain. Again, I return to this point. Just get rid of the grey.

Q262 Mr Buckland: We have looked at section 35 but we have not looked at the ministerial veto, which is part of the mix. I know it is not used very often but it is there. Do you think the current framework of the section 35 ministerial veto needs to be replaced with a different unified framework or that we should go down the road of exempting Cabinet minutes altogether?

Lord O’Donnell: I would definitely go down the road of getting rid of the grey areas. I would have either exempt areas or non-exempt areas.

Q263 Mr Buckland: You would have a list of exempt areas.

Lord O’Donnell: Use principles. If you did manage the exempt and the non-exempt, then there is a lot less need for a veto. I would say you might increase the bar for the veto. For example, at the moment Cabinet has to agree. You could say it should be Cabinet and head of the major opposition party or something like that for a veto. The areas where you would want to get into a veto are ones where it really affected the governance of the country, where almost on a Privy Council basis you want people to say, "This is going to be damaging if this gets out."

There are some obvious principles. The risk register one brought them out. You do not want to require the Bank of England to say, "By the way, do you know that this bank is likely to be subject to a run if only people knew about it"? I could give you other things where people have provided information only on the basis that it is kept confidential and where you have certain privacy issues like confidential commerciality. You could outline the principles quite easily to sort that out and then the veto would be a last backstop. You want to see that used rarely. We risk the situation at the moment where Governments may choose to use a veto more often. Just as it is uncertain what is going to come out of an Information Commissioner panel, so it will be uncertain what is going to be vetoed and what is not. That is not a good way of doing public policy.

Lord Hennessy: I would like to add something to that. The first section 53 veto on the Iraq Cabinet minutes has in effect gone. Lord Bingham-the great Tom Bingham-said that in peace and war, for example, the client of the law officers should not just be seen to be Ministers and Her Majesty’s Government but Parliament and the public. David Cameron took great care on Libya, and I have no doubt you advised him, to put the legal opinion out there. I suspect the Chilcott inquiry will have strong things to say about that.

In a funny way the first ever section 53 veto-the ministerial override-has been overtaken by events. It was to David Cameron’s great credit that he did it by the book. Heaven forbid that future Ministers should have to do this, coming down to the House of Commons for a debate. The War Powers Act that has been talked about by William Hague is another example of this. The convention is going to be put into a statute, but Parliament has a substantive vote on it. I do not think Parliament, in future, would put up with it, would it, if it did not have the legal opinion before it debated on that? So, in a funny way, the first override under section 53 was a one-off and no more. I do not think it will be repeated-at least I hope not.

Q264 Mr Buckland: The importance of that is who has also seen the document before it is approved. The Attorney-General, you will remember, was at pains to say that the Prime Minister had not seen his advice before the advice had been tendered; there had been no suggestion that there had been any undue influence.

Lord Hennessy: But it was a tiny group of Ministers who saw the full advice. The full Cabinet did not. That was another problem really.

Q265 Mr Buckland: That leads on to another question I have. We have been focusing on minutes. We know there are other types of document that often tell a much more revealing story. Sometimes it is who is in the room. Sometimes it is who has been privy to an e-mail and what perhaps has not been said in an e-mail but you can read implicitly into it. In my view those documents are just as important. Coming back to the Cabinet minutes position, you may disagree, Lord O’Donnell, but is the fact that Cabinet minutes have become more anodyne over the years simply a reflection of the nature of the debate that has taken place in Cabinet, or do you think the FOI has had a marked effect on the decrease in information the Cabinet has?

Lord Hennessy: They became very boring in the 1950s when views were no longer attributed. If you see the Cabinet minutes from December 1916 when they started-Cabinets got by without minutes or agenda until then somehow and Lloyd George introduced it-in 1953 Sir Norman Brook, the Cabinet Secretary and Gus’s predecessor but five probably, decided that they would make it deliberately boring. Unless somebody was threatening resignation, you do not get attribution. If you have a threatened resignation or it is particularly sensitive and there is attribution, you have a confidential annex, which is how we know that the full Cabinet in October 1956 was told of the secret negotiations in Paris with the Israelis and the French about the Suez business. The Cabinet minute has no whiff of that, but in the confidential annex the views are much more attributed and there it is. It is the only time I have seen a smoking minute. They became very boring in the 1950s, but Gus has written minutes more recently. I have only seen them up until 1981, you see, because I stick to the rules; I am a good boy.

Q266 Mr Buckland: I would expect nothing less, Lord Hennessy.

Lord O’Donnell: The attribution rules are slightly different in the sense that, if a Secretary of State introduces a new subject, it will be attributed to them. It is not that it will say, "X said" and, "Y said". There are certain attributions, but certainly when it comes to the discussion it will say, "The following points were made", and it will not say who said what. To get that, you need the Cabinet Secretary’s notebooks, which do have the attribution in them. That is where we are on attribution.

The interesting point is that they know around the table that these points are being noted. Does this affect the way they operate? I suspect again that that is affected by all sorts of things: first, the amount of leaking that goes on from different Cabinet members; and, secondly, the propensity of a number of the Cabinet members to write their memoires rather quickly and include things they probably should not. Those sorts of things have influenced it. People know when they make a very clear profound disagreement in Cabinet that quite often you find within a few days it has emerged one way or the other. I regret it, but there you are.

Q267 Chair: Isn’t there a danger, with all this emphasis on the Cabinet and discussions between Ministers, that an impression is created that the Freedom of Information Act has transformed government from top to bottom, not in a favourable way but in an unfavourable way, and that all over Whitehall civil servants are not saying what they ought to say to each other and to Ministers for fear that it will appear in some record? You have rather given that impression.

Lord O’Donnell: I do not mean to. Where freedom of information has had a great effect is where it does not appear in FOI at all. What they have done is to make us all think about, "If there were an FOI request for this information, would we release it or not?" If the answer to that is, "Yes", the advice I always give people is, "Publish it; don’t wait for a freedom of information request. Let us proactively publish as much information as we can." We are now doing that a lot more, and along the lines I mentioned earlier, I would go even further. We need more openness and transparency.

Where it is difficult is when you get into politically sensitive and politically embarrassing judgment areas, as Peter said. These are the ones that take up the time of the senior officials and the Ministers concerned. They require judgment. They are all a balance. You do not know whether this is going to come out because there is a public interest test there. If you want to reduce the cost of FOI, just get rid of the grey area altogether. That is where the cost comes out. It is the time of senior officials, Ministers and former Ministers having to handle these sorts of issues. I want us to keep the records as accurate as possible. That is the message I have been giving to everybody.

Q268 Chair: On that point, surely most civil servants, rather than saying, "This could be published some day; I therefore won’t say something", are much more likely to say, knowing it is going to be published some day, "It should be clear from the record that I have advised the Minister or my civil service colleague that there is this risk or that problem." Surely the natural instinct and the professional ethics of a civil servant would be to make sure that relevant matters are recorded. It would indeed be a subject of criticism later if a civil servant was found from the published record not to have advised about something.

Lord O’Donnell: Absolutely. So please set up the incentive structure to maximise the incentives for civil servants to do the right thing.

Q269 Chair: Publication is then an incentive to be sure you have recorded the full range of advice you should have given.

Lord O’Donnell: No. The problem is that, because of possible future publication at some unspecified future date, which could be quite soon, there is this great risk that Ministers won’t ask for that piece of information or that they will have that debate in an area where civil servants are not present.

Lord Hennessy: There has been a chilling effect, Sir Alan. I can date it exactly and it relates to this Committee. It was around Gus’s table on 16 February 2010 when a group of outsiders were brought in to help with the constitution in a hung Parliament circumstance. The first bit of the Cabinet Manual came to your Committee at the end of that month, as you will remember very well. Gus opened the meeting-he knows I am going to say this and he doesn’t mind-by saying, "Remember, this is FOI-able." To call it a chilling effect is probably an exaggeration because we were all on the side of the Queen and there to help, but, even so, I was slightly surprised and I remember very vividly Gus opening with those words. There has been an effect, but in that case it was all to the good because, if you don’t mind me saying so, your Committee did a terrific job on it. Without that scrap of paper when I, Vernon Bogdanor, Peter Riddell and Robert Hazell impersonate the British constitution for five days in various television studios, we would have been stuffed. It was very difficult to explain the British constitution until we had that bit of paper on hung Parliaments. We had a letter from King George VI’s Private Secretary pseudonymously to The Times in 1950 and the transcript of a Radio 4 documentary I had done on the same subject in 1991. That was the British constitution until you produced your report. We are a very odd country really.

Q270 Nick de Bois: Do you think, given what you have been saying, that we now effectively have government that is essentially risk averse?

Lord O’Donnell: Let us use your words about risk. We have just gone through this business about risk registers. I have encouraged civil servants to be very explicit about risk registers, to think the unthinkable, to put it in very vivid language and to think about the unusual outcome that might happen. We have been too narrow. If you look at the financial crisis, we just did not think about what might happen if liquidity dried up. We did not think enough about what would be thought of as quite unlikely outcomes before the event.

Will future risk registers be as open? There is going to be a real chilling effect there on risk registers. Ministers are going to say, "Okay, I am very aware that a risk register is now a potentially public document. I do not want you to go into these extreme things. If necessary, we can have a conversation about that, but could you kindly just stick to the more likely outcomes?"

Q271 Nick de Bois: I have a quick follow-up question to explore the point further. If we get to the stage that Sir Alan was outlining, and I think you were agreeing, that civil servants should make a comprehensive list of potential outcomes, not necessarily in a risk register but in a discussion, is a Minister therefore, fully well aware that this public record is going to come to light, likely to make, shall we say, risk averse decisions and maybe not the best decisions because he is considering how it is going to read in a few months?

Lord O’Donnell: I think it does increase risk aversion in a rather damaging way.

Q272 Chris Evans: Is it fair to say that there is a perception and a reality in FOI? The perception is that you have a journalist running round banging in spurious FOI requests, pursuing personal and political agendas, yet the reality is that only 8% of FOI requests to central Government are by journalists and 33% to local government, according to the Constitution Unit. Why do you think this perception has arisen?

Lord Hennessy: The hacks write it up in mass outlet media, so we know about it. There is a great pattern there. I remember the Canadians in the 1980s did freedom of information first. I went over to see them. The first great scandal had to do with consumption and the alimentary canal of leading figures. Mr Mulroney was Prime Minister, I think. If he was going on a trip, it was, "How many people go with you and what expensive meals did you have in Paris when you were there for the OECD?" Every country gets obsessed with who is dining with whom. We had a great eruption of that, understandably probably, yesterday.

I do not want to be unkind to Tony Blair. Yes, I do. The problem arose with Tony Blair, if I remember, when he did not want to make public the guest lists of these dreadful glitterati who had been shimmering in and out of No. 10. No old leftie like Mr Corbyn got in but these terrible glitterati did.

Jeremy Corbyn: I was never invited. It was a terrible shame.

Lord Hennessy: I know; it is very sad. I have been bleeding for you since 1997.

Jeremy Corbyn: I am most grateful.

Lord Hennessy: If I remember, Gus-I did not check this-No. 10 said, "We’ve got to stop it. We can’t have the list being published of people who go to Chequers for a party or a meal." People had to say under which particular section of the Freedom of Information Act 2000 this was exempt. They had not the faintest idea. That caused the first eruptions of anxiety at No. 10. It was glitterati and nosh, and, of course, the press loved that. The news editors don’t throb on some hugely dense policy document of options, but they love who’s been in to see Tony and Cherie and what they drank. Such is the quality of the British press.

Lord O’Donnell: Coming back to your point about the 8%, there are lots of examples where an FOI request asks for information that may well already be available or you can easily put it together, and it is the public asking for data. I am a massive fan of this. The example I have used a lot is one with cycling accidents. In the old days the Government would have churned its way through and decided what to publish and when. We would have got in lawyers about whether we are liable if we publish it and what the policy response is and had big meetings. Just throwing out the data was fantastic because the cycle users’ groups just got on with it and came up with answers. I am a big fan of getting the data out there as often as possible.

The point about your 8% is that journalists, curiously enough, tend to ask politically sensitive or potentially embarrassing questions. They go immediately to senior officials and Ministers. They take up a lot of time. I bet those 92% cost less in total than the 8%. I am up for trying to encourage the 92% by restricting the cost of the 8%.

Q273 Chris Evans: Do you think the reaction of the public authorities who have had FOI requests has sometimes affected people’s perception of FOI requests as in, "Oh, this is another spurious claim"? As I mentioned before, there is someone running around with a personal political agenda, who wants to know who Tony and Cherie or David and Sam are dining with tonight. Do you think their reaction has been wrong then?

Lord O’Donnell: We do get a lot of vexatious requests. That has been an issue in FOI that has caused a lot of problems. We do get a lot of fishing expeditions. The problem is that those sorts of difficult and politically sensitive things all go up to Ministers and senior officials. Our perception is very clouded by that; you are absolutely right. That may have leaked out, as it were.

Q274 Chris Evans: This is a question I want to put specifically to you, Lord O’Donnell. The Cabinet Office is seen as the worst performer in terms of FOI across Government. For 62% of the time it has gone over the 20-day limit. Why do you think that is?

Lord O’Donnell: That is precisely the point I was making. Every single one of the things we get tends to be in the politically sensitive area or they are an issue that covers all sorts of Departments. Quite often what we, in Cabinet Office, are having to do-sorry, were having to do-was get all the Departments signed up to saying, "Right, we are all going to provide this information", or, "We do not think we should provide this information." For Cabinet Office, whatever you do, you will find that they will be the slowest of the lot because you have to get this information up to the Ministers. Quite often it is the Prime Minister, and curiously enough the Prime Minister is quite busy.

Chris Evans: Surprising.

Lord O’Donnell: Amazing, isn’t it?

Q275 Chris Evans: My final question relates to the Cabinet Office. Why do you think it costs £24.4 million across central Government to deal with FOI requests, yet in local government, where they deal with more requests, it costs only £8 million? Is there any way of reducing that?

Lord O’Donnell: Yes. One simple answer to that is to get rid of the grey. That is all you have to do. Do not give us a situation where you just don’t know. If there was a set where that is FOI-able and that is not, you could reduce the costs dramatically.

Q276 Jeremy Corbyn: Following Mr Evans’s point very briefly, on local government, when planning issues come up, the public often get understandably extremely concerned. They put in FOI requests from all over the country to local authorities. It seems to me there is a trend of saying, "This is commercially sensitive and we cannot reveal the information." In many cases the advance information on planning issues is absolutely crucial to the outcome. When planning officers have private discussions with developers or potential land purchasers and so on, the purchasers don’t want the public to know, the council does not want the public to know that they are having a discussion with the potential developers, and therefore it is often almost too late to stop the juggernaut of a major development by the time it all becomes public. Do you think there needs to be some reassessment of this question of commercial confidentiality?

Lord O’Donnell: It is a difficult area. I have dealt with this, where you are having procurement negotiations with someone. There needs to be some space where you can ensure that the taxpayer gets best value for money. In that sense, sometimes you do need to run competitions and all the rest of it and you need some confidentiality during that process. I do not think your point is really anything to do with FOI. What you need is for the procedures to be such that, once you have got to that stage, there is enough time for all those other considerations to come through if they have not been factored in earlier. I am with you in saying that there needs to be a space where you can ensure a proper procurement process. There then needs to be a space where you can factor in some processes that may not have been included in that procurement process from the start.

Q277 Chair: I want to go back for a moment to the grey area point so that we understand your definition. In one sense there is not a grey area because there is freedom of information and there are specific exemptions from freedom of information. It is, if you like, the Executive that introduces the grey paint when it tries to apply the public interest test. The only grey area is whether a public interest test would protect this particular document in a month’s time when someone does an FOI on it. That is why it is in a grey area, otherwise it is either in an exempt category or it is subject to freedom of information.

Lord O’Donnell: But, unfortunately, as soon as you put in that public interest test, the exempt category ceases to be exempt. It is not exempt. We don’t know; we absolutely don’t know. That has made the whole thing grey. We thought Cabinet minutes were subject to this exemption. Then we thought, blimey, what if Cabinet is not going to be able to have a confidential discussion? That’s been blown. I am afraid it is grey, and you cannot change it without saying, "This is exempt", or, "That’s exempt." On the public interest test, who is to determine the public interest? We have to try and second guess what a future panel might think is in the public interest.

Q278 Chair: But the Executive over many decades has quite a bad reputation for how it can use public interest tests when it has got them.

Lord O’Donnell: I completely understand that. By all means take that into account when you think about exempt and non-exempt, but just please give us some certainty.

Q279 Ben Gummer: As a quick supplementary to Sir Alan’s point, would it be helpful to officials if you were able to pre-declare a meeting as a safe space?

Lord O’Donnell: Absolutely.

Q280 Ben Gummer: If you know you are about to have a policy discussion and it is in the diary with the Minister, at the beginning rather than saying, "This meeting is FOI-able", you could say, "This is a policy discussion meeting. It is a safe space." Then that protects that particular meeting.

Lord O’Donnell: There are two principles, as I said: collective responsibility and allowing the civil service to do what you, Parliament, for which I am immensely grateful, published in the CRAG Act just before the last Parliament. You told the civil service that we had to be honest, objective, impartial and act with integrity. You want them to do that, and they can do that if we say to them, "Right, go for it. Don’t worry about any of this if it is potentially embarrassing and Ministers are telling you not to do it. Go for it 100% because we are in a class now that is a safe space."

Lord Hennessy: The way I looked at it is to say, "This discussion is almost certainly to go into one of the exempt areas." Indeed, in the old documents you will see something that says, "Confidential covering secret", and there is a paragraph or two that is secret. If a meeting goes in and out of an exempt area, it is fair game to say that at the beginning, isn’t it? But, there again, would an Information Tribunal necessarily follow that?

As you were saying, Sir Alan, the Executive has had it all its own way for a very long time in terms of defining the public interest and national security. Think of the intelligence area and how long it took for the law to come in there. The Security Service Act 1989 was a great breakthrough and we have had several since then. The cumulative impression of the Executive operating in its own self-interest is still very widespread; so it is a very difficult thing for Gus. I think Gus has made a very good case for a new deal. That is essentially what he is outlining. He is inviting your Committee to give a new deal, which is a tremendously difficult job to do.

Lord O’Donnell: But, remember, I am saying that what we need to do is enhance accountability so that you get the information out there and you allow the Select Committee to look at it, cross-question it and all the rest of it. The example I would give is when you set up the Bank of England Monetary Policy Committee. There you are going to a world where it is independent and you can change the rules of the game. You have the minutes public; you have the voting records public; it is cross-examined by a Select Committee. That is a fantastic piece of transparency. It is a fantastic piece of Government policy. It is great. Try and replicate those sorts of things. It is nothing to do with FOI.

Q281 Ben Gummer: Lord Hennessy makes an interesting point here. The public interest is served by two purposes. One is the objective quality of the document or the discussion itself. There is a wider public interest point that you were making, Lord O’Donnell, about the confidence with which civil servants can make points. In that sense the mens rea of the civil servant at the beginning of the conversation should be an important component of the tribunal’s decision making. Therefore, if that were made plain at the beginning of the discussion, that would help to inform the tribunal about the wider public interest of that discussion becoming public.

Lord Hennessy: Yes; there is a lot in that.

Lord O’Donnell: Absolutely. If that were to provide the certainty necessary, that would be fantastic.

Lord Hennessy: There is no point keeping Crown servants who are not politicised in the way we have since the 19th century if they can’t speak truth unto power. That is the first requirement. The CRAG Act, to my and Gus’s great relief, was quite quick by British standards. The Northcote Trevelyan report of 1853 recommended a statute and we finally did it in 2010; and we almost lost it in the chaos of the wash-up. That is the gold standard. It is speaking truth unto power and that should not in any way be jeopardised. There is no point keeping Gus in the attic to be incorruptible, as he always was, and his colleagues, if it is all going to get contaminated by this.

Q282 Chair: But under freedom of information it would be possible subsequently to say, if he failed in his task, "You did not speak the truth unto power when you should have done and we now know that that is the case because we have the record."

Lord Hennessy: Yes; that is a good point.

Lord O’Donnell: But you will get the records in due course. It is the head of the civil service’s job to make sure that that is happening. One of the things I want to do to enhance that, and where I think it has been enhanced in the area of economic policy, is where you have gone out there and published stuff and had an independent body set up to corroborate the analysis and costings. That is a fantastic example. Imagine if we did that in areas like transport; boy, that would make a big difference.

Q283 Ben Gummer: I want to come back to the "in due course" point because this came up in a fascinating debate that you initiated in the Lords, Lord Hennessy. Earlier you gave us a rather wonderfully Whiggish interpretation of the course of FOI and how we were somehow completing a process of progress.

Lord Hennessy: It may be Whiggish but it is true.

Q284 Ben Gummer: That is a matter of opinion. Could I put this to you? Are you perhaps witnessing somewhere where you have not seen progress? As an historian, you have participated in the most interesting and richly detailed period of archival material, which has now come to an end because of digital recording.

Lord Hennessy: Yes.

Q285 Ben Gummer: In fact we are now in a much more interesting area where we are going backwards in terms of recording Government information, and future historians will not have that richness.

Lord Hennessy: You are absolutely right. I am very conscious of reading Lady Thatcher’s Government’s papers from 1981 that were declassified the other day. The golden age is about to come to an end. The paper culture is going to cease, both in richness and in candour. Also, if you look back to the Hutton inquiry into Dr David Kelly’s death, if it had not been done quickly, those e-mails that were so crucial to reconstructing it would not have been there. I do not think they would have been retrievable.

The other worry I had was that, if we had not had Sir David Omand, being of the old school and taking a note through that running meeting that was crucial to it all, there would not have been a record. I do not want to be unkind, but it seems that all of a sudden so many people in that room who in the past would have made sure there would have been a note taken were all too grand to take minutes. If Sir David Omand had not done it for his own purposes, Lord Hutton would not have been able to reconstruct it. Jonathan Powell gave evidence and said that over a fortnight he had looked at the Prime Minister’s meetings, and something like a third, I think, had been minuted, and that was all. In the old days that was very different, so I have a great sense in the National Archives of being in the last of the golden age of the great paper culture.

Q286 Chair: It was before FOI.

Lord Hennessy: But digital is the real problem.

Q287 Ben Gummer: It is connected with FOI because, if the recordkeeping is not being kept now, it affects FOI at the moment as well as future historians.

Lord O’Donnell: I would say what you have talked about there is more about politics than FOI. With the introduction of a coalition Government, those numbers will have changed radically.

Lord Hennessy: Yes; you have had a comeback of collective Cabinet Government. It is the greatest comeback since Judy Garland. It is absolutely wonderful.

Lord O’Donnell: And there is a lot more recording of things. The area about digital is an interesting one. It is a bit about technology changing. Yes, a lot more is done on e-mail. Some people think e-mails are not FOI-able, which is crazy; of course they are. We do need to think about our retention processes. We have all sorts of electronic records that we keep digitally. Interestingly enough, the National Archives people told me that digital records deteriorate faster than paper records.

Lord Hennessy: They do, yes.

Lord O’Donnell: We had a whip-round of all the Departments-I am very proud of this-to give the National Archives some money to ensure that digital records are preserved. That is quite important. You are right about e-mails. They tend to be deleted after a routine number of months, but we try and encourage everybody to make sure that they keep a good record of the policy process.

Q288 Ben Gummer: Can I therefore put a proposition and see whether you both agree with it? You agree that the record is decreasing. In fact the Legal Deposit Libraries Act, which was passed in 2003 to capture the web, still has not been implemented. Future historians are going to look back and say this is a period of wilful abandon in terms of recordkeeping. Do we need a new Royal Commission on historical documents that can set a template-a rule-by which records are kept? There was an interesting piece in the German press recently, in the last 10 days, saying that Chancellor Merkel sent 200 texts a day, none of which are kept. There is a problem across-

Lord Hennessy: I am with you 100%. The Wilson Committee of 1980 was the last look at this. We need to look across the entire field because related to FOI is the public records legislation. Like Edmund Burke, I am a great believer that, "Laws, like houses, lean on one another." The Public Records Act leans on FOI and vice versa. We need to look across the whole piece. The 20-year rule is a great thing. I could not agree more, and, if you recommended that, you would have the hosannas of a grateful Hennessy.

Chair: We can return to that topic, but we have delayed our second group of witnesses. We have had a very interesting session. We are very grateful to you both. Thank you very much indeed.

Examination of Witnesses

Witnesses: Gordon Wanless, NHS Business Service Authority, Sue Slipman, Foundation Trust Network, Wyn Taylor, Liverpool Heart and Chest Hospital, and Julian Brookes, NHS South of England, gave evidence.

Chair: We are grateful to our second group of witnesses for being patient while the previous session extended a little, for reasons you probably understand. Welcome to Mr Wanless from the NHS Business Service Authority, Ms Slipman from the Foundation Trust Network, Mr Taylor from the Liverpool Heart and Chest Hospital, and Mr Brookes from NHS South of England. You are all in areas that are significantly affected by the Freedom of Information Act. We are very glad to have you with us. I am going to ask Seema Malhotra to begin the questioning.

Q289 Seema Malhotra: Thank you for coming along to the Committee today. The Freedom of Information Act obviously has the multiple objectives of accountability, transparency and the hope of improved decision making. That was certainly an aspiration of the Labour Government at the time. Jack Straw suggested that the Bill would, hopefully, help deliver a more accountable public service, too. That was public service in addition to Government and Whitehall.

There have been several submissions from NHS bodies that credit the Act with improving the accountability and transparency of their organisations. NHS South of England has written that the Act helped lead to greater accountability as public authorities are better scrutinised and held to account.

Perhaps I could start with you, Mr Brookes. Would you perhaps elaborate on that and give us one or two examples of where there has been some public benefit that you would ascribe to the Act in terms of how people have behaved as a result of FOI?

Julian Brookes: Thank you very much. I will not try to match the level of wit in the previous presentations. We have certainly seen improvements in the way in which our records are kept and accountability and decision making. It is partly to do with the Freedom of Information Act but also partly to do with what I would describe as a change in culture in terms of how we operate in the NHS in regard to our decision making. There is increased engagement of key stakeholders in decisions we make, particularly, for example, on service change. The greater awareness that the Freedom of Information Act has brought to those discussions has led to a good and accurate recording of the issues. As was being described in the previous session, this is partly to do with being able to articulate the decision, the elements and the reasons why that decision was made. It is not quite a mantra in our organisation, but there is a test that we like to apply, which is that, if somebody was to look back at our record of a decision being made in five or 10 years, would they understand the logic of the decision? Would they understand the language that had led to that decision and therefore understand the context in which it was made? Partly freedom of information has done that, but it is partly the culture.

To give a specific example, one of the areas I have had responsibility for in the past is continuing healthcare, where the responsibility of the strategic health authority is to undertake independent appeals of local decisions made about whether somebody is eligible or not for continuing healthcare. One of the FOIs we had was to look at a range of decisions over a period of time. It became very clear that the independent assessors making the judgments on these appeals were applying their own sets of standards in how they would articulate the decision. One of the consequences, therefore, of a Freedom of Information Act request was for us to look at those and to provide some guidelines and standardisations so that you could see the logic and consistency of approach to those decisions on continuing healthcare.

That is one of the examples I would suggest we have used where freedom of information has made a difference through its request and a reaction to its request, which is the important thing. There are lots of things now where we can judge, from the basis of regular freedom of information requests and so on, where it is really important for us to be consistent and accurate in the way in which that information is portrayed. Wherever possible, we also apply the test that, if this is something that is consistently being asked for, we will put that into the public domain. We will extend around the scheme of publication that we would have and standards that we expected.

Another area of that is, for example, the Cancer Drugs Fund. It is where decisions are made about the specific use of that funding. We get lots of requests for that. We now publish on our website a full scheme of the decisions being made about particular drugs and so on, and we just refer those people to that particular site. It is more efficient for us, but it is also clear because it provides them with the full range of information. Again, that is where accountability has increased.

Q290 Seema Malhotra: Could I ask the same question of Ms Slipman?

Sue Slipman: I agree that the Freedom of Information Act has been a spur to organisations to better record and organise their data. There is no doubt about that. But that is not the same thing as a culture of openness. What is driving the culture of openness now in the NHS is that we are no longer in a command and control environment. We have independent organisations with boards that are accountable to their members through elected governors and accountable to a national regulator. I think that culture of openness is something that is coming from the ground up, rather than coming from an Act of Parliament. However, there is no doubt that that Act of Parliament gives a kind of disciplined framework within which people now think about the organisation of data.

Chair: Don’t all feel obliged to answer unless there is something you particularly want to add.

Julian Brookes: Could I add something? It is very interesting that one of my other responsibilities is looking at significant reconfigurations of services across the south of England where there is going to be, say, a change of acute hospital services, mental health services or whatever. We would be disappointed if we were FOI-ed because we would see that as a weakness in the local engagement process that has been taken on through the acute trust provider in the commissioning of services and the key stakeholders in that area. There is very much an open culture now of information sharing. If you get to a stage where people feel that something is being hidden, we have got the principles the wrong way round. Of course we do still get some because a decision is never going to be the right decision for everybody, but certainly we would like to see it that way round, with the decision making open from the beginning. Where that happens, better open and accountable decisions are made and we get less through the Freedom of Information Act.

Q291 Seema Malhotra: It is useful to hear about what you feel has been a change in culture for which the FOI has been a catalyst rather than driving it full-time. Are there any cases where there has been a negative impact of the Freedom of Information Act and perhaps a resistance to keeping records, or slimming down records for fear of being FOI-ed?

Sue Slipman: I will come in on this. I do not think there is evidence yet of that being the case. There is no doubt that there are areas in which the intentions of the Freedom of Information Act are being distorted. Perhaps the biggest issue for us is in the commercial requests that we get from organisations that are seeking to get commercial information out of NHS organisations and, in some cases, sell it back to the NHS. This is a potential area in which there will be resistance because the areas are so grey, as previous speakers were saying, about what you can include and what you don’t have to give through the Freedom of Information Act. People are increasingly worried in an NHS that is going to be far more open to commercial competition that public organisations will be subject to giving commercial information away, whereas private sector organisations do not have to do this.

Gordon Wanless: That is an interesting comment about the fact that people can use that information for commercial advantage. While you can provide the information in answer to an FOI request, it is solely for their personal use. If they then start using it to their commercial advantage, surely you would be within your rights to pursue them for use of that information outside the parameters for which they were given it. We have to be careful that we don’t get excited-

Q292 Chair: What would be the legal basis on which you could do that? Freedom of information is absolute, is it not? On what legal basis could you say that they were misusing the information?

Gordon Wanless: When you give a reply to an FOI request it is for the personal use of the requester. If a business is then going to start using it for commercial advantage, it was my understanding-and I am prepared to be corrected-that that was outside the use for which you were given it. FOI is access, and then you get into the reuse of public sector information if you are going to start using it for commercial advantages. The two things are different.

Sue Slipman: I want to come back on that. This might be the case if we dealt with the issue of the anonymity of requesters and you were able to ask if information was to be used for commercial purposes. But I still think we have an issue about whether it is the right source of taxpayers’ money to use to pursue complaints in the courts about the use of commercial information. The whole time you are dealing with a closed pot funding of NHS services, you don’t want to see money being diverted to make lawyers richer and to take issues through the courts.

Q293 Chris Evans: Judging by what you have just said, would you agree or disagree that the Act is being misused?

Sue Slipman: We have evidence that the Act is being misused in a number of cases. It is not by individuals but certainly in many cases by journalists and also for commercial purposes. Those two are really quite difficult areas. Clearly the Act was never intended to divert taxpayers’ money to supporting journalism or indeed commercial companies.

Q294 Chris Evans: Reading some of the figures, I was surprised that, unlike other organisations who were FOI-able, it seems that commercial organisations are dominating FOI requests at the moment. How do we reform the Act so that we can clamp down on these commercial organisations that are basically wasting taxpayers’ money? It also seems to me that there is also evidence of journalists making the same requests to several different organisations, which then costs the taxpayer more money. Would it be an idea if the test of vexatiousness was reformed so that when you did have a request it was flagged up, for want of a better word, as "spam"?

Julian Brookes: There are two issues there. If I stick to the first one just to give you an indication, we have had around 500 requests in the last year for the three Strategic Health Authorities in NHS South of England. The media were 14%, companies and organisations were 26%, individuals were 55%, and MPs and others were around 5%. You then need to split up the individuals, and this is the point I want to make. A lot of those individuals are not actually individuals at the end of the day. They come in as Joe Bloggs at dotcom as an e-mail. I was talking to some colleagues who are working on smoking cessation at the moment and they get a lot of freedom of information requests that are, on the face of it, coming in from individuals, but if you google those individuals, they work for a number of interested parties in that area. Sometimes it is very difficult to identify who those people are. Vexatious people are the same. The three Strategic Health Authorities in NHS South of England have never defined some as specifically vexatious, but we have a number of individuals who are persistent FOI-ers. Quite often they will change their email address. They will change the name of the organisation that they have created to ask their question. Tracking those down and pinning down who is actually making the request is sometimes quite difficult.

Q295 Chris Evans: The solution I am thinking of is this. Would it be helpful to your organisations if you introduced some sort of fee for an FOI request?

Julian Brookes: Across the board?

Q296 Chris Evans: Yes. As an example, several people who have come to me and said, "I FOI-ed the local authority on this and they are hiding something." They have done thousands upon thousands of FOI requests and basically get the same information over and over again. I am just wondering how much it is costing the local authority to keep doing this. Would it be helpful if you had a minimal charge to stop these multiple requests where you are just putting exactly the same information out?

Sue Slipman: It is a difficult question. There are pros and cons here. I can certainly see the argument for charging media organisations and then potentially having another charge on top of that for questions over a certain number, where it is clear they are just escalating the numbers. Let us just talk about the numbers for a minute. We did a survey of our members. The increase in 2010-11 was 11%, and this year so far it has been around 17%. Many of our larger teaching hospitals are dealing with 350 requests a year now, and it is growing exponentially.

The costs that organisations face are not just the costs of reproducing information that is readily available. This is nearly all bespoke information. Most of the information that is readily available is readily available through websites in any case. A lot of this is bespoke information. It is not just the costs of the overhead for the office that is dealing with freedom of information requests. It is also the time of medical directors and chief executives, and often it will include some legal advice, which you have to go out to, to see if this information might have been exempt. The costs are growing throughout the whole organisation.

When we have to take £20 billion out of the health service over the next few years, increasingly we have to examine whether this is the purpose for which public money was intended, particularly when front-line services come into question. There are some strong arguments for charging, but of course you will then have the overhead cost of recovery of that money. One would need to look carefully at the cost-benefit analysis for doing that. I do not think we would want genuine individuals and members of the public getting caught up in it if there is a way to avoid that.

Q297 Chris Evans: I have one final question. I will be quick as time is moving on. Do you think, jumping ahead, that FOI is a lazy way of doing academic research?

Sue Slipman: Indeed it is. I think we would all agree on that.

Julian Brookes: It is not just academic research. If you were prioritising the number of requests that came into you that might be of an academic nature, for example, some of them would normally take quite a while because they are not pertinent to the core business. If it comes in under an FOI, it comes into a framework there and is required to be responded to within the 20 days and so on. Yes, it may be a lazy way of doing it, because a lot of fishing goes on out there, but it does then bring in a specific focus and prioritisation in the work that it might not necessarily have had if it was not under an FOI.

Q298 Jeremy Corbyn: Is it not true that we should look at this a different way? If there are lots of FOI requests coming in, possibly information ought to be there in the public domain in the first place to save the bother and cost of doing an FOI request. Is there not a need to learn the lesson of the whole Freedom of Information Act experience, which is to create more open governance at all levels of society?

Sue Slipman: In principle, yes. Information that is available should be in the public domain. One of the things about the governance of a foundation trust, for example, is that information goes out via the governors. They are the public channel for information now. They need information to be able to judge the performance of the board and the organisation. So far so good, but the problem is the amount of bespoking that goes on. It is not about published information because that is already out there, on the whole. It is about the cases where you have to go back through medical records and look in detail at a whole range of transactions, which you would not normally pull together. These may be quite small details about an organisation’s running, and you now have to audit trail a whole range of things for FOI purposes that you would not necessarily be producing for other purposes such as regulatory purposes or any other system in the organisation.

Q299 Jeremy Corbyn: Can you give an example?

Sue Slipman: I can provide you with one later. What we are dealing with often is commercial transactions where you have to go back through the whole tendering process to get some of the minute details of what went into the tender documents. You may have them available, but you would not put the whole thing out there because you would have to redact bits of it. It is that level of bespoking that you need to do.

Q300 Jeremy Corbyn: What I am driving at is that the public have a right to know. Increasingly, the participation of the private sector in the National Health Service in all its forms means that section 43 is frequently used for protecting commercial interests. The public actually know less while public money is spent increasingly on bringing in private contractors. Do all of you see this as a problem?

Sue Slipman: That is so far outside the issue of freedom of information. There is a political view here that none of us holds in that sense. It is a problem with commercial information where NHS organisations, as part of their primary duties of serving patients, try to get the best value for money that they can in terms of the services that they buy on behalf of patients. Getting the best value for money is often undermined by making commercial information widely available, particularly for those who want to use that information. In terms of the SHAs-

Q301 Jeremy Corbyn: Sorry, are you saying that making the information available means that the public get worse value for money from commercial operations?

Sue Slipman: Often, if that information is going to be used by suppliers of services to the NHS, they will know the negotiating positions of the people that they are trading with. There is some information that you would not want to reveal in order to get the best value for money you can out of any specification that you are working on.

Q302 Chair: But at the moment, surely, you do not have to give away your negotiating position on a current negotiation?

Sue Slipman: Not in current negotiations, but the point that has been made to us by a number of members is that contract rounds are annual and so, if you have access to last year’s contract round, that may aid commercial interests in the next round.

Q303 Jeremy Corbyn: I don’t follow this. I am sorry, I really just don’t understand this. If public money through a hospital trust is being spent on a contract for cleaning, for diagnostic services or whatever it happens to be, and if that is all completely out in the open, the public know what their money is being spent on. If it is not out in the open, surely there is a danger that there can be an over-familiar relationship between the contracting body and the private sector to keep out somebody else. Is there not a danger of that? FOI helps to create a culture of openness.

Sue Slipman: I will let Wyn come in on the specifics of what it is like in an organisation. I do not think that is the case. Competition law applies, and there are inquiries by relevant authorities into what you are suggesting may be a cartel relationship. What matters is that organisations are following proper processes in relation to tender exercises and that those processes are open and recordable. Those seem to me to be the sort of safeguards that you have rather than the necessary detail of the schedule of prices.

Q304 Chair: But what can happen-and I have seen this happen-is that, for example, a primary care trust can discover that it has been paying very significantly different amounts to different GP practices because of historical reasons that have grown up over the years. Therefore, there is very considerable disparity, but that information is not publicly accessible because of its commercial confidentiality for the PCT, and the general practices, as they are private businesses, are not accessible by freedom of information either. The public cannot know that a lot more money is being spent to provide a doctor’s surgery to this group of doctors than to that group of doctors.

Sue Slipman: One of the issues you have raised is the level playing field issue and, given that we are going to have a much more plural NHS in the future, to whom freedom of information should apply. There is a principle about it needing to apply in a level playing field way across the board. Wyn, do you want to come in on this?

Wyn Taylor: I think it is from the perspective that the exemption is predominantly used during the tendering process. Once the contract has been signed, sealed and delivered, so to speak, we know exactly what money has been spent from the public purse. That is information readily available to members of the public. It is when you get into the granularity of the services and specific rates, or if there are any underpinning aspects such as trade secrets that may be incorporated into that wider debate, that there needs to be a bit more clarity for organisations to make that decision on what constitutes a trade secret. There is nothing in the Act that states that we are obliged to go back to third parties to identify exactly what a trade secret is. If we were to disclose that information or specific rates, or if we disclosed the funding that has been spent, and a subsequent request comes to an NHS organisation that could indicate what those specific rates are, that could seriously damage the commercial interests of a third party providing those services to the NHS organisation. Again, there needs to be a balance in what is acceptable to disclose and what, in the true sense, is commercially sensitive.

Q305 Jeremy Corbyn: Do you think there is a case for reforming the FOI to extend it far more into commercial organisations? It was drawn up at a time when there was much less private sector involvement in the NHS. The NHS, while there was a purchaser/provider split, was largely both purchaser and provider and therefore everything was FOI-able or most of it. Increasingly, that is not the case. Do you foresee a problem that in the future very little will be FOI-able because it will all be done by commercial enterprises?

Julian Brookes: It comes back to what was being said about the level playing field. With any qualified provider coming in and a much more diverse provision in terms of the private sector and NHS working in partnership and so on, the principle could potentially be that where the NHS is providing services, irrespective of whether they are being provided by a private organisation or an NHS fully funded organisation, there needs to be a level playing field. We have had some experience with pathology services. We were just reviewing their overall organisation to see whether there were better structures that could be built across the strategic health authority area. A number of private companies came in looking and fishing for information and trying to get the information from the services, yet there was no requirement for them to provide similar information or for their competitors in the NHS to have the same access to the information around those organisations. A level playing field is really important. As we move to a different model of provision and different organisations are involved in their provision, the application of that equally is quite important.

Q306 Ben Gummer: That is a very interesting point on access to information. On the level playing field on access to information, if you publish the FOI-ed request on your website or search board rather than just posting a letter to someone, it is open access to all potential bidders for work, is it not?

Julian Brookes: No, because those private organisations that have requested the information are not providing comparable information about their organisations. That is the point I make.

Q307 Ben Gummer: I understand, yes. In terms of an institution asking for commercially sensitive information, which they might receive in letter form from a trust or a strategic health authority, if you were to publish that openly, that information would be open to all commercial organisations, would it not?

Julian Brookes: There is a judgment about what information you would provide generally. Some of it is very specific to individuals. Where we see information that is consistently being asked for or where it has a general interest, we would look to publish that through our website anyway. That is the kind of example I was using with the Cancer Drugs Fund. There is a lot of interest in that. In that particular case we provide all that information because we have recognised that that is an area of common interest. There is a balance between what might be seen as a very personal interest for an individual and what might be seen as of wider importance and public interest.

Gordon Wanless: It is interesting for us on this particular one because, if we had that scenario where a request was made, which is what you are asking, we would answer the requester, but we would then publish that on our disclosure log, which I think is the point you were making, so that it is then effectively available to anybody because the response to that requester has gone. Equally, as my colleague said, we would look to see which requests are being asked frequently of us and at that point try to be proactive so that we can, to be perfectly blunt, avoid the requests coming in. It is easier for us to deal with it if they can get the information themselves without us having to point them to where it already is.

Julian Brookes: The nature of our business is that we do not receive as many on contracts and procurement and so on because of the nature of the business we do. It would be different for organisations.

Q308 Ben Gummer: Ms Slipman, earlier you made a comment on the changes in the NHS at the moment. It is true that in lots of what the NHS has done there are not very big datasets-pricing, for instance. As the market develops, the amount of information available will be already there. I am just putting a hypothesis to you. Do you think this is a problem that has reached its peak and as datasets improve there will be more information readily available that does not require bespoke specific audits and investigations?

Sue Slipman: That is bound to be the case, but it will take a number of years. That will be down to monitoring the sector regulator and looking at pricing information right across the system, which will clearly be inclusive because it will include all providers whatever sector they come from and whether they are charitable, a social enterprise, private or public. There will be a lot more information in the public domain about overheads and costs to organisations of producing particular kinds of services. That will be a good thing, and we will play our part in making that information available and clearly collecting it from members so that we have a much more effective and efficient NHS.

Q309 Ben Gummer: I want to ask a specific question raised by some trusts about the 18-hour limit and difficulties about what is counted within it and what is without it. Can we briefly have your comments on that, please?

Wyn Taylor: The general consensus is that the 18-hour limit is too long and that it should be reduced, certainly in the NHS. The requests themselves have increased greatly in complexity, certainly since the Act was introduced. In 2005, there would be one very straightforward question asking for one very specific document, whereas now one request can include up to 20 or 30 individual questions. Those questions are not confined to one specific area within the organisation. They are directed to a number of areas such as nursing, IT, estates, contracts and performance. The cost of complying with the requests has increased significantly since the Act was introduced.

In terms of the 18-hour limit, obviously that is up to £450 for NHS organisations. That does not take into account all the underpinning groundwork that needs to be done through the decision-making processes and the involvement of solicitors where there are those grey areas in the Act. From my perspective the costs themselves, if you aggregate them in terms of arriving at the true 18-hour limit, will certainly go over that 18-hour limit a lot of the time.

Q310 Ben Gummer: If you are involving solicitors, it is going to go over the cost limit anyway, is it not, most probably?

Wyn Taylor: Yes, but that cost is not actually included in the Act.

Julian Brookes: That cost is not part of the 18 hours.

Q311 Ben Gummer: But it is part of the cash cost limit, is it not?

Julian Brookes: No.

Q312 Ben Gummer: Would it not be? What is the limit-£450?

Julian Brookes: It is based on £25 per hour of time, which only includes the locating, retrieving and extracting of information.

Q313 Ben Gummer: So, if you seek legal opinion, that does not get included?

Julian Brookes: No. That was the point I wanted to make. You can look at the 18 hours in two ways. I would agree that, as it is defined at the moment, 18 hours is by far long enough and could be reduced. Certainly that is the view of the people involved in FOI across the south of England. If you start including the actual true costs-the costs of all the officials, managers and clinicians that need to provide information and advice-and you start looking at the legal advice, redacting of the information and applying the public interest test, those are not included in those costs at the moment. If you look at it that way, 18 hours is not enough because it is just an equation of £25 an hour to the £450 limit. You can look at it two ways. If it stays as it is, 18 hours could be reduced; if it were to encompass the actual true costs that the organisations incur in getting to a final answer, then 18 hours is not long enough.

Q314 Ben Gummer: I would therefore suggest a compromise. Many local authorities are being very proactive about publishing huge amounts of information automatically on the internet. They can then point to that when they get FOI requests and their number of searches has gone down as a result. If the NHS were to publish more than it is doing at the moment proactively so that when it was doing a search it might be expensive but its total net cost would be reduced, would that be one answer?

Julian Brookes: The more we publish through that route, the more potential there is for reducing those costs; I accept that. However, the kinds of requests we get where we work are often very personal and relate to the individual and the individual’s care and treatment. You cannot publish that kind of information or provide for that. There is a balance. That is why I was using the Cancer Fund as an example. Certainly, where it is appropriate, that is absolutely the right thing to do. We refer them to that and that is how we deal with those. As I say, more than half of ours come from individuals. Those requests are very specific to the care and treatment of the individuals themselves or individuals whom they are aware of, or a particular service that they are engaged with, and that requires quite a lot of bespoke work to identify the information they require.

Sue Slipman: What you are suggesting is very appropriate at the commissioning end of the NHS, but the closer you get to the front line, the more likelihood there is that the requests are about individual cases and need a lot of bespoke work.

Q315 Ben Gummer: I want to pick you up on that. I know my colleague will want to come on to it, but we have this particular concern about clinical negligence at the moment and about the early release of documents relating to litigation. Evidence from elsewhere in the world shows that the early release of reports, especially when the reports have been carried out as a matter of routine after an unforeseen death, reduces litigation further on down the line. The NHS is very bad at this. Is there a way that that kind of openness could be encouraged quickly, even if it is not through a formal FOI process, so that, if litigation were to ensue, it would speed up decision making and maybe reduce litigation costs?

Sue Slipman: That is a very interesting and very complex question. There are a lot of pressures on now around litigation issues to speed up case management and to refine the whole process so that we get to conclusion a lot quicker. We have a system in the NHS of clinical negligence cover that has not lent itself to that in the past. The Marsh inquiry is hopefully going to be a step along the way to getting us there. In principle, the answer is yes, but that is much more than about the Freedom of Information Act.

Q316 Ben Gummer: Let me give you an example. As a matter of principle, a report is written up after a death in hospital. At the moment there can be a very long delay-and in fact conflict-about the release of that report to plaintiffs. If that report were released as a matter of course upon its completion to interested parties, that would take out a whole section of litigation, correspondence and solicitors wrangling, would it not?

Sue Slipman: It may or may not. The written report, when it comes to it in terms of the nature of the claim, may require a lot more work behind it. The report may not meet the requirements of the litigants further down the track. That is the issue there. In principle, yes, it would help enormously if you speeded up the processes and if you had active case management around negligence claims, which a more insurance-based system might push you towards because that is what happens elsewhere in the world. Nevertheless, there would still be quite a lot more work to be done in many cases because you are not quite clear, are you, until you get the claim, whether you have provided the right information around this?

Q317 Mr Buckland: I understand that point. There may be issues about confidentiality as well within the reports, which will naturally be of a sensitive nature. The point that my colleague Mr Gummer was making is that it is relevant to FOI because one of the problems clearly you have encountered is, for example, that compliance with the 20-day limit can be difficult. This is not a criticism particularly, but the systems you have may not be adequate to cope with meeting that limit. Looking at it, it does not seem that there is any documentary evidence to establish what the rates of compliance are with the 20-day limit across the NHS. Is that right? Is there any body of evidence out there to which you can point us?

Julian Brookes: It is interesting. In the last few months we have just started identifying a range of things. We look at the total numbers by month. We look at those requests that were closed within the period and those requests still going forward, and we categorise them. So that work is beginning. You are absolutely right that we have only started doing that across the south of England in the last three to four months, but it provides us with some really good questions to ask. We see a variety of levels of compliance within that. They are pretty good. We try never to breach the 20 days, and I do not believe we have, certainly in the south-west over the last year or so, but there are organisations and the question then is why. Is it about those complex cases? Invariably it is, and it is understanding the complexity of some of those cases and the reasons why. Some of it is about improving the systems to get that information rapidly to the people who need to be able to make the judgments that are required. It is a beginning, certainly, where we are. I do not know if that is common practice across the rest of the country, but it is certainly something that we have just started doing.

Wyn Taylor: I would certainly suggest that the NHS organisations themselves are monitoring compliance as part of their statutory information governance frameworks. That information should be readily available from NHS organisations. Whether that is collectively held centrally with the SHAs, you would have to approach those separately.

There is one other point I would like to make. In terms of the NHS, my organisation is a specialist tertiary centre. We receive a lot fewer requests than large acute sector NHS foundation trusts. That is why our compliance rates are probably better than some of the larger organisations, given, again, the complexities of some of the requests. It would have to be looked at on a case-by-case basis in terms of the type of organisation to which those requests are made.

Q318 Mr Buckland: So you are saying don’t just look at the headlines but the type of structures?

Wyn Taylor: The reasons for it.

Q319 Mr Buckland: But you agree that it would be helpful to have a body of evidence that could allow policy makers and others to judge whether the system is able to cope?

Julian Brookes: Absolutely. It is very difficult to know what you are doing if you do not ever measure it.

Q320 Mr Buckland: We have been having a debate in this Committee about enforcement powers. You may be aware that the Information Commissioner suggested that the current summary only-magistrates’ court only-offences needed to be changed either by removing the six-month time limit, which can be done for certain summary only offences, or, frankly, more simply, by allowing those offences to be tried in the Crown court alternatively, "either way", as we call it, to remove that six-month time limit. Of course, that would involve an increase in fines as well. Do you have any views or comments about any powers that the Information Commissioner would need to improve the enforcement of time limits and compliance?

Gordon Wanless: From the evidence that we have seen from the data protection side, where he has recently received the monetary penalty powers that he has, that immediately got the attention of boards if they were not already engaged. If there was something similar put in place of a similar sort of ilk for FOI, then if they weren’t taking it seriously before-and I am not saying they are not-that would certainly focus their minds. In my personal view, it would seem sensible that he is given more power and more time to be able to bring errant organisations to task.

Q321 Mr Buckland: You have already been put on your mettle by DPA, have you not, so it would not be totally new to the culture?

Gordon Wanless: Yes.

Julian Brookes: There is something that would also help to supplement that, and it goes back to the greyness area that was talked about by the previous witnesses. Sometimes when we go to seek advice from the Information Commissioner’s office, we get a very general answer that is not exactly helpful in resolving the issue we have. Then we have to get legal advice and so on. In terms of being able to provide us with much more robust and definitive advice from case law that has hopefully been developed over the last 12 years, it would be extremely helpful at times if we had that kind of service and interaction. We believe that would improve the level of compliance with the 20 days.

Sue Slipman: Wyn, would you like to add something?

Wyn Taylor: I was just going to answer that by saying there could be tighter controls enforced on the applicants as well. What we are talking about is dealing with FOI within the spirit of the Act. We have to remember that this information is in the public interest-not of interest to the public. Requesters are becoming much more savvy in terms of the limits and boundaries that they can actually push in requesting information. We need to make sure that everything in terms of the applicant’s approach is also appropriate.

Chair: Thank you very much indeed. We are very grateful to the four of you for helping us this morning and for being prepared to be here longer than you might originally have anticipated.

Prepared 25th July 2012