Select Committee on Draft Freedom of Information Bill First Report


Pre-legislative scrutiny

61.We make two suggestions based on our experience of the pre-legislative scrutiny procedure. First, the committees appointed by Parliament to do this work should be given more notice and more time. The six weeks from the outset of our enquiry to the making of our report was too short for us to make the exhaustive and meticulous investigation that the draft Freedom of Information Bill deserves. We suggest that it should become the rule that the pre-legislative scrutiny of any Bill which the government intends to include in the legislative programme beginning in the autumn should begin, both inside and outside Parliament, not later than the previous Easter. Two months should be allowed, as now, for public consultation, but Parliament should not be expected to report on the draft Bill until shortly before the summer recess. This would allow Parliament time to investigate the draft Bill thoroughly and to consider the public responses received by the government during the public consultation period. It would also allow the government to use the period of the summer recess to digest Parliament's report on the draft Bill, before formally introducing the legislation in the autumn.

62.Our second suggestion is that wherever possible pre-legislative scrutiny should be undertaken by joint committees of the two Houses. We have enjoyed the closest cooperation and good working relations with the Commons Public Administration Committee, and we are indebted to them. But inevitably the two committees covered much of the same ground and there was unavoidable duplication of effort. Joint committees would be a better use of Parliament's limited resources.

Principal recommendations

63.The draft bill should provide a framework for transforming the "culture of secrecy" in British government. It should be amended in the ways proposed in this report.

64.If the draft Bill is to conform to true Freedom of Information principles, the most important single amendment needed is to give the Information Commissioner a public interest override power in clause 44 to overrule a ministerial decision under clause 14, and to order disclosure. At the very least there should be a power for the Commissioner to publish an opinion that a discretionary refusal to disclose was wrong on the merits, rather than simply to issue a decision notice about the procedure followed (paragraph 21).

65.Exemptions under the draft Bill should conform with the current approach to Public Interest Immunity exemptions, that is there should be scrutiny of the reasons claimed for the exemption and not mere verification of the class into which they fall (paragraph 23).

66.Save for a limited class exemption for current investigations, all exemptions under clause 25 should be subjected to the test whether they are likely substantially to prejudice the integrity of the judicial process or right to a fair trial (paragraph 24).

67.It should be made clear that the primary public interest in clause 25(2) is the right of individuals to fair investigative proceedings or personal privacy (paragraph 25).

68.We are content that the draft Bill should use the term "prejudice" rather than "harm" but believe that "prejudice" alone is not enough to justify exempting information from public access. The draft Bill should be amended wherever "prejudice" is the test for exemption, to require that disclosure would or would be likely substantially to prejudice a protected public interest. Clauses 21 (defence), 22 (international relations), 23 (relations within the United Kingdom), 24 (the economy), 26 (law enforcement), and 28(3) (decision-making) should be amended accordingly (paragraph 32).

69.Clause 36 (power to create new and retrospective exemptions) should be left out (paragraph 33).

70.Background factual information should be distinct and separable from policy advice and taken out of the class exemption for policy advice. Non-policy development information should be exempt only if disclosure "would substantially or would be likely substantially to prejudice" the relevant interests. The test should be an objective one, reviewable by the Information Commissioner and not by the "qualified person" (paragraphs 34 & 35).

71.The exemption in clause 37 (effect of disclosure) should be confined to information which would substantially prejudice national security or defence if it were to be combined with information reasonably likely to become accessible to the public (paragraph 37).

72.The exemption in clause 17 for information intended for future publication "at some future date (whether determined or not)" should be limited to information to be published on a date determined, or to be published within three months of the date of the application for access to the information (paragraph 38).

73.The exemption in clause 18 (security matters) should be replaced by a provision that such information is exempt only if its disclosure would substantially or would be likely substantially to prejudice national security or defence (paragraph 39).

74.It should not be possible for a public authority to turn non-exempt information into exempt information in the possession of another public authority simply by communicating it to that public authority in confidence. The phrase in clause 32(1)(a) should be amended to read "(but not including another public authority)" (paragraph 43).

75.As with other exemptions, the test in clause 34(2) (exemption if disclosure would prejudice commercial interests) should be whether disclosure would substantially or would be likely substantially to prejudice commercial interests (paragraph 46).

76.The draft Bill should provide for notice to third parties likely to be affected by disclosure, either because the information is about them or provided by them. They should also have an opportunity to make representations about disclosure (paragraph 47).

77.The privilege against self-incrimination by a public authority (clause 44(7)) should be limited to situations where the public authority is itself an individual (paragraph 49).

78.A.Power under Part II to refuse to disclose the existence of information should be confined to circumstances in which disclosure of such existence would be likely to cause substantial prejudice to a protected interest (paragraph 50).

79.There should be a general duty on public authorities to give reasons for refusing to disclose information and these reasons should be made public unless their publication would lead to harm. Even if their publication would lead to harm, the reasons should be disclosed to the Information Commissioner (paragraph 51).

80.Applicants should not be required to give reasons for requesting information. Access is a right, not a privilege with a "need to know" qualification (paragraph 55).

81.There should be a maximum period of 20 working days (not 40 days) within which a public authority must comply with its duty to provide information, but provision should be made for appropriate extensions of time with the approval of the Information Commissioner (paragraph 56).

82.The draft Bill does not need a purpose clause but the Long Title should be amended by leaving out the words "make provision about the disclosure of information" and substituting "facilitate the disclosure of information". This would clarify the draft Bill's purpose of providing a framework for transforming the "culture of secrecy" in British government (paragraph 57).

83.There should be effective training for officials, with appropriate funding and staff resources to effect a change of culture and to counter any possible backlog in dealing with requests for access (paragraph 58).

84.The criticisms we have made in this report about the shift from an enforceable right of public access to discretionary disclosure apply also to the release of historical records. The proposed code of practice on records management must give clear and robust guidance on best practice, including the handling of electronic records (paragraphs 59 & 60).

85.It should become the rule that the pre-legislative scrutiny of any Bill which the government intends to include in the legislative programme beginning in the autumn should begin not later than the previous Easter. Joint committees for pre-legislative scrutiny would be a better use of Parliament's limited resources (paragraphs 63 & 64).

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