Examination of Witnesses (Questions 100-119)|
15 JANUARY 2004
Q100 Chairman: There is a suggestion
that because of Hutton, because of the changing climate, though,
there might be a desire to revisit some of the more restrictive
aspects of the FoI Act in terms of the veto, the arguments about
harm versus potential harm. Is this what you are hearing?
Mr Frankel: Yes, it is. There
are bits in Government that are positive about freedom of information
and the DCA itself is one of those bits and the ministers there
and the team of officials. So there is that message. There is
one point I wanted to make about this which does relate to the
Ombudsman. You have this wonderful series of papers on your website
that you have extracted from Government, but the one on transparency
seems to me to be very, very revealing about all this, because
the author goes through the arguments for maintaining existing
secrecy of the honours system, and basically he or she rejects
them all, and it is quite obvious that the inclination of the
person writing this paper is to go for a very open system but
then there are the three options presented for consideration at
the end. The first is to do nothing and to maintain the status
quo; the second is to give ground, issue by issue, where there
is pressure; and the third is to embrace openness as an opportunity.
I felt the most fascinating thing about this is that under the
first option, do nothing, they actually say: Under this option
we could come up with the following arguments and these would
justify the use of a ministerial certificate under the Freedom
of Information Actand this is just as the Bill is becoming
an Act in 2000. So we see here, contrary to what we had been told
(that a veto was there for issues of major sensitivity, where
there were fine dividing lines as a last resort), as part of the
sort of standard assessment of options on disclosure, from somebody
who obviously thinks it should be disclosed and does not give
much weight to the arguments against: Well, if we have to go the
other way, the way to do it is with the veto. It is interesting
there is no real suggestion that you leave it to the Information
Commissioner and you follow the Information Commissioner's ruling.
That is not an option. If you cannot persuade the Commissioner,
you veto the Commissioner. I think that is why the existence of
the veto is so damaging. It is part of the thinking in Whitehall:
If we do not want to disclose it, we veto it, even where, as in
this case, there is a brilliant exposition of the arguments for
openness and the author is clearly convinced that the case for
Q101 Chairman: But when we were discussing
the Bill there were endless assurances being given that the use
of the veto would be such a remote, rare possibility. The fact
that it is now being used on more than one occasion under the
existing code arrangements prompts the question about whether
this is a bad omen or not.
Mr Frankel: I think one can have
no confidence at all that the use of the veto will be a rare event.
I think we must expect it to be used pretty regularly.
Mr Hencke: Could I say something.
Something extraordinary we found, both with the requests we dealt
with on gifts and the judicial review we have going now over ministers'
interests, is basically the information they wish to protect.
The information they decided to protect and on which they had
a two-year dispute over gifts, involved such startling state secrets
as Tony Blair received a gold pen from Chirac or that Yasser Arafat
was very free with nativity giftshe gave about five ministers
a nativity gift. It suggests to me that the culture, the secrecy
culture, has been amazingly ingrained because the arguments that
were put up, as I understand it, by people like David Omand and
so on were that somehow the world would collapse and there would
be terrible stories if Blair's gifts were published, when in fact
it was an interesting story for one day, there was no suggestion
of sleaze whatsoever because the rules are clear, the minister
has to pay for gifts above a certain level and so on, and now
we are finding out under the judicial reviewbecause some
information arrived, because we needed to know the three ministers
that they are protectedthat one of them involves: Should
he buy a second-hand car from Rover? He properly talks to his
permanent secretary, who says, this could be interpreted, though
there is nothing really wrong . . . and he decides not to do it.
It seems extraordinary that state security vetoas far as
I understand it, this veto was mainly if it concerned the country's
securityshould be used to stop a second-hand car disclosure
for a minister who did not take it up anyway. So I am beginning
to wonder what is going on.
Chairman: I am sure colleagues will want
to come in.
Q102 Kevin Brennan: I was going to ask
you about that, looking at today's Guardian. It was David
Lock, the former minister, who was involved in this. What arguments
have you heard from the Government that disclosing this matterthat
he had inquired as to whether it would be proper to purchase a
second-hand car from Rover at presumably some sort of discount
or whateverwould be, as it says on the relevant order,
"Prejudicial to the safety of the state or otherwise contrary
to the public interest"? Have you been given any explanation
in what sense it could be?
Mr Evans: Their explanation is
that they want to protect the candour and frankness, that ministers
should be able to consult their officials over such matters. That
is their answer.
Q103 Kevin Brennan: So it comes under
advice, as it were.
Mr Evans: Yes.
Q104 Kevin Brennan: And therefore should
not be disclosed. Where would you draw the line in terms of privacy?
To what extent should government be able to maintain some sort
of privacy and ministers have some sort of privacy in their discussions
with their civil servants? Where is the line to be drawn, in your
Mr Hencke: I went to one of the
lobby briefings and I asked why they had issued the certificate
and I was told because they did not want the Guardian to
see the details of ministers' bank accounts. I said, "But
the Guardian is not interested in details of ministers'
bank accounts. That is a privacy issue. We have never raised this
in our request at all. All we are interested in is the information
that they would feel proper to disclose to their permanent secretary,
because of the job they do, if it involved a conflict of interest
in any of their responsibilities. We certainly are not interested
in finding out whether a minister is overdrawn and also I do not
see why the minister should have to tell them. That is a personal
detail. We would think, as far as them doing their job, we cannot
see anything wrong in information that is properly collected by
government. It is rather like the gifts as well: these are official
gifts, they are not private gifts. We are not asking, for instance,
for the minister's birthday present list from his relatives or
something. That is a private issue, but official gifts from other
governments is a public issue and there is a public interest say
in that. I think that is roughly where we would draw the line,
at the sort of personal information boundaries, and also, to a
certain extent, their private lives, unless they do something
extraordinary like go on a public website about them or something
like that. I mean, their personal lives really are theirs, but
in their public duties, what they receive officially, we cannot
understand . . . In America they would not think twice of telling
you the entire gifts that President Clinton has receivedas
Rob found out. In fact I am told that Airforce 1 could not take
off because there were so many gifts and they had to send them
some other way. They were quite happy to tell us this.
Q105 Kevin Brennan: From that list, presumably,
we know what the British Government gave to George W Bush when
he came on a recent state visit, do we?
Mr Evans: You could do if you
wanted to, yes.
Q106 Kevin Brennan: But we could not
find out what the Prime Minister might have received when he went
to Washington last time?
Mr Evans: Well, we can now but
previously we could not.
Q107 Kevin Brennan: Just on another point,
one thing that interests me is the effect of the technological
changes that have taken place since the Freedom of Information
Act was introduced and a lot of the discussion was going on, and
in particular the use of email in government. Obviously this caused
a lot of problems in the Jo Moore affair and this Committee looked
into that. What status within disclosure of information should
the email have? Should it be treated exactly the equivalent of
other submissions within government?
Mr Evans: I think exactly the
same. It is a document like anything else, so you just apply the
same test of whether or not there is a public interest in disclosing
Q108 Kevin Brennan: In previous generations
obviously a lot of the stuff that is in emails would have been
tittle-tattle in a corridor but now it is electronically stored
and available to be transmitted around the world in a split second.
Is that your view as well, Maurice?
Mr Frankel: Absolutely. I think
the Freedom of Information Act itself acknowledges this and to
the extent of saying that even a request for information under
the act can be made by email. They say that explicitly. I do not
think anyone has any doubt in government or at the time the Bill
went through that email records would be caught.
Q109 Kevin Brennan: So when it is technically
possible for information to be recorded, it should be, and become
Mr Frankel: Yes.
Q110 Kevin Brennan: So should all telephone
calls between ministers and civil servants, or anyone, be recorded
and transcribed and available if requested?
Mr Frankel: If there is an audio
recording of a telephone conversation, it is a record under the
Freedom of Information Act.
Q111 Kevin Brennan: Should they be recorded,
is the question I am asking.
Mr Frankel: Should they be recorded
in order to make them available?
Q112 Kevin Brennan: Yes.
Mr Frankel: The Act's general
principle is that you do not have to record information in order
to make sure there is a record to disclose, whether it is an audio
or a conversation and so on. Basically, you record it for the
purposes of doing your work effectively. That is the motive for
recording it, as opposed to forcing people to put their thoughts
on paper so that they are available. As a practical matter, I
would not like to propose it because I think it would put that
extra bit of pressure on the system which would make it all the
more resistant to the whole system, but I think that where recording
is done then it is going to be accessible and it should be accessible.
Q113 Kevin Brennan: When I briefly worked
as a special advisor, I invented something called the "power
pee" which is when you go to the loo in order to have a conversation
that does not have to be written down,
Mr Frankel: I think the extension
would be that we would have to start putting microphones in there
Chairman: On that very point.
Q114 Mr Prentice: On that very point:
meetings at Number 10 are famously not minuted. Tony Blair decides
things on his couch. There was an interesting piece in the FT
yesterday or the day before by Sue Cameron. She tells us that
Civil Service notes, taken of meetings at Number 10 concerning
David Kelly, were sparse or of no relevance. Then she goes on
to say, "Officials expect that from now on minutes of meetings
at Number 10 will again be kept" and earlier on in the piece
she says, "Other civil servants are starting to say no to
the Prime Minster and his team. They are insisting on a return
to professional standards, such as taking minutes at meetings."
Have you detected this from your contacts, that there is a kind
of revolt amongst the senior Civil Service, saying, "We are
not going to do business in this way any more, Prime Minister.
We want a return to professional standards with minutes being
Mr Frankel: I cannot say that
I have detected it myself but that is possibly because I am not
close enough to the levels at which that is happening, but I would
say this is very similar to what was happening in the early eighties.
When our campaign was set up, one of the first organisations to
affiliate was the FDA. One of the reasons the FDA wanted to associate
itself publicly with the Freedom of Information campaign was that
it was unhappy about the pressures it was under and the extent
to which it thought it was being held responsible for the way
in which decisions were taken, which were actually being taken
politically by ministers. They wanted to make clear that the officials
were not responsible for these things. They wanted to distance
themselves. I think we are perhaps seeing a repeat of that phenomenon
Mr Prentice: Thank you very much.
Q115 Mr Liddell-Grainger: I am intrigued.
Yesterday we had the interesting spectacle of the Speaker reading
out a statement in the House on a situation which is going to
be debated later today. I am wondering where Parliament is going
to be in all of this, because the ultimate sanction for the Ombudsman
and everybody is not committees like this, it is actually the
green seats over there and the Speaker reading very eloquently
a statement. Perhaps David and Rob, to start with: How do you
feel Parliament should get itself stuck into this? There are 42
Ombudsman investigations. Do you think Parliament should toughen
its act up and actually start, to put it crudely, to hold the
Executive to more scrutiny?
Mr Hencke: I certainly do. The
paper that has been put out, I think by Alan Williams of the Liaison
Committee, is basically saying what is in the Osmotherly Rules,
and this idea that ministers can stop people appearing before
committees if they do not want them to, the fact that you go for
information rather than documents. I really do think you need
to sharpen your act together, because, if you do not, you get
the situation that a judge can actually run a much more thorough
inquiry than anyone in Parliament and this actually does not look
good. The best committee seems to be the Public Accounts Committeewhich
is not a select committee but the older committeebecause
it has the backing of 600 or 700 auditors and they can be quite
thorough. I do think Parliament does need to . . . I also do not
think you should accept no. It is rather like the strange position
we had over this honours paper, when Rob requested it and you
wanted it and when Hayden Phillips was here and he was not really
minded . . . but, I mean, it has now come out and it has started
a debate about the future of the honours system, and that is a
good role for Parliament, to do this. I do not think you should
put up with people keeping documents secret, particularly something
as significant as that, secret for three years, and you should
really push them. I am quite pleased to see that Lord Falconer
has been sort of upsetting some witnesses. That is a good thing.
Q116 Mr Liddell-Grainger: We will see
what happens today, but it seems to me an abuse of Parliament
where a senior minister (which he is) can put a witness into a
position where he is being threatened. We have had numerous occasions
where that has happened. This Committee, over the Jo Moore affair,
over the Sixsmith affair, many, many times have we seen it. If
you were an MP and you came over hereGod help you, Davidand
you were now standing at the green benches and you had a private
members bill, what would youor perhaps both of you together:
you can co-conspire on this, your starter for fiveactually
be looking for? Because surely it has to be done there, where
we strengthen the Ombudsman, we strengthen our role to check the
Executive and our role to make sure the people who are asked to
come before it, like yourself, are not threatened. Would you be
able to encompass that?
Mr Hencke: From what I understand,
the rules, when select committees were set up, were laid down
by the government of the day, Lady Thatcher, and Parliament surprisingly
seemed just to accept it, presumably because select committees
were a new idea at the time. I certainly think Parliament shouldand
I do not know whether you need an Act; can you not do it through
the rules of the House?should actually scrap a lot of .
. . and basically give yourself sort of full powers. I mean, you
have used them. I remember once when Arthur Scargill refused to
appear before the committee, the committee demanded because he
was a member of the public. It seems absurd to me that you cannot
get officials . . . Basically, over the Kelly case, there had
to be a negotiation between the Chairman of the committee and
a minister on what could be asked, when it should be nothing to
do with the minister. You should have total freedom to ask exactly
what you like. Otherwise you are part of the Executive. I would
think those rules should go and also I think you should go for
the gold standard set by Lord Hutton and actually expect to get
all the background facts. The Liberal Democrats research people
have done quite a good thing over parliamentary questions. They
have used the Ombudsman to say: Why should the MPs not know the
background facts to their questions? Again the cabinet officer
David Omand argued that this was terrible, this was all about
advice to ministersyou know, the factsand the Ombudsman
quite rightly pointed out: "The code says no. This has nothing
to do with any ban under the code. They are background facts."
He even said that in certain casesbecause I had not realisedthe
civil servants do a trawl on all you lot actually as to why you
are asking the question in the first place. It seems a bit cheeky
actually, because you are actually banned under the Freedom of
Information ActI am right, am I not, Mauricefrom
actually asking the motive of someone. That is one of the things
which Jack Straw thought at one stage, "You cannot do this."
So MPs are in an extraordinary positionor will be when
the Act comes inof not having as many rights as a citizen,
and that is wrong because you are the people's representatives.
You should actually have more rights than citizens. I think you
should go right to the top, frankly. I think you should tackle
Mr Blair over thisyou know, to get some change.
Q117 Mr Liddell-Grainger: Rob, what are
your thoughts on it?
Mr Evans: I am wondering if MPs
could use the Freedom of Information Act. I think the effect of
that, if you start putting in applications, is that there is then
a bit of weight there that would concentrate minds.
Q118 Mr Liddell-Grainger: Do you think
we ought to do it in that place or this place?in other
words, the green benches or here. Do you think it should be a
select committee role or do you think it should be a parliamentary
Mr Hencke: Obviously, Parliament
is sort of the combination of all the select committees, and in
Q119 Mr Liddell-Grainger: It is, to an
extent, but of course Parliament cannot call witnesses: it can
debate, it can put forward motions, et cetera, it could castigate
the Lord Chancellor for threatening people, as a bruiser, but
it cannot do much about it. But he could be asked to come before
us and somebody else, the Liaison Committee, to explain his actions.
Do you think that ought to be changed slightly? We cannot call
Members of Parliament, obviously. Not a supreme court, but there
is a way that we can get to the people who perhaps are more difficult
to get at. Do you think there ought to be a tightening up of that
Mr Hencke: I think it would be
very interesting, when the Prime Minister appeared before the
Liaison Committee when they wished to ask questions, that you
actually asked for some of the background papers so that the MPs
were better informed. I do not know what Number 10 would think
of that, but that would be quite a bold example. But I would think
the select committees should actually take the view that when
they have someone there that they want some background papers
before the person appears. Presumably you timetable who is coming
and you know who is going to come to you, so why not get the clerks
to write and say, "We are going to question on this, can
we have the background papers on this and this and we will pursue
it" rather than sometimes having to do it afterwards"We
will write to the committee later"and then it gets
buried in an appendix somewhere and, unless you are pretty sharp
or someone tips you off, you miss it. It would be rather good
if you actually did it before. You would know roughly what you
wanted to ask them, so why not? I would be very interested to
see whether they agree.