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House of Commons
Session 2006 - 07
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General Committee Debates
Freedom of Information (Amendment) Bill

Freedom of Information (Amendment) Bill



The Committee consisted of the following Members:

Chairman: Mr. Martin Caton
Arbuthnot, Mr. James (North-East Hampshire) (Con)
Boswell, Mr. Tim (Daventry) (Con)
Brown, Mr. Nicholas (Newcastle upon Tyne, East and Wallsend) (Lab)
Clarke, Mr. Tom (Coatbridge, Chryston and Bellshill) (Lab)
Dowd, Jim (Lewisham, West) (Lab)
Hall, Mr. Mike (Weaver Vale) (Lab)
Harvey, Nick (North Devon) (LD)
Howarth, Mr. George (Knowsley, North and Sefton, East) (Lab)
Jones, Mr. Kevan (North Durham) (Lab)
Kemp, Mr. Fraser (Houghton and Washington, East) (Lab)
Knight, Mr. Greg (East Yorkshire) (Con)
Linton, Martin (Battersea) (Lab)
Luff, Peter (Mid-Worcestershire) (Con)
Maclean, David (Penrith and The Border) (Con)
Prentice, Bridget (Parliamentary Under-Secretary of State for Constitutional Affairs)
Simpson, David (Upper Bann) (DUP)
Spellar, Mr. John (Warley) (Lab)
Whittingdale, Mr. John (Maldon and East Chelmsford) (Con)
Chris Shaw, Committee Clerk
† attended the Committee

Public Bill Committee

Wednesday 7 February 2007

[Mr. Martin Caton in the Chair]

Freedom of Information (Amendment) Bill

10.30 am
The Chairman: I understand that it is hoped that the Committee will conclude its consideration of the Bill at this sitting. Should that not prove possible, I shall invite Mr. Maclean to move a sittings motion specifying the date and time of our next meeting before we adjourn. In the event of a second sitting, I do not intend to call starred amendments.

Clause 1

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