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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 1849-v
House of COMMONS
TAKEN BEFORE the
Post-Legislative Scrutiny of the
Freedom of Information Act 2000
tuesday 17 April 2012
Rt hon Jack StraW MP
Dr Nick Palmer, Michelle THew and David Thomas
Evidence heard in Public Questions 322 - 385
USE OF THE TRANSCRIPT
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Taken before the Justice Committee
on Tuesday 17 April 2012
Sir Alan Beith (Chair)
Mr Robert Buckland
Nick de Bois
Mr Elfyn Llwyd
Examination of Witness
Witness: Rt Hon Jack Straw MP, gave evidence.
Chair: Welcome, Mr Straw. I need to declare an interest because it might be relevant to the second half of today’s sitting. I am a member of the court of the University of Newcastle upon Tyne, but that will not arise in this part of the session.
Mr Straw, we are very glad to have you with us this morning to talk about the working of the Freedom of Information Act 2000. As you know, we are carrying out a review of the Act and are very interested to draw on your experience, your involvement in bringing it in in the first place, and your observations on its early years in practice, so we thank you for coming before us. Yasmin Qureshi will start our questions.
Q322 Yasmin Qureshi: Good morning. The first thing that we want to look at is why there was a need for, or why it was felt there should be, a Freedom of Information Act coming into being. I want to go back to something humorous. Sir Humphrey Appleby said in "Yes Minister" that "the ship of state… is the only ship that leaks from the top". I want to start by asking what was the approach of central Government, both politicians and civil servants, to the release of information prior to the introduction of the Act? How did information normally reach the press and the public prior to the legislation coming into being?
Mr Straw: Put leaks aside. They have been going on for as long as politics has been operating, and, by the way, it is the same for government. Neither is directly related to freedom of information or to the venality or otherwise of one Government rather than another. I was someone who deplored leaks and avoided their practise, but these things happen in the highly competitive world of politics.
In preparation for this session, I was thinking back on my experience of working in government in the 1970s-I worked for three and a half years as a special adviser to Barbara Castle and then to Peter Shore-compared with what happened during the ’80s and ’90s, and the environment I found when we got into government. The environment in the 1970s was one where Ministers and officials could suppress huge amounts of information with impunity. They were able to do this not least because of the security environment that had been imposed by the exigencies of the cold war. The internal telephone directory of the Department of Health and Social Security, which was hardly of interest to anybody, I would have thought, was marked "restricted". Every document that went to Ministers or officials was marked "confidential", and quite a number were marked "secret". Although we had the normal apparatus of parliamentary questions and so on, if Ministers or senior officials wanted to keep things quiet, they could.
During the course of the ’80s and ’90s, for all sorts of reasons, that began to change, and the changes were related not just to freedom of information by any means. One of the major changes, in my view, that has led to much greater openness of government is the development of the Select Committee system. There were some Select Committees before Norman St John-Stevas managed to persuade a slightly somnolent Margaret Thatcher that this was a good idea in 1979, but the change in the way that they operate, the fact that they have got themselves, as it were, embedded in the consciousness of the Departments, and that they can and do demand all sorts of information, which officials, as well as Ministers, immediately respond to, has led to a big change in openness.
There was also mounting concern about the misuse of statistics by Government and about whether a lot of the data that were published were properly founded. That led to a campaign, in which I happened to have played a significant part, for the Office for National Statistics to be put on an independent footing and for what developed as the UK Statistics Authority to be established. I cannot remember exactly when, but the Conservative Government established the freedom of information code, which certainly opened things up. That is the background. The demand for a Freedom of Information Act had been around, certainly in sort of leftish circles, for quite some time; it was certainly in the 1992 and the 1997 manifestos, and, I think, in the 1987 one.
Q323 Yasmin Qureshi: Why did you not use section 5(1) of the Act to extend freedom of information to private sector companies performing public functions?
Mr Straw: You could still do this. Bear in mind that the conception of the Act went back to 1997-99. There were fewer private sector companies performing public functions at that time, but we anticipated that, and it is open to this Government to make an order under section 5(1). It is perfectly possible for them to do that, but, as it happens, they have not done so.
Q324 Chair: What is your view on that? Is it that freedom of information should follow the public function?
Mr Straw: Yes, broadly, I believe that it should, but there are tricky areas when you get into commercial operations. There has been a long-standing issue, I believe, about whether Network Rail, for example, should or should not be subject to FOI. Before the Human Rights Act 1998, obligations on public authorities were at large and were essentially left to the courts to determine. That led to the courts themselves determining that private sector companies fulfilling public functions should be subject to the Act in respect of those functions. We adopted an opposite approach with the FOI Act, saying that people required certainty about whether any institution was subject to the Act, so they were scheduled. I think that is in schedule 7, and there is provision under sections 5 and, I think, 7 to schedule further institutions.
Q325 Nick de Bois: To pick up on that point, if we did extend it-I would like the right to access to information to be extended to following public money regardless of whether or not it is done by the private sector-do you not think that we would be getting into an area where the Information Commissioner would ultimately make judgments that could affect future commercial tenders by putting information in the public domain? Ultimately, would it be a charter for lawyers acting on behalf of companies to challenge? Would just amending the legislation be enough? Can you see a way out of that potential minefield?
Mr Straw: Will the ever-imaginative and very large British legal profession seek to exploit any avenue that they can? Answer: yes, of course, and sometimes with good reason.
You raise an important point here. Of course these things may be exploited, and it may require some change in the substance of the legislation-it is not a subject that I have thought about very deeply-if you are going to extend the provisions in that way.
Q326 Yasmin Qureshi: Lord Hennessey told this Committee that the degree of openness by central Government has increased dramatically over the years, but he thinks that it has very little to do with the Freedom of Information Act. Do you agree with that?
Mr Straw: I was struck by that. It is a very complex area. I have read the detailed memorandum from the Ministry of Justice to your Committee, Sir Alan, which I thought was good and comprehensive. It brings out the fact that, although there has been quite a lot of research, it is virtually impossible to pin down the factors that have led to the change in openness, so you are making a judgment based on inadequate or absent data.
My instinct is roughly where Professor Hennessey’s is. As I said, there are all sorts of reasons why there is greater openness, and all sorts of drivers of that. That said, I am ambiguous about this Act. I will come on perhaps to sections 35 and 36, which is the area that is most in need of reform. Having been in government as a hired hand-as a special adviser-with a ring-side seat, I saw what was going on and was very struck by the lack of accountability. Wind forward getting on for 20 years, and the whole system is much more alive to the fact that officials might be held publicly accountable for what they are doing.
One of the other drivers was the development of judicial review. That happened well in advance of the Human Rights Act. It has been underpinned by that Act. That is all a good thing, and at a local level. The fact is that people are subject to important decisions by non-democratic public bodies-for example, health authorities and health trusts-and their access to information has been greatly assisted by the FOI Act. I am in no doubt about that. All sorts of information could and should have been put in the public domain, but simply was not because it did not suit those authorities-it was not part of their culture. It is now in the public domain or is available to go into the public domain.
Q327 Jeremy Corbyn: Do you think that the Freedom of Information Act has achieved its objectives of openness and transparency in government?
Mr Straw: That relates to the previous question. To a degree, I share Professor Hennessey’s view that there are all sorts of other factors involved. Coming now to sections 35 and 36, at some levels of government, particularly higher levels government, it has led to a reluctance to commit the process of decisions to records, so in one sense it has made it more difficult to secure accountability rather than less.
There are other factors involved. When we drafted the Freedom of Information Act, we had no serious conception about the internet, which was in its infancy. All these things have made a phenomenal difference. For instance, it was assumed that records would continue to be mainly on paper. There is a related issue that at some stage you may wish to inquire into, which is that the state of the public record is fundamental to the memory of the nation in the electronic age, and it may be that there are now some striking deficiencies in that.
Q328 Jeremy Corbyn: You were in government from the introduction of the Act until 2010. In your experience, did many Ministries deliberately try to avoid the Act by using private e-mail exchanges, unminuted meetings and informal discussions, which then became policy, to avoid Freedom of Information Act requests?
Mr Straw: Not in my direct experience, but bear in mind that I am not necessarily a typical former Minister. I am who I am.
Q329 Jeremy Corbyn: None of us is typical.
Mr Straw: Exactly. Just speaking for myself, I am an inveterate scribbler. I prefer to make decisions through the process of the written word. Of course I had meetings as well in the Ministry of Justice. Actually, I had meetings in all the Departments I was in-the Foreign Office and the Home Office. Any decision of mine might end up in court where, leaving aside FOI and everything else, there might be applications for a disclosure of documents. My view is that you are better defended if you have a proper record of why you made a decision. If a decision is defensible, there is no problem about putting it on the record, but if it is not defensible you had better not make it in the first place, because, at some stage, you will have to defend it. However, the higher up you go in government, and also in terms of the characters, the more difficult it is. I know that people in other Government Departments went in for unminuted meetings because they were anxious that there should not be a trail of accountability. I do not excuse that, but, as a matter of principle, the drafting of section 36 and the way that sections 35 and 36 have been interpreted are not what was intended. It is unsatisfactory and produces consequences that tend towards less openness rather than more.
Q330 Jeremy Corbyn: You mention discussions that are unminuted. Is this something that you think has grown and that the opinions being considered by various Departments, or a new policy, tend to be circulated informally-privately-with telephone calls or whatever?
Mr Straw: One of the things that struck me is not that minutes of meetings are bashed out quickly-you have to have a minute of a meeting, for Pete’s sake, because you have to be able to communicate what you have decided; it is very dangerous if you do not have that-but that there are such things as the private secretary’s notebooks. I perceived that private secretaries were quite anxious about what was going to happen to their notebooks, where, as it were, the personality and stream of consciousness of their Secretary of State would be displayed in every horrific detail. There was understandable anxiety that those notes might be disclosable under FOI. There was a parallel anxiety that the handwritten records of Cabinet meetings, which are far more interesting than the Cabinet minutes themselves, might be made available as well. Indeed, that was the subject of the Information Tribunal decision in the Iraq minutes case.
Q331 Jeremy Corbyn: Do you think that they should be made available?
Mr Straw: No, I do not think they should at all. I am absolutely clear about that. There has to be a space in which decision makers can think thoughts without the risk of disclosure, and not only of disclosure at the time, but of disclosure afterwards. Let me say this: I am very struck that this right to protect private space for decision making is one that many in the media, including the BBC, seek to deny Government, but are very jealous about guarding for themselves, as witness the recent BBC case before the Supreme Court.
Q332 Chair: When you were Foreign Secretary, you had the opportunity to operate under different two systems. In areas of security, you knew that there was a reliable exemption from freedom of information, whereas in most of the rest of what you did it was always questionable about how the public interest test would fall and there was a measure of uncertainty. Did that affect the way that you viewed the decision-making process in the two different spheres?
Mr Straw: Not specifically, but bear in mind that, although the Act was passed in 2000, it did not come into force until the beginning of 2005. In the first three and a half years of my period as Foreign Secretary, we were aware of the Act, but we could not receive FOI requests. It was only during the last year and a half of my time as Foreign Secretary that we got requests and then had to deal with them. There are plenty of things that I would do differently if I were the Minister in charge of this Bill now, one of which is not to have allowed the Act to run retrospectively. It seems to me entirely fair that people in government should be able to take account of the fact of the Act in the way that they write records so that they do not gratuitously hobble themselves, but that opportunity was denied people by the retrospective nature of the Act.
Q333 Steve Brine: It is very candid of you to say that there are things that you would do differently. When you introduced the Bill on Second Reading, you said that it would enhance the quality of decision making by Government. I have been very interested throughout this inquiry in good government versus bad government. I am sorry to bring the matter up, but I am sure that you have read what the former Prime Minister said. He clearly regrets it completely. He says that FOI is "utterly undermining of sensible government" and "I quake at the imbecility of it". At what point did you and the former Prime Minister part company on this?
Mr Straw: We did not part company on it. Anyway, it was his idea; it has to be. I have an alibi.
Q334 Steve Brine: Are you saying that you pushed back, when it was his idea?
Mr Straw: Let me give you a brief history of how this item came to be in Labour’s previous manifestos. The inclusion of this in the Labour manifesto-it was also in the Liberal Democrat manifesto-was the product of a brilliant campaign by the Campaign for Freedom of Information. I have often applauded the work of Maurice Frankel; he is worth a PhD thesis on his own for the influence that he has had. Freedom of information has resulted in a litany of things. It was part of the zeitgeist of the early ’90s: there was this dreadful Thatcherite Government who had had taken away people’s rights and was closed and so on, and among other things we needed freedom of information.
Other elements of this-for example, the Human Rights Act-we looked at in very great detail in opposition. I was indeed responsible for that; we had a joint committee with the Liberal Democrats, and we each did our own work on it. It was something that was really thought about. FOI was not thought about with any seriousness. Moreover, it was the responsibility of the Cabinet Office, and therefore of the shadow for the Cabinet Office, not the shadow Home Secretary, so I literally had nothing to do with it. When we were elected in 1997, the Cabinet Office continued to have responsibility for that until July 1998.
The Cabinet Office produced a White Paper that, at the time, I thought was unreal in the way in which it allowed access to all sorts of documents. My contribution to that was to ensure that there was a substantial carve-out for Home Office matters. There was openness for all sorts of things, but not for the Home Office, because I dug in at the Cabinet Committee. This was in the Government’s early days, and we were all extremely busy, but I got protection for the Home Office. There was a huge carve-out, and the rest was all open.
Then in July 1998, the Prime Minister phoned me up when he was doing a reshuffle and said that he was keeping me at the Home Office. I said, "Thank you." He then said, "That’s the good news. Here is the less good news; I am transferring freedom of information to you, and you have got to try and pull back on the early ’98 proposals."
Q335 Chair: He said that you should try to pull back.
Mr Straw: I agreed with him entirely. I wanted to pull back on the proposals.
Q336 Jeremy Corbyn: What were you pulling back on?
Mr Straw: If you read it, it was-
Q337 Jeremy Corbyn: I remember it well.
Mr Straw: I know. I think you supported it, Jeremy. Essentially, it went too far, so I began the process of pulling back on it. I produced an excellent draft Bill and a Green Paper, which were roundly condemned by people like you.
Q338 Jeremy Corbyn: Some things never change.
Mr Straw: The Conservative party was no better, I am afraid. It was then in the kind of position that the Labour party was in the early ’80s, where the prospect of government was very distant. It simply took the view, why on earth should it help this dominant Government? There was then an iterative process, but it was the Commons really working, I say in my own defence, and we went through various changes to the Bill and finally came to the present version. We faced a choice in government on whether we went ahead with any Bill or simply pulled the whole thing. There was a long and embarrassing period of delay between one stage of the Bill and the next. You may remember, Sir Alan, that I kept being asked questions about why we were delaying it and coming up with some sort of water-treading answer.
Q339 Steve Brine: If you had been Labour leader, which was not inconceivable at one point-
Mr Straw: Thank you.
Steve Brine: There may still be a vacancy. Your time may yet come. If you had been Labour leader and written the manifesto in 1997 and become Prime Minister, would you have killed this at birth?
Mr Straw: I do not know is the answer. There was a huge amount of preparation of policy in the period after Tony became leader in the late spring of 1994. He was absolutely relentless in the way in which he insisted that, if we were going into government, we had to be properly prepared. In my area, in the Home Office, we had worked out policy templates. Even so, they had to be changed a bit, but this was the one that got away. Of course I would like to think that I would have spotted this was a bit of a problem.
Q340 Chair: You seem to be implying that there was not any kind of emotional steam behind this in your own case.
Mr Straw: No, no. I do not wish to imply that at all, Sir Alan, because there was big emotional steam behind it. The error that we made was not so much having it in the manifesto, but in not thinking clearly enough about how it would operate and not looking properly at other countries. We have ended up with a Freedom of Information Act that leads to greater access to documents than can be found in any comparable jurisdiction that I can think of. Once in government, we should have taken our time to think this through. Those were the errors.
Q341 Steve Brine: Do you ever feel that it was more about being a new broom than about instilling good government?
Mr Straw: No. Picking up on Sir Alan’s point, the fact is that there was a lot of steam behind it. It is worth using the parallel of the last few years of the Labour Government. After a while, people get tired of the Government and a whole mantra builds up about what a terrible bunch that Government are. There is a kind of mantra about them-they’re this, that or the other-and some of it is accurate and some is wildly inaccurate, but it does not really matter. There was a mantra that we had developed and that the Liberals had developed, and the press were developing it, saying what a bunch of losers the previous Government were, and how they were this, that and the other. Freedom of information was one of the pledges by which we would spring free as a society and a Government from this terrible burden.
Q342 Chair: Was it not partly demonstrating that a new Government that involved your party or mine would be different? Was there not behind it also a genuine belief that, if you left Ministers and civil servants free to make lots of decisions without the likelihood of public exposure of the decision-making process, you would get worse decisions?
Mr Straw: Yes, that too. I do not take the view that the only thing to do with the Freedom of Information Act is to tear it up. I just do not take that view. As I have said, the view I take is that it is not a particularly well constructed Act intellectually or jurisprudentially. Dealing with Mr Brine’s point, that reflects its rather convoluted genesis. I have no doubt that it has produced benefits, but in my view there is a very significant problem with sections 35 and 36. That is solvable, but there has to be a will to solve it.
Q343 Mr Buckland: On that very point-section 35-you may have read what Gus O’Donnell had to say to us. His view is that the public interest test causes what he described as a grey area. He put it to us in strong terms that it is causing a problem. What is your view of the public interest test?
Mr Straw: We sort of believed that in section 35 we were establishing a class exemption, but that has not turned out to be the case because of the way it has been interpreted by the courts. It has also led to, frankly, some rather extraordinary decisions by the Freedom of Information Tribunal, in which they suggested that it can apply only while policy was in the process of development but not at any time thereafter. That is crazy and it is not remotely what was intended.
Then there is the interlinking of section 36. The reading of section 35 is as a class exemption, and the MOJ memorandum distinguishes that class exemption from the lower prejudice test for gaining access under section 36. However, section 35 only really applies to central Government and the devolved authorities, and in my view section 36 is too loose in its wording-apart from, let me say, a subsection of which I was the author, about which I am unapologetic, to ensure the publication of statistical and research information. I put that into the Act after some good and open discussions during our untimed-I emphasise that they were untimed-Committee and Report stages on the Floor of the House. Section 36(4) makes it much easier to obtain statistical information than in respect of other matters.
Q344 Mr Buckland: Do you think that we should clarify the matter, get rid of the public interest test and put in a list of classes of document or information?
Mr Straw: The law certainly needs to be clarified and we need to change the public interest here. My view is that we need a class exemption, full stop, that exempts information if it relates to the formulation or development of Government policy, ministerial communications and so on. However, we also need a class exemption in respect of matters covering section 36-the maintenance of conventional collective responsibility of the Crown and the provision of free and frank advice.
If you look at the recent decision of the Supreme Court in relation to the BBC, by a quirk of the drafting of the Act the BBC has ended up with a far clearer class exemption than has any Government. It has a total class exemption for the operation of its internal decision making. What is sauce for the goose is sauce for the gander, in my opinion. If it is good enough for the country’s largest journalistic institution, it must be good enough for Government, because, after all, the BBC is a very important institution, but it is not running the Government.
Mr Llwyd: That is arguable.
Q345 Chair: It could also be argued the other way. The Government are making decisions that affect people’s lives on an enormous scale.
Mr Straw: Of course they are, but this is about the process by which we reach collective decisions. Parliament has to take a view on whether it believes that collective responsibility is the way to run Government. My view is that it is. There is a fundamental about good government in this country-compared with most countries, ours is good government-which is that individual Secretaries of State are responsible, by statute and other law, for the decisions that they make, but how they arrive at them is the subject of collective decision making, and that nexus is fundamental to the running of Government. If you seek to undermine collective responsibility, which is essentially what the tribunal and the enthusiasts for FOI have been doing, then you will start to undermine Government. Far from discouraging leaking and poor record keeping, you will encourage it. I deplore it anyway, but you will get more of it.
Q346 Mr Buckland: To put the contrary view, the Information Commissioner took another view that the concern about section 35 was overblown and we were focusing on the old "bad cases make bad law" point. There were a couple of bad cases here that were exaggerating a problem that is not really there. Would you agree?
Mr Straw: I do not accept that. I have very high regard for the Commissioner; indeed, I think I appointed him. His job is to operate the Act as it is, and he has quite a difficult task. However, I do not accept that point. If you look at examples from other countries, you can see that this space for making decisions is better protected.
May I say, Sir Alan, in response to your point that there is a huge amount of openness in our system, and far more than there was 40 years ago? Ministers have to explain the decisions they make all the time. Do not ignore the fact that the Select Committee process has transformed the accountability of Ministers far more than FOI-far, far more. Yes, we have PQs and PMQs, statements and UQs, which go on much longer than they used to, but if you are a Minister on a sticky wicket, who has to appear before a Select Committee for two hours, and you do not know the reasons why you took a decision, or they were bad reasons, you may not be a Minister for much longer.
Q347 Mr Buckland: May I finalise the point I want to make by dealing with the ministerial veto and the interaction with section 35? It has hardly been used-I think only three times. It was used this year in relation to Cabinet minutes on devolution in 1997-98.
Mr Straw: I will explain that.
Q348 Mr Buckland: First, what is your view on the interaction of the veto? Do you have any views on why it has been used so rarely?
Mr Straw: The inclusion of the veto was something that I pursued vigorously, with the full support of Mr Blair. Without the veto, we would have dropped the Bill. We had to have some backstop to protect Government.
During the course of the Bill, when we got round to redrafting it to meet the concerns of all sides and secure some sort of majority for it, a deal was struck: basically, it was going to be a strong Act, but you had to have the veto. However, while it was going through Parliament, undertakings were given in the Commons, and also by Lord Falconer in the Lords, about the way in which the veto would be used. It was to be used sparingly and it would not be done simply on the fiat of an individual Minister; instead, these decisions would be subject to proper discussion in Cabinet. There was a political reluctance to use it. I was the Minister who formally made both of those decisions and recommended the use of the veto in both cases. One was over the Iraq minutes and the other was over the minutes of the Cabinet Committee on devolution. I think that original veto on devolution has been reconfirmed by the Attorney-General.
Another ridiculous drafting error in the Bill is that the veto does not apply for all time; even though you veto a disclosure, the same people can reapply the next day for the same information. That must be changed.
When I was thinking about whether to recommend the veto in respect of these two Cabinet Committee minutes, I had to balance what I thought was right against the fact that there would be shock-horror headlines, with all sorts of people saying that it was an outrageous abuse, with the press of course forgetting that this was a central part of an Act from which they benefited. On freedom of information more than almost any other area of public policy, it is almost impossible to have a proper balanced conversation with the press, because, regardless of their political persuasions, they have one interest and the Government have another. You can get individual journalists to accept that there needs to be better balance, but they are interested in stories.
Q349 Ben Gummer: Mr Straw, I wonder whether you could reflect on this process of post-legislative scrutiny itself because we are in somewhat of a predicament. You will know that anyone who has any tangential connection with or interest in Government will be told anecdotally, when speaking to officials, that the quality of minute taking has changed, and that the discussion of decisions is off the record in certain circumstances, in order to ensure that vigorous discussions are not recorded. All of this is known to people who are able to have a quiet conversation with others in that position.
In the nature of things, it is okay for retired Cabinet Secretaries to make this point, as they have done, but it is not possible for people currently in civil service positions because it would be self-incriminating to say so publicly. We are in the rather odd position of having to take on trust what, it seems, all previous Cabinet Secretaries who have had to deal with freedom of information have said, which permits the Information Commissioner and others to say, "It’s just scaremongering," when in fact what they are saying is reinforcing a pattern of behaviour lower down the scale. It is the impression for many of us that, anecdotally, that is not the case. However, it is difficult for us to investigate that and to fulfil our role in post-legislative scrutiny, because it is difficult for people to come forward and say, "We are trying to bypass the Act."
Mr Straw: I am surprised if Christopher Graham said in terms that it was scaremongering, but, if he did, he did. We are talking here about some extremely distinguished public servants. If you go back to Robin Butler, Richard Wilson, Andrew Turnbull and Gus O’Donnell, they were very different personalities as individuals, but among other qualities they shared standards of the highest order. They were not in the Sir Humphrey business of cynically covering tracks or any of that.
Q350 Chair: Indeed, they have said so to this Committee.
Mr Straw: They were not-quite the reverse.
Q351 Chair: They have said that they did not do that.
Mr Straw: No, they did not to my certain knowledge; indeed, quite the reverse. One of the things that the Cabinet Secretary has to do-and it is difficult-is to ensure the application of high standards of governance according to the ministerial code when Ministers and special advisers, for example, and the odd official, try to dodge round those things. They have to say, "You can’t behave in that way." We need to take account of what they have said and what their predecessors have said.
May I add this caveat? Part of the change in record keeping is simply to do with the introduction of new technology. My wife and I still have the letters that we exchanged between us whenever it was-35 or 40 years ago-but our children do not because they send each other texts, and texts disappear. You are going to get a lot of quasi-decision making through text and BlackBerry messaging just because that is how it is done.
Q352 Chair: Is there a particular problem with risk registers? What is your view on that?
Mr Straw: If you will forgive me, I do not want to go down the rabbit hole of whether or not it was appropriate to call for the publication of that risk register. Indeed, if you examine the Division record, you will see that I loyally voted with my party on that. If you talk generally about risk registers, it has to be possible for officials to say to Ministers that there are these risks without these going public. Given the assiduity of the British press, if you publish a raw risk register without any more information, you will set all sorts of hares running, but the document was not designed or prepared in that way. You have to say, "We think that we could be at risk here. We think we could be at risk there. Have you thought about this?" In my view, that sort of information must be protected.
Q353 Mr Llwyd: May I ask a question about a debate that we had some years ago-quite a vigorous debate, as I recall-to which you responded? It was on the question of disclosing the Attorney-General’s opinion of the lawfulness of the Iraq conflict. On reflection, do you think that it perhaps would have been better to have produced it? What harm would it have done?
Mr Straw: I happen to think that the legal advice of an Attorney-General, like any other legal advice, should be the subject of legal professional privilege. I know, Mr Llwyd, that you fully understand the importance of that. I did not think that that 27-page legal advice-anyway, it came into the public print, and I then had to handle it eight days before the election-should have been made public. It was not his decision about the military action; it was his thinking about the factors that would apply. There needs to be that sort of space for any Attorney-General.
It was a slightly convoluted arrangement, but I am pretty certain that it was on 17 March that I published a written ministerial statement to which I attached a note about the issues of legality. It was formally from me, but in practice it was from the Attorney-General. It was not that no information was published about the background at all, but I think that that convention is an important one. In a more perfect world, it would have been better, in my opinion, had it been possible to have the Attorney-General make a decision on whether or not military action would be lawful, and in what circumstances, some months before any decision was taken, because in the end the issue of whether it was lawful and the issue of whether you should do it got completely wrapped around each other when the two should have been separate.
Q354 Mr Llwyd: You know of course that "Erskine May" refers to exceptions for disclosure when the matter is in the public interest. I would have thought that the question whether or not it was lawful to go into Iraq was certainly in the public interest.
Mr Straw: There was certainly a strong case for the Government to explain the legal basis for their decision, which is what I sought to do, so I am with you on that, but I do not agree that the Attorney-General’s advice should be disclosed. The Government must have the benefit of legal professional privilege, as anybody else-any other institution-does.
Q355 Mr Llwyd: I do not think we will agree on this point so I will move on. A complaint we have heard from several witnesses during this inquiry is that this Act was not intended for use by journalists or commercial concerns and those individuals with personal or political agendas. How would you respond to that suggestion?
Mr Straw: I saw that; it was bound to be used by journalists. They were one of the major engines behind the freedom of information campaign, although not the only one. Journalists in our society play a very important role in holding Government to account, so whoever thought that was being very naive. There are separate issues about whether more could have been done to prevent vexatious applications, which are very tiresome.
The drafting of section 12 on cost limits is poor, and it does not include the actual costs. That needs to be changed. There is provision in the Act for charging a small fee for applications, and, although I fully intended to have a fee, I was surprised when, subsequent to my period, it was dropped. It is slightly ironic, that, if you, Mr Llwyd, wish to access information held on you personally under the Data Protection Act 1998, you typically have to pay £10, but if you want to access information held on me it is free.
Q356 Mr Llwyd: Can we do a deal?
Mr Straw: That would have acted as a restraint.
Q357 Mr Llwyd: Apparently, according to the information that we have, having a fee lowered some of the vexatious applications in Ireland, but they have since gone back up again now that they have got used to paying it.
Mr Straw: The thing that most encourages vexations applications is the internet. The assumption was that people would have to go to the post office to get a form, fill it in and then send it in. These days, late at night, people think, "I am going to demand x", so they demand it.
Q358 Mr Llwyd: If the identity of the requester was always logged, there would be some possibility of weeding out vexatious requests, in the same way as vexatious litigants in court.
Mr Straw: The real curiosity is that the identity of the requester is kept from Ministers. For the life of me, I do not understand that, and that needs to be changed too.
Q359 Chair: Does that not mean that the question of whether the information should be in the public domain is dependent on who the requester happens to be, because a different decision might be taken? "I see this request comes from Mr So-and-so; I don’t like him so I’m not going to release the information."
Mr Straw: No, not at all. In any event, once the information is in the public domain, particularly on the internet, it is there anyway, full stop, and more than one person can apply. No; it is just as a general check on vexatious applications.
I have the highest regard, as does everyone in this room, for British journalists, but I smile when I see a scoop or hear of the self-styled Bureau of Investigative Journalism. You read these breathtaking scoops, and, if you are lucky, somewhere near the bottom you discover that this breathtaking scoop has arisen because some rookie journalist has written out an application for freedom of information and, hey, they have the document. As so many requests are generated by journalists, it would be useful to know why are they so coy about having their requests made public.
Q360 Mr Llwyd: Why are there no statutory time limits for responses where the public interest test is being considered and for effective internal reviews? Would you support the introduction of such time limits?
Mr Straw: I thought that there was a time limit of 20 days. I certainly kept being told that it was 20 days; sometimes you overran it. I know that the Ministry of Justice has found difficulty in assessing the total costs of FOI, but, if you or your Clerks were to look at the original assessment of the likely costs and compare it with what is known, the difference is huge. My recollection is that, if you look at the original Bill, it was tens of millions. The costs are huge-not only on central Government, but on local authorities, who are less familiar with the Act. I find myself from time to time giving advice to Blackburn with Darwen Borough Council on how to deal with vexatious applications, as it gets overwhelmed with requests from people sitting at their laptops in the middle of the night. I would want to know what the case was for tightening the current limits.
Q361 Chair: Once the public interest issue arises, that is when the time limit disappears.
Mr Straw: I should have been aware of that because it is my Act, but officials are always beating up on me to approve stuff within the time limit.
Q362 Elizabeth Truss: You mentioned the high cost of FOIs. Organisations such as universities also have to respond to many FOI requests. Do you think that we are looking at a large transfer of information, essentially from state organisations often to private sector organisations such as newspapers, given the effort of doing the research and collecting the information?
Mr Straw: Yes, I do. I think that it also applies to commercial companies, who pursue a lot of applications. Coming back to the point of why requesters’ names should not be known, I believe that they ought to be because it is a way of checking on the process of the Act. If it turns out that a lot of requesters are commercial companies trying to get commercial information to worst their competitors, one needs to know that, but it is not a reason for stopping the provision of the information.
We are in a "baby and bathwater" area here. My answer is not to repeal the whole Act-not remotely. It has produced many benefits and some disadvantages. One of the things that has happened is that all public authorities have to have a publications programme, so we have forced public authorities to think about the information that they should make public in any event, which is a really good thing, and that includes universities. I would not get rid of that idea at all, but I accept that the universities in my area can be run ragged by requests.
Q363 Elizabeth Truss: What would you recommend for a charging regime? Would it be the full cost of the request or-
Mr Straw: No, and I am sorry to have interrupted you. My intention was to use section 13, I think it is, but I am speaking from memory, to charge a small charge parallel to that for data protection requests. It would be about £10. It would not stop important requests, but it would act as a check. I would also tighten up very significantly section 12, which, referring to an earlier answer, relates to the excessive costs provision. As the MOJ memorandum says, it is too narrowly constrained.
Q364 Chair: Thank you very much, Mr Straw. We are very grateful for your characteristically frank answers. They will be extremely helpful in our consideration.
Mr Straw: It is an exercise in accountability.
Chair: Yes, and we have further witnesses.
Examination of Witnesses
Witnesses: Dr Nick Palmer, Director of Policy, British Union for the Abolition of Vivisection, Michelle Thew, Chief Executive, British Union for the Abolition of Vivisection, and David Thomas, Legal Consultant, British Union for the Abolition of Vivisection, gave evidence.
Chair: Welcome back, Dr Palmer, as a former member of this Committee, and welcome to Ms Thew and Mr Thomas, all three of you being from the British Union for the Abolition of Vivisection. You have obviously taken an interest in the operation of the FOI Act and made use of it. I ask Mr Evans to open our questioning.
Q365 Chris Evans: Thank you for coming today. What do you do with the information that you gain under freedom of information, please?
Michelle Thew: Thank you for the opportunity to address the Committee; it is appreciated.
We make requests under freedom of information for a couple of reasons. The first is broadly for informed debate. As you will be aware, animal experimenting is an area of acute public concern, and opinion polls demonstrate that the public would like access to information about what happens to animals-not who is conducting animal experiments, or necessarily where, which is not our concern, but what is happening to animals. It is primarily for informed debate. Secondly, we do it in order to enable proper accountability. For example, we recently applied for judicial reviews against the Home Office, and another recently against the University of Cambridge, where there were issues about whether or not the law was being applied properly. We were able to do that, uniquely, because of information from an under-cover investigation; that is not the kind of information that would normally have come into the public domain, so freedom of information is therefore important.
If I may, I shall briefly quote what the Information Tribunal said in a recent case about Newcastle University, because it sums up for us one of the reasons why we use the Act. It said, "Substantially for the reasons relied on by BUAV, we consider there can be no doubt about the strong public interest in animal welfare and in transparency and accountability as regards animal experimentation conducted under the ASPA regime. The existence of the statutory controls operated by the Home Office does not annul this interest which extends to seeing how, and the extent to which, the statutory system is working in practice. Such private scrutiny as takes place inside the statutory system is not a substitute for well-informed public scrutiny. In the present case these interests are further underlined by the fact that the research was supported by public funds." In general, it is for informed public debate and not particularly accountability.
Q366 Chris Evans: One question concerns me a little. What about the campaign you waged against Stena? P&O said that company directors had letters sent to their home addresses. Did that come from freedom of information?
Michelle Thew: First, it is important to stress that that campaign has nothing to do with us. We have been campaigning on the issue of airlines transporting primates into the UK, but that has been directly through letters to the companies concerned. We do not engage in any activity that is about home addresses.
David Thomas: As a lawyer, it seems to me inconceivable that private addresses would be granted pursuant to the FOI Act. It simply would not happen because there are exemptions-the safety exemption under section 38 and also the section 40 data protection. I cannot see that that information would have come from FOI requests.
Q367 Chris Evans: That is the point that I want to come to. I was leading up to section 38 of the Act. Do you think that is strong enough and sufficiently robust? If not, could you state your reasons; if it is, could you tell me why?
David Thomas: In my experience-I am the lawyer for the BUAV and I run all its cases-it is sufficiently robust. The key point is that one has to look at the particular circumstances of the case and ask whether disclosure of particular information would lead to any safety risk. If there is a significant risk, the information will not be disclosed.
For example, in the Newcastle case, which Michelle referred to, one of the exemptions on which the university relied was that of section 38. The tribunal looked very closely at the evidence and decided that a short passage in a detailed document of about 40 pages might lead to a safety risk, so that information was redacted. On the rest of the licences, having heard all the evidence, with cross-examination and so forth, the tribunal decided that there was no risk to safety and therefore it was disclosed. That is exactly how the system is supposed to work. It is done on a fact-specific basis.
The BUAV always makes a point of asking for information on an anonymised basis; that backs up Michelle’s point that the BUAV is not interested in who, but in what and why. For reasons that I don’t fully understand, section 38 is a conditional exemption, so the public interest test applies in principle, but it would need to be an extraordinarily strong public interest. If it was accepted that there was a safety risk from the disclosure of particular information, it would require extraordinarily powerful public interest considerations to trump it. Again, as a matter of policy, the BUAV will normally say that if a public authority, a commission or a tribunal decides that section 38 is engaged-in other words, there is a risk from disclosure of particular information-the BUAV will not rely on public interest arguments to trump that.
Dr Palmer: It is important to state that legitimate campaigns are very much not interested in getting down to the issue of whether Professor Smith is a nasty man and things like that. That actually distracts from the main issue of whether the regime for permitting animal experiments is working properly or not. The question is not whether so and so is doing the right thing, but whether the system is working properly. That is a general point for freedom of information. As a Back-Bench MP with an interest, I was peripherally involved in the discussions here. Right from the start, we were very clear that the Freedom of Information Act should not put individuals at risk. Quite apart from the human interest in not putting people at risk, it was the importance of putting the information in the foreground rather than the individual. We think that that is very important, and we are 100% behind it.
Q368 Chris Evans: I agree with your sentiments on that, but the point I am trying to get at and what I am building up to is whether the information that you gain through the Freedom of Information Act is safe enough to ensure that people are not petrol bombed or victims of arson attacks and things like that. If it is not, what can be done to ensure that it does not occur?
Dr Palmer: It has to be safe enough; that is essential. If you feel as a Committee that there are ways in which it can be strengthened, the BUAV would have absolutely no problem with that. It is not just about animal experiments; it is all over the public sector. In the same way, when MPs’ expenses were disclosed, the private addresses were redacted. I do not think that any serious organisation dealing with the Freedom of Information Act would have a problem with that.
Michelle Thew: We absolutely support protection for individuals. That is evident in the way in which we have worked with the Act to date. Essentially, we ask that animal experiments are treated the same as any other category of information and that the safeguards on freedom of information that protect individuals and commercial confidentiality are applied here.
Q369 Chris Evans: The point that I am trying to get to is whether there is any way in which information that you have gained could be misused at the moment. Could you give that guarantee? You may have gained some information quite legitimately, through legitimate means, and it has then been misused in some way.
Michelle Thew: I shall ask David to answer, but in essence that goes back to the point about what information we gain. The information that we gain should, rightly, already have passed the test as to whether or not it would endanger public safety. We only get information that has been through due process to indicate that it would not endanger public safety. Therefore, by its very nature we assume that it would not. I stress again that we have no interest in individuals and we ask for anonymised information.
Q370 Chris Evans: So it is just an assumption and not a guarantee that it has not been misused. You can only assume that; you cannot guarantee it.
Michelle Thew: We do not get information about individuals. We simply do not get that information. We do not ask for it and we do not get it. As the process unfolds, we know that those tests have been met and we do not get that information.
David Thomas: It is very important to understand that one of the principles underpinning FOI as interpreted by case law is that disclosure is deemed to be to the whole world. In applying section 38 or any other exemption, the public authority initially-and, on review, the commission, the tribunal or courts and so forth-will assume that it is not only the BUAV that is getting it. It is not the requester only who gets the information; it is available to the whole world. In applying the section 38 test, that assumption is made. I have seen no evidence, whether in relation to animal experiments or in any other area, that section 38 is not sufficiently robust to protect individuals where there is any significant risk to personal safety.
Q371 Nick de Bois: While the information received may not identify individuals, does it not by its very nature identify organisations-or indeed companies, as in the case of ferry companies-or leave a trail to be followed that otherwise would not necessarily have been started on?
Dr Palmer: It is important that bodies responding to requests take into account any risk to individuals or to individuals via their involvement in an organisation. If necessary, it should be possible to anonymise altogether. If a university, for instance, publishes results of its own accord, we are obviously not able to disguise the fact that it has done so because it has offered to do so. But the process of freedom of information has never, as far as I am aware, led to any increase of risk beyond what was already publicly known.
Michelle Thew: It is important to make that point about published research as well. If you look at the instances when we have used the Act-I can comment in detail only on those-these are institutions, if you take universities, that publish the fact that they use animals in research. We are talking about individuals with extensive publication histories, and it is no secret that these institutions themselves conduct animal research. When we are asking for particular information about particular programmes of work, not individuals, the test is whether the release of that additional information would therefore increase the risk to an individual, and that is the test that has to be passed before the information is released to us.
Q372 Nick de Bois: Has that test ever been failed, in your opinion? Has a mistake been made?
Michelle Thew: No, not that we are aware of.
Q373 Jeremy Corbyn: Thank you for coming along today to give evidence. Why did you make the FOI application to Newcastle University?
Michelle Thew: This goes to the heart of how we use the Act. We do not have a scattergun approach, simply asking for every piece of information about every bit of animal research. It goes back to the reasons why we use the Act, which is to inform public debate and get public accountability. In the Newcastle case, there was a particular reason because we understood that an application to do similar work had been refused in Berlin. It had been refused by authorities in Germany on very strong grounds that related to the welfare of the individual animals being used in that case-
Q374 Jeremy Corbyn: I am sorry to interrupt your answer, but how did you know that it had been refused in Berlin?
Michelle Thew: It was public information in Germany, and one of our member organisations there alerted us. We understood that similar work was being conducted in Newcastle, because of the published papers, and we were very curious as to why research that had been refused permission in Berlin because of the high welfare cost on primates was being allowed in the UK, when we are consistently being told that the UK has the strongest regime on animal experiments. It was for that reason that we asked for details of the licences relating to the published research.
Q375 Jeremy Corbyn: What was the outcome of this request?
Michelle Thew: It was a very lengthy process. We went all the way through the various stages, and Newcastle University resisted very hard on a number of different grounds, some of which were completely non-understandable to us and to the tribunal. In the end, the licences were released to us with certain passages redacted, as David indicated, where it was felt that they would not pass the test.
Q376 Jeremy Corbyn: Do you think that there are any lessons to be learned from the Newcastle case?
Michelle Thew: I think there are. Personally, I think that the lessons to be learned include asking universities and institutions to comply with the Act at an earlier stage than Newcastle did. We have had examples, including Cardiff, that complied with our request for information and sent us information suitably redacted. That, we believe, is the way to work with the Act, rather than running up what we have told are high legal bills at public expense running a number of arguments that simply did not hold water. We do not believe that we should have had to go through the level of argument and expense that we did to release that information.
Q377 Jeremy Corbyn: There is clearly a conflict between the Freedom of Information Act and the Animals (Scientific Procedures) Act 1986, in both their aims and intentions. Is it your view that there is effectively a veto on some information on animal experimentation under section 24?
Michelle Thew: Yes. I shall ask David to deal with this. It is not at the university level but certainly at the level of the Home Office.
David Thomas: Yes, there is a partial conflict. There is very much a conflict as far as the Home Office is concerned, which is the regulator of animal experiments. It is virtually impossible to get anything out of the Home Office. Since the Home Office is the regulator, that is clearly a serious problem in accountability terms, with both public accountability and judicial accountability.
The problem is section 24 of the Animals (Scientific Procedures) Act, one of the statutory prohibition on disclosure sections. That prohibits the disclosure of information that is given in confidence to someone who is exercising functions under the Act-in other words, the Home Office. The Court of Appeal in a BUAV case interpreted section 24 in a way that effectively said that researchers, in terms of what they gave to the Home Office, had a veto over what the Home Office could subsequently disclose. The Home Office was then taking it a stage further-we think quite wrongly-by saying that under section 24 it cannot disclose even information that it has generated itself-for example, action that it has taken following breaches of licence conditions. It says that it cannot even tell Parliament what action it takes.
There is a real problem as far as the Home Office is concerned. That is why the BUAV and many others believe that section 24 should go and leave things to the exemptions under the FOI Act to strike the balance that needs to be struck between accountability and transparency on the one hand and legitimate concerns on the other.
As far as universities are concerned, other public authorities conducting animal experiments and public authorities such as the MHRA, which is a regulator but does not regulate animal experiments, there is no conflict. Following the Newcastle decision, the Upper Tribunal, which is the equivalent in the legal hierarchy to the High Court, decided clearly that section 24 does not apply to universities. That is because, unlike the Home Office, they are not exercising any functions under the Animals (Scientific Procedures) Act. As far as universities are concerned and other public authorities conducting animal experiments, the normal FOI presumption of disclosure subject to the exemption applies; with the Home Office there is a major problem.
May I add a word as to why licence information, for example, is important? The reason why the Home Office asks for quite detailed information from researchers is so that it, the Home Office, can apply the various statutory tests-the cost-benefit test, tests on whether there are non-animal alternatives and so forth. That is why the Home Office asks for the information. That, in turn, is why the information needs to be in the public domain so that there can be an assessment of whether the Home Office, as regulator, is doing its job properly. Ultimately, of course, the court needs to make that assessment, but without the information being available the court cannot perform its function of ensuring that the Home Office is regulating properly.
Dr Palmer: It may be worth mentioning in passing that the new European Union directive on animal experiments is recognised by the Home Office to be incompatible with section 24 as it stands. The Home Office is currently consulting on what to do about that. As David was saying, our recommendation is simply to remove section 24, but to have the general protection of the Freedom of Information Act for personal safety, national interest and commercial confidentiality. Those are three very strong tests, and we feel that we do not need section 24 as well. It will have to be amended, but we do not see any sensible way to amend it and meet the European Union requirement of transparency in this area.
Q378 Chair: On that point, there is a difference between what the two pieces of legislation are trying to do. One confers on people such as you the right to obtain information. The other imposes a criminal sanction on the disclosure of information, perhaps malicious disclosure, by somebody who should have held it in confidence. There is a conflict, but removing entirely the criminal sanction would have wider effects, would it not?
Dr Palmer: The malicious publication of information would, in any case, be an offence under other legislation. The decision by the Home Office on whether to allow details to be made public of what is done to animals in particular experiments can be controlled by the normal freedom of information restrictions. When looking at what was done to a particular primate, it would be able to decide whether the release of the information would prejudice commercial confidentiality or safety. We feel that that is inappropriate. I think that the Home Office recognises that that is not compatible with the transparency requirement; it would be a criminal offence to disclose the fact that, say, primates were being deprived of water for 24 hours on a repeated basis. That is a piece of factual information, and the Home Office ought to be able to decide on the merits of the individual case rather than having a blanket criminal bar on any disclosure.
Michelle Thew: If you look at the debates on ASPA at the time, which predated the FOI Act, one of the reasons given for this section was that individuals would be protected. The Freedom of Information Act now does that. That is our view.
David Thomas: May I add a word to what Nick said on the question of malicious disclosure? Under the FOI Act, by definition we are talking about public authorities, so the concept of malicious disclosure perhaps does not really apply.
Q379 Chair: A malicious individual might take a disclosing action to get his own back on someone who denied him promotion or whatever.
David Thomas: No doubt he would be in breach of his contract of employment and all sorts of other things if he or she made such a disclosure.
Q380 Jeremy Corbyn: My last point on the commercial aspect is this. You make your FOI requests to Newcastle University on the basis that it is a publicly funded institution, but it is undertaking quasi-commercial research work. Do you think that there are any problems in the operation of the Act in respect of publicly funded operations as opposed to privately funded ones? For example-I have no idea whether it does this-the University of Buckingham might undertake animal experimentation. It is a wholly private commercial operation, as indeed pharmaceutical companies are, which are not subject to FOI requests. Do you see a problem here, or do you make your requests under the Home Office licensing arrangements where, clearly, there is a public interest in the role of the Home Office in this?
Michelle Thew: At a general level, opinion poll evidence shows that about 80% of the public would like all information about animal experiments to be publicly available, save for individual details. To us, it should make no difference where the research takes place. It is a broader issue about where FOI applies. From our point of view, if an animal experiment is taking place under a Home Office licence-because all animal experiments in this country have to be licensed-for us that is an issue of public concern.
We would ask the Home Office for licensing information and because of section 24 it is very difficult to get that. We were able to ask Newcastle for details of what was happening because it happened to fall within FOI, but you are right that if it was happening in a private company we would not have been able to ask. For us, that probably would not satisfy the public’s concern about animal experiments; they have that concern regardless of where experiments take place.
Dr Palmer: If it is helpful, we can write a note for you on section 24, as a short additional submission, because it has not come out in huge detail.
Jeremy Corbyn: It would be very helpful if you could.
Q381 Yasmin Qureshi: I want to discuss some of the practicalities for campaign groups, picking up on the point that you made, Ms Thew, about the fact that Newcastle University took a long time to deal with your request as opposed to Cardiff University, which dealt with the matter more expeditiously. In that context, I want to discuss the 18-hour time limit for the consideration of requests. We have received evidence from universities saying that it puts too much burden on them, thinking time is not incorporated in this and sometimes different requests take differing amounts of time. What is your view of the 18-hour limit?
Michelle Thew: We feel that it should be limited to administrative tasks; we are very concerned about the concept of thinking time.
David Thomas: I am not sure that the BUAV is necessarily fixated on whether 18 hours or 24 hours is precisely the right limit; there might be movement either way. However, as Michelle says, the key in what can be taken into account in deciding whether you arrive at those time limits is what we call the physical tasks-checking whether the public authority has the information and locating it, and the physical task of redaction-rather than thinking time. I know that some universities and others have asked for that, but, with respect, the Committee needs to be clear that, if thinking time were allowed to be taken into account, for controversial or complicated matters it would cause serious problems for FOI generally. It would be very easy for a public authority, when dealing with a politically sensitive or controversial or complex matter, quite genuinely to spend a lot of time deciding whether a particular exemption applied. Some of the exemptions, such as the confidentiality and data protection exemptions, are very complicated.
It is not only the time that can be taken into account; under the regulations, costs, too, can be taken into account. If a public authority decides, as Newcastle quite reasonably did, that it is not sure of its legal position and goes to external lawyers, one can see that the £450 limit for universities, or £600 for central Government, will be hit in no time. For anything remotely difficult or controversial, if thinking time was allowed to decide whether exemptions applied, the net effect would be that FOI would not apply to such information and therefore the whole accountability rationale for the legislation would be lost.
Dr Palmer: It would blow a hole in the whole regime. You could almost get a subjective response, "This is a very complex issue that you have asked me about. It is going to take me too long to think about it, so I’m not going to reply." I do not think that is just an animal experiments issue; it is quite general to the freedom of information regime. If you bring thinking time into the 18-hour limit, or whatever time you have, you will give people the opportunity to refuse on the basis that they think it is a complicated matter.
Michelle Thew: That is adding to the difficulties that we have already had in asking a university to comply with a reasonable request and every argument that was used, which is what led to this very elongated legal battle.
Q382 Yasmin Qureshi: Are you saying that the current 18-hour limit is fine?
Michelle Thew: As David said, we do not have a precise view. It is not about whether it should be 18 hours or 24 hours; it is more about what is allowed to be included within that time, particularly for areas that are controversial.
Q383 Yasmin Qureshi: Would you support the introduction of a statutory time limit for internal reviews?
Michelle Thew: We would support anything that enabled the Act to work better and, from our point of view as a requester, to work in a timely fashion. We do not have a particular view about individual time limits, but we would support anything that enabled us as a requester to access information. That is particularly so in the area of animal experiments, where an experiment is continuing, and, if there are areas of unlawfulness, we think it is right that they are addressed in a timely manner.
Q384 Yasmin Qureshi: What do you think will be the impact on campaigning groups such as yourselves and others of routine fee charging for FOI requests?
Michelle Thew: There may be broader principles for individuals about the Act and charging, but we would not oppose the introduction of a small fee. The £10 level has been discussed; that would not be a problem for us.
Q385 Ben Gummer: Following on from what Jack Straw said earlier, would you object to the BUAV’s name being appended to information requests when you put them in and lodged them?
Michelle Thew: No, we would not. As I say, there may be broader issues for individuals that are not in our area, but the BUAV being named as a requester is not a problem for us.
Chair: Thank you. We are very grateful to you all for giving evidence this morning.