Publications on the internet
UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 96-ii
House of COMMONS
TAKEN BEFORE the
post-legislative scrutiny of
the freedom of information act 2000
wednesday 16 May 2012
Rt hon Dominic Grieve QC MP
Rt hon Lord McNally and RT hon Francis Maude MP
Evidence heard in Public Questions 483 - 549
USE OF THE TRANSCRIPT
This is an uncorrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.
Any public use of, or reference to, the contents should make clear that neither witnesses nor Members have had the opportunity to correct the record. The transcript is not yet an approved formal record of these proceedings.
Members who receive this for the purpose of correcting questions addressed by them to witnesses are asked to send corrections to the Committee Assistant.
Prospective witnesses may receive this in preparation for any written or oral evidence they may in due course give to the Committee.
Taken before the Justice Committee
on Wednesday 16 May 2012
Sir Alan Beith (Chair)
Mr Robert Buckland
Mr Elfyn Llwyd
Examination of Witness
Witness: Rt Hon Dominic Grieve QC MP, Attorney-General, gave evidence.
Q483 Chair: Mr Attorney, welcome to our proceedings. We are glad that you have come along to help us with the work that we are doing on the Freedom of Information Act. You have a rather special role, which we want briefly to explore. It has been a public one recently, and that is to examine whether a veto should be used in respect of the papers of a previous Administration. What principles govern that role in relation to previous Administrations? Are you under any obligation at all to defend and uphold the position the previous Administration took or are you looking at these matters afresh?
Mr Grieve: My understanding has always been that I am looking at the matter afresh if an application is made to me. That said, it is also an essential part of my work that I should take into account the views of the people most directly affected-the members of the previous Administration who might be affected and who were parties to the decisions that appear in the documents. From that point of view, my understanding is that this duty has been placed with me because I am a Minister in the current Government and therefore accountable to Parliament for my actions. At the same time, it has been placed with the Attorney-General because-I hope-he is seen as bringing a degree of impartiality that would not allow party political considerations to intrude into the decision making; it is clearly very important that it should not. The way I see it, and certainly the way I saw it in the one decision that I have had to take so far, is that I gave careful consideration to the issues and to the views of those who might be affected by it, and I came to my decision.
Q484 Chair: I was quite struck by the point you have just made, which you gave as one of your reasons. In your statement of reasons, you cited as a "particularly relevant consideration" that a majority of ex-Ministers referred to in the Cabinet minutes favoured withholding the information. But what if they did not? What if the majority of the Ministers said, "We are now quite happy that this material should be released"? Might you still have used the veto?
Mr Grieve: This is always the danger of applying the hypothetical to the particular. Each case that is going to come in front of me will have to be dealt with on its own facts. The fact that all the Ministers involved might say that they were wholly content with the veto not applying would clearly have a bearing on my decision. Looking at it hypothetically, if I were to conclude, notwithstanding that, that in fact the public interest did not favour disclosure because there were some other overwhelming reasons, then I would have to make my own mind up on it. Their view is not conclusive as to what I do, but obviously it is bound to be pretty influential. It is going to be one of the major factors that I shall want to take into account.
Q485 Chair: Of course, their view-unlike yours, one might say-could be influenced by partisan considerations. They might not want the rather unfortunate mess-this is hypothetical-that the Government had got into over whatever issue it was to be laid bare while they were still active in politics. Why should you be influenced by that?
Mr Grieve: I rather hope that I would be able to escape being improperly influenced by that. Some principles, I think, are quite clear from the way in which the legislation was passed by Parliament. There will be circumstances in which Ministers in Government can look at the decisions taken by the Information Commissioner and conclude that, in fact, they think there is an overwhelming public interest to go contrary to what the Information Commissioner has ruled. That reserve power is there to protect confidentiality in Government decision making and collective responsibility in Government.
The principles of what I am there to try to achieve are clearly apparent when I am doing my work. That said, I have to apply my own judgment to it. I rather hope that merely partisan considerations simply would not arise, but clearly the basic principle when you come to a collective decision in Government is that the way in which you have arrived at that collective decision is protected by confidence. If that is going to be overridden, then there have to be good reasons for doing it. There may sometimes be overwhelmingly good reasons for doing it, but, as I say, each case has to be judged on its own facts.
Q486 Chair: Let me switch from a previous Administration case to a hypothetical current Administration case. If you are having to advise on a current Administration case and the majority of Ministers involved in the matter individually thought that it should not be released, would that have the same level of influence on you that it has in relation to previous Administrations?
Mr Grieve: It would not be my decision; you must understand that. I am the accountable Minister for the documents of previous Administrations. If we are dealing with a decision by the Government to release their own documents, while it is possible that my view may be solicited-and that would really be on the basis of my view as an Attorney-General so it would be semi-legal advice on which I would not able to comment-the decision lies with the departmental Minister concerned, and then more collectively, because the Government have laid down the ground rules, it would have to be endorsed by Cabinet.
Q487 Chair: But you might be the departmental Minister concerned.
Mr Grieve: That is possible, but as far as I am aware at present we have not had to exercise the veto in respect of the papers of my own Department. But then it is also true that my own Department’s papers tend to be largely covered by legal professional privilege, so the issue probably does not normally arise, although I could envisage circumstances in which my Department’s papers might be sought because not everything I do is covered by LPP.
Q488 Mr Llwyd: Good morning, Mr Attorney. Parliament did not make Cabinet minutes exempt from the Freedom of Information Act. When do you consider it would be appropriate to publish Cabinet minutes?
Mr Grieve: If I go back to the start of your question, I think that Parliament quite deliberately decided not to do this because it wanted to leave open the option that there might be circumstances in which Cabinet or Cabinet Committee minutes might be published. This happened in one case over Westland; the minutes have been published. If we move to a blanket exemption system, then of course that sort of opportunity would not arise.
That having been said, and coming back to your question, each case will therefore have to be determined on a case-by-case basis. There are strong arguments-and those are highlighted in previous decisions of the Information Commissioner-why Cabinet minutes should enjoy a high measure of protection, because collective decision making in Government requires people to be able to express views freely in discussion and then come to a collective view which they argue outside, having resolved their differences and expressed their views.
The possibility of a chilling effect if routinely this material was put in the public domain is clearly a real issue and could have a bearing on how Government is conducted in future. What will happen, if it becomes a habit and routine, is that people will simply find other ways of coming to their decisions that are not recorded in minutes, which I do not think is a very desirable outcome.
Against that, there may at times be good arguments for Cabinet minutes to be revealed. One argument might be that this is all a long time in the past and is essentially a request for historical information early. I suppose another argument might be-again, I am dealing with hypotheticals-that, if there was something so extraordinary in the Cabinet minutes that concealing it from the public was maintaining a fiction that might, for example, be regarded as scandalous, that might have a bearing on it. It all depends on what the minutes are about, what they show and the context in which the meeting took place. I am trying to give you an idea of how I think one might approach it, but to apply that to individual examples is impossible because you have to look at each one in turn.
Q489 Mr Llwyd: In the event of Cabinet minutes being made absolutely exempt, does it not follow, therefore, that the ministerial veto would disappear?
Mr Grieve: It all depends on what Parliament was to do. Actually, the veto extends beyond Cabinet minutes; it is possible to veto other material. Indeed, with the veto that has just been applied by the Secretary of State for Health, it is not a Cabinet minute that has been vetoed. If one looks at the guidelines issued by Government, they make it quite clear that the veto may be applied in circumstances other than just to Cabinet minutes, so you would still have that issue. I have heard it suggested, and it has been suggested in the past, that one might exempt Cabinet minutes and remove the veto; it is a decision for Parliament. As I said earlier, if you do that, you may inadvertently lose the benefit of sometimes being able to get Cabinet minutes revealed. There would be a potential loss there because Westland illustrates that there was a circumstance in which it was possible to do that.
Q490 Mr Llwyd: The overarching principle that you are working on is the need to maintain collective responsibility and the way in which Cabinet decisions are arrived at. That is your first consideration. Is that right?
Mr Grieve: I must be a bit careful. The one example I have of applying the veto is over an issue concerning collective Cabinet responsibility. Technically speaking, it is possible that I could be asked to consider papers that do not touch on Cabinet responsibility on exactly the same basis as the guidelines set out, but that is slightly sterile because, hypothetically, it is a bit difficult to know what the circumstances would be in which that could arise. But I could technically be asked and I suppose technically I could exercise a veto on something that was not Cabinet minutes.
Q491 Mr Llwyd: Looking at it another way, of course every decision in Cabinet involves Cabinet responsibility, does it not? In some instances, if you decided that disclosure was appropriate, that would be a subservient point, would it not?
Mr Grieve: I am not sure I quite follow, sorry.
Q492 Mr Llwyd: Every single decision of Cabinet involves Cabinet responsibility.
Mr Grieve: Yes.
Q493 Mr Llwyd: You said in answer to Sir Alan earlier that there will be times when an overwhelmingly good case can be made for not vetoing. In every decision there would be Cabinet responsibility involved, but then, if you decide not to veto, it does not become the overriding interest. Am I making myself clear?
Mr Grieve: I understand perfectly. Yes, I accept that. While collective Cabinet responsibility is a very important principle, I want to make it quite clear that it is not necessarily so overwhelming that, in every single case, it is going to apply to prevent me from thinking in connection with the previous Administration that I should exercise the veto. That would be the wrong approach on the basis of the responsibilities I have been given. It is a very important consideration, but, as we saw with Westland, it is not the only one.
After all, it is worth bearing in mind that it is not that we bury these Cabinet minutes for ever; under the 30-year rule you get most Cabinet minutes, except the occasional ones that are excluded for top security reasons, after 30 years. Indeed, we are moving to a 20-year rule, although it will take a stage to reach as we go through the transition from 2013 onwards. On the face of it, most Cabinet minutes will be available for public scrutiny at some point in the future 20 years after they were drawn up. One has to have that in mind as well. If you are very close to the end date and there is nothing in the minutes apart from them being a historical record, there may be an argument for revealing them earlier. Equally, there may be compelling reasons why the veto should be applied.
Q494 Mr Llwyd: I suspect that I know your answer, but is there a case for having an absolute time-limited exemption on disclosure.
Mr Grieve: Of Cabinet minutes?
Mr Llwyd: Yes.
Mr Grieve: There may be. I have heard this argument put forward and, in a way, it is one on which I am fairly neutral. There are some advantages to it. The advantage of going for such a system is that it lays down the ground rule that prevents polemical argument over Cabinet minutes each time. They have the blanket exemption, it is recognised, and they are therefore kept out of it. The downside, as I said, is that there will be instances when an FOI request can properly be responded to and the minutes revealed, and you may miss out on that. The other issue, as I mentioned, is that, if you are going to do that, will you then remove the veto over everything else? That is a matter that clearly Parliament and the Government would have to consider.
Q495 Chair: While Cabinet minutes are made the subject of vetoes and protected, as soon as Ministers demit office, they are in the habit of writing books in which they purport to say what happened in Cabinet.
Mr Grieve: Very foolish.
Q496 Chair: It may be foolish, but it seems to be financially beneficial at least to some of them. Does that not blow a hole in the safe space argument? The space is not safe if an ex-Minister can write a book without fear of contradiction from the actual minute. "The civil servants never warned me when we discussed this in Cabinet that this could happen."
Mr Grieve: Ministers are bound by certain rules-including, I think, submitting their memoirs for scrutiny by the Cabinet Secretary. I suspect steps can, in extremis, be taken to try to prevent publication of memoirs, although I am not sure that it would necessarily be a very productive course of action. Yes, we are supposed to maintain our collective confidentiality of what went on in Cabinet discussions. I certainly will not be writing my memoirs. I think I can say that with some certainty.
Q497 Jeremy Corbyn: We want them.
Mr Grieve: I do not think it is the role of Attorneys-General to write their memoirs on the whole, or at least they would become very bland if we were to do so.
I take the point that it is possible for people to circumvent it, but, that said, the minutes ought to be a fairly authoritative record of what was said and done, and people who participate in collective decision making are entitled to enjoy that protection. As I said, the real risk-this is not just a hypothetical risk because I hear it suggested that it has become a real risk; it is actually happening, or happened certainly under the last Administration-is that you end up getting decisions made that are not recorded. People are so worried that everything that is said will go out into the public domain at an early stage that they may not express their views. I do think that is important.
We have collective Government in this country, and, having sat through Cabinet meetings and Cabinet Committees in my time as Attorney, you can watch this happening. It is a very desirable thing that it should happen, and it should happen within a structured environment. If you go to informality, that has risks for good governance.
Q498 Chair: It is a bit risky to accuse the Attorney-General of using hearsay, but do you have any first-hand evidence of decisions not being recorded?
Mr Grieve: I would hope that this is not something that the current Administration is doing. No, it is only hearsay evidence, but, anecdotally, I have picked up in the course of my time as Attorney that anxiety had certainly been expressed within the civil service that there was a tendency to move towards informal decision making. It has been much commented on in the press; indeed, some politicians have commented on it as well in their memoirs. It is clearly a phenomenon that needs to be recognised, but the Committee can inquire into it.
Q499 Chair: But is it? We proceed by evidence. If there isn’t any evidence of decisions not being recorded, it would be wrong for us to draw the conclusion that it is happening-as opposed to the fear that it might happen, which you can clearly testify to.
Mr Grieve: I am not going to be drawn on examples, but I have heard enough anecdotes to make me think that this may be a problem and the Committee may like to look at it. If the Committee wants evidence, I shall have to seek it.
Is it a fantasy being put forward to justify non-disclosure? I am not persuaded of that. One thing that you do learn in Government is that there are structured ways in which decisions can be arrived at. I would not, I think, be improperly betraying secrets by saying that on occasion one can see the problems that can arise when people are not coming to decisions that are as structured as they should be, with the consultation processes that ought to be gone through. For those reasons, I can see really compelling and good grounds why that formalised structure should be used. If it is going to be used, protecting it is quite important.
Q500 Mr Llwyd: Your shocking admission that you are not going to write your memoirs is a great disappointment to us all. You said that the memoirs of Attorneys-General would be bland accounts. I wonder what Lord Goldsmith would make of that.
Mr Grieve: I do not know; I have not asked Lord Goldsmith. You would have to ask him about his view. It is entirely a matter for the individual Attorney, but I shall certainly not be writing my memoirs because I do not really see what I could properly put in them.
Chair: That is very much an Attorney-General’s answer.
Q501 Steve Brine: Your career is yet young and there are so many more things that could happen, Attorney. We will look forward to you changing your mind.
You say that we have collective Government in this country and that decisions are arrived at in structured ways. We also have coalition Government in this country at the moment, and we have some non-structured ways in which decisions are arrived at. I am thinking of the "quad". I wonder what your thought processes are about the "quad" and whether you are able to fit that into the structure that we have been discussing for the last 20 minutes about collective Cabinet decision making.
Mr Grieve: I am not privy to the workings of the "quad", but my understanding is that it is part of the structure of Cabinet Government, and therefore there is nothing outside of it in any way at all. My impression is that, by virtue of having a coalition, it may be the case that a great deal is discussed more openly than might have been the case in a majority Government by a single party. The discussions that take place tend to be very open. It is perhaps one of the curious benefits of coalition Governments, although some people argue there are downsides as well, and I have no doubt that there may well be. One of the interesting features is that differences of opinion will have to be resolved in a structured environment and are, because I see it happening and rather successfully when it does happen.
Q502 Ben Gummer: I come to the issue of safe space from another angle, specifically with the transition risk register in mind. Why did the Cabinet decide to use the veto before exhausting the appeals process?
Mr Grieve: It is a difficult question for me to answer because that has to be directed against those who came to the decision, but I will only say that this is the principle. It is perfectly clearly laid down in the way in which the legislation was structured that it is open to the Government or the relevant Minister to exercise his veto before the appeals system has been exhausted. After all, it is what I did in respect of the Cabinet minutes that I vetoed in the previous Administration. I explained my decision and why I decided to do it then rather than wait for the final appeal process. As it is laid down, I do not think I am in a position to answer your question on the exact reasons because, for that, you will have to look at the reasons given by the Secretary of State for Health. He is the Minister with whom the responsibility lies. As to the principle behind it, it is permissible to do this.
Q503 Ben Gummer: In the last case of the NHS transition risk register, the Commissioner said that none of the criteria for exceptional cases in the statement of policy had been met, but in previous cases of veto use he said they had been met. It seems that, in both circumstances when the veto has been used by this Government, there is an increasing tension between what the Commissioner and the tribunal feel the safe space should constitute and what the Government believe. Is the Government’s use of the veto an attempt to try and carve out a safe space that increasingly they feel is threatened?
Mr Grieve: No. Please bear in mind that I have to be rather careful about this. I was not sitting in, for example, the Secretary of State for Health’s office as he went through the exercise of deciding to come to the decision he has. It is his decision and not my decision. I can comment on my decisions, but I must be very careful about second-guessing other people’s. It would not be proper or fair, and it could be misleading.
I do not think that it is a question of pushing the boundaries. I have heard nothing to suggest to me that there is some policy decision to establish clear boundaries so as to provide us with safe space. It seems to me that the approach has always been on a case-by-case basis. The problems come up on a case-by-case basis, and they have been resolved on that basis.
Q504 Ben Gummer: That might be the flaw with the Freedom of Information Act in this country, whereas in other jurisdictions that we have looked at they have very clearly delineated safe spaces. For instance, we have just seen that in Denmark it is defined by information held within a Department; as soon as the information moves outside that Department, even interdepartmentally, at that point it is liable to FOI. Here that does not exist, so it has to be established by case law. When you have a particularly proactive Information Commissioner who disagrees, it seems, completely with the Cabinet Secretary on the nature of safe space, that is going to become an increasing problem.
Mr Grieve: Yes, I can see that it could do. Against that, however, it is worth bearing in mind that we are now something like six or seven years into the operation of the Act or approximately something like that. We have had four vetoes, and in a sense two of them were duplicatory, so there have been three pieces of information where we ended up with a clash between the Government and the Information Commissioner, with the Government exercising a veto. I do not know about the other systems that you have looked at, so I am not in a position to know how that compares with the amount of information that has been put into the public domain. Yes, dare I say it, our system has all the hallmarks of rather typical British pragmatism and individual decisions, with all the sliding of tectonic plates and indeed the political polemic that surrounds such things. Is that a better system than the one that you have just identified in Denmark, where you have clear bright lines and everybody knows what you can look at and what you cannot? I do not think I am in a position to make a judgment, but that is clearly a very interesting area for you as a Committee to look at.
Q505 Ben Gummer: Finally, may I ask this in that case? It is true that it has an elegance about it, which is that it is flexible and malleable, like so much in our constitution, but it allows for considerable doubt in the minds of civil servants about the advice that they can give, leading to precisely the problems that you have identified. Maybe in this circumstance we need a little certainty so that both the public and civil servants are clear about the advice they can give, where and when, and when it will be released.
Mr Grieve: I can see that that is a perfectly reasonable argument to put forward and for this Committee to consider, but, as I say, you have to balance that. I say this neutrally because I am not positioning myself on this one way or the other. As I say, I would not describe our system as chaotic, but it works on a case-by-case basis, and it allows the opportunity to reveal some things that might not otherwise ever be revealed under the sort of system that you have identified. The question then is whether it will lead to some serious mischief. At the moment I have not seen that; it seems to me that it is very typical of the way in which politics is bound to work.
You cannot take controversy out of this type of area. It seems to me that it is bound to have some controversial elements to it. People want information, and the Government have legitimate grounds in many cases for having to withhold information. Sometimes they might wish to put information out but they cannot. There is always going to be that tension present.
Q506 Mr Buckland: We have been exploring, Attorney, the grey area or the uncertainty that exists with regard to FOI. Is it not compounded by what seem to some of us, at the very least, the rather odd effects of the way in which the Commissioner determines an application at the time the application is made? In other words, the public interest will shift and vary according to the particular time and place in which decisions are made. That surely adds to the chaos, does it not?
Mr Grieve: That is a very interesting point. I see that it could cause problems. Hypothetically, you could have a situation where at the time the request is made it is perfectly reasonable, but by the time it comes to be decided supervening events have changed matters. I am not conscious of that having happened particularly in any of the matters in which certainly I have been involved. I can see, hypothetically, that it could, but if you want to change that system you would have to change the principles on which the Act was drafted.
Q507 Mr Buckland: It becomes very difficult, does it not, because a civil servant in, say, September 2010 is dealing with a set of circumstances, and, according to the criterion used by the Commissioner, the public interest will change according to the particularly subjective political environment in which that civil servant finds himself? Is that not a counsel of perfection almost? We seem to be expecting civil servants to judge to a nicety the sort of things that we do not expect people to do in everyday life-for example, when they are under threat of attack or threat of violence, to use that analogy.
Mr Grieve: That is a perfectly reasonable point. That said, I would be interested to see if there are examples of that causing a specific difficulty in the cases that we are looking at; but, yes, it is a very fair point.
Q508 Mr Buckland: It has caused difficulty. We have a register that was disclosed at a later stage and one at an earlier stage that had not been disclosed. We are in that difficulty, are we not?
Mr Grieve: As I say, I am a bit reluctant to be drawn over-much on the register. One of my officials has just passed me a very sensible note saying that if the public interest changes you can always make a new FOI request. Of course that is absolutely right, and that is exactly what happened in the context of the Cabinet minutes that were vetoed by the previous Administration and then vetoed by me. The FOI request is not the end of the road; you can always repeat it if you can show that changed circumstances have arisen.
Q509 Yasmin Qureshi: Mr Attorney, good morning. I wanted to pick up on a point raised by my colleague Mr Gummer. I shall repeat part of what he said, which was in relation to the NHS risk register.
The Information Commissioner, as well as the tribunal to which the Government appealed, said that the criteria used had been used in previous cases where the veto had been considered to be exercised properly by a Minister. It was said by the Information Commissioner that in this particular case those criteria did not seem to have been met. Do you have any sympathy with that argument?
Do you think it is a fair point that members of the public out there would be duly concerned about the fact that the ministerial veto is being used in something like the NHS when such a massive transformation is taking place? The ministerial veto is being used even before the Government have had the chance to exhaust the appeal process. That would suggest that perhaps there is something to hide, or is it that the advice given is so controversial or critical-I do not know which-and that, because of that, the Government think that their policy may be railroaded and are refusing to allow the information to come out in the public domain? I understand that it was not a decision that you took, so it may be an unfair question to ask of you, but I am asking generally about the public perception of whether the Government are trying to hide things. Do you have any sympathy with that view?
Mr Grieve: It was not my decision, as I explained, and therefore I am very wary of commenting on a decision taken by another Minister.
It is clear, in a sense, that the Information Commissioner has a perfectly valid point when he says that this particular veto was exercised over a class of information that was slightly different from the previous vetoes. We accepted that it did not strictly come within Cabinet minutes but that it was important departmental policy advice given to a Minister. But what is quite clear is that the Act allows for that to happen and that the guidelines along which the Government have indicated they would operate allow for such a possibility as well. I do not think that it can be said that what has been done in this particular case is so unusual and so outside what the Government have indicated they would do that, in some way, it was an extraordinary decision. If you look at what the Act allows and what the guidelines say, the Government’s position would be that their decision is completely compatible with those. Beyond that, I do not think I can comment. If the Information Commissioner concludes or feels that in some way the decision taken by the Secretary of State has flaws of a character that is capable of being challenged, he has a means of doing so if he wishes to, but that is a matter for him.
Chair: Mr Attorney, thank you very much indeed for your help this morning. We have further Ministers to question this morning.
Examination of Witnesses
Witnesses: Rt Hon Lord McNally, Minister of State, Ministry of Justice, and Rt Hon Francis Maude MP, Minister for the Cabinet Office and Paymaster General, gave evidence.
Chair: Lord McNally and Mr Maude, welcome and good morning. We are glad to have your help in looking at the workings of the Freedom of Information Act. I will ask Mr Brine to open our questions.
Q510 Steve Brine: Good morning. We have had Mr Straw in to talk to us, and I pressed him quite hard about the Act and the thought processes that went on through a number of Labour party manifestos leading up to them assuming Government in 1997. I also pressed him on comments made by the former Prime Minister about the Act, which I am sure you are well aware of. When I pressed Mr Straw, he said that it was his idea. Was this Act a good idea?
Mr Maude: The idea was a good one. I do not think that anyone believed that it was perfectly executed at the time, particularly its authors, so this is a very worthwhile exercise. This is a good moment for the Committee to conduct this post-legislative scrutiny, and I have nothing but praise for the way in which the Committee is pursuing this. Its work is very thorough and excellent.
It has been good. There has been an opening up of information, for sure, and from my point of view, as I am the Minister responsible for the Government’s transparency agenda, which we have pursued extremely aggressively, we now publish more data than any other Government anywhere in the world, and we are regarded worldwide as being at the leading edge. We have just taken over the co-chair of the Open Government Partnership, which is gathering momentum very rapidly. The Act captured a moment, but if there was a sense that it is working perfectly there would not be the need for the kind of detailed scrutiny that-
Q511 Steve Brine: We may come on to what you would recommend that we recommend, as it were.
Lord McNally: Just for the record, the Freedom of Information Act was one of the commitments in the Cook-Maclennan pre-1997 agreement between the Liberal Democrats and the Labour party. I was very pleased that Jack Straw took it up. That was its origin in the first term of that Labour Government.
Q512 Steve Brine: Differentiation strategy applied. The London Evening Standard came in to see us and they said there is no doubt the advent of the Freedom of Information Act has significantly improved transparency, accountability and good governance in British public life. I guess they would say that. Has the Act achieved its objectives of improving transparency in Government and, ultimately, of improving public confidence in public life and public figures?
Mr Maude: It has clearly increased transparency, I would say, and it has probably made a bit of difference to accountability, but the biggest difference to accountability-at least a lot of it-is actually through the way in which Select Committees work these days. There is a question mark over good governance, and I think that is the most difficult area to come to a conclusion on. One question that is totally proper to be raised and considered is whether the uncertainty that surrounds the operation of sections 35 and 36 of the Act, particularly the protection afforded to the provision of candid and thorough advice to Ministers and the space within which Ministers can discuss it and reach conclusions, is the open question of whether we have the balance struck in the right place.
Chair: I think that Mr Brine also asked you about public confidence.
Q513 Steve Brine: On public confidence, there were some grand aims and objectives of the Act set out in the Second Reading speech, and we have all studied it closely. There were some grand objectives set out by the Government at the time that it would restore public faith in the political process. Has that happened? Either of you is free to answer that.
Lord McNally: I go back even further in the origins of this. In another life, I tried to convince Jim Callaghan about freedom of information; he was not an enthusiast. Just looking at whether the public are more confident in Government, they are always likely to have a healthy scepticism about it. But, when we were campaigning for freedom of information, one of the things we said was that we wanted to squeeze the culture of secrecy out of Whitehall and out of Government. I have to say that I think that has happened, and it is wholly beneficial. I think that of Whitehall and local government, but let’s stay on Whitehall. When I started working in Whitehall and Westminster over 40 years ago, there was still a culture of the man in Whitehall knows best. I do not think that is true any more. The access that people have to give their opinions, to put in information and to have their views considered well in advance of legislation has, I think, been an entirely healthy development. It was not due entirely to the Freedom of Information Act, but the Act was a brick in the wall that helped to create that.
Q514 Steve Brine: Lord O’Donnell came to see us-there is a man who should know a little about the inside workings of government-and he said that it creates perverse incentives and that the more open you are the more you lay yourself open to criticism. Do you agree?
Mr Maude: Yes, by definition, but I do not actually think that is bad. One of my constant mantras on transparency is that all Oppositions favour maximum transparency but that Governments tend to favour it for the first 12 months while all they are exposing are their predecessors’ mistakes. It gets more uncomfortable after the first 12 months, and I think it is to the credit of this Government that we have pushed forward the transparency agenda vigorously, and in a way more vigorously in the second 12 months; and there is much more for us to do. Publishing, as we do now, every item of spending on a monthly basis above £25,000, and spending on Government procurement cards above £500, there is plenty of scope for embarrassment in there. But the effect of that in terms of improving the way in which money is spent is quite formidable, because people are much more careful how they spend the money because they know it is open to be scrutinised. Can it lead to embarrassment? Yes. Do we have to be a bit grown up about that? Yes, we do.
Q515 Seema Malhotra: Good morning. I would be interested to hear both your points of view on this, but may I start with the Secretary of State? My question is looking at freedom of information in central Government and the wider transparency agenda. It is clear that the Ministry of Justice has developed a framework for the Act and gives guidance to Departments as well as to those who might request information. The Cabinet Office is obviously leading on the transparency agenda. It is clear that there has been commitment from this Government on that transparency agenda, but, inevitably, when you extend the principles or the philosophy of what has guided previous policy, things may not be as joined up as you intend. That could be for Government Departments as well as the ways in which you request information from Government Departments and some of the rules around that. Freedom of information and transparency are obviously closely linked, but how joined up at the moment would you say the Government’s approach is to that agenda? Is it making it easy to comply with that or potentially creating confusion?
Mr Maude: I think that the agendas are very closely linked. Are we perfectly joined up? No. Are the Government ever perfectly joined up? No; nor will they ever be, but we work pretty closely together. Tom and I are giving evidence together. Tom sits on the transparency board, which I chair, which is driving forward the transparency agenda. The two agendas probably originate in different places, but they need to be seen very much as a single range of issues.
Lord McNally: I joined the transparency board slightly as a sceptic because I am also the Minister responsible for data protection and I thought that there were privacy issues here. However, I believe that the transparency agenda will, in perspective, be seen as a significant contribution-and perhaps more significant a contribution-to open government than the FOI Act. How you join them is one of the things that we look at. The transparency agenda, by its very nature, is what we want to tell you; the FOI Act is what you want us to tell you. They are not totally overlapping in that respect, but they can exist side by side. As I said, the actual transparency agenda will have a really big impact on the openness of Government.
Mr Maude: May I just add to that? Tom is absolutely right when he says that transparency is push and FOI is pull. One of the things that we want to do with transparency is to create more of a pull, and we have talked about creating a right to data. The expectation would be that a public sector dataset would be made public. This is the property of the public and there are huge economic and social benefits, as well as benefits in terms of accountability, in data as a raw material being made available to those who can use it in different ways. We want to get a similar sort of approach.
Q516 Seema Malhotra: May I follow up on that point? I guess what you are talking about is that the push and pull is a bit of a culture change as well. There have been some criticisms about the relative cost of publishing data, particularly also by local government, and the relative benefits and usage or hits on those datasets. What would your thoughts be on the more proactive schemes? In the long run, you might take the view that there is the potential to save money, because there will be fewer requests resulting from greater access, or that they are expensive and underused at the moment.
Mr Maude: I am very sceptical about the complaint that it is very expensive to publish data. It is not. If the dataset exists, the cost is that of putting it online, which is minimal in the round. There is an issue about what needs to be done to put the data into usable form, but we ought to be doing that anyway. If the data exists, it needs to be usable; there is no point in having the data if it is not usable. Whether it is usable within Government or by those outside, it needs to be in decent form.
The quality of data in Government is notoriously not very good. The constant complaint of non-executive board members on the new enhanced departmental boards that we have established is that management information is inconsistent and not very good. This is a long-running complaint. The Institute for Government recently made exactly the same point in its open letter on civil service reform. Governments need good data in order to take sensible decisions. Making that data transparent is one of the stimulants to improving the quality because it gets scrutinised.
Q517 Chair: One of the issues that arose when we were talking to the local government witnesses-they had quite a sympathetic view on this-was to what extent freedom of information should follow public functions when they are contracted out, as is happening over an increasing area. Do you accept that freedom of information should follow public functions, even when they are contracted out?
Mr Maude: You definitely need to have maximum transparency where a public service is being delivered by any body, whether it is in-house, a mutual joint venture or totally outsourced. Our working presumption is that the outcome should be made very transparent, and we are working very hard towards that in the health sector, looking at social care, schools and education, and in crime mapping, which has been a big success. The presumption is maximum transparency on the outcomes. That is what we are concerned about. When you outsource a public service, people are obviously concerned about cost, and contracts are now routinely made public. That is one of the changes that we have introduced-a presumption that contracts will be made public and then what the outcomes are; what is the service delivery? Whether a private body should be made subject to FOI is a different question, and I am not at all sure of the answer.
Q518 Chair: It is one that I asked.
Mr Maude: There are different ways of approaching this, but you open up a whole new dimension if you say that any organisation that does anything with public money should be subject to FOI. You then immediately open up a massive definitional set of questions.
Q519 Chair: First of all, it is a principle that you have already applied in the Protection of Freedoms Bill by extending freedom of information to a number of bodies that are technically not public bodies-the Association of Chief Police Officers, for example-because they are carrying out public functions. The local authorities, when giving evidence to us, indicated that the method they would be adopting was to write contracts that ensured that they had provided to them the information that they would expect to have if the work had been carried out in-house and would then be responsible for applying freedom of information as appropriate to that stock of information.
Lord McNally: There are difficulties. When I wanted to extend FOI to Manchester international airport, a very successful public body, it came back and said, "But that will put us at a commercial disadvantage because our privately owned rivals would bombard us with freedom of information requests to put them at a commercial advantage." It is also argued that it would be a deterrent to a private sector supplier if it was thought that one of the penalties of supplying to the public would be to open them up to the whole gamut of FOI. That does not come down against the idea, but those are the arguments put, just as the universities are arguing that commercial rivals can use FOI in a commercial way to get their hands on material that is of direct advantage to that university. It is not just a matter of extending FOI but with no consequences; those are the consequences that have been fed back to us by people at the sharp end.
Q520 Chair: It would not be acceptable, would it, to have freedom of information about the regimes in publicly run prisons and not have access to that information in privately run prisons, for example?
Lord McNally: That is a very good question. In that respect, it is one of the issues that will have to be discussed. The more you have this commissioner-supplier regime in terms of public service, the more there is a big question over how much that outsourcing would much diminish the reach of FOI. That is something that will have to be considered.
Q521 Jeremy Corbyn: When agencies were first set up by Government, there was an attempt to prevent them from responding to parliamentary questions; that was eventually defeated in the House of Commons, largely through the work of Paul Flynn and others. Exactly the same issue now applies to FOI, as you quite rightly say, on the purchaser-provider split. If you analyse what the problem is, do you have a suggestion of where we should go on this? Should we make all privately run public services open to FOI requests, in the same way as care homes, prisons, airports, water and many others areas, as there is an absolutely legitimate public interest in how they are run?
Lord McNally: That is one side of an argument that still has to be made, both in Government and politics in general. If, as you say, you are going to move to that commissioner-provider regime and rely much more on the private sector, what is then demanded of the private sector in terms of compliance with the Freedom of Information Act is going to be a political judgment.
Q522 Ben Gummer: I turn to the evidence of Lord O’Donnell and the Information Commissioner, which are at complete variance. Lord O’Donnell, who has vast experience of decision making right the way through Government, said that there has been a most definite chilling effect and that decisions at times had not been recorded properly. He cited an example where, at the beginning of meetings, it was pointed out to the participants, "Remember this is FOI-able", which immediately has an effect, no doubt, on what is said and what might be recorded. He offered a solution, which we can turn to in a second. The Information Commissioner, who has no experience of being in Government, says that this is completely untrue; he believes that it was largely a myth made up by mandarins-he called them mandarins throughout his evidence. There is clearly a difference here. It is very difficult to establish who is right, given the fact that the nature of this discussion means that you are not going to have civil servants coming forward and saying, "I did not record this. We did not have a frank discussion." We are struggling to find a way through this. I wonder whether both of you can help.
Mr Maude: Both Tom and I have been in Government before, in different guises.
Q523 Jeremy Corbyn: In different parties.
Mr Maude: Indeed, absolutely, but we all have journeys to travel. For me, the essence of being effective in Government is that you want to have the most candid-sometimes brutally candid-advice. You want there to be an atmosphere within which officials feel utterly uninhibited in what they say and where there can be the freest discussion, sometimes expressed in trenchant language, which might not always in any circumstances of all the language have found its way into the official minutes. That is really important. It is also important that advice and arguments should be committed to paper because there is nothing better than the intellectual discipline in formulating an argument on paper. It forces you to be rigorous. The analysis has to be rigorous; if it is not, it is clear that it is not.
Is this happening to the same extent now as when I was around 20 years and more ago? It is hard to calibrate or measure. My feeling is that it is less so because of exactly this concern. It is not that there is obviously a certainty; you know that under the Act as it is nearly all of the stuff will not be public, but it is the question mark that hangs over it-whether things are FOI-able. The Information Commissioner and the Tribunal might make a decision that the public interest in disclosure outweighs the public interest in them being private and protected. It is just flying in the face of certainly my experience and common sense to maintain that it has made absolutely no difference.
Lord McNally: I have to break it to Mr Corbyn that Jim Callaghan and Harold Wilson were two of the more conservative Prime Ministers in their attitude to the civil service.
Q524 Jeremy Corbyn: That I do not doubt.
Lord McNally: I noted Gus O’Donnell’s comments both to the Committee and, increasingly, in public. I used to think that mandarins retired quietly to Oxford colleges and were never heard of again, but they seem to be very public figures these days. To a certain extent, of course one should take into account the kind of experience he has, but the very fact that his acronym in Whitehall was "GOD"-and it was not just because of his initials-makes him an immensely powerful figure. I think that parliamentarians should question whether figures of that power should be completely protected by a cloak of secrecy.
As for the Information Commissioner, I shared many of the ambitions of this Committee in making him more independent. We have made a number of changes to his terms and conditions, which give him greater independence. Quite frankly, if you create a post and put a figure in and say, "You are independent", then you will get independent views. That is part of the exercise.
I am the Minister for the Freedom of Information Act in the MoJ. When I came into Government two years ago and I realised that both within Whitehall and in political debate there were questions about how effective the FOI Act was working in operation, my very first instinct was to give it post-legislative scrutiny. I was part of the pre-legislative scrutiny for the original Bill in the House of Lords, and the job that you are doing is trying to sift out and test the weight of these opinions. Of course, the mandarate has very strong opinions. We had a debate in the House of Lords a few months ago, a little minor end-of-evening debate provoked by Peter Hennessy, and there were 11 ex-permanent under-secretaries dotted around the Chamber all wanting to inveigh against this wicked Act. You have some powerful evidence on both sides on this. I honestly do not know. I think that there is an over-claiming on the chilling effect because most of these figures are powerful men and women and I have not noticed them holding back in their views. As I say, in terms of the Whitehall and Westminster that Francis and I entered 30 or 40 years ago, it is infinitely healthier in its openness of discussion and debate.
Q525 Ben Gummer: If there is a chilling effect, it is principally one of perception. The Constitution Unit recognises that, and from what we have heard so far, it tends not to operate at local government level or, indeed, at the middle level in central Government but for politically very sensitive cases, necessarily, at a high level of Government. The Attorney in his evidence suggested that, at the moment, the Government clearly recognise this. The exercise of the veto suggests that there is a space being defined, however that might be happening. Lord O’Donnell suggested class exemptions so you might delineate the spaces more clearly.
I have two questions. First, is there a need to define things more clearly, to give civil servants the confidence to give full and frank advice? Secondly, if that is the case, should that be done through a more regular application of case law, as seems to be happening-we have had two vetoes recently-or should there be class exemptions, which is the more European model?
Mr Maude: This is exactly what your Committee is going to be examining, I am sure. There is undoubtedly a concern about the lack of certainty, but you do not solve that just by having more and more guidelines and guidance, because you just do not know at what stage the Information Commissioner and the Information Tribunal are going to say, "Sorry, guys. You may have thought that was protected, but-guess what?-it ain’t." You then have a whole new range of uncertainty opening up.
I was very struck by what Jack Straw said when he came here. He expressed himself with characteristic caution, but I certainly drew from what he said a concern that, when the legislation was passed, it was expected that there would be much more certainty than there has turned out to be. There is obviously an argument to be made-it is a difficult argument-that there is a trade-off between greater certainty, which could be delivered by class exemptions, a clearly defined cast-iron protection on policy advice to Ministers, and the space within which policy discussion takes place. We must also protect communications particularly between different Governments, because those need to be conducted in a way where both sides have absolute confidence that they can be very candid with each other, otherwise the process of fast informal diplomacy becomes much more difficult to conduct. The trade-off is between greater protection around those aspects-presumably a class exemption would give absolute protection to that-versus an aggressive pushing ahead of transparency.
One of the things that it is worth thinking about is whether there should be a greater readiness by Governments to disclose the evidence on which decisions are made. You could make the case that that would be quite a good discipline for Governments anyway, forcing them to assess the evidence and accumulate it carefully. With datasets, there is increasingly a presumption that data is made available, and we should continue with that. But it is the space within which judgments are made, arguments are advanced, advice is offered and discussions take place about which there is the greatest anxiety.
Lord McNally: It is very interesting-I was able to hear some of the Attorney’s evidence-whether we should approach this in a pragmatic or a more structured way. Again, I am sorry to keep pushing it back to you, but one of the reasons why you are here is to test the merits of some of these arguments. I have never thought that the original Act was perfect, and I have never argued against the rationale for tweaking certain parts of it in this grey area. Indeed, I freely confess that the FOI has wandered into areas that I never imagined it would. On the other hand, Sir Brian has spoken of public confidence.
When the Cabinet sits down with your conclusions and decides what it is going to do and what it should propose to Parliament, are we in an age when police, journalists and politicians have all shown that they have substantial things to hide? Are we in a time and an age when we want to send out the message that we are going to start lowering the portcullis of secrecy again? How we handle this is going to be very important in terms of public confidence. Whatever people may think about it, I suspect that people like the idea that they have access to information.
Lord O’Donnell has been mentioned a number of times. When people get to his position of power, or women in the same position, I want them to think twice, three times or four before they give advice. There are some constraints that make them think like that, and that is healthy. I will tell you honestly that the biggest shock I had was when I read the Butler report on decision making in the Blair Government, because it was not a structure of decision making that I recognised from my time at No. 10 about 25 years before. The structure of recording and processing of information around decisions was very healthy.
Indeed, 10 years ago I went to a lecture at the Mansion House by Lord Butler, when he decried the erosion of Cabinet Government. One of the things that I would claim for the coalition is some restoration of that structure to decision making. As to whether that needs a protected space, as Francis says, I await your conclusions, but I would hope that it is a fairly defined guarded space. I do not want to see it given as carte blanche that the FOI should not apply, because that would be a really retrograde step in our governance.
Q526 Chair: If a civil servant feels that a document will be made public and thinks that there are risks or issues that Ministers should consider, does he not have a motive to record the fact that the Minister was told that? Otherwise, when the record appears, questions will be asked about why he did not warn the Minister, since he knew this. I am puzzled by the assumption that knowledge that a report of the discussion will appear within a limited time means that as a civil servant you stop giving advice or drawing attention to dangers.
Lord McNally: I do not understand, and you may not have seen it, the difference between an impact assessment and a risk register. What should go with openness is a little more mature political debate. I have just been guiding through the LASPO Bill, a very controversial Bill, and in our impact assessment from the Ministry of Justice we said that one of the impacts of that legislation could be-could be-an increase in public disorder or an increase in acquisitive crime. We made that public. Quite legitimately, the Opposition during debates threw those assessments at us, but we had to say that if you are making policy you have to look at what you think will be the benefits and dangers of what you are doing. The idea of not having that discussion in the open I do not think helps for good governance.
There was a thing today in the papers or it was on the "Today" programme saying that the Labour party has used FOI to get data on social care and the number of old people going into care homes. Yesterday in the House of Lords we had this very debate, and it is clearly going to be one of the biggest debates over the next few years, as to how we should deal, in a humane and civilised way, with the care of our very elderly. It is absolutely in the public good that the information FOI has provided educates that debate-the size of the problem, that it is with us now and that it will be for politicians of all parties to deal with it. That is the Freedom of Information Act working well, but of course it gives an advantage to the Opposition that it did not have 20 or 30 years ago.
Q527 Jeremy Corbyn: Lord McNally, you were talking earlier-you have both given really helpful evidence to us today-about the fact that Wilson and Callaghan were both very conservative in relation to the civil service. In my memory, it was a constant refrain of Ministers in those Governments that the civil service at a high level was very obstructive towards the reforms that they were trying to achieve and that they were damaging the Government. This may have been Ministers complaining to each other-I do not know- but their programmes would probably have been helped had there been greater freedom of information, because the civil service would have been more reluctant to have given the kind of advice and alleged obstruction that it did.
Mr Maude: I am not sure that that is necessarily right. If an official who wanted to obstruct a reform put a submission to a Minister in potentially florid or dramatic language on what the effects of reform would be, it could be incredibly restrictive of the Minister’s willingness to proceed if he or she knows that that is going to be made public. It would be political suicide for a Minister to proceed with something having been warned. These are often judgments; they are not factual. There is no kind of test or constraint on saying things that could be very extravagantly expressed, and, proceeding in the face of that, some Ministers would feel really inhibited. Arguably, were such a characteristic of the civil service to be true, it could increase its ability to frustrate change.
Q528 Jeremy Corbyn: Cabinet is the centre of Government decision making, and, essentially, the whole thing operates on the basis of secrecy and controlled or contrived leaks, or even imaginative leaks. If there is a debate in Cabinet, a serious split, we all know about it anyway. Would it not be better for Government as a whole if, as happens in some other countries, Cabinet proceedings were a form of public debate? There would still be a political space for Ministers to discuss, as they do in the Tea Room and everywhere else, what they may or may not wish to do, but the Cabinet itself would be seen as part of the decision making and open to greater public scrutiny. Is that such a bad thing for democracy?
Mr Maude: The result is that discussions all take place in the Tea Room and in private and not in the Cabinet room, which is where they should take place. They should take place on the basis of good, well-argued evidence and papers, and very open discussion. You say that all these discussions immediately become public, but they do not, actually. To a remarkable extent, they remain properly private; Ministers feel able in Cabinet and Cabinet Committees to express themselves very vigorously, and that is completely right.
Lord McNally: The old theory in the Labour party was that it was only the wicked Conservative civil servants that stopped Labour Governments being truly radical. My experience is that that was always an excuse. Coming back into Whitehall after 30 years, the one thing that has struck me about the civil service is not that it is a chill but that it is now so much more a reflection of our society; it is much more diverse in ethnicity and gender. One of the joys of working is bright young people, who, in my experience, are very willing to argue their case and put forward their views in the great tradition of the British civil service of talking truth unto power. That is what we want to retain and maintain.
It is such a change. When you think back, in our lifetime Dalton lost the Chancellor of the Exchequership for an aside as he walked in to deliver the Budget. These days, if it is not all in The Sunday Times the previous weekend, people wonder what is missing from the Budget. The other thing that strikes me, having listened to Francis and his advisers on the transparency committee, is just the different world we live in, in terms of information, and how we manage that information is a great challenge for us as individuals and for Government.
Q529 Jeremy Corbyn: May I take you back? Yes, of course it is a very different world and the civil service is much more reflective of society, and it is much the better for it. But, with Cabinet debates on major issues such as how to deal with the current economic situation, or the war in Iraq or Afghanistan and so on, why should the public as a whole not be aware of what those debates are about and be aware of the differing points of view? Does it actually end freedom and democracy as we know it because we know what is going on?
Lord McNally: It is an interesting debate. Here I am a conservative on this; I do think that Government are healthier if the Cabinet can have that discussion and then the Government have a view on this. I do not think it would be for good governance if it was known that x or y was unhappy with a decision.
Coming to that decision should be a properly structured thing, which is why I was appalled by what Butler found about sofa government. That should not be part of the structure of Government, but the idea of the Cabinet coming to a collective decision and standing by that decision is a healthier way. I remember that Tony Benn had many ways of making it known that he did not agree with something, without ever resigning from the Government. I remember that Peter Walker used to attend Conservative party conferences and it would always be heralded as a carefully veiled attack on whatever Government policy he disagreed with in Government. The solidity of Cabinet Government, I think, is one of the strengths of our system, and I would not like to see it undermined in the way that you suggested.
Q530 Jeremy Corbyn: Is this transparency board open to the public and is any of it kept secret?
Mr Maude: No, it is all in public. We meet under cover of darkness, in a bunker deep in Whitehall.
Q531 Jeremy Corbyn: Does anyone shine a light on this darkness?
Mr Maude: We publish the minutes, almost in real time, but they are not fascinating.
Q532 Jeremy Corbyn: I am sorry to say that I have not read any of the minutes of the transparency board; it is obviously something that is lacking from my life, so I shall now start reading them. When you decide to not publish something, do you say what you are not publishing and why so that we can look for it?
Mr Maude: Just to be clear about the function of the transparency board, we do not take decisions about what should be made transparent. The board contains a number of open data experts, including Sir Tim Berners-Lee, the inventor of the worldwide web, Professor Nigel Shadbolt, Rufus Pollock, Tom Steinberg and a few others, who are proper experts. I do not think they would be offended-they would probably regard it as a compliment-if I described them as zealots. These are people who are absolute zealots for open data.
Q533 Jeremy Corbyn: Maybe we should have Julian Assange on it as well; maybe we should ask him to join it as well.
Mr Maude: If he is at liberty to attend. What we do at the transparency board is fantastic. Again, it is not particularly surprising that not everyone in Government is equally enthusiastic about making data public. We still have a culture where the tendency is "Show me why I should do this" rather than "Show me why I should not do this", and there have been some ingenious reasons produced for not making data public. The interrogation and the assistance of the transparency board members in holding our feet to the fire, but also the rest of the Government’s feet to the fire, is invaluable.
Lord McNally: As I said, when I first attended I went slightly as a sceptic; at one meeting I said that I felt like a prim Victorian lady attending a meeting to plan a rave. They are enthusiasts, but I found it really helpful to hear these guys questioning the various Whitehall Departments. You see the culture of secrecy not in any sinister way, but you still hear the question, "Why should we reveal all this?" Because they have the expertise and the technology, which I do not, they then quiz these guys, and it quickly becomes, "Why not?" That is why I said at the very beginning that the transparency agenda is one of the most exciting initiatives this Government have taken and in the long term will have the biggest impact on the quality of governance. Perhaps we should televise meetings of the transparency board.
Mr Maude: I do not think it is quite prime time material.
Q534 Mr Llwyd: I have a brief supplementary question. May I take Lord McNally back to his description of the current civil service being more ready for change than in previous decades? I have just been involved in a campaign for a stalking law to be introduced and my friend Mr Buckland was heavily involved as well. The greatest obstacle bar none to any change in the law was the civil servants. They were of the younger variety, much younger than me, and they were adamant that they were not having it at all, so much so that at the end of one meeting with a Justice Minister, who I shall not name, he smiled at me and said, "You must persuade us of the need for legislation." That was my experience of the last couple of months.
Q535 Chair: There’s a bit of open government for you.
Lord McNally: If you can convince the Minister, and he wanted it, those civil servants would change-the policy would change. You cannot expect the civil service to be eunuchs because they do not believe your idea. You have had a good response, because you know what the advice is and the arguments that you have to counter. But it is not the civil servants that are blocking your law; it is a Minister who is unwilling to work with you on it. The buck stops with the Minister, not with the civil service.
Mr Llwyd: In the event it succeeded, but the impression I got was that the Minister was stymied by his staff. That is what I am trying to say. Anyway, that is en passant, as it were.
Q536 Mr Buckland: Can I move on to the mechanisms and some of the conflicting evidence that we have had in particular about time limits for public authorities? You will both be aware of the 18-hour limit that exists when it comes to public authorities in terms of a cost-that is 18 hours before any charge can be imposed. We have had conflicting evidence from some of the bodies saying that it is a little unfair because the 18 hours does not include work done on deciding whether the information should be released or redacted, but we have had other evidence from freedom of information campaigners saying that there is a problem here because far too often public authorities say, "This will exceed the cost limit. You will have to pay because it will take longer than 18 hours." Requests for FOI are being refused on that basis. Could there be a way for those other activities that local authorities talk about to be included within the 18-hour limit? If so, how can we balance out the problem that has been raised of authorities potentially hiding behind that limit as a way of avoiding disclosure?
Lord McNally: I would be interested in, again, where you weigh the balance. There have to be limits, otherwise the burden will be unsustainable. I am not afraid to say that there is a cost to FOI, but the cost of good governance is a cost worth paying. The judgment is whether it is working well at the moment. I have not seen a lot of evidence from local government that it is such a terrible burden. I honestly do not know whether the goalposts can be moved in any way either in timing or in complexity. I thought at one time that the introduction of a charge might be a possibility, partly because, when I was engaged in the pre-legislative scrutiny, the most enthusiastic evidence that we heard in favour of FOI was from the Irish, and the Irish subsequently put a charge on FOI. The Irish, one of the major proponents, needed to put some kind of brake on demand, but there are problems with that.
Q537 Chair: We shall come to charging later. We are on timing at the moment.
Lord McNally: Again, I have not seen any evidence that the time limit is in the wrong place, but I would be interested to hear if you feel it is.
Q538 Mr Buckland: The evidence that we have heard from the public bodies is that they think it is a little unfair, because the 18-hour limit only includes certain activities. What they would regard as the more fundamental tasks that determine the issue or sometimes very complex matters of redaction and editing are not part of the 18-hour limit. Another way round it could be to look at a separate limit for those activities. I would welcome your thoughts and views on that.
Lord McNally: I have heard that argument put-that the 18-hour limit only covers the tip of the iceberg and that a lot of the work is outside that. That is worth examining. Again, it is a matter of balance though. You do not want to give so much slack that requests are kicked into the far distance.
Q539 Mr Buckland: The Campaign for Freedom of Information has identified the problem that, far too often, bodies are citing cost as a reason for refusing requests, saying, "There is an undue cost here. We therefore can’t and won’t comply."
Lord McNally: This is why I am now a signed-up enthusiast for the transparency agenda. You want a mindset that says, "Why not?" instead of, "Why?" If you get a freedom of information request and your first reaction is, "How can I find as many excuses as possible for not answering this for as long a time as possible?", you are approaching it with the wrong mindset. People who have that mindset will misuse whatever leeway you give them. I agree that what has been said to me has validity. There are activities outside the 18-hour limit that perhaps should be included in it if you are going to give bodies a fair opportunity to answer requests in that way.
Mr Maude: Ideally, you want to get into a position where FOI requests become almost redundant, because public authorities have proactively pushed into the public arena so much information and data that it is actually out there; there is not much left that is legitimate FOI territory that the authorities have not already made public.
Q540 Mr Buckland: Again, do you think one of the problems is-again, this is evidenced by the UCL Constitution Unit-that sometimes, with respect to them, junior staff are being used to make decisions, which elongates the time because they do not have the experience and the savoir faire, for want of a better phrase, to come to quick and sensible decisions? Perhaps more guidance could be given by the Government to public bodies, saying, "Treat these applications in a different way. Don’t assign inexperienced staff to them but assign the most senior appropriate member of staff", so that decisions can be made quickly and in the light of a far greater breadth of experience, in order to reach the sort of transparency levels that you have both quite rightly spoken about today.
Mr Maude: I hear that. I think there is an issue, at a time when the state in all its different manifestations is becoming much more open anyway, about proactively publishing at a time of universal financial constraint. With an ever-increasing volume of FOI requests, these issues are not trivial. It is definitely a non-trivial issue.
Lord McNally: Guidance already exists suggesting that, if someone makes a very complex request, the authority can and should guide them in a direction that will get them the information they require without complexity. It is a balance between an attitude of mind and how much you can put into guidance. A lot of how the FOI works is there; if it is properly followed both in terms of the exemptions and the guidance, a lot of the concerns about it do not apply. We are talking about government in the broadest sense and officials can act in a thousand different ways. You spoke about officials of sufficient seniority; well, perhaps, but that would not get rid of all the problems. My view-my look at this-is that, given the waterfront that it covers, the amount of problems in its working have been relatively few.
Q541 Chair: We need to complete our business before the House sits.
Lord McNally: I was just thinking that it was half-past two.
Q542 Chair: Before going to Mr Turner, there is one thing that I want to get clear, which is whether the Government have a view on introducing statutory time limits for consideration of the public interest test and for internal reviews. Do the Government have a view on whether we should introduce statutory time limits for those processes?
Lord McNally: Unless my senior colleague has better information than me, I do not think the Government have a view at the moment.
Q543 Karl Turner: I wonder whether I can examine briefly the issue of cost. I am aware of the clock and that time is against us. There is a cost to being transparent in Government, both financially and politically, but I wish to concentrate on the financial implications. We have heard that there is a big difference in the cost of providing information by local government as opposed to central Government. I wonder what you think the reason for that might be and what lessons we could learn from local government.
Lord McNally: Some of it is simply a factor of size and the nature of the requests that are being made. We always get the problem about how much a parliamentary question costs to answer. I am always a bit dubious about costs because people put very precise costs per inquiry, but it is more difficult to quantify the benefits of freedom of information or transparency.
Let me give you an example within my own bailiwick. We are now publishing much more under the transparency agenda about courts and their performance. I suspect that that will drive up court efficiency in a much better way, with a real saving to the public purse, than any amount of legislation. Being able to see that performance and comparing it will drive up performance. This is where transparency has a cost benefit.
I have no firm evidence as to why local government and central Government costs are different. It may be that the complexities of requests made to central Government and the various hoops that it has to go through are greater. As I said before, one of the things that have been most encouraging is that there has not been an unwillingness of local government to comply. There is no use ducking the fact that FOI does have a cost, but I believe that the cost benefit is well worth the bill that we pay. That does not mean that we should not look at the statistics of both responses and costs per Department. I get the breakdown of that, and I look through it and look at Departments that are underperforming in either direction, but it is a good illustration that if you have the facts you are able to spot where the deviants are.
Mr Maude: I agree with all of that. One should have a question mark in one’s mind on the cost. I periodically get a draft reply to a parliamentary question that says, "Answer only available at disproportionate cost." However, when I look at the question, I say, well, actually I want to know the answer to that as the Minister, so I do not care whether the cost is proportionate; I need to know that. That is information we should have readily available and not at a disproportionate cost. It ought to be automatically available; they should give me the answer in the first place, and then I will give it to Parliament.
There can be quirky disproportionate costs, particularly for smaller public authorities. Quite by chance last Friday at my constituency surgery, the chair and deputy chair of a parish council came to see me. They said, "Francis, we are being driven to distraction because we have a persistent requester"-this is a parish council with a part-time clerk-"and we have a constant flow of requests from the same person. We have no idea who this person is or whether it is even someone who lives in the parish-it may be someone completely extraneous-and it is taking up a huge amount of the capacity that we have to do the business of the council." That raised in my mind a question about how the vexatious or frivolous thing works, particularly for the small authorities for whom it can be a massive burden. It is not just a cost but a complete opportunity cost because it stops them doing a lot of other stuff.
Q544 Karl Turner: Thank you, Secretary of State. That leads me to my next question on the advantages and disadvantages of routine fee charging. Do you think that the strength of the information would be flawed by adding a charge to information requests?
Lord McNally: As I said, I started off with an open mind, partly influenced by the Irish experience. I do not know whether you have looked at why the Irish went to charging, but there are two downsides to it-whether it would then bar people of limited means from accessing FOI or whether the charge that you made was so small that it would cost more to administer than it raised. I do not know.
Again, I hate to say it, but I am looking forward to your report. I would be very interested in what you found on the charging question, through international comparisons, and whether it sorts out the vexatious or the trivial and whether it helps with some of the cost.
Q545 Karl Turner: There seem to be a lot of requests from journalists. Do you think it might be possible to add a levy for the media requests as opposed to those from private individuals? Is that something that we ought to consider?
Mr Maude: It is not unknown for there to be requests from media representatives under FOI for stuff that is already in the public domain.
Q546 Chair: Should the reply not be, "This information is already available in the public domain"?
Mr Maude: Yes, but you have to find that out. It is not a frictionless process. I am like Tom; you can argue it either way and there is a balance to be struck. I would be really interested in knowing what the international experience is. We do not want to use charging as a barrier; none the less, should it be a completely free hit for everyone in all circumstances?
Q547 Mr Llwyd: Do you believe that the vexatious request test is strong enough? Could it be replaced by a test based on the approach taken to vexatious litigants in court, for example?
Mr Maude: This is more Tom’s territory than mine, but the question was in my mind because of my experience with this parish council. The difficulty is that you cannot declare someone to be a vexatious requester; it is the individual request that has to be decided, and my understanding is that there is quite a lot of latitude for an authority to decide that a request is vexatious. The problem is that people can apply under all sorts of different identities. It is quite difficult with the kind of requester-blind requirement for an authority to be able to say- even if the law allowed it, which it does not, I believe, at the moment-"This is a vexatious requester and therefore you are blocked." It is very good territory for the Committee to examine.
Q548 Mr Llwyd: On requester-blindness, should there be a change there?
Mr Maude: Again, you can argue it both ways. I genuinely do not have a strong view either way, and there are advantages either way. I would probably marginally come down towards more openness about who the requester is, but it is not a fixed, firm view.
Q549 Mr Llwyd: I am looking at the clock and presuming, but could I ask one further question, which you may care to write to us about? Are you satisfied that the intellectual property rights of university researchers are sufficiently protected under the Act? You may wish to reflect on that and perhaps write to the Committee.
Mr Maude: I shall happily write, although it is not particularly my territory; it is more Tom’s than mine. Actually there is quite a lively argument on that point. There is an argument that says that university research that has been publicly funded should be available to the public as a free good because we have paid for it with our taxes. So why should it not be available to others to exploit? That would be very damaging, arguably, to the science base particularly in this country, which is incredibly strong and a hugely important national asset. We will certainly provide a written response, but I do not think you will find it is absolutely definitive.
Lord McNally: We are being heavily lobbied. In the House of Lords, I am not short of chancellors of universities suitably briefed by their universities on this. My initial instinct was, of course, that they deserve all the protection and so on, but I want to make sure how much of the stuff that they say is under threat is already protected under the Act. I shall take up your invitation. It is quite legitimate of the universities and other research institutes to want to protect intellectual property, and I very strongly support that, but some of the lobbying that I have received paints a more lurid picture than when I am told what the Act already protects. We shall give you a considered view, but it is certainly an area that should be carefully looked at.
Chair: You may not want to come to a final conclusion, not least because we have not yet reported on it, but it would useful to know what general lines of thinking you are exploring. If you write to us on that basis, we would be very happy to receive that.
I thank you both very much indeed for spending time with us this morning and we shall now get on with all the work that you have given us.