HC Deb 09 June 2004 vol 422 cc91-9WH

11 am

Mr. Richard Shepherd (Aldridge-Brownhills) (Con)

I am grateful both to have secured this debate and that the Minister is here to respond.

The Freedom of Information Act 2000 was a flagship piece of legislation for the Labour Government, which fulfilled heroic, long-term pledges to institute such legislation. It will come fully into force in January 2005. That long-awaited reform gives the public the essential right to know what Government and public bodies are doing in their name. It aims to strengthen the rights of the individual, to make Government more accountable and responsive, to improve decision making by exposing data to public scrutiny, and to permit public debate on the basis of facts rather than supposition and ignorance. It also invites authorities to demonstrate that they are addressing problems, not covering them up, that they are competent and committed, and that they deserve the public's trust.

For those benefits to come about, the information itself must be accessible and affordable. During the passage of the Act, Members repeatedly highlighted the issue of fees, warning that high charges for information would undermine the right of access. In response, Ministers promised a relatively modest charging regime, under which those requesting information would pay no more than 10 per cent. of the cost of finding the information for which they had asked, plus the full cost of expenses such as copying and postage. Ministers set out those details in draft fees regulations, which were published while the Bill was still before Parliament.

We now read press reports that the Government are said to be considering dropping that approach and substituting an alternative regime that involves substantially higher fees, which, reportedly, might lead to charges that are six or even 10 times greater than those promised. Apparently, the intention is to limit the number of requests made to public authorities, but such charges would do more than that: they would destroy the Act as an effective, affordable means of obtaining information. Businesses and companies might benefit from the Act, but the ordinary citizen would not. Perhaps the Minister will tell us that the press reports are not wholly accurate, but what concerns me—and, I am sure, Members on both sides of the House—is the possibility that the explicit commitment repeatedly made to both Houses of Parliament may be broken. I hope that the Minister will assure us that there is no such possibility.

Let me remind the Chamber of the promises. The Freedom of Information Bill was published in draft form in May 1999 and was subject to pre-legislative scrutiny by the Select Committee on Public Administration, of which I was a member. I see the current Chairman of that Committee, the hon. Member for Cannock Chase (Tony Wright), present in the Chamber. The Home Office, which had responsibility for the Bill, said in written evidence to the Committee: we propose to allow authorities discretion to charge up to 10 per cent. of the marginal costs of providing information and in addition the full cost of disbursements…The costs would relate to locating the information and preparing it for disclosure". When the Bill was debated in Standing Committee, the then Under-Secretary of State for the Home Department, the hon. Member for North Warwickshire (Mr. O'Brien), said: We have decided to apply a charge equivalent to 10 per cent. of marginal costs…Unlike other jurisdictions, we are limiting the application to the marginal cost of locating and finding the information. Later the same morning, he said: The basic regulations will lay down a method for calculating fees; 10 per cent of marginal costs. That afternoon, he said: we have further made it clear that the charge to applicants will not exceed 10 per cent. of those marginal costs." —[Official Report, Standing Committee B, 18 January 2000; c. 87–113.]

Mr. John Greenway (Ryedale) (Con)

I was the Opposition spokesman in that Standing Committee—it is hard to believe that it was only four years ago. It is fair to say that the cost issue went to the heart of our ability to be confident that the Bill would deliver anything to the ordinary citizen. Does my hon. Friend agree that unless access to information comes at a cost that people can afford, the Act will prove to have been a waste of time?

Mr. Shepherd

I am grateful to my hon. Friend. I pay tribute to his commitment to the Bill and to the noteworthy work that he did in Standing Committee. The substance of today's debate is to hold the Government to a pledge that seems to have been given. I hope that they will hold to it.

On Report the then Home Secretary said: The cost of complying with a request is the cost of locating information, plus disbursements, but authorities may charge only up to 10 per cent. of those marginal costs."—[Official Report, 4 April 2000; Vol. 347, c 933.] There is no question but that there was a great deal of reiteration. When the Bill reached the other place, the Government spokesman told peers: The Government have published their draft fees regulations. The policy is that the maximum fee should be 10 per cent of the marginal costs of seeking and finding the information."—[Official Report, House of Lords14 November 2000; Vol. 619, c. 186–7.] The draft fees regulations, which had indeed been published and are still available on the Department for Constitutional Affairs website, state that, apart from disbursements, the maximum fee that may be charged is 10 per cent. of the prescribed costs". The prescribed costs are defined as the costs reasonably incurred in locating and retrieving the requested information, and in providing it in the form requested by the applicant.

If anyone imagines that those charges might leave public authorities exposed to an unmanageable volume of requests, let me highlight the safeguards that the Act provides. First, under section 14(1), if the request is vexatious, the authority is not obliged to respond. Secondly, under section 14(2), if the applicant previously made an identical or substantially similar request to the authority, the authority is excused from replying unless a reasonable interval has elapsed. Thirdly, if the cost to the authority exceeds the limit laid down under section 12, the authority does not have to respond at all. The Government have said that the limit will be set at the level at which a parliamentary question can be refused, which I believe is currently £600. Fourthly, if the applicant divides a request into a series of smaller requests in order to avoid the limit, the cost of the different requests can be aggregated. Regulations to provide for that can be made under section 12. Finally, where different requests are made by different people who appear to be acting tog ether, as part of a campaign, the regulations may permit their requests also to be aggregated and refused if the total cost exceeds £600.

Those are formidable—some would say excessive—safeguards. The House accepted them only because Ministers repeatedly promised that the charge for an individual request could not exceed the 10 per cent. figure. That is why some of us are disturbed that reports that that principle could be abandoned have appeared in the press.

Brian White (Milton Keynes, North-East) (Lab)

Is the hon. Gentleman aware that in Ireland the number of freedom of information requests halved when the fees were increased? Is not that the concern that he is articulating?

Mr. Shepherd

That is the basis of the whole debate, and I am grateful to the hon. Gentleman for pointing that out.

I know that Constitutional Affairs Ministers recognise the importance of the Freedom of Information Act and are genuinely committed to its success. If there is pressure to raise the fees, I am sure that it is coming from elsewhere. I hope that the Minister will recognise, even if those elsewhere do not, how damaging it would be to abandon these commitments, and how damaging it would be to the Act, to the benefits that should flow from it—a point that the hon. Gentleman just made—and to the Government's credibility. I hope that the Minister will be able to assure us that there is no question of that occurring.

11.9 am

Tony Wright (Cannock Chase) (Lab)

It is a great pleasure to follow my friend and parliamentary neighbour, the hon. Member for Aldridge-Brownhills (Mr. Shepherd), as I have often dove on occasions such as this.

Over the years, I have found it sensible not always to believe the things that I read inThe Guardian. Leaks are very naughty things, but they sometimes help us to make necessary interventions in public policy debates. Clearly, this intervention is necessary. We know from the draft document that is circulating that a battle is going on inside the Government. The Minister is one of the good guys. He and his Department want to preserve the spirit—indeed, the letter—of what the House was promised. However, there are bad guys. The hon. Gentleman was too kind to mention the bad guys who live in the Treasury—normally a great institution—who do not want the measure to cost much at all.

Clear, unambiguous, categorical, unequivocal guarantees were given to the House when the Freedom of Information Bill went through Amendments were withdrawn because of those guarantees. We in Parliament take many things on trust—not least Ministers saying, "There's guidance to follow." We assume that the guidance will reflect what Ministers have told the House. When it does not, we are entitled to get very cross.

Will the Minister repeat today the assurances about the cost regime that were given to the House during the passage of the Freedom of Information Bill? I ask that in the spirit of helpfulness, because the answer given today will help him in the discussions that are going on.

11.11 am
Mr. David Heath (Somerton and Frome) (LD)

It is a great pleasure to follow the previous two speakers and to make this an all-party plea to the Minister. This debate sees a reunion of principal players in proceedings of the Freedom of Information Act. The hon. Member for Ryedale (Mr. Greenway) and I were part of the Standing Committee, and the hon. Members for Aldridge-Brownhills (Mr. Shepherd), for Cannock Chase (Tony Wright) and for Milton Keynes, North-East (Brian White) made significant contributions on Report and in the other parliamentary stages.

I shall not repeat what has already been said. Nothing would please me more than to hear the Minister say that there is no substance whatever to the reports that have been published and that there is no possibility of fees being set that will act as a deterrent to the dissemination of information that was the whole purpose of the Act.

The hon. Member for Cannock Chase was absolutely right to say that during the Committee stages of the Freedom of Information Bill, the hon. Member for Ryedale and I, and my then right hon. Friend the Member for Caithness, Sutherland and Easter Ross, now Lord Maclennan, tabled a series of amendments. It was not by accident that the Minister who took the Bill through Committee, the hon. Member for North Warwickshire (Mr. O'Brien), had to repeat his assurances throughout Tuesday 18 January 2000. We had repeatedly questioned him on the point and tabled many amendments. We tabled amendments to provide that where no information was supplied, no payment should be made—"no say, no pay", as I put it at the time. We tabled amendments to provide that where no charges currently apply, the Bill should not have the perverse effect of introducing charges. We tabled amendments to exempt information provided in the public interest and to assert that applicable charges should be reasonable in the circumstances of the inquiry. To all of those, we received the most positive reassurances from the Minister that the Government did not have a fee regime in mind that would deter access to information.

The present debate has two aspects. First, we need to have good public policy. We have a Freedom of Information Act—let us make it do the job for which it was intended, and not act as a deterrent. I hope that the Minister is not only fully apprised of the significance of what is needed, but is entirely in tune with that aspiration. Secondly, we need to have good faith. I believe that we were given assurances in good faith and we as a House are entitled to accept in good faith Ministers' assurances. The Minister can ensure today that in future debates we can believe what we are told from the Dispatch Box and that we can govern in a proper way our debates on matters of vital importance to many of our constituents.

11.14 am
Mr. John Greenway (Ryedale) (Con)

I am most grateful to you, Mr. Deputy Speaker, and to the Minister. I did not clear the possibility of my speaking with my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) because I was not 100 per cent. sure that I could be in the Chamber by 11 o'clock, as I had some other parliamentary business to attend to.

I have two things to say. First, I congratulate my hon. Friend on securing the debate and proving that we can have debates of national importance in Westminster Hall, rather than just raising issues of concern to our own constituents. My hon. Friend has campaigned tirelessly on freedom of information throughout his career in the House and I congratulate him on securing the opportunity to put questions firmly to the Minister.

My second and key point is that all of the proceedings relating to the Freedom of Information Bill, in Standing Committee and on the Floor of the House, were dominated by one concern. Although the Government had made great play of their decision to open up information to the general public, there was a deep-seated suspicion that that would turn out to be not quite so true. I recall a Bird and Fortune interview on "Bremner, Bird and Fortune" in which the "Minister" was persuaded to admit that no extra information would be made available at all.

That is the background to the issue, which is why the cost of obtaining information for members of the public is key to persuading everyone that the Government mean what they say. If the fees are excessive, people will not apply. As my hon. Friend said, there is a panoply of devices available to bodies to avoid vexatious and high-cost inquiries that are made simply for the sake of it. I hope that the Minister will be able to respond positively to the debate, and that we can get on with the job of ensuring that the legislation, on which we all spent a great deal of time, bears fruit and brings the availability of information that we all want.

11.17 am
The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. Christopher Leslie)

I congratulate the hon. Member for Aldridge-Brownhills (Mr. Shepherd) on securing the debate and on managing succinctly to describe his healthy scepticism, as other hon. Members have done, in respect of making sure that we are doing what we said we intended to do.

The Government took many people by surprise in passing the Freedom of Information Act early in our first Parliament. Despite the cynicism about it, we have made good progress in implementing the Act. It is a complex Act, but it is landmark legislation that will significantly change the environment and the character of the relationship between Government and the public. I pay tribute not only to my predecessors in government who were instrumental in forging such significant legislation, but to the champions of freedom of information, many of whom are present in the Chamber today.

I would like to give a little background to the situation. The Freedom of Information Act is being implemented in stages, with full implementation by 1 January 2005. We set out the timetable in 2001 and we have adhered to it. The Act will cover about 100,000 public authorities, inch as central and local government bodies, police authorities, health authorities, education services, and so on. The size of authorities covered varies significantly.

We are always ready to consider options that will help to make the Freedom of Information Act as effective and efficient as possible. Potential policy improvements need to be kept constantly under review. A good deal of work is now being done on many different aspects of the legislation as part of the preparation for its full implementation. For example, since the Act gained Royal Assent in November 2000, we have introduced seven orders giving effect to its various provisions, keeping the list of bodies covered up to date, and adding new bodies to the list. Three annual reports have been published detailing the steps taken towards implementation across the public sector. A model action plan for use by all public authorities that are subject to the Act has been designed to give general guidance on the sort of action that authorities should undertake to prepare for implementation of the Act; it also provides a coherent, structured path to effective readiness for implementation.

Detailed guidance on the Act is being produced. We will publish the first edition in July. We are also supportive of other initiatives, for example the creation of a professional freedom of information qualification, which could be of considerable value to the practitioner community that will develop as a result of the legislation. A separate network is being created to consider and develop the course content for a professional academic qualification. Much good work is being done as the policy environment for the new freedom of information framework comes on stream.

I come to the point that the hon. Member for Aldridge-Brownhills and others asked about—fees and the report inThe Guardian of 18 May, which claimed that the Government are seeking to revise the charging scheme under the Act set out in the draft fees regulations that we published in 2000. As is so often the case, that newspaper report is inaccurate—very inaccurate. Let me set out the facts regarding the proposed charging regime. Sections 9, 12 and 13 of the Act provide for fees to be determined in accordance with regulations made by the Secretary of state. In some cases, it may well be that no fees apply, but in others, there will be a fee to pay. The nature of the fee and how it is calculated will be set out in regulations. A public authority is not obliged to comply with a request for information if the authority estimates that the cost of complying will exceed an appropriate limit. The regulations may also provide that, in some circumstances, the estimated costs of complying with two or more requests could be combined.

The draft fees regulations that were published during the passage of the Bill, proposed allowing a charge of up to 10 per cent. of the prescribed marginal costs of dealing with the re west, plus the full costs of any disbursements—copying, postage and so on. Prescribed costs are defined as any costs reasonably incurred by a public authority in determining whether it holds information of the description specified in the request, in locating and retrieving any such information and in giving effect to any preference expressed by an applicant as to the means of communication of such information. It does not include the cost of staff time incurred in determining whether the public authority is obliged to comply with the request for information. As I mentioned, the regulations also provide an appropriate upper limit—a cost ceiling—beyond which authorities are not obliged to provide the information requested. The draft regulations link that with the disproportionate cost limit for answering parliamentary questions and set the amount at £550, although that would now be £600.

So that the fees regime will be operational by the time that the Act is fully implemented in January 2005, the Government will bring final regulations to Parliament in about October. Those regulations will be subject to the negative procedure.

The story that appeared inThe Guardian emerged from a clear process. An advisory group has been preparing guidance for public authorities on the charging regime. The group comprised representatives from Departments, the police, local government, the Office of the Information Commissioner and independent members of the advisory group on implementation of the Act. They include, for example, Maurice Frankel, the director of the Campaign for Freedom of Information. It is hardly, as portrayed in the article, a secret Government committee. The advisory group's informal remit was to consider how the charging regime will work, to assist in making proposals for amendments to the draft regulations where necessary, and to advise on the drafting of guidance for public authorities on charging. That the group did.

I understand that the group also briefly considered alternative charging arrangements to those outlined in the draft regulations. A range of options were considered and discussed, including charging full marginal cost, charging a fixed fee and charging variable amounts based on an hourly rate. To an extent, that mirrored consideration given to the issue by the Government when preparing the Freedom of Information Bill and considering relevant documents; many of those have been published on my Department's website. The discussion is therefore not new. I understand that the group recognised that there were pros and cons to each of the options and that it did not reach unanimous agreement in favour of any one option. A majority of the group sup ported the option of a variable charging regime based upon an hourly rate.

A paper by the advisory group is being considered by officials who sit on the Whitehall freedom of information practitioners group. The members of that group will take into account the views of the wider public sector for which their Departments have responsibility, and will consult as necessary. The group will advise the Government should it consider changes to the published charging regime to be necessary or desirable.

Mr. Shepherd

Will the Minister give way?

Mr. Leslie

I shall give way before I come to the denouement of my argument.

Mr. Shepherd

I hope that my intervention will help the Minister to reach the denouement. We want to hear an absolute and clear assertion that the Government will stick by the undertakings that they gave on the Floor of the House and in Committee, and that all the discussions elsewhere of other methods will be set aside. The Government should stick by their undertaking.

Mr. Leslie

I understand the direction of travel being taken by the hon. Gentleman and others. I shall come to that point, but I thought it important to set out the context from which the report emerged and to calm some of the concerns raised.

Obviously, the Government are aware of the commitments made during the Bill's passage through the House. We published the draft fees regulations during that time as further evidence of our commitment to the proposed charging regime. We are also aware that any action that we take to introduce different regulations will incur criticism from either those who opposed the legislation, or those who are its guardians. We will therefore need to be convinced that changes to the proposed charging regime offer a better, and not merely a different, option. A fee structure that acted as a significant deterrent to people making use of their rights under the Act would go against the spirit and purpose of the Act.

We intend that the cost of handling information requests is borne substantially by the public sector; that is right and proper, as we are accountable to the public. I cannot give an undertaking that every aspect of the draft fees regulations is set in stone and will not change; it would imprudent to do so. However, the gist of the point is that the costs of freedom of information requests should be borne substantially by the public sector. That is the Government's commitment.

Mr. Shepherd

The commitment given was explicit. The Minister spoke of the commitment given by the Government, but now seems to be trying to wriggle out of it—or at least exploring the possibility of doing so. The purpose of the debate was to establish whether the Government stood by a commitment that was given on more than one occasion. The Minister must answer that point. He is suggesting that there could be an alternative system, but what happened to the commitment to which he referred?

Mr. Leslie

I reiterate what I have said. Yes, it is true that the draft fees regulations referred to 10 per cent. of the prescribed marginal costs; as my noble Friends said in another place, any changes to that approach would have to provide a better state of affairs, not just a different one, to that set out in the regulations. I hope that that gives the hon. Gentleman the degree of assurance that he seeks. We remain firmly committed to ensuring that the public sector bears the substantial burden of the costs on freedom of information requests. It would be wrong of us to not take into account the needs of the public sector and of the public in applying for freedom of information requests and in ensuring that they are easy to obtain. That commitment remains. That is the Government's position.

11.30 am

Sitting suspended until Two o'clock.