Freedom of Information (Additional Public Authorities) Order 2008

rose to move, That an humble Address be presented to Her Majesty praying that the order, laid before the House on 8 May, be annulled (SI 2008/1271). The noble Lord said: My Lords, it may seem rather curious for a Liberal Democrat who has campaigned for freedom of information over many years to have tabled a Prayer that would annul additions to the Freedom of Information Act. I hope to explain to your Lordships’ House why I feel that this is a good opportunity to look at these additions, not to oppose them—bring them on—but to highlight the panoply of organisations providing a public service that are not in the order. To that extent, it is an inadequate order, updating what I fear is becoming a rather inadequate Act. Let us first think about the value and categorisation that we apply to different public services. There are great institutions on which elections are fought and lost and on which our country relies to keep going, such as schools, hospitals and public transport. Perhaps Members of your Lordships’ House will be surprised to learn that in all three of those key areas there are companies and organisations that provide just such a public function whose actions, priorities, successes and failures still hide behind a cloak of secrecy. There are some examples, such as the new academy schools, the Government’s big wheeze in education; the contractors who keep our hospitals clean or who carry out operations when the NHS cannot offer a quick service; the train operating companies, many of which effectively operate monopoly services and, of course, Network Rail. All those are outwith the terms of the Act. There is a further area of concern, which is another issue that turns elections; our crime-fighting agencies. Whole chunks of the justice system remain enclaves of secrecy in a nascent culture of transparency. The operation of the court escort service, private prisons, immigration detention centres and even the Serious and Organised Crime Agency are outside the remit of the Act. It may seem curious to your Lordships’ House that included in the Act are such organisations as the Potato Council. I defy the Minister to explain why potatoes have to be more transparent than prisons; I find that really quite extraordinary. Members of your Lordships’ House will also recall the curious anomaly that we encountered over the public accountability of Northern Rock when it was nationalised. The Government made strenuous efforts to exclude the bank from freedom of information legislation, even though it is wholly owned by the Treasury and therefore by the nation of taxpayers. As the order and the Explanatory Memorandum make all too clear, freedom of information legislation follows form, not function. Our right to know is predicated not on what somebody or something is doing, but on who is doing it. That is totally illogical. I take another example. A key government contractor such as Capita carries out public functions in relation to the Criminal Records Bureau, the Driving Standards Agency, the teachers’ pensions agency, television licensing, BBC information lines and—infamously, in the context of the previous debate—congestion charging on behalf of Transport for London. All are subject to no more scrutiny than if that company were running a grocery store. These companies handle public money in pursuit of public functions. Indeed, Capita handles millions of pounds of taxpayers’ money every year, yet it has complete secrecy. I hope the Minister will be able to indicate whether the Government are now minded to bring such contractors within the purview of the Act. If they are so minded, how far have they got in deciding between the options that were enumerated in the Ministry of Justice consultation exercise that closed at the beginning of February? For example, have the Government now ruled out the quite extraordinary prospect, suggested in Option 3 of the consultation, of simply securing contractual obligations in each case? There are surely serious questions about whether such obligations could even be investigated by the Information Commissioner. It sounds like the worst of all worlds: complexity for that contractor, which would not know where it stood, and great opacity for the public. What of the choice between Options 4 and 5 in the consultation process? Surely a single Section 5 order could never future-proof the Act, since the trend in public policy is to contract out provision of ever more services. I suspect that when the freedom of information legislation went through this House and the other place, we did not anticipate such an extension of privatisation of services as has occurred under this Government. It was really quite unexpected. Had it been a different sort of Government, perhaps it would have been easier to anticipate this need. The Minister may not be able, this afternoon, to commit the Government to one outcome from the options put forward in the consultation, but I hope he will be able to indicate the direction in which they are heading and, crucially, that he will be able to tell noble Lords when the Ministry expects to publish its response to the consultation. After all, this has now been closed for more than four months. The main locus of the debate on extending freedom of information is, understandably and rightly, on contractors providing public services. I hope the Minister may also be able to consider private companies which provide essential services to the public, sometimes in a monopoly situation. I take, as an example, the water industry. In Cornwall, my part of the world, people feel the pinch of their water bills more acutely than pretty much any of their other essential outgoings, except perhaps council tax. Indeed, any Member of your Lordships’ House from the south-west—and there are too few of us—knows that we pay the highest water bills in the country. Whether one’s bills are the highest or the lowest, the local water company takes such decisions as whether to renew ageing pipe work, introduce hosepipe bans or, crucially, change how water is treated and cleaned. These are important issues about vital public services provided, practically, on a monopoly basis. All remain completely opaque, outwith the Freedom of Information Act. While electricity and gas companies are subject to some competition, there is no option to switch away from your water company if you are dissatisfied with the public service it provides. There should surely be a general principle that, if the public relies on a service and has no option to go elsewhere to obtain it, the administration of that service should be subject to full public scrutiny. I believe in giving credit where credit is due, so there is some good news for the Government. The Freedom of Information Act has proved popular with the public. It has shone a spotlight of public scrutiny on many public bodies, and many a media story has been written as a result. That is good for democracy, even if it is a scandal that some MPs have been so reluctant to embrace the freedom of information culture themselves. Their sensitivities notwithstanding, the Information Commissioner's office found at the beginning of this year that some 80 per cent of the public felt that being able to access information held by public authorities promotes accountability and transparency. Not many government policies get 80 per cent support, so FOI has been a success, and all who campaigned for it, inside and outside Government—and we should give particular credit to Maurice Frankel and the Campaign for Freedom of Information—have every right to be proud of its achievement. However, I hope the Minister will agree that we should not be complacent. Ministers must surely move swiftly now to close the loopholes and to make the system still more accessible to the public. After all, the third annual report on the operation of the FOI Act, which, by remarkable and delightful coincidence, came out yesterday, makes it clear that a third of requests are partially or wholly withheld. In the light of those figures, is the Minister convinced that the departmental default position, which appears to be not disclosure, should always be to try to disclose unless there are overriding issues to be faced? Since the number of requests fully withheld has increased steadily, if slightly, in each year since the Act was implemented, departments must be careful not to pull up the information drawbridge any further. I am thankful that the Government have consigned to the dustbin the absurd proposals we saw last year to limit FOI requests by increasing the cost of making a request. I hope the Minister will agree that this is a good opportunity to build on that constructive approach by committing unequivocally this afternoon to include, for example, the Serious Organised Crime Agency, within the provision of the Act. There cannot be any logic to its exclusion since the police and even Special Branch are already covered. Similarly, unless the Minister can think of an adequate defence for leaving academy schools outside the terms of the Act, it is surely reasonable that he should be asked to tell your Lordships' House when they will be subject to proper scrutiny. More broadly, I wonder whether the Minister would like to touch on why the public interest test here in England is weaker than that north of the border in Scotland. Why do the Scots have a privilege that we are denied. Will the Minister consider bringing the Act into line with its Scottish counterpart? Perhaps the Minister can also take this opportunity to clarify whether the very successful present Information Commissioner is eligible for reappointment next year, when his appointment comes up for review. If he is not, why not? We know that the present commissioner's office is drastically overstretched—of course, if the Government were more open at the outset, fewer appeals would need to reach his desk. The Minister should be concerned that of the 222 appeals last year, 186—more than four in every five—were in relation to his colleagues in other departments of state. Members of the public can wait months for their cases to be dealt with. Indeed, parliamentarians, as I know to my cost, can wait months when they put in a request on behalf of their constituents or their labours, and there is a real risk that those delays could put the hard-won public confidence in serious jeopardy. It is clearly important that the commissioner's office is properly resourced, and it is surely time to make the commissioner accountable not to Ministers, but to Parliament. I hope the Minister can touch on whether it would be appropriate to take the model of the Comptroller and Auditor-General for that purpose. Most crucially of all, I hope he will accept that it is important that the commissioner should be allowed to investigate not just bodies owned by the public through their Government but any organisation that provides a public service. If it is a public service, there is demonstrably a public interest in transparency. That is clearly a challenge to this Government and to any possible future Government. I hope that the noble Lord who will speak from the Conservative Front Bench will be able to commit his party to maintaining, not diluting, the freedom of information legislation. I look forward to hearing the Minister’s response. We have come a long way along the freedom of information road. As public confidence in politics and political institutions has tended to wane, this is clearly no moment to stall on that movement or to turn back. We must surely press on and prove that none of our public services has anything to hide. I beg to move. Moved, That an humble Address be presented to Her Majesty praying that the order, laid before the House on 8 May, be annulled (SI 2008/1271).—(Lord Tyler.)