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The Freedom of Information Act and MPs’ correspondence

Posted by James Hammerton @ 12:06 am on 23 May, 2007.
Categories British politics, accountability, freedom of information.
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In my previous article on this topic, I noted that proponents of the bill claim the bill is necessary to protect MPs’ communications with, or on behalf of, their constituents from being released. This justification for the bill is set out in some detail in the Public Bill Committee’s consideration of the bill at a meeting on the 7th February 2007.

I shall respond to several points:

  • Regarding the fact the bill exempts both Houses of Parliament from the Freedom of Information Act, David Maclean states:

    If this Bill becomes an Act, it will delete the House of Commons and the House of Lords from the 2000 Act. Theoretically, as my right hon. Friend suggests, that could result in less information relating to Members of Parliament being published. However, I am pleased to tell the Committee that last week I received a letter from Mr. Speaker, because I had asked him whether he had a view on the Bill. On 30 January he wrote:

    Dear David,
    Thank you for your letter of 26 January about your Private Member’s Bill.
    As you will understand, neither I as Chairman, nor Members as Members of the Estimates Committee, have a view about the merits of the Bill. What the Committee does have an interest in, is making sure that the public is duly informed about information relating to Parliament. In that respect, as you know, the House has issued a publication scheme which, I can confirm, the Committee has no intention of withdrawing whatever changes may occur in its formal obligations
    .”

    Mr. Speaker has confirmed that even if the Bill becomes an Act, and even if technically or legally we will not have to publish information, the view of the House of Commons Members Estimate Committee and Mr. Speaker is that we should continue every October to publish the same information on travel, allowances, accommodation and secretarial costs that we have published in the past few years. That is right. I commend that view to the Committee and hope that it will be satisfied that it is the right thing to do.

    This completely misses the point. If the House of Commons and House of Lords are exempt from the Freedom of Information Act, then members of the public will have no right to any of the information these bodies hold. The public will be entirely reliant on Parliament deciding for itself whether to publish information. The Speaker’s assurances here are worthless. There’d be nothing to stop Parliament from changing its mind, and no legal power to force Parliament to release information.

  • Many commentators have claimed that MPs’ correspondence with their constituents is already protected by the Data Protection Act (DPA), and indeed section 40 of the Freedom of Information Act explicitly exempts information whose release would violate the DPA. The committee do try to address this point, e.g. David Maclean states:

    The other main point of principle is the new vexed problem relating to our correspondence. I am sure that colleagues of all parties have become aware of it. In theory, our correspondence is protected. If somebody asks to see copies of letters that we have written to a public authority we can, if we wish, say no. However, some people are now going to the public authority by the back door—albeit legitimately—and asking for copies of files relating to individuals. Theoretically, if that public authority carries out all the procedure in the official advice and guidance issued by the Government—I have circulated copies so that hon. Members can see just how complex it is—and consults the Member of Parliament, who gives a view; and takes legal advice; and comes to the right decision; then it is possible that our confidential correspondence to the public authority will not be published. However, we are not in charge of that and there is no guarantee.(emphasis added)

    Also:

    I take the view that when we write on behalf of constituents or when a constituent comes to us we must be able to look them in the eye and say that in all circumstances, what they tell us will not get out—it is like a relationship with a priest. We will write to an authority with their problem but we guarantee that that information will not be leaked by us or get into the public domain.
    I would not be able to function properly in fighting for my constituents if I could not give them a guarantee that when I write to the tax credit people or the Child Support Agency on their behalf, no one else will see what they have said. Of course we must have the right to do that. Theoretically there are provisions in the current Act which may protect that correspondence, but we are not the final arbiter on that. That decision may be made by someone else who decides that it is safe to release our correspondence. We must have that absolute protection. (emphasis added)

    It seems the problem is not that the existing legislation does not provide protection for such correspondence but that these MPs do not trust other public bodies to apply existing protections correctly, because the guidance to public authorities is complex and the people making the decisions might not realise they’re violating the DPA. Indeed the following exchange between Peter Luff and David Maclean backs this up:

    Peter Luff (Mid-Worcestershire) (Con): Do I understand my hon. Friend to say that he is seeking absolute clarity on this point? I am interested by a letter I received from the Campaign for Freedom of Information by e-mail this morning. It says:

    “If correspondence containing personal data about identifiable constituents have been released then, on the face of it, this information is already exempt under section 40(2).”

    It seems that even there, there is a qualification. Is my hon. Friend seeking to remove that doubt from the provisions?

    David Maclean: Absolutely.

    Now, I happen to agree that MPs’ correspondence with/on behalf of their constituents should be exempt from the Freedom of Information Act. But it seems to me if there is a problem here (and some of the MPs do claim personal knowledge of situations suggesting there might be a problem), it can be solved by issuing clearer/less complex guidance to the public authorities concerned. Failing that, a bill that simply amends the FoIA to state clearly and simply that such information is exempt would certainly remove the element of doubt. However, the bill completely exempts all correspondence between MPs and public bodies and also exempts both Houses of Parliament from the Act altogether. I cannot see any reason why either of these blanket exemptions are necessary for the purpose of making it clear that MPs’ correspondence with or on behalf of constituents is exempt information. Nor can I see any such reason being given throughout the entire meeting.

  • Nick Harvey, a Lib Dem MP, complains about MPs being required to reveal how they spend the one of the allowances they get as MPs:

    I have found myself having to defend Members on the radio against the proposition that the public have the right to know exactly what is spent in each bedroom of their homes if the money is claimed under the additional costs allowance. That is too intrusive and is going too far.

    The additional costs allowance is an allowance paid to MPs who live outside London to cover the cost of staying away from home. This is taxpayers’ money. Therefore it is only right that the public should know how it is being spent, even if this does mean knowing how much of it is spent on fitting out a bedroom for an MP in his London residence. If they don’t like the intrusion this represents, they can spend their salary on it instead and use the allowance for something else. I therefore cannot see any reason to keep how MPs spend their allowances secret.

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