This week marks thirteen years since the full provisions of the Freedom of Information Act 2000 came into force on 1 January 2005. In a new blog, based on his paper at our Legislatures in Uncertain Times conference, Tom Caygill (Newcastle University) examines the post-legislative scrutiny of the Act, carried out by the House of Commons Justice Select Committee in 2012.
“Freedom of Information. Three harmless words. I look at those words as I write them, and feel like shaking my head till it drops off my shoulders. You idiot. You naive, foolish, irresponsible nincompoop.” – Excerpt from Tony Blair’s ‘The Journey’ on his role in introducing the Freedom of Information Act 2000.
Post-legislative scrutiny is one of the core tasks of departmental select committees in the House of Commons and in the last decade a more systematic approach has developed. Since 2008 government departments have been required to publish memoranda, assessing whether Acts of Parliament have met their key objectives, within three to five years of the act entering the statute books. These memoranda are then presented to departmental select committees which then determine whether additional scrutiny is necessary. However there is still a lot we do not know about how committees are undertaking such scrutiny. In particular, we do not know why they are selecting the Acts they are and why they are developing the recommendations they are. This blog post aims to provide some of those answers, in relation to the House of Commons Justice Committee’s inquiry into the Freedom of Information Act 2000. The analysis for this blog post is derived from a series of interviews with those involved with the inquiry.
The Freedom of Information Act was passed in 2000 but was not enforced until 2005 (Hazell & Worthy, 2010). The Ministry of Justice published its post-legislative assessment in December 2011 and presented it to the Committee (Everett and Kelly, 2013). The call for evidence for this inquiry was focused, as the Committee knew what issues they needed to address because the government was keen on changing the Act and had made its desire clear before the inquiry (this isn’t always the case with post-legislative inquiries). The Act had also come under some criticism from Sir Jeremy Haywood, the Cabinet Secretary and then Prime Minister David Cameron.
Inquiry selection and the Government’s memorandum
The Freedom of Information Act 2000 was selected for review three reasons, firstly because the Committee had received the Ministry of Justice’s memorandum (they can act as a useful trigger for inquiries); secondly it was a salient issue at the time as the Government was proposing to make changes to the Act (an unusual level of saliency for post-legislative scrutiny); and thirdly the Committee had taken an earlier interest in the Act in terms of whether departments were ready to implement it. With the Government attention and criticism being paid to it, the Committee felt that it was something that they very much had to look at given that they had received a post-legislative memorandum.
It was noted that the memorandum was moderately helpful in terms of presenting the Government’s thinking on the Act, however it didn’t provide a foundation for, or back up what the Government wanted to do and therefore wasn’t convincing in its arguments. This provides some reason to treat such memoranda with scepticism. An additional reason to treat the memo with scepticism was that it was clear that the Government actively wanted to make changes to the Act (which is unusual). A cynic might argue that the Government was trying to use the post-legislative scrutiny process as cover for making changes to the Act.
Despite the issues with the memorandum, the Committee’s Chair noted that normally memoranda are very helpful because the process is fairly systematic, they bring together information and they usually provide some structure to organise the Committee’s inquiry. So memoranda are useful, even if it is just revealing the Government’s thinking on an issue and requiring it to be reflective.
Evidence and Recommendations
Overall, the Committee heard from thirty seven witnesses across seven oral evidence sessions and received 140 pieces of written evidence (Justice Committee, 2012). They took evidence from users of the Freedom of Information system; from those who respond to Freedom of Information requests; from people who had concerns; and from people who felt it was working perfectly. While the Committee received evidence of problems with the Act, they were also getting evidence that suggested the problems were manageable and proportionate to the value of the right in itself. The Chair noted that from the evidence received, the Committee concluded that some of the changes the Government proposed wouldn’t achieve the desired improvements. Secondly the Committee concluded that the Act already contained adequate means of dealing with frivolous and vexatious requests. Although the Government had expressed concerns about such requests, it couldn’t produce any data of widespread unexpected costs or paralysing processes.
The Committee therefore focused its recommendations upon the provisions within the Act that had received the most criticism, as well as practical solutions to deal with the challenges posed by technical changes (Justice Committee, 2012). In this particular example the Committee were aware that because successive governments have not been very keen on FOI, if they suggested changes (for example a fee charging system as used in Ireland) they would probably be taken up. The Government’s anticipated response was therefore taken into account. This meant that from the Committee’s perspective the Government was on test and had to set out a convincing case to alter the legislation. The Committee produced a report which, for the most, part called for no major changes to be made to the Act.
Response, follow up and overall impact
The Government’s response to the Committee’s report wasn’t particularly effusive. The government backed off from making changes to the legislation, and the Committee didn’t do any official systematic follow up to the inquiry. While the option of further follow-up remained available to the Committee if it wanted to, the Chair at the time stated that it wasn’t necessary at that stage because the Government did back off from amending the legislation. There is a more general problem with the lack of follow up to committee reports but this is not just confined to post-legislative scrutiny.
The setting up of a Freedom of Information Commission in July 2015 meant any possible longer term follow-up by the Committee was put on hold. The Chair noted that as far as they were concerned it looked just like a diversionary tactic by the Government. In the end, the Commission concluded that the Act was “working well” to the surprise of many.
The Committee’s inquiry was deemed to be successful because no changes were made to the Act following the inquiry and it was seen as an important piece of scrutiny which provided a factual basis to oppose substantial changes to the Act. Although it is more challenging to locate the Committee’s overall impact in relation to the final backing off of the Cameron Government, the Committee’s report will have had some impact at least, in the Government trying another avenue (through the FOI Commission) to seek changes.
Conclusion
This post has aimed to give an insight into the process of post-legislative scrutiny, although in the context of just one of my five case studies from my doctoral research. Overall this was an inquiry that was slightly different than other post-legislative inquiries, on the basis that the issue was high profile and there was a clear understanding of what the Committee needed to address from the outset. The memorandum provided a bases to begin the inquiry and also acted as a trigger to some extent, despite the scepticism with which it was treated. In terms of its report and recommendations, the Committee essentially gave the Freedom of Information Act a clean bill of health, and focused its recommendations on ensuring the Act was not amended or weakened. There was clearly a lack of follow-up by the Committee, but to some extent this was understandable with the Government backing off and the appointment of the Freedom of Information Commission. However, this of course is just one example of how parliamentary committees undertake post-legislative scrutiny.
Notes
Tom Caygill is an ESRC-funded PhD student in the School of Geography, Politics and Sociology at Newcastle University. His main interests are the scrutiny of government, the legislative process and parliamentary reform. He tweets @thomascaygill.
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