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How MPs could have avoided FOI

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Martin Rosenbaum | 12:20 UK time, Monday, 11 May 2009

Can MPs manage to put their embarrassing receipts for expenses claims beyond the reach of the Freedom of Information Act in future?

It's been reported that some of them hope to do this by creating a new independent unit to handle expenses claims, which would then be handed over to the private sector. It's claimed that receipts processed by a private company would not be available to the public under FOI.

Big BenI'm far from convinced this would work. Under the FOI Act, information is covered if "it is held by another person on behalf of the authority". (That's in section 3(2) of the Act).

There may be room for argument over what "on behalf" means, but the Information Commissioner has already ruled in at least one case that data held by private companies is held on behalf of a public authority and in principle subject to FOI.

These of course are simply the legal considerations - the political considerations also may make any attempt by MPs to evade the FOI searchlight somewhat difficult given the further bad publicity that would result.

Ironically things could have turned out very differently if it had not been for decisions taken by the government when the Freedom of Information Act was being drafted several years ago.

The government's first FOI plans were laid out in its White Paper "Your Right to Know" published in 1998. Many freedom of information campaigners regard this as the high point of the government's commitment to FOI, yet this stated (paragraph 2.3):

"A very few public bodies, because of the nature of their role, will be completely excluded from the Act. Parliament, whose deliberations are already open and on the public record, will be excluded."

Many of the far-reaching openness proposals in this document were then weakened by uneasy ministers, but in a few respects they decided to go further. And Parliament was one.

By the time a draft Bill was issued in 1999, the consultation document with it said (paragraph 28):

"We are discussing with Parliamentary authorities whether it is possible to bring Parliament and organisations directly accountable to Parliament within the scope of the Bill, without breaching Parliamentary Privilege. Discussions are continuing on this point and if it is practical to bring Parliament within the scope of the Bill, we shall do so."

And by the time the Act itself was introduced, Parliament was covered by FOI.

Back in 1999 it might have been much easier for MPs to have kept the workings of the House of Commons outside the reach of freedom of information, if they had insisted on it then. Ten years later it will be an awful lot harder.

So what made ministers change their minds back in 1998 on whether Parliament should come under FOI?

One important factor was the report of the House of Commons Public Administration Select Committee, which argued (paragraph 37):

"There are many administrative functions carried out within Parliament which, it seems to us, do not need to be protected, any more than do those of the police. The justification for the exclusion of Parliament has not been made out. The exclusion may well convey the wrong impression to the general public, given the purpose of this legislation."

Who were the MPs on this committee who helped bring the Commons within the FOI Act? Ronnie Campbell, Mike Hancock, Helen Jones, Fraser Kemp, David Ruffley, Richard Shepherd and Andrew Tyrie, who are still in the House; and Peter Bradley, Lynda Clark, Melanie Johnson and Rhodri Morgan (the chair of the committee), who are no longer in the House.

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