Parliament exempt from own law; regulator powerless to order disclosure

House of Commons issues certificate banning disclosure under the Freedom of Information Act

The House of Commons has refused to release the names and salaries of MPs staff paid from the public purse using a loophole in the Freedom of Information Act.

In a decision notice soon to be published, the Information Commissioner Richard Thomas ruled that disclosing the names of MPs staff did not violate the Data Protection Act, but he was powerless to order disclosure after the Speaker of the House issued a certificate claiming publication was ‘prejudicial to the effective conduct of public affairs.’

The certificate was issued May 2006, almost a year and a half after I filed the original request on 2 January 2005. This is the first time the Speaker has issued a certificate to the Information Commissioner blocking his ability to order disclosure. The House of Commons cannot say definitively if other certificates have been issued to private individuals blocking disclosure under the Act. According to a Commons spokesman, there is a possibility that similar certificates may have been issued to private individuals but they were unsure and ‘checking into it’. It’s frightening to know that censorship like this is happening, but even worse that the Commons does not even record it.

The timing of the certificate is also suspicious. If the information was really prejudicial then why wait until the last minute to issue this certificate? MPs are simply grasping at straws to avoid being accountable to the public who pay their wages.

In most cases the exemption cited (section 36 of the Act) is qualified and officials must prove why secrecy is in the public interest. However, in a remarkable show of hypocrisy, Parliament exempted itself from the requirement it imposes on other public bodies. As such, information held by either the House of Commons or House of Lords is absolutely exempt and the Commissioner can neither order disclosure nor make an assessment of the public interest argument.

For Parliament to exempt itself from the requirements of open government shows a real failing in our Freedom of Information Act. MPs are elected to serve the public and as such they should be at the vanguard of the public’s right to know. Instead, they have shown a love of secrecy that surpasses even the European Parliament.

Initially, the Commons refused the request by claiming it did not hold the information. The Commissioner found that in fact it did. The Commons additionally claimed that publishing the names of staff would be an invasion of staff privacy and would be a breach of their health and safety.

The Commissioner rightly ruled against the use of these exemptions. Publication of the names was not unfair under the Data Protection Act and in any event the names of many staff are already in the public domain (eg. the Register of Interests for MPs’ Secretaries and Research Assistants). The Commissioner also ruled that the House “did not submit any compelling or legitimate grounds for exempting the names of MPs staff for health and safety reasons, or any specific information in relation to a health and safety risk involving a particular individual staff member or group of staff.”

Other jurisdictions publish the names of MPs’ staff as a matter of course. For instance, the European Parliament publishes a list of the names of MEP’s assistants on its website. The European Data Protection Ombudsman suggests that MEP’s assistants do not have a fundamental right to participate anonymously in public activities. In this respect The European Data Protection Ombudsman has commented that:

…any such right would be incompatible with the principle of openness and the right of public access, because to conceal the identities of those participating in public activities would deprive the citizen of the possibility to understand and monitor those activities effectively.

Notes:

1 The Commissioner’s Decision Notice is case reference FS50073128: Heather Brooke vs House of Commons
2 The section 36 exemption (prejudicial to the effective conduct of public affairs) caused an outcry when it was added during passage of the Act. Lord Mackay described its purpose thus: “Obviously the draftsmen decided, just in case something escaped and there is one last fish in the sea, let us get it with a grenade; and this is the grenade.’ [HL 3R, 24 Oct. 2000, col 3111).

3 Responses to “Parliament exempt from own law; regulator powerless to order disclosure”

  1. heather says:

    As an addendum: Mike Granatt from the Speaker’s Office has been in touch to say that they have found a record of the certificates.

    Four certificates (including the one sent to the Commissioner) have been issued. The other three were issued to individuals requesting information under the Freedom of Information Act. Two were issued under s.36 (prejudicial to the effective conduct of public affairs), including my case, and two more under s.34 (parliamentary privilege. So far, my case is the first instance where a certificate was issued to the Commissioner to block disclosure.

  2. Marcus Turle says:

    Heather

    I haven’t read this decision notice (it’s not up on the ICO website yet) but, as a lawyer specialising in freedom of information, I’m interested in the comment that the Commissioner is “powerless to order disclosure” in the face of a s.36 certificate. I have had cause to think about this in another context and it is indeed striking that while s.60 of FOIA gives a right of appeal against certificates issued under ss.23 and 24 (both relating to security matters), there seems to be no equivalent for s.36. I am not convinced, however, that precludes a challenge and I am very surprised if, as your article suggests, the Commissioner has taken this view.

    Marcus Turle
    Partner, Field Fisher Waterhouse

  3. Nick Evans says:

    The fact that s.36(2) imports a reasonableness test (the certificate can only be given if it’s the Speaker’s reasonable opinion that the information release will be prejudicial) does imply that a review must be possible of whether the Speaker was reasonable to hold that opinion. The Information Tribunal might well feel that it’s outside their jurisdiction, but it would probably be open to the IC, or indeed Heather, to seek a judicial review of the decision to give the certificate.

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