Whose Code is it anyway?

FOIMan tries to find out who is responsible for issuing Codes of Practice and discovers it’s not as simple as he thought.

Cups and a ball

Cup…ball. Ball…cup.

Last year the Government announced a number of changes to how FOI, data protection and records management will be managed within government. At the time a few people muttered about what it showed about government attitudes to information rights, but otherwise there was a collective shrug. We all had other things to worry about with the FOI Commission, demise of Safe Harbor and GDPR on the horizon.

It occurred to me last week though that I didn’t now know who was responsible for issuing FOI Codes of Practice. The government had played a big game of Cups and Balls Tommy Cooper-style and I was no longer sure which of the cups the s.45 and s.46 Codes were sitting under. The FOI Commission recommended a revised s45 Code, but who would now be issuing it?

The government announcement had indicated that the Cabinet Office would be responsible for FOI and for records management, taking over from the Ministry of Justice. Section 45 of the Act requires “the Secretary of State” to issue a Code of Practice on compliance with Part I of the Act. I knew that Matt Hancock was the Minister for the Cabinet Office, but he’s not a “Secretary of State”. A bit of digging on gov.uk established that Oliver Letwin, the Chancellor of the Duchy of Lancaster, is the closest equivalent that the Cabinet Office has.

I thought I had an answer to that question, but what about s.46? That section requires “the Lord Chancellor” to issue a Code of Practice on records management. The Lord Chancellor is Michael Gove, but surely it didn’t make sense for Mr Gove at the Ministry of Justice to be issuing a Code on something that was now Cabinet Office-led?

Thankfully, the Campaign for FOI had followed those metaphorical balls around the table with their usual hawk-like attention to detail. After I made a plea for help on Twitter, the Campaign sent me a link to the Transfer of Functions (Information and Public Records) Order 2015, made in December last year. It confirms that the FOI Act has been amended, and that in particular, responsibility for issuing both Codes of Practice now lies with Oliver Letwin. As the Campaign wryly noted, we had other things on our minds at the time. But isn’t that how the Cups and Balls game always works?

Update

It turns out that the Transfer of Functions Order makes things even less clear than I thought. Thankfully, Malcolm Todd of the National Archives has clarified matters for which I’m grateful. You can read Malcolm’s full response in the comments following this post.

So here’s – hopefully – the definitive statement on who’s responsible for what post-2015. The Chancellor of the Duchy of Lancaster (Oliver Letwin currently) is, as I suggested, responsible for issuing the section 45 Code(s). The Secretary of State for Culture, Media and Sport (John Whittingdale) is responsible for issuing the s.46 Code, but must consult the Chancellor of the Duchy.

Apologies for the confusion, but if you take a look at the Transfer Order, I’m sure you’ll understand the problem. Imagine the fun we’ll have when people refer to “the Chancellor’s Code” in future!

3 comments

  1. David Matthew says:

    Good work, I didn’t know about this and I don’t recall The National Archives mentioning it on the their website.

  2. Malcolm Todd says:

    Paul,
    This is not quite right: the Transfer of Functions Order actually transfers responsibility for the s.46 Code to the Secretary of State for Culture, Media and Sport.
    Click on the “explanatory Memorandum” tab of the http://www.legislation.gov.uk link cFOI sent on, especially the Policy Background in paragraph 7: the actual legal drafting in the Order can be a bit confusing and two offices are variously referred to as “Secretary of State” (Justice and C,M & S) but Mr Letwin’s is not.
    Cabinet Office has inherited responsibility for government records management policy from the Ministry of Justice: an administrative change. The FOI Code under s.46 of course applies to a far wider group of public authorities.
    Regards

  3. Doug Paulley says:

    If it’s anything like issuing of Codes of Practice in other areas of Government, it won’t be by any sensible procedure, if it happens at all.

    Codes of Practice under the Equality Act 2010 are written by the Equality and Human Rights Commission, then the Minister for Women and Equalities implements them in a statutory Order. Except the Minister arbitrarily stopped issuing such Orders five years ago, without any warning, to universal criticism and without stating a reason. As a result, the Codes waiting to be commenced are now only technical advice and don’t have the weight of a statutory Code of Practice. See http://www.publications.parliament.uk/pa/ld201516/ldselect/ldeqact/117/11706.htm#_idTextAnchor067 for the chapter and verse.

    The Cabinet and the Government is largely significantly antipathetic to freedom of information legislation. Oliver Letwin was absent for many key votes on FOI (which probably says something in itself) but is in general in close agreement with the Cabinet and the Government. I should therefore imagine that proponents of this new Code of Practice may experience similar difficulties in getting it implemented.