(12 years, 11 months ago)
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Baroness O'Neill of Bengarve
My Lords, I want to speak to Amendments 147A, 147B, 148A, 148C and 148D. I will also comment, but much more briefly, on the more comprehensive Amendment 151, in the names of the noble Baronesses, Lady Brinton, Lady Warwick and Lady Benjamin, which I support, and I will comment very briefly on one of the amendments in the name of the noble Lord, Lord Lucas. Before doing so, I would like very much to thank the Minister and the Bill team for their exemplary courtesy and helpfulness in explicating their thinking on Clause 100—not, I think, the simplest clause of the Bill. If we have not reached agreement, it is not for lack of effort on their part.
Secondly, I would like to make it entirely clear that I am in favour of making scientific data more open. Science needs openness for its own purposes; it needs to have open data so that it is possible for others to check and challenge, and openness allows data to be put to unanticipated uses. Therefore, I am in much sympathy with the overall purpose of this part of the Bill. Of course, it used to be feasible—and it was standard practice—to publish data within articles in scientific journals. That is no longer feasible because of the size and complexity of many scientific data sets, so openness now has to be sought in other ways.
However, I believe that the Bill is based on too confident a view of the effectiveness and adequacy of the system of exemptions established in the Freedom of Information Act 2000 and of their capacity to avoid undesirable and unintended effects—particularly in this area, which is essentially that of scientific databases. Clause 100 proposes a seemingly minor, but in fact very substantial, change in the application of the freedom of information requirements to the release of data sets by public authorities. I will not at this stage say anything further about the use of the term “public authority”, as I think that we all understand that this means a publicly funded authority, which may, however, be a research institution or university that also has charitable status.
On the surface, Clause 100 simply requires the release of data sets in reusable electronic form, but I believe that in practice its demands will create a number of risks and problems. Let me therefore begin with Amendment 147A. The present drafting of the clause is, I believe, ambiguous, in that it requires data to be released upon request if the data are, or form part of, a data set held by a public authority. Amendment 147A seeks to restrict that requirement to “completed” parts of a data set held by a public authority. While it is reasonable to require that completed parts of still incomplete data sets be disclosed if requested—for example, the data pertaining to a past year in a continuously updated series—there is no benefit to anybody in disclosing an incomplete part of a data set. Indeed, requiring disclosure of incomplete parts of data sets could be misleading as well as damaging to research projects and to those provided with the incomplete, and perhaps misleading, data.
The clause would currently require disclosure of data sets while data were still being entered and had not yet been checked. At that stage, the incomplete part of the data set might be misleading. To take the example of a multi-centre clinical trial, requests for disclosure of incomplete parts of the data set could lead to the release of data that related only to a distinctive subset of patients whose data happened to become available at an earlier stage than those of other subsets of patients whose results might differ—that is, after all, the reason why the structure of clinical trials is quite elaborate. Such misleading releases might, I fear, falsely raise or dash the hopes of patients suffering from a serious condition, who would read the incomplete data set released as indicating that they had grounds for hope or despair.
I think that this issue arises because the drafting actually conflates two very different types of incompleteness in data sets. A data set may be incomplete because it relates to an ongoing project. In this case, completed parts of that data set relating, for example, to completed periods or phases in the project may indeed be available and could be released upon request.
In the second case, a data set or parts of a data set may be incomplete because the data are not yet fully available for entry, have not yet been entered or have not yet been checked. It could be highly misleading to require disclosure in the second case. Amendment 147A seeks to limit such requirements to disclose to the completed parts of data sets, where the danger of misleading is less.
Secondly, Amendment 147B requires that access is provided on request to data sets in reusable electronic form. Again, I stress that this is in principle an admirable thought. Where a data set is, for example, a relatively simple spreadsheet, this requirement would create no more difficulty for research databases than it does for government data sets. However, some scientific data sets are of orders of magnitude larger and do not use standard software; even if it is feasible, it may be extremely costly to render them usable by others or, indeed, reusable even by others with technical skills. We have to remember that those of whom data are requested will not know the skills of those who request them. In such cases it may be necessary to provide metadata or to process data further in order to make access to them more feasible even for competent others. It is more usual to make research data available by archiving data sets or by setting out a publication or so called data sharing scheme that will provide access for others and also secure the crucial benefits of professional data curation and data security.
Amendment 148B will permit holders of research data to undertake to provide those data using these normal and reliable routes. At present, the Freedom of Information Act grants an exemption once data sets have already been placed in the public domain in this way, such as in a data archive or through a data sharing scheme. This amendment seeks to postpone access where such archiving is not merely foreseen but is something that data holders have undertaken to provide. In effect, it would create a temporary exemption for the data concerned. The Minister might see this as an opening for procrastination. However, if he is sympathetic to the realities of the problem, he might perhaps wish to consider at least a version of the amendment that offers a limited time for this exemption—for example, six months after the completion of the relevant research project or phase of the research project. It is a question of trading off quality for instant gratification, I suppose.
Amendment 148A concerns the charging of fees. It seeks to address the real financial implications of seeking to make large and complex data sets available for reuse. The Bill provides for the charging of fees but does not allow public authorities to take account of the real costs of making data available to others. These costs may include not only additional checking and making metadata available but above all—and this is the main concern in the scientific community—the diversion of highly skilled and specialised time from research projects to the satisfaction of freedom of information requests. I have drafted the amendment to make it clear that it is the real costs of disclosure that matter. As noble Lords will have noted from the very helpful briefing provided for this section of the Bill by Universities UK, these costs can be very significant. It would not be reasonable, in my view, to require research projects or universities to bear these costs, which they cannot in principle have known about when seeking and obtaining the funding to do the research.
The last two amendments to which I shall speak very briefly are Amendments 148C and 148E, which are relatively uncontroversial. At present, the Bill restricts the operations that may be performed on data sets prior to required disclosure to calculation. That is just unrealistic. Those who compile data sets also need to check the data, which will be done using a variety of methods, and take steps to ensure data integrity and security, particularly at the point at which data are to be disclosed on request. Amendment 148C provides for this; Amendment 148E is consequential on Amendment 148C.
On Amendment 148, tabled by the noble Lord, Lord Lucas, from what I have already said and what the UUK briefing—now supported by the Academy of Medical Sciences, the Wellcome Trust and other scientific and medical bodies—has documented, the complexity of scientific databases rules out a solution along these lines. It would be very nice if it were feasible, but I believe that it is not feasible.
Amendment 151, tabled by the noble Baronesses, Lady Brinton, Lady Benjamin and Lady Warwick, is a substantial amendment. It takes the more radical step of seeking to define an additional exemption to freedom of information requirements and in the process achieves a number of the specific objectives that I have tried to achieve by more economical means in the amendments that I have tabled. However, their approach has one great advantage, which I believe—although I have racked my brains on this one—cannot be achieved by the more modest approach that I have taken. It recognises the risks to UK science and business and to the personal safety of researchers in certain fields—for example, involving work with animals—and to research subjects that will be created by Clause 100 if it is not amended. We are simply being naive if we imagine that we can rely on all those who request data respecting the intellectual property of those whose efforts produce data sets. We no longer live in a world where that is true, and we can all imagine many scenarios in which data disclosure is sought on behalf of others who work in jurisdictions where intellectual property is widely disrespected, with the aim of getting a free ride on the basis of work done by others without the payment of any fees. In those jurisdictions, legal remedies are not effective. I look forward to hearing a great deal more about Amendment 151. I beg to move.
Lord Lucas
My Lords, I have a clutch of amendments in this group. I will not at this moment comment on those proposed by the noble Baroness, Lady O’Neill, although I am looking forward to listening to others’ contributions on that subject. But it is very important that when a group of scientists ask us as a Government or community to take action based on results that they have published, the data underlying those results must be open to scrutiny. I understand that that has a difficult interaction with the questions raised by the noble Baroness, but I look forward to others’ contribution on how to solve that.
The first amendment that I have in the group is Amendment 148. I should declare that I am an extensive user of freedom of information legislation, particularly as regards universities, which I have found unutterably tiresome and difficult to deal with. One of their more tiresome habits is to refuse to provide information in anything other than PDF format. They get it in Excel, or whatever form, and translate it into PDF to provide it to me, merely to cause me extra work. I have to buy a program to suck it out of the PDF again. PDF is not a transmissible format, as it were, and they are merely trying to make life difficult by putting it in that format. So I would like to be sure that when data are provided they are provided in a properly reusable format. I have never come across a data set that cannot be reduced to tabbed, delimited text. Maybe that happens in a collection of tables, but data are essentially a simple thing. Although the data may be held in an immensely complex form in the program that the scientists are using, in any program that I have come across it should be easy—if only for the purposes of sharing with other people—to drop out at least the base data into relatively simple form.
Baroness Warwick of Undercliffe
My Lords, I rise to support the amendments tabled in the name of the noble Baroness, Lady O’Neill. There is some confusion outside this House about the definitions of “dataset” and “re-use” in this Bill. Although the provisions in Clause 100 do not actually change any of the obligations under FOI, other than so far as they relate to the format of the information provided, this clause has stimulated some debate about what it is that might need to be provided, as the Bill says, in a form which is, “capable of re-use”. In particular, there is a question about whether we are talking about raw data, which, as the noble Baroness, Lady O’Neill, has argued, may be pretty meaningless in themselves, or the associated metadata—information which would allow someone to interpret the data. This might include the information identifying the individual records to which the data relate, or, say, the geographic location of a sample. In some cases this might be relatively straightforward. Indeed, I think that the Bill envisages data sets as something relatively contained and manageable—say, an Excel spreadsheet.
In the context of university research, however, data sets might be very much more complicated. Universities UK has given a very helpful example. The European Bioinformatics Institute’s 1,000 genomes data set comprises approximately 200 terabytes of data equivalent to the capacity of 3,200 iPods or 40,000 DVDs. The metadata are stored separately from the data themselves and accessing the data requires specialist software. As it happens, this data set is already in the public domain, which brings me to my next point.
There is already a move towards making data more widely available. This is a requirement of several major funders—the Wellcome Trust and research councils, for example. I believe that we should encourage this as the best way to ensure that access to data can be provided in such a way as to increase the transparency of research. We know that there is already important work under way on this issue, not least the work by the Royal Society to which the noble Baroness, Lady O’Neill, has referred. In addition, the Government’s recently published Innovation and Research Strategy included a commitment to look at the potential to increase access to data assets, including through providing funding for the world’s first open data institute. The Government will publish an open data White Paper this spring. This will be informed by the work of a group chaired by Dame Janet Finch on improving access to research publications, which will also report shortly.
In addition, the research councils are setting up a UK gateway to research, which will allow ready access to research council funding, research information and related data. For this reason I particularly support Amendment 147B in the name of the noble Baroness, Lady O’Neill, which states that public authorities should,
“provide … or undertake to provide”
access to their data, which I take to mean that an adequate data-sharing plan should be sufficient to satisfy their obligations under the Act.
Will the Minister in his response comment on some specific questions? If the research team uses specialist software to organise their data, is there an expectation that it should have to alter the format to make it accessible to a non-specialist user? Would the cost of making data available in an alternative format be chargeable under FOIA? Does the Act require researchers to provide metadata to aid interpretation of the data set? Would the costs of providing metadata be chargeable under FOIA? If the Minister is unable to concede to an amendment exempting research information at the pre-publication stage, could he reassure the research community that robust data-sharing plans will be favourably considered by the ICO as evidence of intention to publish, and thus consistent with the appropriate use of the existing Section 22 exemption?
Lord May of Oxford
My Lords, I support the set of amendments tabled by the noble Baroness, Lady O'Neill, and Amendment 148B, which the noble Lord, Lord Lucas, has put down. I begin slightly narcissistically by saying that I think I have form in relation to openness. As Chief Scientific Adviser, I put in place the protocols for science advice on policy-making, which have gone through rounds of revision, saying “No more closed rooms. Everything open. We want to see it published”. I have been associated, and still am, with two of the three major journals in science—the Proceedings of the National Academy of Sciences of the US and Science—in both cases promoting more open access within the framework of profit-making journals. More generally at the Royal Society, when I was its president I made our journals much more available, particularly to people in countries that could not afford to pay for them.
I am all for making things available but, at the same time, I shall mention something which is perhaps tactless—if not even politically incorrect—which is that the Freedom of Information Act has, as many of your Lordships will know, been used as a weapon of harassment in some circumstances. The climate change community in general, and the community at the University of East Anglia in particular, have not only been subject to criminal invasion of their databases, carefully timed for particular events, but are continually bombarded with very elaborate requests for information that go well beyond the sharing of basic data, so we have to be careful in how we draft this.
That brings me to two specific elements of the amendments suggested by the noble Baroness, Lady O'Neill. On the suggestion that data should be provided in a format which the user requires, while I am sympathetic to the argument that the noble Lord, Lord Lucas, gave that it can be very inconvenient, on the other hand it invites the abuse of saying, “I want the data in some manner which is extraordinarily inconvenient”. This can be only partly protected by the other thing that I draw particular attention to: recognising that there is a cost associated with providing this data in any form and that it is only reasonable that people should be allowed to charge for it. I can see an offsetting, in some sense. If you allowed that people could request the form in which it be given, the offset would have to be really realistic. In some cases, that could reflect the degree of harassment and so on, so there are complexities nested within this.
I also like Amendment 148B, tabled by the noble Lord, Lord Lucas, simply because, like him, I could not understand what the provision meant.
Baroness Blackstone
My Lords, very briefly, I support the amendments put down by the noble Baroness, Lady O'Neill. I should perhaps declare an interest as a very recently retired vice-chancellor. I also associate myself with the comments made by the noble Lord, Lord May, about the care that we need to take in this area. These are very complex and difficult matters and some of the issues are highly technical—more technical than someone who is not particularly IT-literate, such as me, is able to follow totally and understand. I want in particular to follow up the amendments tabled by the noble Lord, Lord Lucas, and repeat the question which I think my noble friend Lady Warwick put, about whether the costs of providing metadata would be chargeable under the Freedom of Information Act. This is an important issue as these costs become greater and greater. Universities that wish to pursue research that requires using this sort of data will be very stretched unless this is allowable.
I also want to ask another question. To what extent can universities make a charge for removing or redacting personal information from databases prior to making them available under the FOIA? Again, this is a practice that is going to have to become more frequent and common and, in a time when universities are extremely pressed as far as their funding is concerned, the cost could be very high.
Lord Bew
My Lords, I rise briefly to support Amendment 148A, in particular, and to make the point even more starkly that in an era when these requests are more and more common, unless some protection for universities, as envisaged in the amendment, comes in, there will be an implicit negative tax on research, as researchers will have to take these possibilities into account. That is the last thing that our universities need at present. I support Amendment 148A very strongly. The real cost of complying with the requests that currently come in is a stark issue.
Baroness Sharp of Guildford
My Lords, I, too, rise briefly to support the amendments in the name of the noble Baroness, Lady O’Neill of Bengarve. My experience now is somewhat dated, but back in the early 1990s I was responsible for supervising a group of researchers putting together a substantial database on bibliometrics. The difficulties of cleaning up such a database are extreme and costly. The group of four young researchers I was supervising worked for two or three years in just cleaning up the database. One issue that we were looking at then was the advantage of concentrating research into large laboratories rather than having a lot of smaller researchers. You cannot do such research until you have cleaned up the database. Someone coming in and using your data is clearly something that we need to protect against. We also need to make sure that the costs involved in putting databases together are fully met.
The Minister of State, Home Office (Lord Henley)
My Lords, I start by saying that I am very grateful to the noble Baroness, Lady O’Neill, for her opening remarks when she talked about discussions that have already taken place. I understand her concerns. I understand them now possibly in spades as I look at the serried ranks of academe facing me. I ought to make it clear that further discussions will have to take place between now and Report as there are real concerns in the academic and research community. The noble Baroness, Lady Warwick, reiterated concern about costs and her noble friend Lady Blackstone referred to burdens on academe. Concern was expressed about safety, particularly for those involved in research relating to animals. I can well understand that, having had some responsibility for that issue when I was a Minister in Defra.
I shall try to explain our intention behind Clause 100 and what we initially think of the amendments. I should make it clear that I am more than happy to have another meeting with the noble Baroness and any others who wish to come along, as we want to ensure that we get this right and can meet those concerns. I shall say a few words about the background to Clause 100, particularly as this is the first amendment in the group. I shall not go on at this stage to Amendment 151, to which the noble Baroness referred, as I had better do that when it is moved in its proper place.
Clause 100 gives effect to the Government’s commitment to provide greater transparency and create, in particular, a new right to data so that government-held data sets can be requested, used by the public and published regularly. We believe that that will help the public and organisations to hold the Government to account. It will redirect and shape public services to reduce the deficit and deliver better value for money in public service spending. It will realise significant economic benefits by enabling individuals, businesses and not-for-profit organisations to build innovative applications using that public data.
The Freedom of Information Act 2000 currently provides for the release or publication of the recorded information held by public authorities covered by the Act but makes no provision for reuse at the point of publication or release. It requires only the provision of access to the information and only upon request, which means that repeat requests have to be made over a period of time to gain sets of information or data. There is no obligation for public authorities to provide such data in an electronic format that promotes reuse—for example, machine-readable or open, standard format. I note the comments of my noble friend Lord Lucas about his trials and tribulations with the university sector, particularly with its use of PDF, which causes him problems.
These changes to the Freedom of Information Act, as set out in Clause 100, are intended to promote the proactive release of more data sets and to ensure that when data are released they are in a reusable format and, where possible, free for reuse. This will, in turn, promote the use and development of the raw data held by public authorities to provide useful products and services.
Additionally, the Government announced their intention to ask Parliament to undertake post-legislative scrutiny to see how well the Act is working in practice and whether there are any further changes to be made. In advance of this, the Government must act on their commitment to transparency and open data to release the benefits of open data to the public as soon as possible. There will be further post-legislative scrutiny to see how well that Act is working, and we will come to that in due course. When we have that, we can respond.
I turn now to the amendments in this group and will deal with them, but I repeat the commitment I made at the beginning that I am more than happy to discuss these in greater detail afterwards with whoever the noble Baroness wishes to bring along. Amendment 147A seeks to add the word “complete” to the definition of data sets allowed to be requested. However, I believe that the use of the word “complete” would not improve the definition of data set and could introduce a degree of uncertainty and confusion around the operation of this provision. For example, data sets may be continuously updated depending on the publication scheme set out by a public authority, and one could argue that a particular data set is never complete per se. The Government do not wish to be overprescriptive on this matter and defer judgment to the public authority to decide when its data are ready to be published in the interests of all parties.
I appreciate that the noble Baroness raised concerns at Second Reading in respect of these provisions, and we have exchanged correspondence and had meetings in response to her concerns about the potential impact on the higher education research community, which has argued that some of its data would be releasable in transient form until final publication. I reassure the Committee that Clause 100 as it stands does not alter the status quo in relation to the release of information in draft or of incomplete status, and such information is already adequately protected by existing exemptions under the Freedom of Information Act. Furthermore, the Information Commissioner’s office has produced specific guidance for higher education institutions by recommending those institutions to have a robust information management regime that will tackle issues about disclosure of data that is incomplete or in a draft form.
Similarly, Amendment 147B, which amends new Section 11(1A) of the Freedom of Information Act, is unnecessary as the provision already covers the circumstances that the amendment seeks to specify. The duty to provide a data set to the applicant in a reusable format, as currently drafted, adequately covers the effect of a public authority undertaking to provide the data set as requested in a reusable format. We consider that Clause 100 and the Freedom of Information Act as a whole already make adequate provisions for charging and that the noble Baroness’s Amendment 148A is not appropriate or necessary. Further, the Government will be providing guidance in the revised Section 45 code of practice on reusable formats and on when it will be considered reasonably practicable for a public authority to convert a data set into a reusable format for release, so that it will be clear what should be expected for both the data holder and the requester. The costs for releasing a data set in a reusable format falls to the public authority, as does releasing other information under the Freedom of Information Act, and the same freedom of information provisions apply here in terms of releasing that information.
With regards to the noble Baroness’s Amendments 148C and 148E, which seek to amend the definition of a data set, we consider that the current definition provided for in Clause 100 is fit for purpose. We do not believe that it would be sensible to introduce further limbs into the definition of a data set as, inevitably, the addition of any new terms, such as “data integrity and security”, could raise as many questions as to their meaning as the terms which they are intended to clarify. We believe that it is preferable to address such matters through the supplementary guidance for public authorities, which will be provided in the revised Section 45 code of practice.
As regards Amendment 148, in the name of my noble friend, I take a similar view. It seeks to define what is meant by the term “capable of reuse”. Again, we believe the appropriate place for any necessary clarification of the terminology used in the clause, and of the reusable formats to be adopted, is in the revised code of practice, which will be produced under Section 45 of the Freedom of Information Act.
We will be revising the statutory code of practice to provide greater clarity on certain aspects of these provisions. Among other things, the revised code will provide guidance on what constitutes a reusable format and sets out those factors that a public authority should take into account when deciding whether it is appropriate to include a data set in a publication scheme. We will also issue administrative guidance to central government on best practice.
On my noble friend’s Amendments 149 and 150, it is important that the changes we are making preserve existing regimes, specifically when it comes to charging for reuse of copyright material. Currently, public sector bodies under the Re-use of Public Sector Information Regulations may charge on a reasonable return of investment basis, and the policy is to maintain the status quo. Maintaining this right continues to allow public authorities the flexibility to charge should they wish and, where justified, in accordance with the Treasury’s guidance, Managing Public Money, which we all take enormously seriously.
We would expect, as now, most data sets to be provided free of charge for reuse but it is right that public authorities should, in appropriate cases, be able to charge. Any such charges would normally be set at the level necessary to recover costs, and no more, but fees can be set at a level to provide for a reasonable return on that investment. This would be appropriate in circumstances where the public sector has followed the Treasury’s guidance, Managing Public Money, and its accounting principles, and has taken into account the value of that data set and the costs incurred in resourcing the collection of the data.
With regards to my noble friend’s Amendments 148B and 148D, I would respectfully recall the reasoning behind the clause whereby the intention is to create a new right to data through the request for data sets for reuse and, where reasonably practicable, in a reusable format. The extension as proposed in my noble friend’s amendments goes beyond the realm of data sets and therefore is not appropriate in this instance but may be considered, again, as part of the post-legislative scrutiny that we are offering on the Freedom of Information Act which is currently under way.
Lord Lucas
My Lords, I am very grateful for my noble friend’s replies to my amendments. If I might take up his offer of a meeting I think that would sensibly shorten the proceedings of this Committee. Would that be all? In that case I shall sit down.
Baroness O'Neill of Bengarve
My Lords, I too am very grateful for the offer of a further meeting. I am slightly puzzled because I thought I had gone a considerable way to meet the very specific objections the Minister made to my previous drafts of these amendments in his letter and which also members of the Bill team have made. They are very narrow amendments and have a considerable protective implication because I have not suggested that it is incomplete databases but incomplete parts of databases that should not be released. If one thinks through the difference between the two one sees that whereas it might be open to a public authority to go on saying, “Oh our database is incomplete, we are perfecting it, we are polishing it, we are taking it into the next time period,” it could not say the same of each part of a database. So I believe that that move achieves the purposes of open data while not undermining them by licensing the disclosure of data that then have to be pulled back with the comment, “Well, it was only 10 per cent of the data points you got because that is what we had when your request was granted,”. It is a substantial amendment. Nevertheless I beg leave to withdraw Amendment 147A.
Baroness Brinton
“( ) In section 22 (information intended for future publication) after subsection (1) insert—
“(1A) Information obtained in the course of, or derived from, a programme of research or research project is exempt information if—
(a) the programme or project is continuing with a view to a report of the research (whether or not including a statement of that information) being published by—(i) a public authority as defined by section 3 of this Act; or(ii) any other person; and(b) disclosure of the information before the date of publication would, or would be likely to, prejudice substantially—(i) the programme or project;(ii) peer review of the programme or project;(iii) the interests of any individual participating in the programme or project;(iv) the interests of the authority which holds the information or the interests of any party collaborating with the authority in connection with the programme or project; or(v) the physical or mental health of any individual.””
Baroness Brinton
My Lords, as has already been mentioned, Amendment 151 seeks to insert an entirely new clause designed to correct an anomaly within the Bill. As a matter of principle—and as a former university administrator—I welcome the opportunity to help people get more information from the public sector, as is absolutely their right. However—I am sure it is inadvertent—there is a gaping hole in the Bill regarding universities and their research, research councils and other public research bodies. I am very grateful to the noble Baroness, Lady O’Neill of Bengarve, for her previous amendments, which are most helpful and with which I agree, and I shall not talk specifically about the detail of data sets as a result.
The amendment seeks to amend the Freedom of Information Act 2000 to create a new qualified exemption for pre-publication research. It is modelled on an amendment to the FOI Act in Scotland which was accepted by the Scottish Government during the passage of that legislation. Exemptions with similar effect also exist in Irish and US freedom of information legislation.
The amendment makes clear that it has to be shown that disclosure would result in substantial prejudice to the research, those conducting it or the university, and I believe also—perhaps more seriously—that it threatens the international competitiveness of UK research. This is necessary because at present, taking it at its most simplistic—I hope those with considerable experience of academic research will allow me this hypothetical exemplar—it would be possible for individuals, organisations or, worse, industrial spies to get access to confidential data which may be pre-patent or copyright, part of a commercial research contract, or raw research which may be part of a long project over a number of years, which is not unusual for leading edge research in this country.
I have spoken to the deputy vice chancellor at Cranfield University to make sure that I can give the Committee this hypothetical example. As noble Lords will know, Cranfield has a global reputation for its inspirational teaching and research; 85 per cent of its research submitted for assessment is internationally recognised as original, significant and rigorous, 15 per cent is world leading, and it has won the Queen’s Award on three separate occasions since 2003 for its ground-breaking work. It would argue very strongly that it is that strength that brings commercial businesses to it to contract on very specific work.
Cranfield has a specific expertise in aero and motor research and houses specialist research beds for grand prix racing—not many people know that. Highly confidential and sensitive research is carried out for a number of the world’s top grand prix companies. Under the Bill as proposed at the moment, it would be possible for a competitor to demand data sets which may form part of the meta set of an academic’s broader work from commercial research contracted with one company. This cannot be right.
Like the noble Baroness, Lady Warwick, I particularly thank Universities UK for its helpful and extensive briefing. The guidance for the higher education sector from the Information Commissioner on the FOI Act, to which I will refer in some detail, makes it clear throughout that the legislation is not designed for pure research and the way in which the data are used in universities. Interestingly, there are frequent references in that guidance to the lack of case law in this area for university research.
I am grateful to the Minister, the noble Lord, Lord McNally, for his letter of 23 November in which he set out how he believed the current exemptions under the Bill and in the FOI Act would work for university research. I believe that there is enough evidence from the guidance, as well as experience of universities, to question the points that he has made. The letter of the noble Lord, Lord McNally, refers to the key areas where he believes the current exemptions work. The first is information which is intended for future publication. In section 4.2—Information intended for future publication —the guidance for universities states:
“To be covered by the exemption, the information must be held with the intention of publication at the time the request was made. It will not be permissible to argue an intention to publish the information when that decision was only made after the request was made. It is not, however, necessary to have set a publication date. Publication will often be publication in accordance with the publication scheme of the public authority”.
The FOI guidance goes on to say:
“You may be able to reduce the number of requests for information and the number of times upon which you may need to rely on section 22 by providing the public with a clear description of planned publications, including a publication timetable. … It may also be helpful within publication schemes to indicate the likely date of publication within the description of the class of information. For instance, many public authorities include minutes of management board meetings as a class of information within their publication schemes. It may be helpful to indicate that the minutes will be published within a week, a month etc of the meetings. It may also assist if drafts of documents include intended publication dates and an indication of whether any or all of the information could be released prior to publication”.
It is absolutely clear, especially from that last sentence, that the commissioner is applying what I would describe as an administrative and secretarial approach to publication. It is not common for those engaged in pure research, especially highly confidential leading-edge research, to detail the research for management board meetings, nor is it common to have publication schemes for elements of the work at an early stage. This guidance is much more for the effective conduct of public affairs—for example, Ministers, councillors or civil servants—in collecting data.
The guidance shows absolutely no understanding of the way in which research is carried out. For example, the advice says that you must state at the time—and each time—when you want to use the exemption for future publication and you must prove it. You must then quote each of those instances back when you have received an FOI request. For a longitudinal research project that might last decades, this is a complete nonsense and certainly provides real problems for retrospection. Even for a more standard research project of three to five years, it is not always obvious when collecting data that the data may be something that you want to declare as exempt. I suspect that the commissioner would not be happy if all university research projects developed a policy of exempt declaration at every step of the way just in case they fell foul of the need to prove at the research stage why the information is exempt.
Frankly, there is also a disruption to the work of researchers who have to deal with some of the detailed FOI requests for data. The University of Oxford gave the example of a request for research data from a large nationwide health study submitted by a company with a significant commercial interest in the data.
“The university released some background information but attempted to refuse the bulk of the request by using existing exemptions relating to the cost of compliance, personal data, future publication and prejudice to commercial interest. These were not accepted by the requester. After a drawn out process the company finally wrote to the University saying that it had decided not to pursue the request further at that time (this may have been related to a take-over situation.) Had this not been the case it is understood that it had been strongly implied the requester would have sought a decision from the Information Commissioner. Had the university been ordered to release the data, it is believed that this would have undermined the credibility and sustainability of the research programme and affected future research. The research group had one year of research time disrupted in attempting to rebut the request and the institution incurred significant legal costs”.
Herein lies the nub of the problem. The whole nature of academic research is how widely the information is used, which frequently does not follow a simplistic linear progression of project specification, grant award, research, patents, peer assessment and publication. Even a PhD student working on a project may include some of the data relating to work on their PhD as yet unpublished. Some data sets may be used repeatedly by different academics assessing the information in different ways over a period of many years. A leading academic said to Universities UK,
“If I'm forced to simply hand over work that has taken me decades to produce so that someone else can interpret it without understanding the full background, then I'll refrain from doing it”.
Baroness Benjamin
My Lords, I support the amendment, to which I have put my name, as it provides an opportunity to improve the existing freedom of information legislation by explicitly recognising the needs of researchers in universities as highlighted by Universities UK. I appreciate the support given to the amendment earlier by the noble Baroness, Lady O’Neill.
Before I continue, I declare an interest as the chancellor of the University of Exeter, and I speak from my experience gained at the university. At Exeter, which strongly supports an open and transparent approach to research, we are developing an open-access data store for all of our published work arising from public funding, so that it is freely available to the widest possible audience. We at Exeter have a strong track record of complying with freedom of information requests about the work at the university and are deeply committed to public engagement in research, organising many public events, school visits and open days to highlight and explain the research that we do. Public interest in research is very positive indeed and we do all we can to encourage that legitimate interest.
However, the exemption proposed in the amendment is of value in preventing premature publication of research for several reasons—such as in commercial work where the university is working closely with a company to carry out research that might lead to a commercial product and where release of information might prevent a patent or a product emerging. For instance, our researchers might be developing a new vaccine with a company; that could be prevented from being developed if information was released by a third party too early. In sensitive areas of research, premature release of information can be misleading or impact on our ability to be seen to be impartial and independent. In global security, revealing details of research at a premature stage might be misleading or endanger individual researchers or other UK nationals working in areas of conflict. Incidentally, all the research carried out at Exeter is ultimately published in any case, when completed.
On many indicators, the UK is second only to the US in terms of our research performance. The processes which we here in Britain have for promoting and overseeing the quality of research, which are underpinned by peer review, have helped secure this position. We have worked hard to achieve and maintain that. As my noble friend Lady Brinton has already said, the exemption for pre-publication research in certain circumstances already exists within Scottish freedom of information legislation, and that of other countries. This provides a safeguard that can protect the integrity of the research process, if it is needed, which is not covered by existing exemptions in English legislation.
I, too, believe that the English legislation was not designed with research in mind. Openness and transparency in research is important but distribution of early, incomplete or speculative research findings can be potentially very damaging to public confidence in research and the reputation of UK universities. This could also have the unintended consequences that some international collaborators and investors will be unwilling to allow UK universities access to data and information for fear that it will be released prior to peer review and appropriate legal protection. This is causing great concerns—financial concerns—to universities such as Exeter.
Universities are fearful that at a time when there is widespread recognition and support for scientific research as a driver for economic growth, the Freedom of Information Act, as currently constituted and applied to universities, could adversely affect UK research and is very damaging indeed. Therefore, I hope that the Government will consider carefully the consequences and respond positively to this amendment.
Baroness Warwick of Undercliffe
My Lords, I added my name to this amendment because, as noble Lords will know, I have a long-standing interest in promoting the interests of our universities. Like others, I feel that when the Freedom of Information Act was passed, this House did not foresee how its provisions would relate to the university context. The Act’s intention—to increase public access to information held by public authorities—is right.
In relation to university research, like others, I strongly support access to research data and the transparency of the research process. That is a culture that the Government should encourage, not least because it will increase public confidence in science and research and will also help the research community to make the most of the products of its collective work. However, access to research information must be balanced with the need to support the research process itself. It is not in the national interest to provide access to information in a way that inhibits research in contentious areas, discourages people taking part in research projects or drives commercial research funders away from the university research base. Nor is it in our national interest to put a brake on the competitive position of our universities internationally.
There are already exemptions that can be used by university research staff to refuse to disclose information requested under FOI. The ICO has done much to explain, in sector-specific guidance as the Minister indicated, how the exemptions can be applied by universities, but I do not believe that they go far enough. For example, although there is an exemption for commercially sensitive information, how does that apply to university research? Research is a competitive business, where the challenge is always to publish first. If your findings are already in the public domain, it becomes quite difficult to get a journal to take your article. Your standing in the research excellence framework will be affected. Your ability to secure future funds, grants and contracts may be compromised. Your reputation, and that of your institution, will be hit.
Can the Minister explain what protections exist to prevent a competitor academic requesting your research data as they emerge? Universities UK, which supports this amendment and has provided an extremely helpful briefing to which other speakers have referred, has given an example of exactly this situation, in which a researcher was subject to FOI requests from a former collaborator who was now at a different institution. Another example comes from Queen Mary, University of London, where a research team was subject to an FOI request while still conducting its analysis. The university believed that,
“releasing data at the individual-participant level would prejudice publication of future study papers … and could set a precedent that may affect our ability to attract research funding and participants in the future”.
Releasing data before the process of validation and analysis is complete also carries the risk that misleading information will get into the public domain. We know that this is a particular concern in medicine, where misleading information can have serious consequences for public health. The peer-review system in the UK is one of the major strengths of our research base because it ensures that, before findings are published, they are checked by experts. This helps to ensure that poorly designed and executed research with dubious findings does not enter the public domain. As the noble Baroness, Lady Brinton, mentioned, the Environmental Information Regulations include a protection for,
“material which is still in the course of completion, to unfinished documents or to incomplete data”.
Why cannot FOI have something similar?
We all want universities to do more to work effectively with business. Indeed, the Minister of State for Universities made an announcement about this only last week. The fact that university research can be subject to FOI causes difficulties in working with commercial research partners. Negotiations can often be long and difficult. Businesses will look at the recent cases where research findings have been requested by companies with a commercial interest in the data and wonder—quite legitimately, in my view—whether they would not be better off doing research with non-university research bodies that do not carry that responsibility.
I, too, want to mention that in Scotland there is now a pre-publication exemption—on which the proposal in the amendment is modelled—which has been used to deal with exactly this point. Let me quote an example from one Scottish university, which received an FOI request for the annual report written for the funder of some early-stage research. There was no commercial value in the findings to date, but the report described avenues that could, with further investigation, yield commercially valuable results. Not surprisingly, the university wanted to use this information to apply for further funding, but that would have been compromised by releasing the report to potential competitors. The request was refused using the Scottish pre-publication exemption. Will the Minister tell the Committee whether he believes that it is right that researchers in Scotland and, as the noble Baroness, Lady Brinton, has said, in Ireland and the United States should have this protection that our universities do not have?
I note that Universities UK is not alone in calling for this House to scrutinise the way in which this Bill relates to university research. The Wellcome Trust, the Association of Medical Research Charities and the Ethical Medicines Industry Group have all written to noble Lords in relation to this, especially in support of the amendments tabled by the noble Baroness, Lady O’Neill. I urge the Minister to consider whether he can accommodate these concerns by accepting this amendment. I do not believe that it will do any harm. It is clearly limited in its scope and it could do a great deal of good.
Lord Scott of Foscote
My Lords, I rise to express my complete support for the spirit and intention behind this amendment, which has been so cogently and lucidly explained by the three noble Baronesses in whose names it stands. I rise simply to make a drafting point on the amendment, which some of your Lordships may think is a rather tedious reason. It proposes two conditions to be applied to,
“Information obtained in the course of, or derived from, a programme of research”,
to enable that information to qualify as exempt information. The two conditions are under paragraphs (a) and (b) of new subsection (1A) that the amendment would insert into Section 22 of the Freedom of Information Act.
My point relates to the condition under paragraph (a), which states that,
“the programme or project is continuing with a view to a report of the research … being published by”,
bodies specified in paragraphs (a)(i) and (a)(ii) in the amendment.
I puzzled over the identity of the possible publishers who would fall under those categories. Paragraph (a)(i) refers to,
“a public authority as defined by section 3 of this Act”,
which would exclude other public authorities that are not so defined. Paragraph (a)(ii) refers to “any other person”. When the word “person” is found in statute, it may include, according to the Interpretation Act,
“a body of persons corporate or unincorporate”,
but that depends on the context. An authority which is not a public authority as defined in Section 3 could be a corporate or unincorporated body and could qualify as a person. It is the contrast between the two that might, if someone wanted to argue the contrary, raise some doubt.
I began to wonder why it was necessary to identify the proposed publishers at all. The important condition is that,
“the programme or project is continuing with a view to a report of the research … being published”.
It really does not matter by whom the matter will be published because anyone will do. I think that that is the intention behind paragraphs (a)(i) and (a)(ii), although the language used might suggest the contrary. Therefore, I respectfully suggest that the words in those paragraphs (a)(i) and (a)(ii), and the preceding preposition “by”, should go and that the condition in paragraph (a) should simply refer to,
“the programme or project is continuing with a view to a report of the research … being published”.
Doubt and confusion is simply raised by the attempt to specify the individuals or organisations which fall under paragraphs (a)(i) or (a)(ii).
Baroness Blackstone
My Lords, I support these amendments but I, of course, defer to the noble and learned Lord who is much better versed in the legal aspects of the drafting of this amendment. I ask that the Government accept the amendments in principle but possibly come back with a redrafted version with the omissions proposed by the noble and learned Lord.
Quite a lot of comments have been made about scientific and medical research, but I want briefly to speak as a social scientist. When they undertake empirical research, social scientists are heavily dependent on the agreement of individuals to participate in surveys, whether they are large-scale quantitative surveys or small-scale qualitative surveys.
I respectfully suggest that, unless this amendment or something like it is accepted, it will be more difficult for social scientists to carry out their work. Advanced data manipulation techniques make it much more difficult to guarantee the anonymity of data even where personal information has, as far as possible, been removed or redacted from data sets. I noticed that the Minister did not respond to my particular question about whether financial support would be given when extensive redaction has to take place. This causes particular concern when highly sensitive information is provided by individuals whose identity may need to be protected to save them from harm. Given the difficulties of guaranteeing effective protection of identity, the research community in the social science world has raised a number of concerns that the very process of securing informed consent from potential subjects of research may stop them participating at all. That would be a disastrous consequence.
Finally, I want to pick up the point made by several speakers about the fact that other jurisdictions have managed to come up with legislation whereby the issues raised today have been dealt with. This may be a sensitive week in which to ask the Minister to have a look at Scottish legislation passed in the Scottish Parliament. Nevertheless, I think that he and his officials should do so. Moreover, it is also very important that we look at the Irish legislation, which is rather broader based in how it treats universities for these purposes or research associated with academic work—it may not be done in a university; it may be done in a separate research institution. The noble Baroness, Lady Brinton, read out the section of the Irish Act. Mention has been made of the United States. I ask the Minister a direct question. Has he looked at those three pieces of legislation in those three countries? If so, what has made him decide not to follow the same route? It would be very helpful to have a direct answer to that question.
Lord May of Oxford
I express my approval of the amendment. I would go beyond the noble Baroness, Lady Blackstone, in saying that I understand science to embrace the social sciences within it. In this case, it goes wider than that in extending increasingly the large areas of the humanities that use large databases. It is a really important problem and the spirit of this amendment addresses it in a significant way. I very much hope that all that has been said here is taken to heart.
Baroness Sharp of Guildford
I would like to say very briefly how much I support this amendment. The noble Baroness, Lady Blackstone, asked the Minister expressly whether he had looked at the Scottish and Irish legislation. I would bring his attention to the American situation, because we followed America in introducing a Freedom of Information Act and we also regard that country as being foremost in terms of publications and citations in scientific and social science research. We follow America in many senses, but it has specific legislation that has guidelines providing the constraints that we are looking for. It seems sensible to have an exemption, as in the Scottish model that we can follow, which has over the past few years been satisfactory. It would be easy to follow, and it picks up all the reservations that those of us had who spoke in favour of the amendments proposed by the noble Baroness, Lady O’Neill. It picks up a lot of the points made by those amendments and puts them neatly into one clause. I support the amendment and hope that the Minister and his advisers are looking at the models in other countries.
Baroness Royall of Blaisdon
My Lords, I rise to support the amendments in the names of the noble Baronesses.
Amendment 151 provides both clarity and the appropriate safeguards for the UK’s research centres and its academics. Like other noble Lords, I wonder why the Minister has decided to go down a different route from that being trodden in Scotland, Ireland and the USA. It seems to me that by taking a different route we are putting our universities at a competitive disadvantage. That would obviously be a retrograde step.
It is clear from everything that has been said by noble Lords, who are far more well versed in these issues than I am, that the guidance provided by the Information Commissioner is completely inadequate in relation to competition and confidentiality. The noble and learned Lord, Lord Scott of Foscote, has commented that the amendment is probably defective. However, unless the Minister is prepared to accept the principle behind it, the contribution which our academic and research institutions make not just to the cultural and intellectual life of this country but to ensuring that we have a competitive advantage in many areas will be adversely affected. Therefore, I urge the Minister to accept the amendment in principle.
Lord Henley
My Lords, I start by saying that whatever arguments I put forward will not be based on those of the drafting point made by the noble and learned Lord, Lord Scott. However, I take his point that new section (1A)(a)(i) and (ii) are possibly unnecessary as they seem to include everyone. It would therefore be possible to delete the words from “by” onwards and just talk about what is published.
I make it clear to the noble Baroness, Lady Blackstone, and others that the Scottish, Irish and United States legislation have not been my bedside reading for some time. I am not completely and utterly familiar with them but I will no doubt make sure that I am made totally familiar with them and look at the consequences of what they do. An important point to remember in all the arguments put to me is the remark of the noble Baroness, Lady Warwick, that, if it does no harm, the amendment ought to be accepted. I am not sure that one should accept amendments merely because they do no harm. I want to make it clear that we are committed to transparency in this area. We will not introduce new exemptions from disclosure unless the necessity of doing so has been clearly demonstrated.
I recognise that a number of noble Lords have expressed considerable concern. We have devoted almost three-quarters of an hour to this matter. I commend my noble friend Lady Brinton for the admirable brevity with which she set out her case and expressed her concerns. I am aware that there are major concerns in the whole sector about the potential for the disclosure of information under the FOI Act which could undermine the United Kingdom’s academic research. We all accept that the UK is at the very forefront of international research and that it is vital that that position should be maintained. We wish to do that. I am more than happy to see noble Lords between now and Report if they want to make the case for needing to go further and to explain why they believe that the existing exemptions, properly applied, do not provide the appropriate protection.
I am aware that only in January of last year the Science and Technology Committee recommended in its report in relation to events at the University of East Anglia’s climate research unit that the application of the Freedom of Information Act to research material required clarification. There is in fact little evidence to demonstrate that existing provisions within the Freedom of Information Act do not provide adequate protection for research-related information. The circumstances provided for in this amendment are already provided for in existing exemptions. For example, exemptions exist which may be used, subject to a public interest test, to protect information the disclosure of which would at least be likely to prejudice commercial interests, health and safety, and the effective conduct of public affairs, as well as information intended for future publication. There is a clear public interest in protecting research information from disclosure in appropriate circumstances, and the Act passed by the previous Government—and I do not know why the Opposition now wish to amend it when there is no evidence that it needs amendment—is designed to ensure that public interest factors are given proper weight when exemptions are applied. Furthermore, the Act contains provisions protecting information provided in confidence and in relation to personal data.
Any new exemption within the Freedom of Information Act would also have no relevance to research on environmental matters. Requests for environmental information are considered not under the Freedom of Information Act but under the Environmental Information Regulations, and this amendment would not affect those. All information held by the higher education sector, including that relating to research programmes, has been subject to the Freedom of Information Act for seven years. The noble Baroness will remember, as she was probably a member of the Government at the time when it was passed in 2000 and came into effect in 2005. The Freedom of Information provisions within the Bill, in Clauses 100 to 102, build on a regime that is already firmly in place. I know that my noble friend Lady Brinton will be aware that the Information Commissioner has recently issued guidance for the higher education sector in response to the Science and Technology Committee’s recommendations. This is one reason why it is possible that it will not be necessary for me to study the provisions of the Scottish Act, as well as what they are doing in Ireland and America. The guidance will assist higher education establishments in dealing appropriately with requests for research-related information, and withholding it when it would not be in the public interest to disclose.
As a coalition Government, we are committed to greater transparency. I want to make it clear that we will not introduce exemptions into the Freedom of Information Act unless we can have that clearly demonstrated. I do not believe that it has been clearly demonstrated, but I am more than happy to see my noble friend and others if she feels that she can put a further case. I repeat to the noble Baroness, Lady Blackstone, and others, that I will study what is happening in Scotland—it is near to my heart. But what goes on in a devolved Administration does not necessarily have to be copied in this country. There are times when we can learn from them and times when we find that what they are doing is not necessarily appropriate. I am more than happy to look at it, but I do not think that a case has been made on this occasion. But my door is always open and I am always prepared to see my noble friend and others to discuss this matter, if they feel that I have not got the message appropriately.
Baroness Brinton
I thank the Minister for his comments and for his offer of a meeting, which I think myself and others will be very grateful to accept. I start by saying that in addition to the comments that I made, the comments from everybody else who spoke started to provide the evidence that the Minister was looking for in showing how there are problems with the current arrangements. In defence of the Information Commissioner, can I say to the noble Baroness, Lady Royall, that I have no issue with his guidance, which is based on the FOI Act? One of the key points that I was trying to make was that the FOI Act did not envisage the complexities of university research, which is where the issues have arisen. I know that the UUK briefing, which the Minister mentioned that he had just received, will provide some evidence, and I am sure that UUK and RCUK would be delighted to provide more information on specific cases for the Minister to look at.
I want to pick up the point raised by the noble and learned Lord, Lord Scott, about paragraphs (a)(i) and (a)(ii) of the proposed subsection (1A) of the amendment. As I understand it—and I may be wrong—the key point about the Freedom of Information Act is that the only authorities affected by it are public authorities. That is why it is so specific. Thereafter it refers to individuals because there are individuals who work within those authorities. I would be delighted to be proved wrong but that is the basis on which I understand it. If others with more expertise in drafting want to correct that I would be delighted to concede that point.
We have taken some considerable time on this amendment and the only point I want to consider before we finish is to say that the evidence is clearly there. It is also evident from Scotland, the USA and Ireland that these arrangements are working and working well and I hope the Minister will be able to satisfy himself on those accounts. The key point I want to keep returning to is a very selfish one about the commercial viability of English and Welsh universities. They are now on the back foot compared with Scottish universities. I believe that that is inappropriate. We believe very strongly across the House that we want our universities to be able to succeed in the commercial market that is academic research today. Providing a clearer framework for academics through this clause would do that. It would not endanger transparency and access to freedom of information for people who genuinely need it. This is purely protecting a number of areas where there is a complete muddle at the moment that is beginning to affect how our universities can work effectively in the research market. On that basis, and thanking the Minister for his offer of a meeting, I beg leave to withdraw my amendment.
Lord Wills
“Consultations with a view to designating public authorities
In section 5 of the Freedom of Information Act 2000 (further power to designate public authorities) after subsection (3) insert—“(3A) The Secretary of State shall publish an annual report setting out the persons he or she has consulted under subsection (3) and the decisions which he has taken in respect of consultations under that subsection.””
Lord Wills
My Lords, in contrast to the weighty and important matters we have just been discussing these are two modest amendments the Government ought to have no problem accepting. They seek to encourage the Government to maintain transparency and extend it as the coalition agreement pledges them to do. They do not in themselves legislate to extend the scope of the Freedom of Information Act but they should help ensure that the benefits of the Act are not lessened over time through inertia and should help prevent legislative change in other areas having an adverse impact on the scope of the Act.
At present the Secretary of State must consult anybody the Government propose to designate under Section 5 of the Act as public authorities—bodies with public functions or contractors providing services on behalf of public authorities. However, the Government do not have to announce who is currently being consulted or which bodies they have decided not to designate after consulting. Amendment 151B would require the Secretary of State to produce an annual report saying which bodies they have consulted with a view to their designation and what decisions they have made. That in itself is an extension of transparency, something the Government are in favour of, and it would enable the Government to be held to account for their progress or lack of it in extending transparency.
Amendment 151D would require a compliance report from all public authorities. This is designed simply to bring all current public authorities, including local government among others, into line with practice in central government. Some public authorities are excellent in the way in which they discharge their obligations under the Act but the performance of some of them, including some local authorities, is deplorable. Compliance reports such as those proposed in this amendment have been shown to improve the compliance of central government with the Act. Imposing them more widely in this way would hardly be onerous on other public authorities—they already should keep a record of all the information stipulated in this amendment and all they would have to do is to collate and publish it. Such transparency could significantly improve their performance. I beg to move.
Lord Rosser
My Lords, my noble friend Lord Wills has set out the objectives of the amendment, which seek to improve the delivery of a transparent and open system of government through the previous Government’s groundbreaking Freedom of Information Act. They are in line with the Government’s own pledge to improve and extend the drive for greater transparency. The Freedom of Information Act provided a mechanism for the Government to extend the scope of the Act, as my noble friend has already explained. By placing a duty on the Government to report annually on their activities to maintain or extend transparency through further designation of public authorities and on public authorities to report on their efforts to comply with the Act, the amendment will create a driver that will strengthen and adhere to the principles and purpose of the Act. I very much hope that we will hear a positive response from the Minister to the amendment.
Baroness Stowell of Beeston
My Lords, as my noble friend has already made clear this afternoon the Government are very committed to greater transparency and to making sure that the Freedom of Information Act introduced by the previous Administration operates as effectively as possible. That is behind our commitment to introduce post-legislative scrutiny of the Freedom of Information Act, which is now under way and being carried out by the Justice Select Committee.
As the noble Lord, Lord Wills, explained, Amendment 151B would place a duty on the Secretary of State to publish an annual report detailing the Government’s actions in relation to Section 5 of the Freedom of Information Act, which enables the Act to be extended to bodies performing functions of a public nature or providers of public services under contract. Amendment 151D proposes that public authorities are required to publish annual reports containing prescribed classes of information about their compliance with the Freedom of Information Act and environmental information regulations.
In relation to Amendment 151B, I fully appreciate the need for transparency in relation to the Government’s exercise of the power in Section 5 of the Freedom of Information Act. The Government are, and will continue to be transparent in this area. We have given advance notice of planned consultations under Section 5 and, of course, any order made under that section is subject to the affirmative procedure. We see no practical benefit in introducing a requirement to publish an annual report. I also agree with the sentiment behind the noble Lord’s Amendment 151D regarding the transparency of freedom of information activity. Public authorities should be accountable for their performance in respect of freedom of information requests and actions. However, I am not persuaded of the case for introducing a statutory requirement to publish an annual report along the lines proposed here. We need to be alert to the resource implications before placing any new burdens on public authorities. That said, I recognise that the transparency of freedom of information performance across the public sector is also something to which Parliament may wish to return, as I have already said, in the post-legislative scrutiny that is now under way. While I sympathise with the sentiments behind the amendment, in light of the fact that that post-legislative scrutiny will provide a forum for such proposals to be properly considered in the round, I hope that he will feel able to withdraw his amendment.
Lord Wills
I am grateful to the Minister for her gracious and largely positive response, although I am slightly baffled as to why the Government have not seized on these simple amendments. This would be an easy thing for them to do. When in the future I stand up, as I will probably feel obliged to, to berate them for their slow progress in extending transparency, they would be able to hold it up and say, “Look, we’ve done this already”. I say with all respect to the Minister that the announcement about the consultation on Section 5 came quite late in the Government’s lifetime, after many occasions on which I and others had had to badger them about their lack of progress on it. It is not a regular occurrence—the amendment would make it obligatory for that sort of transparency to be provided only annually, so I am slightly baffled as to why the Minister has not seized on this offering more gladly than she has. However, I am grateful for her positive words and I will, of course, withdraw the amendment. I hope that she and the Government will understand that it is important that post-legislative scrutiny should not be used as an excuse to delay all action on this indefinitely. They will be held to account on their pledge to extend transparency and, the sooner they deliver on it, the better for the health of our democracy. For the time being, though, I am happy to beg leave to withdraw the amendment.
Lord Wills
“Freedom of information and contracts
(1) Any contract for any sum over £1 million made by a public authority with any person after the coming into force of this section shall be deemed to include a freedom of information provision.
(2) Where such a contract is to any extent performed by means of a sub-contract, that sub-contract shall be deemed to include a freedom of information provision.
(3) In this section a “freedom of information provision” means a provision stipulating that all information relating to the performance of the contract which is held by—
(a) the contractor,(b) a sub-contractor, and(c) any other person on behalf of the contractor or sub- contractor, is, notwithstanding any contrary provision, deemed to be held on behalf of the relevant authority for the purpose of section 3(2)(b) of the Freedom of Information Act 2000 or regulation 3(2)(b) of the Environmental Information Regulations 2004.”
Lord Wills
My Lords, I am sure that the Minister and her officials heaved a heavy sigh when they saw these amendments on the Marshalled List, because they have seen them—or something similar to them—before, during the passage of the Localism Bill through this House. I made the detailed arguments for the amendments then and those arguments remain essentially the same, so I will not detain your Lordships for long by rehearsing them all again. However, the Government’s unsatisfactory response to my previous amendments has pushed me into tabling them again. There is no difference between us on the policy objective. The Government are committed to greater transparency. We all agree on the importance of that, so again I am baffled as to why the Government persist in producing such unsatisfactory reasons for resisting what I continue to believe are modest, practical amendments designed to realise their own policy objectives.
Amendment 151C deals with the information that the public can obtain under the Freedom of Information Act about the work done for a local authority under contract using the public’s money. This has become particularly important since the passage of the Localism Bill, which envisages that a growing proportion of local authority functions will be carried out by other bodies under contract. Under the Freedom of Information Act as it now stands, the public will be denied the access that they currently have to increasing amounts of information about local authority functions discharged on behalf of the public, for the public, using public money. This amendment would ensure that the public retained at least some of that access to information about those functions, even when they were subcontracted to private sector companies. The amendment is proportionate. Very small businesses would not be caught by it, as there is a limit of £1 million on the size of contract that would be covered by it. The Freedom of Information Act and regulations already contain exemptions to protect the legitimate interests of business, trade secrets or information likely to prejudice commercial interests.
Why do the Government resist this? There is no good reason that I have yet been able to discover. The Minister, the noble Lord, Lord McNally, said that the Government are committed to reducing the regulatory burden on business. I agree that that is a desirable commitment, but it is not in all circumstances an overriding one. Of course, businesses find regulations irksome and burdensome, but Governments still impose them in the public interest. The Government are doing it now with the banking sector, for example. The noble Lord, Lord McNally, then said that he does not want to deal with transparency issues piecemeal but would rather look at this after post-legislative scrutiny of the Freedom of Information Act. We have heard that argument for resisting amendments many times this afternoon. I understand the reasons for it—it is commendable that the Government are doing this post-legislative scrutiny—and it might be a plausible argument for resisting this amendment were it not for the fact that the Government have already done what the Minister said that they should not do. In other words, they have dealt with the issue of transparency in local government piecemeal, pre-empting the results of post-legislative scrutiny of the Freedom of Information Act. They have done that through the passage of the Localism Bill which has the effect not of increasing transparency for local authority functions but of restricting it. If they were to follow their own logic, they would not have put through the Localism Bill in that way, pre-empting the results of post-legislative scrutiny.
All this amendment does is to seek to maintain the status quo—not to deal with it piecemeal by extending or restricting it—for public access to information about local authority functions carried out on the public’s behalf using public money. I really cannot see any good reason for resisting this amendment and I hope that the Minister will no longer do so. I live constantly in hope.
Much the same arguments apply in support of Amendment 152A, which would bring companies controlled by local authorities within the scope of the Freedom of Information Act. Again, there have been exchanges on this and the Government previously rejected it on the grounds that it would, “create uncertainty” for requesters about the coverage of the Act,
“given that companies could pass in and out of transfer of shares”.
As I said previously, I agree that there might occasionally, if not often, be some such uncertainty. These transfers of shares are not a frequent occurrence, as the Minister will be aware, but this sort of thing can easily be clarified. It hardly constitutes a compelling argument for keeping secret from the public important information about how their money is spent.
Clearly, when the noble Lord, Lord McNally, was making this argument he must have recognised that it was not altogether compelling because he then tacked on another argument on the back of it. His letter said:
“Where a company is only partly owned by the public sector, there is an increased likelihood that areas of its business will be unrelated to the public sector”.
Of course that is true, but again it is not a reason for keeping secret from the public those areas of business which are paid for by the public and operate on their behalf. I know that there are very clever officials advising the Minister, and very clever lawyers advising Ministers as well. They are perfectly capable of drafting this amendment better than I have been able to do to cover this eventuality. I hope that the Government will extend transparency and ask their officials and lawyers to get drafting. I beg to move.
Lord Rosser
My Lords, once again my noble friend Lord Wills has set out the purpose of these amendments. As he has said, one of them extends the duties under the Freedom of Information Act to a public authority, including local authority services which have been contracted out, where the contract made by a public authority with any person is for any sum over £1 million. The second amendment extends the definition, as he said, of a publicly owned company for the purposes of falling within the terms of the Freedom of Information Act to extend to companies where at least 50 per cent of their shares are held in public ownership—that is, by one or more relevant authorities.
One point that my noble friend homed in on has been the desire of this Government to move more and more activities away from being directly provided by public authorities, including local authorities—he referred to the Localism Bill—and instead to see them contracted out. Yet when they are contracted out in this way into the private sector, it removes the access to information which is currently there through the Freedom of Information Act. On the one hand, then, we have a Government who say that they want to increase transparency and, on the other hand, through Bills such as the Localism Bill we find that on issues and activities where it was formerly possible to obtain information under the Freedom of Information Act when a public authority, including a local authority, was undertaking them, it will no longer be possible to get that information. The Public Bodies Bill was another Bill which will encourage this move.
Unless the Government are prepared to indicate some sympathy with this amendment and to look at going down this road, at least to accept the amendment’s spirit if not its direct terms—and, as my noble friend has said, not to try and fob everybody off by saying, “Well, there is post-legislative scrutiny taking place”, because nobody knows how long that is going to take—then I suggest that their claims to want to extend transparency are somewhat hollow, since their own activities as a Government are reducing that level of transparency.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Lord, Lord Wills, for introducing and explaining his amendment, and also for the supplementary comments from the noble Lord, Lord Rosser.
I am not going to apologise for the fact that this Government are carrying out post-legislative scrutiny of the Freedom of Information Act and that I will refer to it on several occasions during the course of these debates. Such scrutiny is a very important and proper way of looking at existing legislation to see whether it is working effectively and operating as intended and for looking at ways in which it can be improved in the round. As a new Member of your Lordships’ House, on many occasions over the past year I have heard references to the need for post-legislative scrutiny and how that would be an important part of any legislation that passes through Parliament. Therefore, we should see as a good thing the fact that we have that mechanism in place for this Act and that it is happening at this time.
The noble Lord, Lord Wills has explained his amendments effectively, so there is no need for me to repeat any of what he said. However, as he said, these two amendments are similar to those he tabled during the passage of the Localism Bill through this House. I am sorry that the noble Lord does not feel that his concerns were adequately addressed on that occasion. As he says, my noble friend Lord McNally stressed during the debates on the Localism Bill the Government’s commitment to the Freedom of Information Act and described some of the measures that we are taking to extend its scope. For example, as the noble Lord is aware, the Bill includes a provision to extend the scope of the Act to companies wholly owned by two or more public authorities. We have also made an order under Section 5 of the Act extending its scope to, among others, the Association of Chief Police Officers. In addition, we are currently consulting more than 200 further bodies about their possible inclusion, and we intend to extend this consultation to more than 2,000 housing associations later this year.
Our continued opposition to the proposals within these amendments does not stem from any lack of commitment to the cause of transparency. As my noble friend stressed last year, it is important that we ensure that changes to the ways in which public services are delivered do not undermine our pledge to increase openness and accountability. I absolutely share the point made by the noble Lord about that.
This issue is already being considered as part of the Government’s response to the Cabinet Office consultation on a draft transparency and open data strategy, which is due to be published early this year. It is also an issue which the Justice Select Committee may wish to consider during its post-legislative scrutiny of the Act. It is, of course, open to noble Lords—I am sure the noble Lord, Lord Wills, with his experience and expertise in this matter will do so—to make representations to the committee as part of its work.
More generally, it is important that we assess carefully the likely impact of any change against the benefits that it will bring. This is to ensure that transparency is both maintained and enhanced but with due regard to any burdens that might be imposed. For example, under Amendment 151C, it would be problematic for both contractors and public authorities to comply with freedom of information requests for contract information. Public authorities would need to have access to any information held by the contractor that is potentially relevant in responding to the request. Such a requirement to share all such information with the public authority so that it could comply with freedom of information requests could adversely affect the effective delivery of that contract. In particular, it might, for example, provide the public authority with commercially sensitive information on other matters to which the authority would not—or, arguably, should not—have access.
In addition, Amendment 152A, for example, which seeks to make all companies more than 50 per cent owned by the public sector subject to the Act, would increase the risk of activities not relating to the public sector being made subject to the Act given the varied interests that these bodies might have. The noble Lord made reference to that argument before, but it is a very compelling argument. If there is a strong argument for including a specific body in relation to the specific things that it does, this is better achieved through other means, such as an order made under Section 5 of the FOI Act. However, as I have indicated, we are already extending the scope of the Act to all companies that are wholly owned by any number of public authorities, as provided for in Clause 101 of the Bill.
Amendment 152A relates solely to the local government sector. As my noble friend Lord McNally explained to the House at the Report stage of the Localism Bill, it would not be appropriate, as is proposed in the amendment, simply to amend the Freedom of Information Act in relation to bodies that have entered into contracts with local government. In addition, although I do not think that this argument was deployed by my noble friend during the passage of that Bill, in preparing myself for today’s debate it seemed to me that the proposal could act as a disincentive to competition among contractors. That is another argument and reason why we should not necessarily go down this route.
To conclude, I would like to reiterate to the noble Lord, Lord Wills, that our opposition to his proposals stems not from an aversion to increased transparency but from our desire to ensure that effective and proportionate solutions are developed. I hope, therefore, that the noble Lord will feel able to withdraw his amendment.
Lord Wills
My Lords, I am grateful to the Minister for her broadly constructive, helpful and typically gracious response. However, I say to her that she does not have to persuade me, as I am genuinely trying to be helpful. When I was a Member of Parliament, 75 per cent of my casework—I dealt with about 1,200 different cases every month—was complaints about Swindon Borough Council. What most people really want to know about is what their local authority is doing for them. At some point in the future, unless the Minister makes good on the warm words that we have just heard from her and brings back under the scope of the Act those local authority functions that are being given out to private contractors, every MP on the Government’s side will be battered by complaints from their constituents, who will ask, “Why can we not find out more information about this work, which our money is paying for—work that is being done on our behalf—because of the result of legislation that you have passed?”. That is the current situation.
I would be very happy to give way to the Minister. If she is going to reassure me, I will be delighted.
Baroness Stowell of Beeston
I simply point out to the noble Lord that my understanding is that, although a local authority may contract out a service to a provider, the local authority is still accountable for the delivery of that service. Therefore, any individual should be able to request—using the Freedom of Information Act if necessary, or through correspondence with their local MP—the information that they need to be able to satisfy themselves that what they pay for through their local taxes is actually providing the service that they expect and that they deserve to receive.
Lord Wills
I am grateful to the Minister for what is a very valiant attempt, if I may say so. I will not detain the House at length, as I am about to withdraw the amendment. However, if she refers to the column in Hansard where I originally raised this point, during the passage of the Localism Bill, she will see that that is not quite the case. There are many instances where services have gone to private contractors that people just cannot find out about. For example, on the issue of parking tickets, many people are very suspicious about the way that private ticket companies operate. People suspect that the ticketing is a revenue-raising operation rather than an attempt to ensure that the traffic can move safely and securely through town. When people want to find out about that, they cannot do so because private sector companies are not covered by the Act. As I say, the Minister does not have to persuade me, but all the Members of Parliament in the other place will be besieged by constituents in the years to come unless this Government make good on their pledge to get this information back into the public domain. There will be a heavy price to pay—that is all that I can say.
For the record, I am afraid that I am not persuaded by her arguments, for what it is worth. Of course post-legislative scrutiny is a good thing, and the Minister is quite right to bang the drum about that. I support the Government on that, but they have ignored their own good practice in this case by removing such matters from the Act in having already taken a piecemeal decision about this.
However, I remain willing to be persuaded about the Government’s good intentions. I believe that the Government want to extend transparency, but I make the point—I tried to make this point to the noble Lord, Lord McNally, as well—that open data is an admirable project, on which the Government are doing great work. That work was begun by the previous Government, and I support this Government in the way that they are taking it forward so vigorously. That is a great thing, but it is different from freedom of information. There is one crucial difference. As regards open data, it is for the Government to decide what data they release. They have been open and are pushing the transparency agenda vigorously—all credit to them for that—but the Government decide on that matter. As regards freedom of information, the citizen decides what information he wants. It is bottom up as opposed to top down. They complement one another and they should be working together, but they are different. That is not an adequate excuse in my view.
However, I have detained the Committee long enough and, for the time being, I beg leave to withdraw the amendment.
Baroness Thornton
“Information to be communicated
(1) In section 1 of the Freedom of Information Act 2000 (general right of access to information held by public authorities) after subsection (4) insert—
“(4A) Should the communication of information under subsection (1)(a) and (b) be delayed beyond the time limit for compliance specified under section 10(1), the applicant will be given the option of requesting that the information communicated is the information extant at the time of final release, taking account of any amendment or addition of information made between the time the request is received and the time when the information is to be communicated, unless there are grounds for significant new concerns as to the exempt nature of any new information under Part 2 (exempt information).””
Baroness Thornton
My Lords, I am delighted to be taking part for a short time in this distinguished Grand Committee, whose debates I have been following with interest. I suspect that I am not the first noble Lord to realise the relevance and immediacy of the debates that have been taking place here, particularly on this part of the Bill, concerned, as it is, with the use of and access to public information, or, in the case which I wish to draw to the Grand Committee’s attention, lack of access.
I hope that the Grand Committee will forgive me as an interloper into its deliberations but I wish to put a particular issue before it which seems pertinent to the matters it is discussing. I wish to move Amendment 151E and speak to Amendment 151F. Amendment 151E aims to tackle the problem of information that is communicated post the appeals process being out of date by granting applicants the option of receiving the most up-to-date version of the said information, if relevant. The relevant part of the amendment states, in proposed new subsection (4A):
“Should the communication of information under subsection (1)(a) and (b) be delayed beyond the time limit for compliance specified under section 10(1), the applicant will be given the option of requesting that the information communicated is the information extant at the time of final release, taking account of any amendment or addition of information made between the time the request is received and the time when the information is to be communicated, unless there are grounds for significant new concerns as to the exempt nature of any new information under Part 2 (exempt information)”.
I will go on to talk about the dilemma that we face in the House in general at the moment, but we have tabled this amendment because, if you go through the whole freedom of information appeal process, it could be many months before the Information Commissioner grants that appeal and says that that information should be released. If the information you are seeking is updated regularly, obviously the information that you need may be that which is available now, not that which was available eight months ago when you started down the road of putting down your freedom of information request, so this is about up-to-date information.
Amendment 151F seeks to insert a new clause. This aims to prevent a government use of appeals to block the release of evidence for a specific period of time—that is, when a Bill is being debated—by prohibiting the Royal Assent of any Bills where the release of key information is still subject to an appeals process. The amendment seeks to appeal against information notices by public authorities. Subsection (1) of the proposed new clause states:
“In section 57 of the Freedom of Information Act 2000 (appeal against notices served under Part IV) after subsection (2) insert”,
the points as outlined in our amendment.
In all the time that I have been in your Lordships’ House—since 1998, and certainly since the passage of the freedom of information legislation—I do not recall a situation like the one facing the House at the moment. In a nutshell, the House is being denied what might be—and probably is—pertinent information during the passage of legislation, and is being expected to scrutinise a very large and important Bill without full information that might influence its view about parts or all of it. I bring this dilemma to Grand Committee for consideration, and amendments that might remedy the situation. I am sure noble Lords will be pleased to learn that I have no intention of exposing the Committee to the rights and wrongs of the Health and Social Care Bill. However, I would appreciate the Committee’s consideration of an important issue—one which might occur again.
Lord Henley
My Lords, I welcome the noble Baroness to this Bill. When I saw she was going to be moving this amendment I wondered whether I should have asked my noble friend Lord Howe to step in and deal with it, but I think he has quite enough on his plate at the moment. As the noble Baroness made quite clear, she does not want me to deal with this from the point of view of the Department of Health. She accepts it has every right to appeal the issue and that the Government can appeal it further through all the appropriate courts. Although this is a matter for the Department of Health, it obviously has implications for wider government. Therefore it is of concern and they have the right to appeal these matters.
As she asked me to do, I will confine my remarks—particularly when I get on to Amendment 151F, the second of her two amendments—to the broad principles, because that is what she wants me to address on this occasion. No doubt she has had and will find ways of debating these matters further, and at some length, when she continues the debates on the health Bill. I want to deal first, rather briefly, with Amendment 151E, which proposes that where a response to a freedom of information request is not issued within 20 working days the applicant must be given the option of requesting any updated or new information,
“unless there are grounds for significant new concerns as to the exempt nature”
of such material. I want then to deal with the broad principles relating to Amendment 151F, concerning,
“Appeals against information notices by public authorities”,
and why we do not accept that her amendment is an appropriate way of dealing with this.
First, with regard to Amendment 151E, I accept that we would certainly want to encourage all public authorities to provide the most up-to-date information in such circumstances where it is appropriate and reasonable to do so, but the proposal we have here is fraught with difficulties. It could make it very difficult to conclude a request taking more than 20 working days, even where the deadline has been extended for legitimate reasons, given that new information might continuously be produced and the existing information would be continuously updated. That could have real disadvantages for the requester of that information if previous versions of the information that they might be interested in seeing were not ultimately disclosed because the obligation to disclose those versions had been superseded by an updated request.
Further, the effect of the option to request updated information being exercised will be to create in effect a rolling request for information each time the 20-day limit is exceeded. That might delay the information originally requested from reaching the requester, and will mean that the public authority expends time answering one version of the question only to see that work disregarded if it is superseded by an updated request. Neither of those are sensible results. I also believe that the amendment could lead to the undesirable outcome where public authorities rush decisions to complete cases within 20 working days, even where there are legitimate grounds to take longer. Therefore they either withhold uncontentious information or release sensitive information inappropriately.
I turn now to the second of the amendments—
Baroness Thornton
I would be grateful if the Minister could address the issue. The register of risk is a very good example of this. Were my honourable friend and the Evening Standard to have succeeded ultimately and were the Government to have acceded to the Information Commissioner’s ruling to release the information, the register of risks of November 2010 would not have been the relevant document. It was mentioned that it would not be very much use to my honourable friend because it would be that of November 2010, not November 2011. There is a genuine issue here which I would be very grateful if the Minister could address.
Lord Henley
I do not really see how it applies in the particular case that the noble Baroness is referring to, when she is talking about a 20-day limit and, if that is exceeded, how it would affect the November 2010 or November 2011 health risk register.
I shall come on to what I think is the more important part—
Baroness Thornton
I am very sorry to press the Minister on this matter, but I think I have been completely clear about this. I explained that a register of risks is a living document. It is a traffic-light process of red, amber and green in terms of the risks in any given policy area. The Minister must be very familiar with it because all government departments use them. A register of risks published in November 2010 would not be relevant in November 2011 when we in the House of Lords were discussing the health Bill.
I am perfectly happy to accept that this may be an incompetently worded amendment, but the Minister has not answered the question. Are the Government saying that when, under freedom of information, people ask for information that is then outside the 20 days and it goes to appeal, and the Government lose that appeal and the information may therefore be a year old, the Government will ensure that the up-to-date information is made available, if that is relevant?
Lord Henley
Obviously we want to provide the most up-to-date information that is appropriate. If this goes to appeal and it is found that we should be providing this information, we would provide that November 2010 information, but it would then be open to the noble Baroness to put in a request for the later information. Having had that decision by the tribunal, the court or whatever, that information would then be provided in the appropriate manner, because we would have lost that case and it would have become clear that that sort of information was that which should be provided.
Baroness Thornton
For the record, if the Government lose this appeal and publish this register of risks on this Bill, it will be not the November 2010 register of risks but the November 2010 risks plus the up-to-date version. Is that what the Minister is saying to me?
Lord Henley
I am not going to give an absolute guarantee of that sort without proper notice at this stage. However, I would have thought that it is fairly obvious that if something has been through the courts or the tribunal, or at whatever stage the Government decide that they are not going to appeal any further, and the courts have decreed that that sort of information ought to be available, it would be proper to provide the later information because it would be the same information that was being requested, other than the fact that it was at a later time. It would still be the same request being made, and it would have been decreed that that was appropriate. We would be bound by that decision.
Perhaps I might move on to the noble Baroness’s second amendment, with which I have even greater problems. In Amendment 151F, she proposes that no Bill may be submitted for Royal Assent where information directly relevant to that Bill has been requested under the Freedom of Information Act and where an appeal against an information notice issued by the Information Commissioner in the course of an investigation into the handling of the request is under consideration.
Baroness Thornton
I am sorry to interrupt the Minister again but did I understand him to say that it was disproportionate to delay the passage of a Bill? But what if the information is relevant to the passage of the Bill? This is the problem we have now. I am sure the noble Lord intends to enlighten me on that point.
Lord Henley
Yes, I think it is disproportionate to use the FOI process to delay the passage of a Bill and I do not draw back from those remarks— particularly when the appeal is under way for entirely legitimate reasons, as my colleagues in the Department of Health have made clear.
Perhaps I may go on, if the noble Baroness will let me. It also brings a political dimension into the process. The commissioner, who again I stress is independent of government, would obviously have to be mindful of the likely impact on the passage of a Bill were he to issue an information or decision notice during the passage of related legislation that he might expect to be appealed. Given that a decision on whether and when to issue a notice might indirectly impact on the passage of legislation, there is a real risk that his actions could be viewed through a political prism. That is not what we want and would have an adverse effect on his ability to act in a way that is—and is seen to be—both proper and impartial.
Baroness Thornton
Is the noble Lord saying that the ruling of the Information Commissioner—and the words he used, which I quoted to the Committee earlier in my remarks—was political in some way?
Lord Henley
I have not said that at all. I have said that what the noble Baroness is saying in her amendment would bring in a political dimension because it could cause delay to the passage of that Bill.
Obviously that risk could be avoided by the commissioner simply refusing to issue a notice while any Bill that he thought was related to the request was passing through Parliament. However, that would then cause even greater delay in him deciding whether or not to issue the notice, with an obvious disadvantage to the parties involved, particularly to the person who has requested the information. In either case, this would be to the potential detriment of the effective operation of the Freedom of Information Act and to the perception of the commissioner’s independence.
Baroness Thornton
This is really very important. Is the Minister saying, suggesting or even inferring that the use of freedom of information by Members of Parliament—and I have put the odd one in myself, and been a victim of it, from time to time—is not appropriate during the passage of any legislation, because a Member of Parliament may want that information to assist them in their deliberations or their input into that scrutiny?
Lord Henley
I regret to say that the noble Baroness is now getting to the stage where she is deliberately trying to misunderstand me on every occasion. There is no desire to stop people putting in a request for freedom of information. All we are saying is that her amendment, which in effect delays the passage of the Bill while that process is going on, is not an appropriate way in which to deal with it, and brings in the political dimension to the Bill. The amendment also undermines the premise that the Freedom of Information Act is motive blind by introducing a requirement to consider whether information has been requested in connection with a particular Bill.
Lord Scott of Foscote
Can the Minister help me or the Committee in indicating whether law officers have given any advice on the implications of this amendment from a constitutional point of view? I have in mind the prospect of a Bill being introduced in one or other House—it does not matter which—being passed in that House and going to the other House and being passed in that House too, perhaps with a commencement date specified in the Bill. All that would be needed to become part of the law of the land would be Royal Assent. If the result of the proposed amendment becoming embodied in the statute is to bar the presentation of the Bill, passed through both Houses, prevent it from receiving Royal Assent and becoming law of the land according to its tenor and the will of Parliament, it would be a very strange constitutional state of affairs. It would mean that the previous Act would fetter the ability of the current Parliament to pass and bring into effect its own Bills. Does the Minister think that this is the sort of point on which a constitutional opinion from the law officers would be necessary?
Lord Henley
My Lords, as I am sure that the noble and learned Lord will be aware, we never comment on the advice that we might or might not have received from the law officers, and I am not prepared to comment on this occasion. However, I join the noble and learned Lord in speculating on the very odd constitutional effects that an amendment such as this could have on the passage of legislation. It cannot be right that by submitting an appeal an outside party can restrict the passage of legislation. That is the crucial point in relation to this amendment. I will give way to the noble Lord, Lord Wills, in a moment if he can just keep calm. It would restrict the passage of legislation in Parliament and in effect govern how this place or another place does its business.
Lord Wills
I am perfectly calm, but I am very interested in following this debate, which has been fascinating. I understand the point that the Minister is making. The noble and learned Lord has raised an important constitutional question. However, could the Minister seek to find a way to reassure those of us who are worried about the other side of the argument? I am not making any comment on this particular Bill but, in the event that the suspicion arises that information is being deliberately withheld by the Government in an attempt to prevent proper scrutiny of a controversial Bill, which then goes through without that information being available—particularly to this House, whose particular role is to scrutinise on the basis of expert opinion and all the rest of it—what reassurance can he provide that this Bill and the processes of the Freedom of Information Act will not be used by the Government of any party to subvert proper scrutiny?
Lord Henley
I can give the assurance that the coalition Government have given again and again of our desire for genuine transparency. That is why we were committed to making the Freedom of Information Act work as well as it can, which is why we have brought forward amendments to the Act in this Bill. I can go no further than that in trying to reassure the noble Lord. There is a genuine commitment by this Government, and I do not believe that any Ministers would wish to subvert our processes by deliberately withholding information as the noble Lord seems to suggest. He will just have to take my word for it.
The noble and learned Lord put it best. It would be a novel and dangerous proposition and one that I cannot believe is in the best interests of Parliament that some outside party could restrict the passage of legislation through Parliament and in effect govern how Parliament does its business by putting in requests of this sort and causing delays. Therefore, I hope that the noble Baroness at this stage will not press the amendment—well, she cannot do so because we are in the Moses Room. I hope that she is content to withdraw the amendment, but I also hope that she has further discussions with my noble friend Lord Howe. No doubt they will keep those discussions to the Health Bill as it proceeds through this House.
Baroness Thornton
I cannot guarantee the last bit from the Minister—that this issue is over for this Committee or for the progress of this Bill. This is a matter of constitutional importance to this House and an issue between the Government and Parliament. The Government had a choice. When the Information Commissioner ruled that this information on the register of risks was relevant to the passage of this Bill, he made a very important constitutional point. By denying the House that information, the Government are asking the House of Lords to consider a Bill without the information that it needs to do so. We are not saying that any third party should seek to stop the passage of any legislation—and I am perfectly happy to take advice and redraft the amendment. But the Minister has completely failed to address the constitutional point that it raised here, which is not about the Health and Social Care Bill but about what happens if an Information Commissioner says that some information is relevant to the passage of legislation through this House and any Government deny it to the House. That is a very serious matter indeed. Of course, I will withdraw the amendment, but I do not think that the matter ends here or that it is limited to the Health and Social Care Bill.
Baroness Hamwee
“(b) in the case of an authority which is listed only in relation to particular information, that authority in respect of other information”.”
Baroness Hamwee
Since I will find it so difficult to explain my concerns, I suggest that after those interesting exchanges noble Lords might like to give their minds a bit of a rest for a moment.
I apologise to the Minister for raising this matter at this stage, but I started to question the wording of the provision only a very few minutes before time ran out for tabling amendments at this stage. As I said to him, it is better to be shown to be an idiot than to fail to ask a question that needs to be asked.
This amendment would alter the definition of a relevant public authority for the purposes of the meaning of a publicly owned company. It appears to exclude an authority listed only in a limited fashion entirely from the definition of the component part of a publicly owned company. One rapidly gets into the dangers of double negatives, but I would have thought that the exclusion should extend only to the information, which is not referred to in the schedule to the Freedom of Information Act. In other words, if an authority is listed in a limited fashion, it should nevertheless be included to the extent of that limit.
Lord Henley
My Lords, I am sure that my noble friend is right when she says that it is better always to ask the question rather than, as she put it, to take the risk. As I understand it, the amendment proposes to extend the scope of Section 6 of the Freedom of Information Act beyond the extension already proposed in the Bill. However, the amendment seeks to do so in a way that I think is at odds with the approach taken in the Act.
At present, Section 6 of the FOI Act brings within the scope of the Act only companies that are wholly owned by the Crown or any single public authority listed, with limited exceptions, in Schedule 1 to the Act. Companies that are wholly owned by more than one public authority, or by the Crown and one or more of those Schedule 1 public authorities, are not currently subject to the Freedom of Information Act. Clause 101 therefore amends Section 6 of the FOI Act to widen the definition of a “publicly-owned company”, with the effect of extending the Act to companies wholly owned by the wider public sector. This simply means that any combination of public authorities subject to the Act, with limited exceptions, or by one or more of those bodies and the Crown, will be brought within its scope.
I mentioned that there are limited exceptions to this change. In one such instance, where a company is owned in part or wholly by a body that is itself subject to the Freedom of Information Act in respect of only some—and not all—of the information that it holds, the company will not be covered. It is this exception that my noble friend proposes to remove, so that such companies are subject to the Act.
I appreciate the intentions behind my noble friend’s proposal. Although relatively few public authorities are subject to the FOI Act only in respect of some information, and the number of companies excluded through the current proposal is likely to be small, the case for adding such bodies may well often be strong. However, I do not consider blanket coverage for these companies in the way proposed to be the most appropriate solution. As their parent body does not exercise wholly public functions—hence their partial coverage by the Act—it follows that some of these companies will also perform functions that should not automatically be subject to the Act.
That is not to say that it will never be appropriate for such bodies to be subject to the Act. Indeed, that may well be the case where any company of this sort exercises, for example, functions of a public nature. However, in such cases other means exist, and are already being used by the Government, to extend the scope of the Freedom of Information Act. These include secondary legislation under Section 5 of the Act to include bodies performing functions of a public nature. It would be more desirable to consider adding companies of the type relevant to the amendment on an individual basis where strong reasons for including them exist. We think that, as it were, a piecemeal approach, rather than the blanket approach proposed by my noble friend, is the better way for doing that.
I hope that that explanation is of some use, but if it is not I hope that my noble friend can at least read what I have said and consider whether that is satisfactory from her point of view.
Baroness Hamwee
I thank the Minister for that response. I follow everything he says, except, perhaps, his conclusion because I was not seeking blanket coverage. My draft would deal with the coverage of particular information only. I will read what he said, and I wonder whether I may be able to discuss this with him or his officials in order to understand whether the Government have in mind examples of the piecemeal extension to which he referred. Having said that, I beg leave to withdraw the amendment.
Lord Lucas
“Means by which communication to be made
In section 11 of the Freedom of Information Act 2000 (means by which communication to be made), after subsection (1)(c) insert—“(d) the provision to the applicant of a copy of an existing record containing the information,”.”
Lord Lucas
This amendment would give people seeking information the right to see that information in its original context. I beg to move.
Lord Henley
I thank my noble friend for speaking to his amendment with such brevity that he caught me unaware. He has set out how he seeks to introduce a provision into the Freedom of Information Act to the effect that, so far as is practical, and where they request it, applicants must be supplied with a copy of the original record containing the information in which they are interested.
I accept that disclosing copies of documents is often the easiest way of responding to freedom of information requests and that that practice is widely followed. In some instances, it may be reasonably practical in terms of cost to supply copies of the existing record, but there may be legitimate reasons why it is not proportionate to do so when the benefit to be gained is balanced by the burdens imposed. For example, the most reasonable interpretation of the amendment would mean that the additional information need not be released if it has not been requested, but if it is, the public authority would be obliged to provide pages of blacked-out text in order to provide the full existing record. I do not think that that would be the most appropriate way forward. Leaving the position that public authorities can provide copies of the original where necessary but they are not obliged to do so is possibly the more appropriate way to deal with this matter, and I hope my noble friend will feel able to withdraw his amendment.
Lord Lucas
I am grateful for that reply. I shall think carefully about what the Minister said, and if I need to ask further questions I shall do so when I meet his officials. I beg leave to withdraw the amendment.
Lord Wills
“Changes to the offence of altering etc records with intent to prevent disclosure
In section 77 of the Freedom of Information Act 2000 (offence of altering etc records with intent to prevent disclosure) after subsection (4) insert—“(5) Notwithstanding anything in section 127(1) of the Magistrates’ Courts Act 1980, a magistrates’ court may try an information relating to an offence under this section if the information is laid—
(a) before the end of the period of three years beginning with the date of the commission of the offence, and(b) before the end of the period of six months beginning with the date on which evidence which the prosecutor thinks is sufficient to justify the proceedings comes to his or her knowledge.(6) For the purpose of subsection (5)—
(a) a certificate signed by or on behalf of the prosecutor and stating the date on which such evidence came to his or her knowledge shall be conclusive evidence of that fact, and(b) a certificate stating that matter and purporting to be so signed shall be treated as so signed unless the contrary is proved.””
Lord Wills
The two amendments in this group tackle a problem with policing the Freedom of Information Act that the Information Commissioner has identified as a priority. Under Section 77 of the Act, a person or authority commits an offence by deliberately destroying, amending or concealing a requested record with the intention of preventing the disclosure of its contents. Currently, the offence is triable only in the magistrates' court where the maximum penalty is level 5 on the standard scale, which is currently £5,000. The Information Commissioner, who is responsible for policing the Act, has argued that such offences should be triable either in the magistrates’ court or the Crown Court. The latter option would permit a fine greater than £5,000 to be imposed in more serious cases. The Information Commissioner has identified this as a real problem in ensuring compliance with the Act. Amendment 151K would provide that option.
Allowing offences to be tried on indictment would have a further benefit. At present, proceedings for offences which are triable only in magistrates’ courts have to be brought within six months of the offence occurring, but it can take several months between a request being made, a complaint about it being made and it reaching the Information Commissioner’s Office. The Information Commissioner’s Office’s investigation is likely to take several months and, by the time any offence is discovered and the evidence accumulated, it is likely to be too late to prosecute. However, cases triable on indictment are not subject to the six-month limitation. In providing this option, the amendment would have the advantage of allowing prosecutions to be brought more than six months after the offence had occurred and would make policing the Act considerably more effective.
Amendment 151J provides an alternative approach to dealing with the six-month time limit. Under the amendment the offence would remain triable only in the magistrates’ court but proceedings could be brought within three years of the offence provided that this was no later than six months after the prosecuting authority had obtained the necessary evidence. There is precedent for the wording of the amendment: it is identical to that already found in several statutes which have also been amended or designed to avoid the six- month limit on prosecutions. These include: Section 31 of the Animal Welfare Act 2006; Section 11A of the Employment Agencies Act 1973; Section 64A of the Public Health (Control of Disease) Act 1984; and Section 12(4A) of the Theft Act 1968.
I hope the Government will look favourably on these amendments, which would give the Information Commissioner an additional weapon that he feels he needs. All of us want to see the Act enforced effectively. I beg to move.
Baroness Hamwee
My Lords, I support the thrust of the two amendments, or either of them. As the noble Lord, Lord Wills, has said, it is important to give the official who is tasked with applying the legislation the tools to do the job properly. After all, he and his office are in the best position to analyse where the obstacles are. This is a clear problem and he has been clear about the need for a solution. I hope we use this opportunity—I do not like the jargon—to add to the toolbox.
Lord Rosser
I support the amendments. I certainly do not intend to explain the purpose of them because my noble friend has already done that. The key point is that it is the view of the Information Commissioner, based on his or her experience, that there should be the opportunity, if necessary, to have cases heard at the Crown Court. Obviously, this relates to the severity of the fine that can be imposed because there is a restriction if a case is dealt with in the magistrates’ court. The issue of the timescale within which proceedings have to be initiated has also been raised.
I hope the Government will be able to give a sympathetic response, not least because the amendments are based on views that were expressed, I think in evidence to the Justice Select Committee on 13 September last year, by the Information Commissioner and the changes that that individual felt were necessary in the light of experience.
Baroness Stowell of Beeston
My Lords, I am grateful to all noble Lords who have spoken in this debate. I agree that any person guilty of an offence of altering or destroying information that has been requested under the Freedom of Information Act should be prosecuted, and they should not be able to evade prosecution because the Information Commissioner has been unable to consider the case within six months of such an offence occurring. I am aware that the Scottish Government have recently launched a public consultation exercise which, in part, asks for views on whether to lengthen the time limit for bringing prosecutions under the equivalent provision in the Freedom of Information (Scotland) Act, from six to 12 months. I am also aware that the current time limit applicable to Section 77 of the UK Act has been the subject of some comment by the Commons Science and Technology Committee in its reports into the events, which have already been mentioned today, at the University of East Anglia.
The noble Lord, Lord Rosser, made reference to evidence given to a committee in September by the Information Commissioner. In the Government’s response to the Commons Science and Technology Committee last year in May, we stated that we would work with the Information Commissioner’s Office to determine the extent to which perceived difficulties with the current six-month time limit for initiating prosecutions stand up to scrutiny. To date, there is a lack of concrete evidence to demonstrate that prosecutions have not been brought as a result of the existing arrangements. However, because the Government share the concerns expressed by noble Lords today, should evidence emerge of a widespread and genuine problem, consideration will be given to the most appropriate means of remedying this issue. I am sure that the noble Lord, Lord Wills, will not be surprised to hear me say that this issue might be one that could be looked at as part of post-legislative scrutiny.
The noble Lord, Lord Rosser, made reference to the Information Commissioner’s evidence in September last year. That is something that I was not specifically aware of, but I understand that we are in discussions with the Information Commissioner’s Office. It may be that measures similar to those proposed by the noble Lord, Lord Wills, would be the most appropriate way of responding to conclusive evidence in favour of change, should that emerge. Certainly, the solution proposed in Amendment 151J to lengthen the period from six months from the commission of an offence to three years, but within six months of the prosecuting authority being furnished with relevant evidence, is commonly used when a longer timescale for bringing a prosecution is justified. However, we would need to consider what was most appropriate to ensure the right measures were put in place. I am sympathetic to what he is saying, but the Government are not in a position to commit to it.
Amendment 151K seeks to address the issue in another way, that is, by making the Section 77 offence triable either way. The six-month time limit for bringing a prosecution of course applies only to summary offences. I take it that the noble Lord envisages that the maximum penalty for the offence, when it is tried on indictment, should be an unlimited fine. We need to bear in mind that Clause 79 of the Legal Aid, Sentencing and Punishment of Offenders Bill removes the limits on fines of £5,000 or more on conviction by the magistrates’ court. That being the case, it may be more efficient to continue to try these offences in the magistrates’ court.
Both the time limit and the maximum penalty are issues that the Justice Select Committee may wish to consider during the post-legislative scrutiny of the Freedom of Information Act. I hope that on the basis of what I have been able to say today, the noble Lord will feel it possible to withdraw his amendment.
Lord Wills
I am very grateful to the Minister and I am reassured by her response. I shall, of course, withdraw the amendment, but could I ask her to do something? She rightly said that there has to be a need for compelling evidence—or concrete evidence, I think, was the expression that she used. Could she contact the Information Commissioner and ask him to produce the evidence that he has to that effect and the problems that he has encountered and why he thinks it is a problem? Perhaps if I tabled these amendments again on Report she could tell the House what the response has been, what evidence there is or whether there is any evidence. With that, I am happy to withdraw the amendment.
Lord Wills
“Time limit for decisions involving the public interest
In section 10(3) of the Freedom of Information Act 2000 (time for compliance with request) after “circumstances” insert “provided that it complies not later than the fortieth working day following the date of receipt”.”
Lord Wills
My Lords, when I tabled these amendments I thought they were typically uncontentious, modest little amendments that would not detain the House for very long. However, having heard the previous debate on Amendments 151E and 151F they seem to be perhaps slightly more significant than I first thought because, in trying to tackle problems of delay, they could help resolve the clearly difficult and contentious issue of the risk register. I hope the Government will look at these amendments sympathetically, not only for their own sake but also as a way of resolving the difficult issues raised in the previous debate. All three amendments seek to tackle the problem of undue delay in complying with freedom of information requests. I was the Freedom of Information Minister twice in my political life in the other place and this issue came up over and over again as a real problem. These delays are not necessarily malign but there is a problem with delays in the system. Therefore this is an attempt to go round it and put new controls in place.
Amendment 151L imposes a time limit for decisions involving the public interest test and limits the possible extension of the 20-working-day limit to a further 20 working days so that a response would have to be provided no later than 40 working days after the request. In general, authorities must respond to FOI requests promptly and in any event within 20 working days, but where an authority considers whether to disclose exempt information on public interest grounds it can extend that 20-day period by,
“such time as is reasonable in the circumstances”.
There is no maximum period to this permitted extension.
In some cases—not all—the delay is necessary and is there for very good reasons, but in other cases extensions have been repeatedly claimed, leading to delays of more than a year before freedom of information requests have been answered. This clearly is unacceptable. It is unacceptable if these delays are the result of the incompetence of officials—and, indeed, Ministers, where they are involved—not getting their act together in time and just putting things off. It is even less acceptable if the result of delay is to save the Government of the day some sort of political embarrassment. This is not unknown in government and it is not acceptable. The amendment is in line with the Information Commissioner’s guidance which states that normally an extension should not be needed at all, but where it is the extension should not exceed a further 20 working days.
Amendment 151M requires every public authority to produce as part of its publication scheme an annual report setting out the number of requests it has received and the number with which it has complied within the statutory time limits. This information would have to be provided for requests made under both the Freedom of Information Act and the Environmental Information Regulations. As I said earlier, the Ministry of Justice provides such information quarterly for central government bodies. There is no requirement for other bodies to publish these basic statistics and many do not choose to do so.
It is crucial that such transparency is in place. It is the Information Commissioner’s policy to subject authorities that consistently fail to comply with the Act’s time limits to a three-month period of monitoring, and if their performance does not improve during this period enforcement action may be taken. The decision on which authorities to monitor is partly based on the number of complaints of delay which the Information Commissioner’s Office receives. Any authority which fails to comply with at least 85 per cent of requests within the time limits is also selected for monitoring. However, as authorities are not required to publish their compliance figures, poor performers may not always be detected. This cannot be acceptable and this amendment would help to ensure that that situation is put right by getting the necessary figures published.
Finally, Amendment 151N would insert a time limit into the Act for complying with internal reviews. Under the Act the Information Commissioner is not required to investigate a complaint unless the authority has first carried out an internal review into the contested decision. However, the Act lays down no time limit for completing such an internal review. It merely says that the commissioner is not required to investigate until this review has been “exhausted”.
The amendment defines what “exhausted” means as one of three things: first, that a decision has been communicated to the applicant, which is the current position; secondly, that no decision has been communicated after 20 working days, which in effect gives the authority 20 working days to carry out the internal review in ordinary cases; and, thirdly, for exceptionally complex cases, no decision has been communicated after 40 working days. This is obviously consistent with the previous amendments in this group. This would give an authority, in effect, 40 working days for internal review in complex cases. Authorities would have to notify the applicant within the initial 20 days that they needed to take this extra time, and the extension would be available only if the issue was genuinely complex. This would implement the Information Commissioner’s current guidance, which is that internal reviews should normally be done within 20 working days but should never exceed 40 working days.
These seem to me practical and sensible measures which put right what were probably mistakes or errors of drafting in the original Bill. We obviously did not think it through fully enough. I hope that the Government will look at the amendment sympathetically. I beg to move.
Baroness Royall of Blaisdon
My Lords, these amendments merely seek to ensure that the process operates as quickly and as efficiently as possible by providing a duty on public authorities to expedite requests through the relevant processes as quickly as possible and within a certain period of time. I believe that they are entirely reasonable and are a matter of enhanced transparency and good governance. My noble friend is right when he says that they could also help to resolve some of the deeper problems that we discussed earlier. Therefore, I very much hope that the Government will support these reasonable, clear and sensible amendments which would ensure that the system worked better in favour of public accountability—which is, after all, what the FOI Act was designed to serve.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Lord, Lord Wills, for explaining his amendments so clearly. I will not attempt to summarise them and take up the Committee’s time unnecessarily. I agree with the sentiment behind the noble Lord’s amendments in relation to the timeliness of public interest deliberations and internal reviews, which tally with the Information Commissioner’s best practice guidance.
The Government are firmly in favour of public authorities answering requests and internal reviews as quickly as possible. It is not acceptable that they should drag their heels in responding, and any extension to the time limit for responding to FOI requests should be claimed only where absolutely necessary.
The introduction of new statutory deadlines is certainly one potential way of strengthening the Freedom of Information Act, providing that it does not lead to hasty decisions that are not fully informed. Having an absolute limit of 40 days, even in the most complex cases, must raise some concerns about the potential for such an effect. Accordingly, careful consideration of the impact of such changes would be necessary before their introduction, and for that reason I cannot accept these amendments today. However, as I have said when we discussed other amendments, this might form part of the Justice Select Committee’s post-legislative review.
The noble Lord referred to his experiences as Freedom of Information Minister. I would never claim to have held any such senior position anywhere. However, I spent nine years working in the corporate end of the BBC and saw the internal conflicts that sometimes arose between the editorial part of the organisation using the FOI Act to obtain information and its corporate end having to be subject to the same Act. I am aware of the very careful deliberations that are necessary when an information request comes in and the complexities involved in that. It is sometimes necessary to take a bit of time to get to the point where the right decision can be made on releasing information. That said, in that public authority it was my experience that as the organisation got used to the FOI Act, it got quicker at dealing with the requests, the appeals, the internal reviews and so on.
Lord Wills
I am very grateful to the Minister for that response, which I think is encouraging. I will make one or two points in response to what she said because she raised some important points. Of course I understand the need to wait for post-legislative scrutiny of all these matters. However, given that this is really uncontentious and that no one seriously thinks that extraordinary delays of a year or more are acceptable, notwithstanding the problems of dealing with highly complex cases and all the rest of it, the fact remains that here is a legislative vehicle to do something which is relatively uncontentious.
By the time that post-legislative scrutiny is finished and the Government have churned over it, there will be the usual battles within government. I put all Ministers on notice that the moment they get any chance to look at freedom of information the entire Civil Service, with the exception of those in the Ministry of Justice, piles in looking for an excuse to emasculate it. Many of the Minister’s colleagues in the Government, no matter what the Government's stated policy, will also suddenly discover all kinds of reasons to shield themselves from its effects.
These processes will take months, if not years, and then there will be the question of finding a legislative vehicle for it. We are looking at any statutory action to deal with this being years away, practically, whereas here we have the wonderful Protection of Freedoms Bill—what a wonderful title—in which to put this worthwhile amendment.
I ask the Minister to look at this again. I will help her by tabling these amendments on Report so that she will have a chance to come back and tell your Lordships what she has been able to discover. I note carefully that she says that she cannot accept it today, but maybe when we get to Report she will be in a slightly different position.
The Minister made various points about statutory provision. I absolutely understand her point about very small public authorities. It is perfectly possible to include a provision exempting them in the legislation. This should not be an absolute barrier to dealing with the delays that we have seen in central government and in large local or public authorities which have the effect, whether deliberate or not, of thwarting the public's right to know.
This requirement for publication is not particularly burdensome—the authorities have the information already; it is just a question of collating and publishing it—so will the Minister look at it again and perhaps come back with a view to getting a more positive response to these amendments or some version of them? The wording is not necessarily perfect and I am sure that officials and lawyers can do far better than I have been able to do in order to get it into the Bill. It is here and it can be done now. It would be a massive improvement in the working of the Act, but I am happy to withdraw it for now.
Lord Soley
“Right to information regarding the ownership of land
After section 1 of the Freedom of Information Act 2000 (general right of access to information) insert—“1A Right to information regarding the ownership of land
(1) Any person making a request for information to a public authority about the ownership of land is entitled to be informed whether—
(a) the land is owned, and(b) there has been a registered owner in the last 100 years.(2) The relevant public authority shall have a duty to provide such information upon request.
(3) Where—
(a) such a request is made in relation to a dispute over the ownership of the land, and(b) the information is not held by the public authority,the public authority shall also have a duty to search for the information requested.””
Lord Soley
After that last debate and listening to my noble friend who is as ever persuasive, knowledgeable and everything else, I am surprised that the Minister did not invite him into the department and offer to let him run it while he took a holiday. My noble friend was so convincing I was fully signed up for it. Let me try my best to get some assistance on this one, too.
Amendment 152 addresses a very complex and problematic area around the ownership of land and what I shall call unadopted roads. There are many different names for unadopted roads—unowned, private, and so on—and they are all grouped together. It is not a small problem; there are some 40,000 in the United Kingdom—about 4,000 miles of such unadopted road—so we are not talking about a small problem. It involves rural and urban areas. I want to encourage the beginning of a process and the Minister will be relieved to know that I am not asking her to pick this up and develop it as a full policy because it is a complex area. I am asking her to take on board the complexity of the issue. I have already made some approaches to the Select Committees of the two Houses to see which would be the most appropriate to take the matter forward in recognition that the problem affects a lot of people and causes real difficulty, not just for individuals but for communities living along those unadopted roads. I shall attempt to spell that out a bit more.
First, I declare an interest: I live on such an unadopted road and have seen some of the problems at first hand. Only the other year I was involved in giving advice to people who lived in an unadopted road in the county of Surrey where one resident was getting a company to clamp vehicles that were left in the road and the other residents were being charged large sums of money to have them unclamped. I know that Clause 54 of this Bill makes that unlawful and I am pleased about that. I dealt with other cases as an MP and by talking to other Members of this House and the House of Commons, I am aware that this situation has caused a lot of problems.
Let me say what those problems are and how they have emerged. This is not a scientific appraisal but it seems to me that a lot of the problems emerged in the 19th century when towns were expanding and fields were being sold off in plots for housing, leaving between them areas that ended up serving as roads or tracks. They became the unadopted roads. The Land Registry in an exchange of letters said that there is no such thing as unowned land. It said that,
“the fact that the ownership of land is not registered does not mean that the land is ownerless. In fact, all land will be owned by someone, even if that ownership cannot be readily identified”.
I have my doubts about that because it seems to me—I am not a lawyer—that if somebody who owned that field originally before it was sold off in parcels dies intestate, I am not sure that there can be any owner if that person had no known relatives. To say there is no owner is a vague and difficult concept. It is a curious situation that will have implications for people who live along that road, which is what I want to discuss in a moment.
It is also true to say that one of the main problems that ought to be addressed with some degree of concern is the problem of maintenance. These roads are very difficult for people to maintain if their house fronts on to the road. There are rules about what you can do in order to repair, and if the community is functioning well it will often group together and work out a solution. One of the things that troubles me is that it is not clear what the rights are. I draw attention to a good document on unadopted roads produced by the House of Commons Library in October 2010, which makes the point rather well. It states:
“Even if there is no information about the owner, the frontagers can take over the management of the road and will be protected by law from all but the true owner”.
The problem is: how do you know who the true owner is or if there is one? At the moment, you are protected if there is no known owner, but only up to the point when an owner suddenly materialises and you have a problem. You have a problem that action may possibly be taken against you if you do something on that road or if you repair it and then the owner appears and decides to charge for that. There are real problems about this.
When I discussed this situation with lawyers, the best advice they could give, which was very good coming from lawyers, was to try to avoid going to law on this because it is incredibly expensive and the law is not clear. My main message to the Minister is that we need to clarify this. What I am asking for on the information side is that the Land Registry tells everybody that they can come and inspect its registers, for a certain fee, and see who owns what land. The Land Registry will then say that it cannot be sure about the boundaries. The land may stop at the side of the road or somewhere else, and there is no clarity about where the boundary is. If you then ask who owns the road, the Land Registry will say that it does not know, but there is an owner somewhere. That is what I rather doubt. There are very real questions for the Land Registry about how it prepares and investigates this ownership.
One of the reasons why I put down in this amendment a duty to say whether land has been registered with an owner in the past 100 years is that it would enable people who were thinking of taking over the maintenance of a road to ask whether anybody had owned the land in the past 100 years. I have chosen 100 years as a fairly arbitrary figure, but it is good enough to give people some confidence that they could proceed. If it has not been owned for 100 years, it might be worth the community trying to take over the maintenance of the road either through the local authority or directly. Maintenance is not a minor issue. Many of these roads are not lit and are often, but not always, rights of way, so people are passing up and down them. If the weather is seriously inclement—last winter, for example—the road will be heavily pitted and iced over, and people fall and have quite serious injuries. The question is: how can we address this issue in a way that makes it safer for people to use these roads? It is a little easier when the road is not also a right of way, but it is still a problem for the people who live along it.
There is also the sad problem of ownership disputes. I dealt with situations where people parked cars, put obstacles in the road, grew hedges into the road and did a host of other things. Occasionally, the police are called in, but they cannot possibly solve what is basically a neighbourhood dispute. It is largely about the lack of clarity in the law. Increasingly, I came to the view when dealing with other cases and going by my own experience that Parliament has a duty to address this complex issue. I will be delighted if the Minister offers to take this away and come back with it in a way that enables people to get more information than is available at the moment, which is not that helpful. We need to acknowledge that this spills over into legal areas, so the Ministry of Justice would be involved. I am not suggesting that this Bill is necessarily the right way of doing it, but I am saying that the information combined with some sort of legal structure is necessary. The department, perhaps in conjunction with other departments, could work out something. It may even need an individual Bill drawn up between the departments or, initially, one of the Select Committees to take it on board and have a detailed look at it. If I can get support from the Minister on that approach we could begin a process that might help us solve this problem.
Baroness Royall of Blaisdon
My Lords, I have little or nothing to add to what my noble friend has said. He is right to raise this complex and extensive issue. It is one that has clearly caused many problems for citizens and it would seem that my noble friend’s proposals might be a means of assisting people in their quest for information. This could lead to the roads on which they live being better maintained and safer. It may also assist in resolving difficult and lengthy disputes. I recognise this is an extraordinarily difficult area and I look forward to the Minister’s reply. I wish her well.
Baroness Hamwee
The advice “Don’t go to law” might be extended to “Be very careful about buying a house on an unadopted road”. The former private enterprise, which the noble Lord, Lord Soley, described, of clamping one’s neighbours’ vehicles is quite extreme.
Perhaps I may ask a few questions. I do not suggest that the problems the noble Lord has described are not important but, on the amendment, first, is he suggesting that this extends to any public authority beyond the Land Registry? I suppose that local authorities holding a local land charges register might be relevant, but this is all public authorities. Secondly, did the letter from the Land Registry refer to land having gone to the Crown in the situation of intestacy, and thirdly, is there a concern about more than the adoption of roads? The amendment is more extensive than that, as I understand the thrust of it.
Lord Soley
Perhaps I should answer those points briefly. The reason for including other public departments is because there can overlap. For example, some of these roads are part-owned by a local authority, so you cannot rule out an interest by another public authority. The noble Baroness’s second point about the Crown is very important. I had thought of adding to it but I had already said enough, in a sense. It is said—although I have never known this to be tested—that if you can prove there is not an owner you can approach the Crown to buy the road. It is interesting because that is in direct conflict with what the Land Registry is saying, which is that all roads are owned. My understanding, from talking to one of the lawyers involved in a case, I think, was that if you proved it is not owned—presumably you would have to do that by checking back through wills and so on—you can then approach the Official Solicitor to buy the land. The duty is not on you to prove that it is unowned—I am not sure you can do that in this context. I think that is an important point.
I am not quite clear what the noble Baroness meant by the adoption issue. There is a whole range of names for these roads: private roads, unowned roads, adopted roads. Is that what she means—
Baroness Hamwee
Further to the issue about roads and the general situation described, the amendment could apply to all sorts of situations, I suggest.
Lord Soley
The noble Baroness may be right although I asked for it to be drawn up with a specific focus on this. If it does I am not sure that it is the end of the world but the intention is basically on unadopted roads.
Baroness Stowell of Beeston
My Lords, I want first to congratulate the noble Lord, Lord Soley, on his staying power this afternoon. Beyond myself and my noble friend he is one of the few Members who has been with us throughout the proceedings and it has been very nice to see him here.
On his amendment, I recognise the difficulties that can be encountered when attempting to establish land ownership and recognise the noble Lord’s intentions in seeking to address this point. The way in which he has described the problems is very clear and compelling. However, this amendment would go well beyond the intentions of the Freedom of Information Act. It is not intended to require public authorities to carry out detailed, time-consuming and potentially disproportionately expensive research for information they do not hold.
However, where a request for information made under Section 16 of the Freedom of Information Act requires a public authority to provide a reasonable degree of advice and assistance to applicants this would, where information is not held, include advice about how they might obtain answers to their questions from other sources themselves. In terms of process, this strikes the right sort of balance between the need to use increasingly limited resources sensibly and assisting the public where possible. However, as the noble Lord has identified, the problem he has expressed today goes way beyond this and is currently—it sounds simple from the way he has described it—almost impossible to solve through any route available to anybody at this time.
I was interested in his suggestion of pursuing this problem through a Select Committee route and exploring it because it sounds as if it is a significant issue that requires proper consideration in isolation and separate from this legislation. In respect of the Land Registry, the proposal in his amendment to require an authority to go further than provide the information it has via the FOI Act which receives a report would not just catch the Land Registry, but any other body with an interest in land ownership. I am not sure that was the noble Lord’s intention. I feel that he has raised an important issue. It is certainly useful for us to be aware of it and certainly in the presence of officials from the Ministry of Justice who are considering FOI. I think it goes wider than that and I would be more inclined to support the noble Lord in his effort to pursue this through a Select Committee than to do it through this Bill. On that basis, I invite him to withdraw his amendment.
Lord Soley
My Lords, I am very grateful to the Minister for that reply, for the constructive way in which she has addressed the issue and for her interest—I think that was the word that she used—in my proposal that the matter should go to a Select Committee. I can assure her that the report of this Committee’s proceedings will be brought to the attention both of the clerks to those committees—I have not quite worked out which would be the best committee and, actually, it might be best dealt with by a Joint Committee—and of the chairs of those committees, one of whom I have already spoken to.
I will also draw the issue to the attention of the Land Registry, which I think needs to think about what sort of answers we might need on this. I accept the Minister’s point that the issue goes much wider and I recognise that only a small part of it could come within the scope of the Bill. What I am struggling with is finding a way in which Parliament can address the issue to resolve the problems that confront people and that are, in many cases, very immediate for them. As I said, I could have referred to a number of cases that have been brought to my attention, and I am sure that there are many other such cases around the country.
I am grateful for the Minister’s comments and happily beg leave to withdraw the amendment.
Lord Henley
“Trafficking people for exploitationTrafficking people for sexual exploitation
(1) The Sexual Offences Act 2003 is amended as follows.
(2) For sections 57 to 59 (trafficking people for sexual exploitation) substitute—
“59A Trafficking people for sexual exploitation
(1) A person (“A”) commits an offence if A intentionally arranges or facilitates—
(a) the arrival in, or entry into, the United Kingdom or another country of another person (“B”),(b) the travel of B within the United Kingdom or another country, or(c) the departure of B from the United Kingdom or another country,with a view to the sexual exploitation of B.(2) For the purposes of subsection (1)(a) and (c) A’s arranging or facilitating is with a view to the sexual exploitation of B if, and only if—
(a) A intends to do anything to or in respect of B, after B’s arrival, entry or (as the case may be) departure but in any part of the world, which if done will involve the commission of a relevant offence, or(b) A believes that another person is likely to do something to or in respect of B, after B’s arrival, entry or (as the case may be) departure but in any part of the world, which if done will involve the commission of a relevant offence.(3) For the purposes of subsection (1)(b) A’s arranging or facilitating is with a view to the sexual exploitation of B if, and only if—
(a) A intends to do anything to or in respect of B, during or after the journey and in any part of the world, which if done will involve the commission of a relevant offence, or(b) A believes that another person is likely to do something to or in respect of B, during or after the journey and in any part of the world, which if done will involve the commission of a relevant offence.(4) A person who is a UK national commits an offence under this section regardless of—
(a) where the arranging or facilitating takes place, or(b) which country is the country of arrival, entry, travel or (as the case may be) departure. (5) A person who is not a UK national commits an offence under this section if—
(a) any part of the arranging or facilitating takes place in the United Kingdom, or(b) the United Kingdom is the country of arrival, entry, travel or (as the case may be) departure.(6) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both;(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years.(7) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003, the reference in subsection (6)(a) to 12 months is to be read as a reference to 6 months.”
(3) For subsection (1) of section 60 (sections 57 to 59: interpretation) substitute—
“(1) In section 59A—
“country” includes any territory or other part of the world;
“relevant offence” means—
(a) any offence under the law of England and Wales which is an offence under this Part or under section 1(1)(a) of the Protection of Children Act 1978, or(b) anything done outside England and Wales which is not an offence within paragraph (a) but would be if done in England and Wales;“UK national” means—
(a) a British citizen,(b) a person who is a British subject by virtue of Part 4 of the British Nationality Act 1981 and who has the right of abode in the United Kingdom, or(c) a person who is a British overseas territories citizen by virtue of a connection with Gibraltar.”(4) Omit section 60(2) (sections 57 to 59: jurisdiction).
(5) Accordingly, the title of section 60 becomes “Section 59A: interpretation”.”
Lord Henley
My Lords, in moving Amendment 152B, I will speak also to Amendments 152C, 163A, 169A, 169B, 170A, 171A, 172A and 178.
As the Committee will be aware, the United Kingdom opted into the EU directive on human trafficking in October last year in order to send a strong message that the UK is not a soft target for those looking to exploit others. The directive builds on and supports existing international instruments designed to combat human trafficking, in particular the Council of Europe Convention on Action against Trafficking in Human Beings, to which the UK is a signatory. The UK is already largely compliant with this directive but it requires important changes to our criminal law, which these government amendments address.
Before I move on to spell out the detail of these amendments, I wish to pay tribute to my noble friend Lord McColl, who has through his Private Member’s Bill been a strong advocate of tightening the law in this area.
There are two areas where our criminal law on human trafficking currently falls short of the requirements imposed on member states by the directive: namely, the requirement to establish extraterritorial jurisdiction where the trafficker is a UK national and commits a human trafficking offence anywhere in the world; and the requirement to criminalise labour trafficking within the United Kingdom. Amendments 152B and 152C insert two new clauses into the Bill that will broaden the current human trafficking offences by extending extra-territorial jurisdiction over UK nationals and criminalising labour trafficking that takes place entirely within the UK.
The first new clause relates to trafficking offences for the purpose of sexual exploitation. Under Sections 57 to 59 of the Sexual Offences Act 2003, it is already an offence to traffic a person into, within or out of the United Kingdom for the purposes of sexual exploitation. In the interests of clarity, Amendment 152B proceeds by consolidating these existing trafficking offences into new Section 59A and adding the necessary additional provisions to ensure extraterritorial application of the offences where a UK national commits a trafficking offence anywhere in the world.
The new clause introduced by Amendment 152C, which relates to trafficking offences for the purpose of labour or other exploitation, follows the same approach as Amendment 152B. In addition, Amendment 152C fulfils another requirement of the directive. At the moment, it is not an offence to traffic someone from Manchester to London, for example, for the purposes of forcing them into slavery, unless the victim has previously been trafficked into the UK. This amendment removes this requirement. This brings labour-trafficking offences into line with sex-trafficking offences, ensures our offences comply with the requirements of the directive and provides better protection against trafficking. The other amendments in this group make consequential amendments to other enactments as well as to the extent clauses and the Long Title.
These provisions will apply to England and Wales only. We have been advised by the Scottish Government that, following the enactment of provisions in the Criminal Justice and Licensing (Scotland) Act 2010, the criminal law in Scotland already satisfies the criminal law requirements of the directive. The Northern Ireland Administration intend to bring forward separate legislation in the Northern Ireland Assembly to achieve a similar effect.
The Government are committed to implementing the rest of the EU directive on human trafficking. These amendments deal with those points of the directive that require primary legislation. The rest we will implement through secondary legislation or by other appropriate means. I commend the amendments to the Committee.
Lord McColl of Dulwich
My Lords, I welcome the fact that the Government are moving swiftly to give effect to certain requirements in the EU directive on human trafficking. The Minister was kind enough to write to me about this matter further to my own trafficking Bill, which, incidentally, goes a little further than the EU directive in a number of key respects and had its Second Reading in November last year.
As the Minister has stated, Britain is already largely compliant with the directive, although the areas of our non-compliance certainly make opting in very worth while, and I am glad that we have done so. However, having carefully examined the directive clause by clause and the current level of UK compliance, I have to say that I think there is a need for legal changes in other areas above and beyond those accommodated by the Minister’s amendments.
The noble and learned Baroness, Lady Butler-Sloss, regrets that she had to leave this session early but she will propose appropriate amendments next week during the passage of the LASPO Bill. Of course, I understand that the Government may well address all these other areas through secondary legislation and operational matters, as the Minister has said. However, having looked at the other areas of non-compliance, I am rather struggling to see how they can all be adequately addressed in this way. I will not try to list all the relevant areas now, but they include, for instance, implementing Article 2.3 on the definition of exploitation and Article 2.4 on the legal definition of consent for adults. Then there are provisions in Articles 12.4, 15.3 to 15.5 and others to ensure witness protection during criminal investigation and proceedings. Would the Minister be good enough to write to me outlining in some detail the areas where he intends to introduce secondary legislation and operational measures to achieve complete compliance, and would he place a copy of the letter in the Library?
As well as questions about what the amendments do not address, I also have a question about the drafting of the new clauses. Specifically, it is not clear to me whether the requirement under the EU directive for businesses as well as individuals falls within the scope of trafficking legislation and is upheld by the proposed changes. I would be grateful if the Minister could address that concern in his response.
Finally, while the Government are taking steps today to become compliant with the directive, I am concerned that they may be taking steps elsewhere that will make us non-compliant. The provision of legal representation for victims of trafficking, including for claiming compensation, is necessary if we are to be compliant with Articles 12.2 and 15.2 of the directive. However, civil legal aid for claiming compensation under the Criminal Injuries Compensation Scheme is specifically excluded under Schedule 1, part 2, paragraph 16 of the legal aid Bill that is currently being considered in Committee. As it stands, unless there is some other mechanism that the Government have in place for trafficking victims to claim compensation, I think that they may be in breach of the EU directive on this point. I would be grateful to the Minister if he could allay my concerns.
I conclude by welcoming again the fact that the Government are taking steps today to help Britain become compliant with the directive. For the reasons I have explained, however, their actions also prompt a good many questions, and I look forward to the Minister’s answer. I say in closing that I very much hope that my own trafficking Bill will soon be granted its Committee stage so that we can debate in greater detail its key provisions, which go beyond the directive.
Baroness Royall of Blaisdon
I am grateful to the Minister for introducing the amendments and for the letter that he wrote to noble Lords earlier this week. We welcome the government amendments as far as they go. Like the Minister, I commend the noble Lord, Lord McColl, for his tireless and extraordinary efforts on this important issue and the fact that he introduced his Private Member’s Bill, which I believe paved the way for the amendments before us today. As the noble Lord said, his Bill goes further than the EU directive and I, too, look forward to seeing it in Committee in the near future.
These amendments represent a clear admission by the Government that they were wrong in their initial decision to opt out of the EU directive on human trafficking. The claims made at the time by the Prime Minister about the EU directive were ill informed at best when he said,
“does not go any further than the law that we have already passed”.—[ Official Report, Commons, 15/9/10; col. 873.]
As the Minister explained, the government amendments serve to implement Article 9 of the directive, which requires member states to establish extraterritorial jurisdiction where the offender is one of their own nationals and grants member states discretion over the establishment of jurisdiction over non-nationals, where any part of the offence was committed in a member state’s territory or the victim is a national. We welcome the Government’s amendments to introduce extraterritorial jurisdiction over UK nationals who traffic or facilitate the trafficking of people. We also welcome the introduction of jurisdiction over non-UK nationals who commit or facilitate trafficking from within the UK. However, I ask the Minister to confirm three things about the jurisdiction extensions. First, will the extension of the UK’s jurisdiction also apply to those cases where the offence is committed for the benefit of a legal person established in the UK even if no trafficking activities took place in the UK? Secondly, will it extend to offences where the victim is a national or resident of the UK? Thirdly, will the amendments also extend the same extraterritorial jurisdictions over legal persons of the UK operating overseas or benefiting from trafficking perpetrated overseas as required by Article 5 of the directive?
The Government’s amendments to extend the UK’s jurisdiction to cases of trafficking connected with but not perpetrated in the UK is a welcome move and brings us closer to compliance with the EU directive. However, we are deeply concerned that the Government have sought to act in a way that presents us with an absolute bare minimum compliance and that without further primary legislation the UK could fall short of compliance. In particular, the government amendments do nothing to address the disappearance from the system of child victims of trafficking in this country. With 32 per cent of identified child victims of trafficking having gone missing from care between 2007 and February 2010, it would seem clear that the present system of care for child victims is not working. Charities such as CARE and Ecpat UK, which campaign to end child prostitution and pornography and trafficking of children for sexual purposes cite lack of continuity in care and children being passed from one professional to the next as a key reason for the disappearance of these children and have called for the introduction of a system of guardians to address the highly specific needs and risks that child victims of trafficking are exposed to. Articles 12 and 13 of the directive make it clear that signatories must provide, “assistance, support and protection” for child victims of trafficking and ensure that the,
“necessary assistance and support measures are provided for child victims of trafficking, taking account of their individual needs and concerns”.
I ask the Minister how the Government consider the UK currently complies with Articles 12 and 13 and, in particular, how present arrangements for the care of child victims of trafficking are uniquely tailored to the particular needs and vulnerabilities of these children, as required by Article 13. I also ask the Minister how many child victims of trafficking are known to have gone missing from care in the last year, and whether he thinks that the present and proposed arrangements go far enough to protect against disappearance.
There are other areas, too, where action is required in order to bring the UK into compliance with the directives that are not touched upon by these amendments. Article 16 of the directive requires that the UK establish a national rapporteur to independently monitor implementation of the directive. The Government have stated that they believe that the current Joint Ministerial Committee should be sufficient for this purpose. However, I would ask the Minister how the committee can operate independently of government and how regularly it publicly reports.
Finally, as the noble Lord, Lord McColl pointed out, the directive requires that adequate provision is made for access to legal counselling and representation for victims of trafficking under Article 10. I am specifically concerned about how cuts to the legal aid budget currently being considered in the LASPO Bill will affect such provision to some of the most vulnerable individuals. I should be grateful if the Minister could tell me what measures the Government are taking to ensure that the UK is compliant with this article.
In a debate in this House the Minister stated his view that:
“The remainder of the directive can be implemented in full through secondary legislation and through various operational measures and operational routes”.—[Official Report, 25/11/11; col. 1281.].
I am somewhat sceptical about whether secondary legislation can deliver many of the changes necessary to bring this country into compliance with the directive and, crucially, whether it can provide better protection for the hundreds of vulnerable trafficked children who have gone missing from the system. I note the request from the noble Lord, Lord McColl, for further information about the secondary legislation envisaged and I look forward to receiving that information from the Minister.
I welcome the amendments brought forward today and I look forward to hearing from the Minister what additional measures the Government will be introducing to fully implement this important directive.
Baroness Hamwee
The opt-in to the directive is of far more than technical importance: the message that the opt-in sent was of great significance. I do not want to repeat much of what has already been said but, on the issue of a national rapporteur, I echo the noble Baroness and what the noble Lord, Lord McColl, has said previously about the importance of its independence. The Government have recently published a trafficking strategy and—because it is human nature—to expect them not to defend their own strategy and to see the issues in a more objective way is to demand more than is reasonable.
I also echo the request for an analysis of the matters that can be dealt with by secondary legislation—it is quite clear that the previous speakers have a much better grasp of the detail than I do—so that we can be assured that every point has been picked up, rather than an assumption that secondary legislation will do the job.
Lord Henley
My Lords, I hope that I can respond relatively briefly but I will have to write a number of letters to noble Lords.
On the issue of what further work we have to do through secondary legislation and other means, I shall write in detail to my noble friend, both noble Baronesses who have spoken and place a copy in the Library setting out exactly what we intend to do. The advice I have is that, although we were very nearly compliant, there were certain things that we had to do through primary legislation—and we have found this vehicle through which to do them—and other things that we can do through secondary legislation. Obviously it would be right for me to spell that out in detail.
My noble friend also had some queries about the drafting of the new clauses. In particular, he was concerned that the new clauses referred to offences committed by “a person”. I can assure him that “a person”—as I am sure the noble and learned Lord, Lord Scott, would have confirmed if he was still in his place—includes legal persons. That will include companies and other bodies, other than an individual as he and I understand that. That is the nature of the law.
Lord Henley
“Trafficking people for labour and other exploitation
(1) The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 is amended as follows.
(2) For subsections (1) to (3) of section 4 (trafficking people for labour and other exploitation) substitute—
“(1A) A person (“A”) commits an offence if A intentionally arranges or facilitates—
(a) the arrival in, or entry into, the United Kingdom or another country of another person (“B”),(b) the travel of B within the United Kingdom or another country, or(c) the departure of B from the United Kingdom or another country,with a view to the exploitation of B.(1B) For the purposes of subsection (1A)(a) and (c) A’s arranging or facilitating is with a view to the exploitation of B if (and only if)—
(a) A intends to exploit B, after B’s arrival, entry or (as the case may be) departure but in any part of the world, or(b) A believes that another person is likely to exploit B, after B’s arrival, entry or (as the case may be) departure but in any part of the world.(1C) For the purposes of subsection (1A)(b) A’s arranging or facilitating is with a view to the exploitation of B if (and only if)—
(a) A intends to exploit B, during or after the journey and in any part of the world, or(b) A believes that another person is likely to exploit B, during or after the journey and in any part of the world.”(3) In section 4(4)—
(a) in paragraph (b)—(i) omit “under the Human Organ Transplants Act 1989 (c. 31) or”, and(ii) after “2004” insert “as it has effect in the law of England and Wales”,(b) in that paragraph, the words from “as a result” to the end of the paragraph become sub-paragraph (i), and(c) after that sub-paragraph insert “or(ii) which, were it done in England and Wales, would constitute an offence within sub-paragraph (i),”.(4) After section 4(4) insert—
“(4A) A person who is a UK national commits an offence under this section regardless of—
(a) where the arranging or facilitating takes place, or (b) which country is the country of arrival, entry, travel or (as the case may be) departure.(4B) A person who is not a UK national commits an offence under this section if—
(a) any part of the arranging or facilitating takes place in the United Kingdom, or(b) the United Kingdom is the country of arrival, entry, travel or (as the case may be) departure.”(5) Omit section 5(1) (section 4: jurisdiction).
(6) In section 5(3) (section 4: interpretation)—
(a) for “In section 4(4)(a)” substitute “In section 4—“country” includes any territory or other part of the world,”,
(b) the words from ““the Human Rights Convention” to the end of the subsection become the next definition in a list, and(c) after that definition insert—““UK national” means—
(a) a British citizen,(b) a person who is a British subject by virtue of Part 4 of the British Nationality Act 1981 and who has the right of abode in the United Kingdom, or(c) a person who is a British overseas territories citizen by virtue of a connection with Gibraltar.””
Baroness Stowell of Beeston
My Lords, I shall also speak to the other amendments in the group. This final group contains various minor amendments, a number of which are consequential on other government amendments agreed during the Committee of the whole House. I will be happy to provide further details if necessary, but subject to that, I beg to move.
“After section 81(8) (general interpretation) insert—
“(9) References in this Act to provision which, if it were contained in an Act of the Northern Ireland Assembly, would deal with a Northern Ireland transferred matter or (as the case may be) a transferred matter (see sections 23A(7)(b), 32A(8)(c) and 77B(3)) do not include references to any such provision which would be ancillary to other provision (whether in the Act of the Northern Ireland Assembly or previously enacted) which deals with an excepted or reserved matter (within the meaning given by section 4(1) of the Northern Ireland Act 1998).””
“In section 113BC(1) (suitability information: power to amend), after paragraph (b), insert “;
(c) amend section 120AC(4)(b) in consequence of an order made under paragraph (a) or (b).”In section 114(3) (application of other provisions of Part 5 to an application under that section), for “Section 113A(3) to (6)” substitute “Sections 113A(3) to (6) and 120AC”.
In section 116(3) (application of other provisions of Part 5 to an application under that section), for “and 113BA to 113BC” substitute “, 113BA to 113BC and 120AC”.”
“( ) After subsection (3) insert—
“(3A) The Secretary of State by notice given in writing may require a person who has a certificate which is subject to up-date arrangements under section 116A to attend at a place and time specified in the notice to provide fingerprints for the sole purpose of enabling the Secretary of State to verify whether information in the possession of the Secretary of State that the Secretary of State considers may be relevant to the person’s certificate does relate to that person.
(3B) If a person fails to comply with a requirement imposed under subsection (3A), the Secretary of State by notice given in writing may inform that person that, from a date specified in the notice, the person’s certificate is to cease to be subject to up-date arrangements.””
“( ) In subsection (1A), after paragraph (a) (but before the word “or” at the end of the paragraph) insert—
“(aa) the provision of up-date information under section 116A;”.”
“( ) After subsection (5)(c) insert—
“(ca) a sample of cases in which the chief officer of a police force has decided that information should be disclosed or not disclosed to the Secretary of State for the purpose of the provision by the Secretary of State of up-date information under section 116A.””
“( ) Section 120 (registered persons) is amended as follows.
( ) In subsection (2)—
(a) for the words from the beginning to “the”, where it first occurs, substitute “The”,(b) after paragraph (a) insert “and”, and(c) omit paragraph (c) and the word “and” before it.( ) After that subsection insert—
“(2A) Subsection (2) is subject to—
(a) regulations under section 120ZA,(b) section 120A, and(c) section 120AA and regulations made under that section.””
“(1) Section 124 (offences: disclosure) is amended as follows.
(2) In subsection (4)—
(a) in paragraph (b), omit “(5) or”, and(b) for “subsections (5) and (6)” substitute “subsection (6)”.(3) Omit subsection (5).”
(a) a request under section 116A(1),(b) an application as mentioned in section 116A(4)(a) or (5)(a), or(c) a request under section 120AC.”
“Part 9ATrafficking people for exploitationChildren and Young Persons Act 1933127A In Schedule 1 to the Children and Young Persons Act 1933 (offences against children and young persons with respect to which special provisions of the Act apply)—
(a) in the first entry relating to the Sexual Offences Act 2003 for “57” substitute “59A”, and(b) after the second entry relating to the Act of 2003 insert—“Any offence against a child or young person under section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, or any attempt to commit such an offence.”Police and Criminal Evidence Act 1984127B In section 65A of the Police and Criminal Evidence Act 1984 (questioning and treatment of persons by police: meaning of “qualifying offence”), in subsection (2)(p), for “59” substitute “59A”.
Proceeds of Crime Act 2002127C In Schedule 2 to the Proceeds of Crime Act 2002 (lifestyle offences: England and Wales), in paragraph 4(2), for “any of sections 57 to 59” substitute “section 59A”.
Criminal Justice Act 2003127D In Part 2 of Schedule 15 to the Criminal Justice Act 2003 (sentencing of dangerous offenders: specified sexual offences), after paragraph 143, insert—
“143A An offence under section 59A of that Act (trafficking for sexual exploitation).”
Sexual Offences Act 2003127E (1) The Sexual Offences Act 2003 is amended as follows.
(2) In section 60A (trafficking for sexual exploitation: forfeiture of land vehicle, ship or aircraft), in each of subsections (1) and (5), for “sections 57 to 59” substitute “section 59A”.
(3) In section 60B (trafficking for sexual exploitation: detention of land vehicle, ship or aircraft), in subsection (1), for “sections 57 to 59” substitute “section 59A”.
(4) In Schedule 5 (relevant offences for the purposes of notification and orders), in paragraph 63, for “59” substitute “59A”.
Asylum and Immigration (Treatment of Claimants, etc) Act 2004127F (1) The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 is amended as follows.
(2) In section 5 (section 4: supplemental)—
(a) in subsection (11) omit “In so far as section 4 extends to England and Wales,”, and(b) omit subsections (12) and (13).(3) In section 14(2)(n) (immigration officers’ powers of arrest) for “59” substitute “59A”.
Serious Crime Act 2007127G In Part 1 of Schedule 1 to the Serious Crime Act 2007 (serious offences: England and Wales), in paragraph 2(2), for “59” substitute “59A”.”
Lord Henley
“In section 120(2), paragraph (c) and the word “and” before it.” |
“In section 124— | |
(a) in subsection (4)(b), the words “(5) or”, and | |
(b) subsection (5). |
“Safeguarding Vulnerable Groups Act 2006 | In Schedule 9, paragraph 14(5) and (6).” |
“Part 8ATrafficking people for exploitation
Short title | Extent of repeal |
|---|---|
Sexual Offences Act 2003 | Section 60(2). |
Asylum and Immigration (Treatment of Claimants, etc) Act 2004 | In section 4(4)(b), the words “under the Human Organ Transplants Act 1989 (c. 31) or”. |
In section 5— | |
(a) subsection (1), | |
(b) in subsection (11), the words “In so far as section 4 extends to England and Wales,”, and | |
(c) subsections (12) and (13). | |
UK Borders Act 2007 | Section 31.” |
Lord Henley
“(a) Chapters 1 to 3 of Part 5 (and Parts 6 to 8 of Schedule 9 and Parts 5 and 6 of Schedule 10), or(b) section (Trafficking people for labour and other exploitation) (and Part 9A of Schedule 9, and Part 8A of Schedule 10, so far as relating to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004),”
Lord Henley
Lord Henley
“(aa) the repeal of section 22 of the Crime and Security Act 2010 in paragraph 4(2) of Schedule 9 and Part 1 of Schedule 10,”
Baroness Hamwee
Baroness Hamwee
My speech moving Amendment 177 will be a little longer than the previous speech. This amendment takes us back to powers of entry to probe one particular point. I must make it clear that I support the restrictions on powers of entry. I know that the matter is likely to be pursued further on Report, and there are bound to be particular issues around particular powers. This power is one where I fear we may be in danger of throwing out a long-standing baby with the bath water.
My amendment would mean that the commencement of Schedule 2 would not be automatic but dependent on an order by the Secretary of State. It is merely a device to raise an issue which came to my attention only a few days ago, well after we had dealt with Schedule 2. Paragraph 12 of that schedule repeals Section 8(2) of the Landlord and Tenant Act 1985, which gives a landlord power to enter premises to view their state and condition. I had minor experience of this in the first flat I lived in in London. The landlord with, I am sure, entirely benign intentions used to come in and potter around. I could tell from the grains of coffee left around that he had been there, and on one occasion, he repainted the kitchen, but did not move the towel hanging on the back of the kitchen door and painted around it. That is minor against the issue of a property being fit for human habitation, which is the subject of Section 8 of the 1985 Act.
The landlord has an obligation to keep the property fit for human habitation. Most modern tenancies have a power of entry written into them—a contractual power, if you like—so there is no need for a statutory power, but the British Property Federation, which has raised this point with me, estimates that of the 120,000 or so regulated tenancies, many of which are very old and rely on statutory terms and conditions, something between 18,000 and 24,000 rely on statutory powers of entry. In other words, there is a legal and, I would say, moral obligation on a landlord, but he will have no means to inspect the property and fulfil the obligation. Unlike modern assured shorthold tenancies, these tenancies often encompass some of the oldest parts of the housing stock, from before 1919. They tend not to have turned over frequently and there is a pretty high probability that if they are not kept up to a good standard, they may become unfit.
I know that this matter has been discussed between the Home Office, looking at it from the point of view of the powers of entry, and the Department for Communities and Local Government. I also know that an issue has been raised that because these tenancies are subject to very low rent limits, they would not in fact come within the scope. I want to anticipate that argument by saying—again, I understand this from the British Property Federation—that the rent limits are those that were in the original contract and cannot really be cited now because that is the historical event which brought them within the scope.
The British Property Federation is very clear that the provisions in the 1985 Act are not redundant. It seems that there is a real issue here, where we should not let our enthusiasm for the principle over powers of entry obscure the need to address it. I would be the first to say that this amendment does not address it. I am merely trying to bring the issue into play at this stage—a late stage, I know—and I look forward to hearing what the Minister has to say on this. I suspect that it may be another matter where I am going to add to his diary commitments by suggesting that detailed discussion might benefit us all, but for the moment I beg to move.
Lord Henley
My Lords, as my noble friend has explained, the amendment relates to concerns that have recently come to light over the proposed repeal of Section 8(2) of the Landlord and Tenant Act 1985, as provided for in Schedule 2 to the Bill. This provision in the Landlord and Tenant Act grants landlords a power of entry to ensure that their properties are fit for habitation. The Act sets very low rent thresholds for London and elsewhere, which were agreed some considerable time ago. Because those rent levels were so low, it was originally our belief that there were no longer any existing tenancies to which the Section 8(2) power still applied. That being the case, we thought that the power could sensibly be repealed. It has since come to our attention from the same source that my noble friend mentioned, the British Property Federation, that there is a significant number of legacy properties to which this provision continues to apply. The BPF has indicated that there are in fact some 18,000 to 24,000 tenancies where this power of entry would continue to operate.
Landlords have a duty to ensure that the properties they rent are fit for habitation. In the overwhelming majority of cases, we would expect tenants freely to admit the landlord into their property to inspect it. In such cases, landlords have no need to use their statutory power of entry but in isolated cases the tenant may not be co-operative and there is therefore a continued need for this power. While we still intend to repeal this power of entry we propose to introduce a saving provision, using the order-making power in Clause 110, to ensure that the power remains available in respect of existing tenancies. In the case of any new tenancies, a power of entry can be provided for in the tenancy agreement as would normally be the case, as my noble friend will be fully aware as a solicitor. I thank her therefore for raising the matter. I hope that we do not need to have a meeting on this occasion, that she is satisfied by the explanation that I have given and that she will be happy to withdraw her amendment.
Baroness Hamwee
My Lords, that is extremely helpful. I wonder if I might chance my arm by asking whether there might be any chance of seeing a draft of the order before we get to the next stage, in case technical concerns continue. I am not sure whether the Minister would want to reply to that. However, in response to his point about tenants allowing a landlord in, there must be many properties where there is more than one unit of accommodation within a house and where one could have one tenant who is entirely reasonable and another who is not and who prejudices the position of other people, potentially quite seriously. I am very grateful for that answer and I hope that it is not necessary to have a meeting. I beg leave to withdraw the amendment.
Lord Henley
The Deputy Chairman of Committees (Baroness Hooper)
My Lords, the question is, that Clauses 26 to 39, Schedule 2, Clauses 40 to 53, Schedule 3, Clauses 57 to 61, Schedule 5, Clauses 62 and 63, Schedule 6, Clause 85, Schedule 8, Clauses 86 to 109, Schedules 9 and 10 and Clauses 110 to 115 of the Protection of Freedoms Bill, be reported to the House with amendments.