Protection of Freedoms Bill

Debate between Baroness Blackstone and Lord Scott of Foscote

Thursday 12th January 2012 Grand Committee

[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.