Protection of Freedoms Bill

Baroness Brinton Excerpts

Wednesday 15th February 2012 Lords Chamber

[Lord Sutherland of Houndwood]

My Lords, the amendment is in my name as well as that of my noble friend Lady O'Neill of Bengarve. She has already given her apologies to the Front Bench. Having sat through two long days on Report, she finds that her commitments can no longer be put off and are subject to the vagaries of how we put our business together in this House. I am sure that noble Lords would have had a much more precise, analytic and forensic speech from her than from me, but I will try to raise the points that I believe she wished to put and express the concerns that I share with her. Those concerns are shared by the wider university community in the UK. I believe that they are grateful to the Minister for the time that he has taken to meet them and to talk to them about some of these issues.

That being so, there is a shift in atmosphere from the previous amendment because I wish to focus on the implications of the Bill for research and research data sets held significantly by universities and public research institutions.

Research is an international and very competitive business. There is a risk that some of the provisions of the Bill may undermine the competitiveness of much of our excellent research in this country. That is unintentional, but I hope that I can demonstrate that there are some difficulties that need to be resolved.

The specific Amendment 55A is a modest suggestion that any licence for reuse of data sets may have conditions attached to it following the comments of those whose data sets they are. That is a modest way of protecting the interests of our researchers and the research community and, more broadly, UK plc.

The impact of the Bill as it stands will be such as to fall on both individual researchers and on institutions. In the case of individual researchers, it will change behaviour. If you change the rules about how research data are to be treated, you will change the behaviour of researchers. They are pretty clever people, so you need to watch out. Beyond that, there are more serious implications.

It may well be that the provisions of the Bill result in activities that are inimical to and, indeed, unintentionally unjust to individual researchers. The data set, for example, may well have been built up over a long period and involve substantial career commitment by individuals. If you spend your time on large data sets in particular, that is a major—or indeed a lifetime—commitment. The data sets may well have been built up involving the distinctive, significant and, on occasion, unique skills of the individual researcher. I am not quite convinced that the Bill has taken that sufficiently into account. It will certainly be inimical to career development and commitment—and, indeed, in terms of the opportunity costs—in respect of the work of individual researchers. They take time, they do this rather than that, and they use the skills they have, which may well be unique and very distinctive.

In the case of institutions, there clearly may well be problems where a home or sponsoring institution has invested significant resources in the data sets or in building them. As head of more than one such institution, I know that huge resources are invested to build appropriate data sets, in terms of time, space—which is very important and expensive—individual members of staff and money. These are the commitments the institution makes, and there is a risk that they would be set back dramatically despite the effort and the commitment involved. Equally—this point has been made in previous discussion but it is still there—the institutions may well have commercial interests in the research and data sets in question. Beyond that, we fund universities in such a way that the research assessment exercise depends very significantly on the uniqueness and distinctiveness of research. If the data sets that are the foundation for these are too easily available, that sets at nought the efforts of those who worked on them; and makes it easy for those who did not to pillage those data sets. Academics on the whole are nice people, but when it comes to this kind of competitiveness, all rules are set aside.

There is one consequence that I am sure is unintended and which relates to the previous amendment—although not perhaps in a congenial way. I declare, unusually, a future interest, which I may have if this legislation goes through. As I understand it, one of the ways of avoiding the data sets moving out too quickly and in an unregulated, uncontrolled fashion is to have co-ownership with some private sector activity, firm or company. My interest would be that I might set up such a company, the sole purpose of which would be co-ownership of data sets with universities and research interests. I could become very rich—but being the chap I am, I would dedicate all the money to a charity to support research in universities. That is one possible way of beginning to avoid the implications of the legislation as I understand it. This is partly jocular but it is more than that. Ingenious people are out there and will find solutions to retain data sets that they, for good reason, believe are important. This is not miserable secretiveness, this is how research operates. This is how the competition deals with those who are involved in research.

Finally, I believe there is a difficulty in identifying what data sets will fall under this Bill as currently formulated, if it becomes law. What will count? I give the House one example, just as a test. In the description, decoding and understanding of the structure of DNA, Crick and Watson did excellent and magnificent work in Cambridge which was properly recognised with a Nobel Prize. Yet the missing piece in the jigsaw was here in London, with Professor Maurice Wilkins and Dame Rosalind Franklin at King's College London. She is now at last being recognised for her part in this. The data sets of material that she had built up using techniques of electron microscopy were, when they were available to Crick and Watson on a shared basis, what put the final piece of the jigsaw in place. The picture became clear to them and they could move ahead.

I do not think that these data sets would be ruled out under the definitions given in the Bill, because they are simply printings that you could look at. They are not analysed or pre-digested and there is no interpretation given. If they had been requested belligerently by Crick and Watson, they could have saved themselves the price of a rail ticket to London. Your Lordships can see the implications. What counts as a data set, when Rosalind Franklin had created this data set that made all the difference to what has changed the course of life for all of us? I believe there are questions about the definition of a data set because the Bill is really meant to deal with other issues initially but, as it so happens, it is now being applied to research and research data sets in some of the best institutions in this country. I beg to move.

[Baroness Brinton]

My Lords, I shall speak to Amendment 56, but in so doing I start by expressing my support for the amendment tabled by the noble Baroness, Lady O'Neill, and the noble Lord, Lord Sutherland. I will also be incorporating some of the points that the noble Baroness, Lady Warwick, would have made had she been able to be in her place, but for exactly the same reason as the noble Baroness, Lady O'Neill—the unfortunate and substantial delay in getting to this—other commitments have meant that she needs to be elsewhere in the Palace of Westminster.

I also want to thank the Minister for the helpful meetings with him and his officials on the complex subjects of universities, the publication of their research and the implications for the practical working of the Freedom of Information Act. In Committee, I outlined a number of problems that universities face that are not analogous to the use of FOI in non-research areas of higher education institutions, not least because of the size, duration and complexity of many research contracts. Universities are mindful of their duties to respond to FOI requests elsewhere, and in the main they absolutely do. Also, the universities that we have talked to about the problems facing research and FOI are clear that this is not special pleading for the sector as a whole over freedom of information. Nor do they support any institution that does not comply with FOI requests in the mainstream.

The issues here are quite specific. They are about whether the exemptions currently outlined in the Information Commissioner's guidance to the higher education sector can be effectively applied, given the nature of research and whether, in the case of commercial partners, it might give rise to suspicion by those partners that their own confidential data might be seen by others following an FOI request. In Committee, the Minister asked for evidence of where the current exemptions do not apply. Here, from the Information Commissioner's guidance to higher education institutions—which, for brevity, I shall refer to as HEI—are a handful of examples that researchers and their universities have told us really need clarification.

The guidance on Section 22 refers to information intended for future publication. The information is exempt if it is intended for future publication and it is reasonable to withhold the information until that point, subject to the public interest test. While this will certainly apply to research data which an HEI intends to publish, provided that withholding the information is reasonable, it will not apply if there is no intention to publish the results at the time the request is made, which, as the ICO guidance makes clear, is the relevant time for him.

In general, HEIs would expect the data supporting research conclusions to be published, or at least to be available to others, when the conclusions themselves are published. However, in the case of longitudinal studies, the decision to publish may not be made until a late stage in the study, not least because it is not clear what will be reported, or how. Moreover, usually the material is published in the form of a peer-reviewed article, which is often only the tip of a much larger iceberg of data that are not published. I am mindful here of the specific example that my noble friend Lady Sharp gave us at an earlier stage of these proceedings about the very complex data set that she managed for decades, which would certainly fall into that last category.