Advanced Research and Invention Agency Bill

Lord Fox Excerpts

Committee stage
Monday 22nd November 2021 Grand Committee

Taken overall, because of the unique nature of this organisation it is worth considering whether a specific exemption from the FoI requirements would be a useful thing in this case.

[Lord Fox (LD)]

My Lords, I speak to Amendment 39 in my name and that of my noble friend Lord Clement-Jones. It is on something also asserted in Amendment 24 by the noble Baroness, Lady Chapman, and, in the late runner, Amendment 32A, by the noble Viscount, Lord Stansgate. We all seek essentially the same outcome, targeting different parts of the Bill to avoid the avoidance of freedom of information.

It is always good to speak after the noble Baroness, Lady Noakes, and strangely my opening assertion very much follows on from hers. Without our amendments, ARIA would follow in the footsteps of a very small number of institutions that currently do not have Freedom of Information Act obligations: the Royal Family; security and intelligence bodies such as MI5, MI6 and GCHQ; Special Forces; and the National Crime Agency. I think that is the list. There may be others, but I am pretty sure that is it. It gives noble Lords an idea of the sort of organisations. They do not seem to be natural paradigms to ARIA.

The noble Lord, Lord Willetts, will correct me, but the obstacles to innovation for funding bodies are many and various. Nowhere have I seen obligations to freedom of information as one of the things listed by those bodies as a barrier to innovation, or indeed invention. Indeed, as far as I can see, most if not all of ARIA’s client organisations—those it will fund—will be subject to the Freedom of Information Act, so where is the point in excluding ARIA itself?

In refuting me and others on this at Second Reading, the Minister said that

“robust arrangements are in place that will provide a clear picture to Parliament and taxpayers about how ARIA’s activities are funded and where it spends its money.”—[Official Report, 2/11/21; col. 1202.]

That is indeed the point, because ARIA will be holding the brush painting that picture. We will get to see what ARIA chooses to tell and show us about what it is doing. FoIs look at things from the opposite direction.

The Minister also points to the need for ARIA to be lean, and I absolutely agree with him on that, but I remind him and those who speak against these amendments why we are seeing growing evidence of huge levels of very worrying financial mismanagement across government contracting. It is because of the crony-type issues which the noble Baroness, Lady Chapman, raised in her speech, which have a corrosive effect on institutions that need to be protected from any stain of impropriety. Transparency is very much that protection. By maintaining proper scrutiny, everybody can see that there are no problems and there is no favouritism going on. This will absolutely protect ARIA’s reputation.

ARIA will be substantially larger that many bodies already subject to freedom of information legislation. ARIA has no greater claim to avoiding complying with FoI legislation than any other public authority. Indeed, given its budget, there are compelling grounds for its inclusion. It is clear, through these three amendments, that we on this side find the current plan to exclude ARIA from the Freedom of Information Act’s provisions unacceptable. I feel sure that, between us, we can coalesce around a single amendment for Report. In the meantime, I look forward to the Minister’s response.

[Lord Browne of Ladyton (Lab)]

My Lords, I will make two points. The first is in response to a point made by the noble Baroness, Lady Noakes, and the other is in anticipation of a point that I think the Minister will make in his response to the debate.

The noble Baroness argued that the unique nature of this organisation should make it free from this burden. It will be unique here in the United Kingdom, but it is not a unique organisation. In fact, it is modelled on an organisation that has a history, and that is ARPA, which is now DARPA.

I will come shortly to the Minister’s rejection of that comparison at Second Reading, but I am moved to intervene because of data I have been given by the Campaign for Freedom of Information about the burden that freedom of information has been on ARPA and DARPA in the United States. Granted, the United States is a much more open society than ours, but ARPA and DARPA have been subject to the US Freedom of Information Act. It is incontrovertible that the need to answer FoI requests has not prevented them achieving successes that the Government here now wish to emulate. In fact, in the 11 years from 2009 to 2019, an average of 47 requests a year referring to DARPA were made to the US Department of Defense. It lived with that burden and has been the success that we all know and are seeking to emulate.

The Minister rejected this comparison, saying that there is a different freedom of information system in the United States of America. He referred to fees, and suggested that somehow the experience we have had of freedom of information thus far made it probable that ARIA would be prevented from being the lean machine focused on innovation that we all want to see if it was subjected to the burden of freedom of information.

Interestingly, 47 FoI requests per year is almost exactly the number of requests received by individual UK research councils before they were incorporated into UKRI. In 2017-18, the six research councils for which data was available to those who provided it to me received an average of 48 requests each. By comparison, in 2019 the Home Office and the Ministry of Justice each received nearly 5,000 requests. Maybe that is why the Government have this impression that everything they do is overburdened by FoI. It is not. Some things are, and there is a different politics about them than there will be about this.

I think that it is perfectly legitimate to make the comparison with the success of DARPA and ARPA, which have lived in an environment of openness and freedom of information. That is much more likely, on the data, to be the experience of ARIA, were it to be subject to the Freedom of Information Act, than the perception of any burden that a Minister may have from their own experience of FoI in another department.

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[Lord Fox (LD)]

My Lords, I thank the noble Lord, Lord Browne, for raising this very interesting issue. Without repeating verbatim what I said at Second Reading, one of the highlighted issues in delivering technology into the market in this country is not the invention phase but the scale-up—getting it beyond technology readiness level 7 and then getting it into the market and scaling up.

I discourage the noble Lord from using the phrase “predator” for venture capital. The money has to come from somewhere to deliver that scale-up, and I doubt that the Government will be the provider. The issue and challenge is that the VC industry in the United States is massive compared with what is available in UK-based funds, and thereby comes the lack of centricity about which the noble Baroness, Lady Noakes, spoke. We should very much consider looking for a way for businesses that have an invention to take it to market. To some extent, this amendment is looking at the other end of the problem; it stops stuff happening rather than allowing it to happen in a different way. I am not sure that it is the answer, but its spirit is very important.

There is another unintended consequence I would be concerned about. In the event that an entity could avoid a takeover, by taking money from ARIA it would in essence lock itself away from any commercial activity that could be beneficial to it as a company, the country and ARIA’s intentions. A one-size-fits-all approach—“We give you the money and you can’t do any commercial activity”—is not in the spirit of what this seeks to achieve. Looking at this again, we need to find a way to deliver that scale-up story. That is really the issue facing this country, not the invention bit that somehow this agency is focused on.

[Lord Lansley (Con)]

My Lords, I very much appreciate that the noble Lord, Lord Browne, has brought forward his Amendment 30 in particular. It is very helpful to our debate and rather complements the discussion we had about ARIA’s ability to exploit the intellectual property it gives rise to and to place the right kind of conditions. We will come back to that on Report; it is important that we do.

I hope the Government can, if not necessarily amend the Bill extensively, certainly make it clear that ARIA, in exercising its functions, should seek not only to promote economic growth and benefit in the United Kingdom but to make sure that—in so far as the public have subscribed through ARIA to the creation of intellectual property—the benefits of that will accrue to ARIA and, potentially, the Government. I would say that they should accrue to ARIA, with the ability to promote follow-on research activity as a result. I am sure the noble Lord is not planning to press his amendment and recognises the risk associated with its structure and the chilling effect it might have on the entities that might otherwise apply for grants, assets or activity.

I will just inject this thought. A number of noble Lords here in Grand Committee were contributors to our discussions on the National Security and Investment Act, and I hope my noble friend the Minister will be able to give us some specific assurances about how Ministers can use National Security and Investment Act powers to secure the protections that the noble Lord, Lord Browne of Ladyton, is looking for.

I worry that there may be gaps, because the National Security and Investment Act has its own criteria and thresholds, and this may relate to activities, projects and assets that do not fit within those criteria—but we none the less want the intellectual property created by ARIA to be protected in some way. So there may be a gap and we need to explore whether there is one and, if there is, how it might be secured: how ARIA, and Ministers through ARIA, can protect the value that might be derived from the intellectual property to which its projects give rise.

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Moved by

[Lord Fox]

32: Clause 6, page 2, line 40, at end insert—
“(2A) ARIA must provide the House of Commons Select Committee on Science and Technology with such information, in such form, as the Chair of that committee may request, including by sending representatives of ARIA to appear before the committee.This is subject to subsections (4) and (5).”Member’s explanatory statement
This amendment would allow the Chair of the House of Commons Science and Technology Committee to request information from ARIA on its operation.

[Lord Fox (LD)]

My Lords, this amendment is in my name and that of my noble friend Lord Clement-Jones. I will try to change gear and be very brief. The amendment would allow the chair of the House of Commons Science and Technology Committee to request information from ARIA on its operation. It would place a role for the committee in the Bill. In our view, it is another way to protect ARIA’s reputation.

I am sure the Minister will say that this is unnecessary, as the Science and Technology Committee can always have an inquiry, so we need not bother. This is true, and I agree that ARIA representatives can be questioned, but we should remember the culture of secrecy that the Government are unnecessarily cloaking this organisation with. There is no guarantee that ARIA will feel compelled to respond in full, and it might use this narrative that the Bill is creating around its specialness.

I recall the debate that many of us had when we discussed the National Security and Investment Bill. Several of us were there. There, too, we discussed the need for oversight of issues that might need to remain secret. At the time, the Minister—this Minister, the noble Lord, Lord Callanan—was adamant that the appropriate Select Committee, the BEIS Select Committee, could be empowered to receive secret and confidential information. There was much debate and the Minister was strident in his view that this committee could do that job. The National Security and Investment Bill envisaged the handling of vastly more secret secrets than we are talking about here.

So the idea of trusting the Science and Technology Select Committee to scrutinise ARIA and maintain genuine secrets is consistent with how the Government have already said they want to work elsewhere. For that reason, I expect the Minister to welcome this tidying amendment, which would bring the Bill into line with his thinking on other legislation. I beg to move.

[Baroness Chapman of Darlington (Lab)]

My Lords, I rise briefly to support the amendment from the noble Lord, Lord Fox. It seems entirely appropriate that this committee should involve itself in asking for information from ARIA. I am fairly confident, given the Minister’s responses so far, that he would not share that view. This is the same theme that we have been on throughout all our deliberations. Whether it is this specific proposal, or one of the others that we have been trying to tempt the Government with, I am sure that we will be back at this in a couple of weeks’ time.

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[Lord Fox (LD)]

I thank the Minister for his response and noble Lords for their contributions. I shall read closely the exact words in Hansard but, once again, the Minister seems unaware of the culture of suspicion that the Bill will create around this organisation. That did not need to happen and, in the end, the organisation does not deserve to have that as it sets off on its already difficult task. That said, I beg leave to withdraw the amendment.

Amendment 32 withdrawn.

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[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

I draw your Lordships’ attention to the fact that, in this group, government Amendments 44, 45, 46 and 48 do not appear as government amendments on the printed list.

[Lord Fox (LD)]

My Lords, I am grateful for the Minister’s comments. Without sounding whiny, this would have benefited from a “Dear colleagues” letter in advance. It caused me a little head scratching over the weekend when I was trying to fathom the purpose of these amendments, which the Minister has now told us. I guess it kept me busy.

We are delighted that the Government have accepted one of the two recommendations of the Delegated Powers and Regulatory Reform Committee. I am speaking to oppose the Question that Clause 8 stand part of the Bill. As the Minister referred to, this is the other recommendation of the DPRRC. That committee was clear in its assessment of the Bill:

“Although ARIA is to be created by Act of Parliament, clause 8 allows Ministers to dissolve it by an affirmative statutory instrument. They cannot do so for another ten years and they must consult ARIA before doing so. They do not have to offer any reasons.”


The DPRRC continues:

“We object to this on principle. If Parliament creates a body, it should be for Parliament to dissolve the body. It should not be for Ministers to dissolve it by statutory instrument, even an affirmative instrument.”


The DPRRC could not be clearer. The Minister’s response to that was simply that he did not agree. We knew he would not agree, but this is a very influential committee and what it says matters.

Although I am calling for Clause 8 not to stand part of the Bill, there are parts of that clause that the Government might want to salvage. This gives the Government an opportunity to come back, perhaps with another lengthy set of amendments on Report. It is a chance for the Minister to accept the view of this influential committee, just as he has on Clause 10.

The Minister will point to the fact that this statutory instrument is affirmative, but he will do so knowing that this is a poor alternative. The dissolution of ARIA will throw up issues—not the sort of issues faced by the organisation that the Minister chose to use as an example of one which a statutory instrument has been used to dissolve in the past. For example, when and if ARIA comes to be dissolved, the fate of assets will be crucial. By then, the taxpayer will probably have poured billions of pounds into creating those assets. Parliament needs a say on how they will be allocated in future yet, as we know, statutory instruments are unamendable—take it or leave it. As I have often rehearsed on other Bills, your Lordships’ House virtually always takes them, sometimes with a touch of regret, but takes them none the less. Primary legislation, however, is amendable. It gives Parliament a role in deciding the fate of the organisation and these assets, which, I remind the Government, the taxpayers have created through their investment. That is just one of the recommendations of the DPRRC. It should be honoured. I beg to move.

[Baroness Chapman of Darlington (Lab)]

It is a pleasure to follow the noble Lord, Lord Fox. I have a lot of sympathy with what he has to say. We welcome the government amendments, which act on the concerns of the Delegated Powers and Regulatory Reform Committee and remove Clause 10 from the Bill. We can only hope that this is something of a sign of good habits to come and that the Government will prove attentive to the committee’s concerns about other legislation.

On Clause 8, where the Government have chosen not to act on the committee’s objection, rather than repeat everything that the noble Lord, Lord Fox, just said, I look forward to the Minister’s reply. I think the best way to sum up the DPRRC’s concern over the clause is that the Government were designing the law for convenience rather than necessity. It also made the point that, after 10 years or longer of ARIA’s operation, the agency would be well established and dissolving it might be a bit more complicated than Clause 8 suggests. Let us hope that ARIA makes it to 10 years.

We are content with the changes made by this group, but it would be helpful to the Committee for the Minister to respond in a bit more detail to some of the concerns. Can he outline how the Government envisage the winding down of ARIA would be managed? In particular, how would parliamentarians be kept informed and, aside from ARIA, who does he think it might be a good idea to consult before bringing forward regulations under Clause 8?

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[Baroness Chapman of Darlington (Lab)]

I just want to make a quick observation about this. Obviously, we have argued to have climate as ARIA’s overriding priority, and we stand by that—but should that not be the case, this amendment would not cause any problems were it not for the fact that the Government were declining amendments on oversight and scrutiny. I do not think that the two are incompatible. You can have an independent agency, and we would not wish to have government interference, but there is no compromising of independence by allowing for freedom of information or some of the other measures that we have suggested.

[Lord Fox (LD)]

My Lords, I took the time to discuss this amendment with the noble Baroness, Lady Neville-Rolfe, and I congratulate the noble Baroness, Lady Noakes, on completely representing her views on it—but, strangely, we approach this from opposite directions and land in the same place, similarly to the noble Baroness, Lady Chapman. There is a false dichotomy here. Just because an organisation has a purpose does not mean to say that it cannot be independent. On that basis, it is important for it to be independent, and it is equally important for it to have a purpose—and that purpose should be climate change.

[Lord Callanan (Con)]

I thank the noble Baroness, Lady Noakes, for her comments and for stepping so ably into the breach to represent my noble friend Lady Neville-Rolfe in her amendment. It is perfectly right that we have returned once again to the central issue of ARIA’s independence, because it is a core part of equipping it for its unique funding approach and for the distinct contribution that we expect it to make to the UK’s R&D landscape.

I support the ambition for the Secretary of State to be mindful of protecting ARIA’s independence in all its interactions with the organisations, where such interactions are required by the Secretary of State’s very limited functions. However, I differ with my noble friend on how we protect its independence in a practical way. I submit that it would be the accumulation of many small things—perhaps creeping influence over strategy, new mechanisms of oversight, or ever-increasing reporting demands on issues of political priority—that would be the arena in which ARIA’s independence would be compromised or lost.

My noble friend Lord Willetts, who is not in his place, spoke eloquently on Wednesday about the challenges he has experienced in trying to carve out space for new approaches in the current R&D system. At that stage, we also had a fairly extensive debate on the accumulated obligations placed on ARIA. We considered how those obligations might be balanced with this vital principle of independence, in the context of amendments which, I believe, would have diminished ARIA’s autonomy in a way that would have been entirely counterproductive. If we truly wish to safeguard ARIA’s independence, it is on those issues that we must look to do it, and there is no easy alternative.

I do not suggest that this is a moment to reopen that debate, but I submit that we cannot have this conversation on independence in an abstract way, divorced from consideration of the practical and operational ways in which it will or will not be given to ARIA. I am sure that there will be plentiful opportunities to discuss this important issue in future. I hope, on the basis of the reassurances I have been able to provide, that my noble friend will, on behalf of my noble friend Lady Neville-Rolfe, feel able to withdraw the amendment today.

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[Lord Browne of Ladyton (Lab)]

My Lords, I rise to be genuinely helpful to the Minister. It appears that I am the most privileged Member of this Committee; everyone’s correspondence seems to be copied to me, although I am not sure if in this case it was a privilege, as I got it exactly one hour and five minutes before the Committee was due to sit. It has a draft agreement of 19 clauses, one of which refers to other agreements—too many for me to count in the small print I have on my phone—so I have not given it any serious consideration.

I think it was copied to me because I raised a question in an intervention to seek assurance that all aspects of this legislation that engaged with devolution issues had been agreed with the devolved Administrations. It turns out that there were at least aspects still under discussion. I understand that that can happen. I suggest that, because of the complexity of this, the Government arrange a meeting, between now and the next time most of us meet again at the next stage of this Bill, with interested parties to explain the situation with devolution. If the Government agree that there are Barnett consequentials—even if they do not, but can be persuaded that, in not agreeing, they are wrong—they can then say how they will deal with that significant complexity.

We must thank the noble Baroness, Lady Randerson, and the noble Lord, Lord Fox, for raising in some detail last time we met where we stand on all these issues. None of us was comfortable with any of this and none of us was as sited as the Government were of everything that is going on. At the very least, there should be the offer of some engagement with Members of this Committee who are interested in these issues and would raise them in some context on Report. This should happen in sufficient time before Report for it to be meaningful, so that some of these matters, which may lend themselves to simple enough explanations, can be put to bed.

[Lord Fox (LD)]

My Lords, this has obviously been an unsatisfactory semi-debate. That dissatisfaction has rung out in various corners of the Room. The advice of the noble Lord, Lord Browne, seems good; if we continue on our current trajectory, Wednesday afternoon will have some time in it. I will not repeat the questions which have been raised, but I add another which we would like to address on Wednesday afternoon when the Minister calls us together to explain. Is this outwith the framework agreement process? Is there a separate process going on? I add that to the list of unanswered questions.

[Lord Callanan (Con)]

I thank noble Lords for their comments. First, on the agreement, the text has been agreed by Ministers in Scotland, Wales and Northern Ireland. I thought it best to share it as soon as possible; I wanted to share it in advance—it was not far in advance but it was slightly in advance—rather than not share it at all. We originally committed to sharing it ahead of Report; I will ensure that all noble Lords have the opportunity properly to scrutinise it ahead of that and we can return to the issue then. Once noble Lords have had an opportunity to discuss it, I would be very happy to arrange a further briefing with officials for anyone interested in this subject.

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Moved by

[Lord Fox]

47: Clause 14, page 5, line 23, at end insert—
“(1A) Before regulations may be made under this section, the Secretary of State must lay before Parliament a copy of the framework agreement outlining—(a) the relationship between ARIA and the Department for Business, Energy and Industrial Strategy,(b) the relationship between ARIA and any other relevant government departments, (c) the interaction between ARIA and existing research and development, innovation, translation and funding institutions; and(d) any further relevant reporting requirements of ARIA.”Member’s explanatory statement
This amendment would require the Secretary of State to publish a copy of ARIA’s framework agreement before regulations can be made to commence the substantive parts of the bill.

[Lord Fox (LD)]

My Lords, this is the last group of amendments in Committee, and it is probably just as well, because if the Minister has any more jelly babies I suspect he will go into a coma. We have established through both our useful meetings with him and Second Reading that the framework agreement is a crucial document to point the way to how ARIA will operate and its future relationships. Without knowledge of that document, we are being asked to approve all manner of clauses, as we just have, that set ARIA in motion before we know how it will operate—actually, before we know what it is.

With Amendment 47, my noble friend Lord Clement-Jones and I are offering the Minister an alternative to the Government’s magical mystery tour approach. Remember that this tour comes with a ticket price of £800 million of taxpayers’ money—and that is just the start. The Minister is loading us on to his metaphorical charabanc, ready to go who knows where, flat cap in place. The amendment is intended to remove some of that mystery. Thanks to it, before the vehicle can be put in gear, we must at least be told where we are going.

I have perhaps laboured that image a little much but, as I said, it is the last group. More prosaically, the amendment would require the Secretary of State to publish a copy of ARIA’s framework agreement before regulations can be made to commence the substantive parts of the Bill. It continues our theme of ensuring that Parliament has sight of, and an appropriate say in, the progress of this important institute, and it would do so without impeding ARIA’s progress or meddling with its future. In this way, the Minister can remove the mystery without harming the magic, so I beg to move.

[Baroness Noakes (Con)]

If ARIA does not exist until the Act is commenced, how can there be a framework agreement that involves ARIA being a party to the agreement to be tabled before the commencement of the Act?

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[Lord Callanan (Con)]

I thank Members who have contributed to this brief debate. I am disappointed that the noble Lord, Lord Browne, did not exercise us again with his Daily Telegraph subscription, which I was very impressed by. I congratulate the noble Lord, Lord Fox, on saving the best to last with his bravura amendment. He has obviously been searching his thesaurus over the weekend for appropriate analogies. It was well moved and I do understand the seriousness of the issue and the noble Lord’s intention, which relates to the desire, as we have heard, to understand more details of how ARIA will work in practice.

As I mentioned at Second Reading, ARIA’s framework document is a governance document. It is a standard requirement for public bodies—which, of course, ARIA will be. As suggested in the noble Lord’s amendment, it will set the parameters for ARIA’s relationship with BEIS, as its sponsoring department. That is indeed its very purpose.

The noble Lord, Lord Clement-Jones, referred to the guidance published by Her Majesty’s Treasury, and I reassure him that, by drawing on the Treasury’s guidance, ARIA’s framework document will ensure that the agency and BEIS work effectively together. It will outline ARIA’s accountability, its decision-making and its financial management structures, along with some broader reporting requirements. However, it is not the appropriate place to codify ARIA’s relationship with other government departments. Other departments have no accountability relationship with ARIA, so its terms of engagement with them are a question of strategy rather than governance. The framework document will not contain any information relating to ARIA’s strategy in terms of collaboration, its project portfolio or indeed, its areas of research interest, all of which, I know, are of great interest to noble Lords.

On the sequencing of publication and commencement, given that both ARIA and the department need to be in agreement on the framework document, I reiterate, as I said at Second Reading, that it is therefore not possible to finalise it before ARIA’s senior leadership is in place, as my noble friend Lady Noakes, pointed out. It is not possible for the framework document to be published in advance of ARIA coming into legal existence. Similarly, the framework document for UKRI, for example, was finalised and published after that body came into legal existence.

Finally, it is worth noting that framework documents are live publications and are amended regularly to reflect any changes in the sponsor department or indeed the arm’s-length body itself, and they are all thoroughly reviewed every three years.

On the point raised by the noble Viscount, Lord Stansgate, on whether the framework document will outline the role of the Government’s Chief Scientific Adviser on ARIA, it is likely to. I will be happy to write to the noble Viscount with any more detail that I can on that.

I hope therefore that noble Lords understand that, in our view, there is a logical process to follow in the establishment of a public body and therefore that they will accept my assurance that we will publish the finalised framework document as soon as practicably possible.

[Lord Fox (LD)]

I have a couple of questions before the Minister sits down—or rather, I will now respond. The Minister seeks to downplay why we should be interested in the framework agreement, but the noble Lord, Lord Willetts, when he was in his seat, specifically asked about the relationship between UKRI and ARIA. That is just one question; there is a lot of interest in this and a lot of need to know. So the Minister should acknowledge that this is important to people and to organisations that are, in turn, important to this country.

I have a second point on which I would like an answer. I assume from what the Minister said that the sequence is: first, appoint a chief executive and then appoint the person to whom the chief executive reports. I still find that an interesting sequence, but certainly both those people will be asking what our relationship is with, for example, UKRI—or with others, as set out by the noble Viscount, Lord Stansgate.

It seems to me that either the Government will have an answer to that question during the recruitment process, or they will say, “Well, please yourself”. I suspect they have an answer and, just as the noble Lord, Lord Browne, said, trusting us with the draft of how that question will be answered would be completely reasonable and something that we would appreciate. With that said, I beg leave to withdraw the amendment.

Amendment 47 withdrawn.