Protection of Freedoms Bill
Lord Wills Excerpts(12 years, 9 months ago)
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Baroness Randerson
My Lords, I do not share all the noble Baroness’s concerns but still remain concerned about some aspects of the situation. I thank the Minister for the time he gave us in discussing these problems in a meeting. The Government are showing that they are aware of the issues. Some of their proposals—that places suffering from this kind of inappropriate parking can employ a parking company—would be suitable in large situations where the parking was widespread, regular and frequent. However, often these problems take place in, for example, the car parks of churches or community centres, or in residential car parks associated with blocks of flats. The problem is not on a large enough scale for an organisation which exists for a totally separate purpose from parking. It does not suit that kind of organisation to engage a parking company to sort out its problems. The Government have to look at a different resolution to the problem. There are still some questions to be answered.
In my speech in Committee, I asked the Minister what the situation was in Scotland, where there is no clamping. I am strongly in favour of the purpose behind this Bill in that respect: clamping should not be allowed to continue. Scotland has not had clamping for many years. Are there problems there associated with rogue ticketing? There do not appear to be massive problems with that but there appears to be an increase in the number of complaints about ticketing brought to consumer organisations in recent years. The Government need to address the issue of how they will deal with any problems which may emerge as a result of this change in legislation which will undoubtedly go ahead.
What are the Government proposing to do in relation to the forthcoming EU directive on ADR—the alternative dispute resolution procedure? I gather that that will be required in the near future for all traders providing goods and services. That would include parking companies. We need reassurance about the independent appeals process. There is still this gap in the situation where we can expect supermarkets and so on to find a satisfactory alternative to clamping. It is not reasonable to expect a small community-based organisation to employ a parking company and issue tickets. That is not their purpose. It adds bureaucracy and concerns for them.
Lord Wills
My Lords, I support my noble friend Lady Hayter on this matter. I should declare an interest as someone who suffers fairly regularly from the kind of selfish behaviour that she so compellingly outlined. She set out the arguments so well that I do not intend to rehearse them again. I only ask the Minister to reflect on the sentiment of the House that, in dealing with the very real problems of clamping by private operators that it is widely accepted need to be dealt with, the Government do not create another set of problems. The risks that my noble friend outlined are real. I hope that the Minister in his reply can give the House some reassurance that the Government are going to tackle them.
Lord Lucas
My Lords, I am thoroughly in favour of Amendment 42, or at least the intention behind it. It is quite clear that the Bill as it stands will allow a continuation of current abuses in different forms. All you need is a couple of posts with a chain coiled next to one of them and you have a barrier that you can put whenever you want. Anyone caught within it might have to pay a large fine to be released. We will have the same people indulging in very much the same practices as at the moment but they will use a barrier rather than a clamp. Clearly this section is designed to exempt local authority car parks and others with a raised barrier and a ticket on entry. I entirely agree with that. However, it must be reworded, and Amendment 42 seems a pretty good way of doing it. It would be desirable to improve the arrangements in the Bill for appealing against unjustified tickets. I have no objection to the way in which the noble Baroness has set about doing it although I suspect she has taken on a hopeless cause when it comes to allowing more people to clamp. The Daily Mail will use that one, I suspect.
Earl Attlee
The noble Lord makes a very good point. The policeman would have to take that risk. However, he would be aware that he was taking the operational risk that his vehicle might be clamped.
I turn to the other amendments. As the noble Baroness, Lady Hayter, has explained, these amendments seek to provide an alternative dispute resolution mechanism. The Government would be required to prescribe and enforce the system, which would need to be funded by the industry. It is a bit odd that in this group of amendments the noble Baroness proposes retaining clamping without any effective means of appeal while in other amendments she is insisting on a system of appeal.
As indicated in previous debates, the Government are committed to providing an independent appeals service, which will cover all tickets issued on private land by members of an accredited trade association. In practice, this body will cover all ticketing by members of the British Parking Association’s approved operator scheme, who are the major private parking providers in the sector with accredited access to the DVLA keeper data, and will therefore be able to pursue vehicle keepers for unpaid parking charges after the measures in Schedule 4 come into force. However, we have made absolutely clear that we will not commence the keeper liability provisions in Schedule 4 until this independent appeals body is in place.
The amendments tabled in the name of the noble Baroness, Lady Hayter, propose much broader regulation covering all parking on private land which, we believe, would impose a not inconsiderable burden on smaller landowners, including those who wish to manage perhaps only a handful of parking spaces, or even one.
I fear that I am not in full agreement with the noble Baroness, Lady Hayter, regarding Scotland, where wheel-clamping has been banned since 1992. We have seen no convincing evidence that levels of rogue ticketing are a particular problem. However, we are not being complacent; we have given these amendments very careful consideration and, in this respect, I am particularly grateful to noble Lords who have taken the time to meet me to discuss the Government’s proposals. I have also had very helpful and informative meetings with the British Parking Association, Citizens Advice and Consumer Focus.
Some noble Lords raised the issue of Citizens Advice Scotland dealing with more than 1,500 parking inquiries, which represents a big increase on previous years. The figures need to be reviewed in the context of the number of parking tickets issued each year; I do not have the figures for Scotland to hand but, in England and Wales, local authorities issued over 4.2 million penalty charge notices for on-road contraventions alone in 2009-10.
Following discussions, we have agreed that part of our commitment to monitoring the impact of the provisions will be to continue to liaise closely with consumer protection groups to ensure that if rogue ticketing activity does occur such groups can feed back to us. If it becomes a significant problem, we will consider further measures, including wider regulation, if it proves necessary in the light of experience. I hope that that meets the needs of the noble Lord, Lord Wills.
As I have said, we have already established a new system for parking management companies—
Lord Wills
I am very grateful to the Minister, who is genuinely trying to offer reassurance on these issues. I think that the whole House is grateful to him for that. But is he saying that he will continue to monitor the effects, so that if the Government see an increase in the sort of selfish behaviour by motorists on private land that my noble friend has outlined, they will be prepared to introduce new regulations to tackle it?
Earl Attlee
No, my Lords. Where I am making the absolute commitment is to monitor the effect of rogue ticketing very carefully and, if necessary, introduce further regulation. I will not fall into the temptation offered by the noble Lord.
As I said, we are already establishing a new system for parking management companies that have accredited access to DVLA data. We intend that the independent appeals service will be able to report back to the industry on appeals, so that precedents can be established and drivers do not have to continually appeal on the same grounds. In this way, the appeals body will help to drive up standards in the industry and provide greater clarity to both the motorist and parking operators. The accredited companies operating under this new regime will be able to offer their services to smaller-scale landowners and parking providers, and we believe that in many circumstances that will be an attractive option for landowners with perhaps only a handful of parking places, knowing that parking on their land will be managed by a professional and responsible company with all due safeguards in place. I think that there would be serious reputational issues if an individual or an organisation took the option of not using an ATA operator, but we have left that option open to them.
The noble Baroness, Lady Randerson, asked about the European legislation in gestation at the moment. The Government believe that their proposals offer the right balance between the rights of motorists and those of landowners, for the reasons I have explained. We have agreed to return to the issue if rogue ticketing proves to be a problem, but the question of possible future European legislation is a little academic at this stage, although we will obviously need to pay due regard to any commitment to which the UK Government sign up.
My noble friend Lady Randerson also raised the problem of small and dispersed parking facilities. It is entirely possible for the landowner or user to take a photo of the offending vehicle and the warning signs and pass them on to an ATA parking operator, assuming that they have the necessary enabling contact. That ATA company would be able to do the administration.
I hope that in the light of these clear assurances the noble Baroness will feel free to withdraw her amendment.
Protection of Freedoms Bill
Lord Wills Excerpts(12 years, 10 months ago)
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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.
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.
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.
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.
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.
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.
Health: Animal Testing
Lord Wills Excerpts(13 years, 1 month ago)
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Lord Henley
My Lords, I am grateful to my noble friend for his underlining of the fact that there have been some misleading claims put out by organisations such as those he referred to. We obviously want to avoid using animals wherever possible but I think we all accept that if we want the National Health Service and modern medicine as a whole to function effectively, it is essential that we can test on animals and that we make sure that the availability of medicines and treatments has been developed or validated through research, with the appropriate use of animals where it is right to do so. Again, I am grateful to my noble friend for what he has had to say.
Lord Wills
In the light of inevitable budgetary constraints, can the Minister tell the House what steps his department and the Government generally are taking to ensure that there will be adequate levels of inspection and regulation for animals used in scientific procedures? In answering that question, can he confirm whether his department is already planning an overall reduction in staffing to that end?
Lord Henley
Again, I am grateful to the noble Lord for that question. I am new to the department but in terms of the briefing I have received, I am satisfied that there is appropriate testing and licensing of the place where animal testing goes on, the people who do it and the projects involved. It is important that all three—place, person and project—are tested, examined and licensed appropriately to make sure that there is proper and appropriate use of animals in that case.
Parliament Square (Management) Bill [HL]
Lord Wills Excerpts(13 years, 4 months ago)
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Lord Wills
My Lords, I, too, congratulate the noble Lord, Lord Marlesford, on introducing this Bill and on his elegant exposition of it. The central aim of the Bill in setting up the committee is in my view an ingenious attempt to resolve this long-standing problem, which has so far defied every attempt to do so, precisely because it deals with the fracturing of responsibility which has so far enabled everyone with a little bit of responsibility to avoid taking all the responsibility for trying to resolve it. Incidentally, I welcome the provision for an annual report to Parliament, which is an attempt to ensure appropriate democratic accountability for the committee’s work. However, as the Bill makes progress—I hope that it will—I hope that the noble Lord might consider amending it to include a provision for the committee to have as part of its remit that it must, alongside maintaining the square’s environment, ensure that Parliament Square remains a forum for the lawful expression of political opinion. The noble Lord went to great pains to stress the importance that he attaches to this, and I am sure that all Members of the House share that view. However, amending the Bill in the way that I suggest would make the importance that Parliament attaches to such freedom of expression clearer than is currently the case. In my view, that is essential.
As this debate and previous discussions have shown over and again, perhaps the key reason for the intractability of this problem is the need to strike this balance between the imperative of securing freedom of expression and maintaining a heritage site that represents the best of our democracy. This balance is not always so easy to strike. I recognise the valiant attempts of many noble Lords to strike such a balance, but these distinctions are hard to pin down and will not always be the same in every case. It is very important to maintain an element of pragmatic flexibility. The noble Lord’s proposed committee would allow for such pragmatic flexibility provided the Bill was clearer about the importance that the committee should attach to freedom of expression.
The Bill may or may not turn out to be the key to unlocking a solution to this issue and I am sure that the Minister will shortly reveal the Government’s view on this. In the mean time, your Lordships’ House owes a great debt of gratitude to the noble Lord, Lord Marlesford, just as it does to the noble Lord, Lord Tyler, for his attempt to resolve this issue a few weeks ago. The Bill has given Parliament another opportunity to try to resolve the issue, which really should have been resolved a very long time ago.
The Minister of State, Home Office (Baroness Browning)
My Lords, I thank my noble friend for tabling this Bill on an issue to which he and all in this House attach great importance—namely, the management of Parliament Square. I have listened with great interest to the noble Lord’s arguments and to all those who have contributed to the debate today. I am always heartened by the keenness with which these important issues are debated in this House. We have had some real gems of contributions today.
The Government are committed to restoring rights to non-violent protest. The Government are also committed to ensuring that everyone can enjoy our public spaces and do not consider it is acceptable for people to camp on the square. That is at the heart of the issue with Parliament Square. As my noble friend is aware, the Government have set out their commitment to restore rights to non-violent protest and have accordingly brought forward repeal of Sections 132 to 138 of the Serious Organised Crime and Police Act and are in the process of introducing alternative measures to tackle disruptive activities in Parliament Square in the Police Reform and Social Responsibility Bill.
Lord Wills
I am sorry to interrupt but this is such an important issue and the distinctions are very important. The noble Baroness says that the Government are opposed to overnight encampments in the square and most people would agree with that as a general proposition. Does she see that there might be a distinction between that and, say, an overnight vigil by someone trying to make a specific political point? Does she see that there might be a difference between an encampment and a vigil?
Baroness Browning
My Lords, I do see that as a distinction, but perhaps I may continue my remarks. The focus of what we are trying to do in the government Bill is to get a sense of balance and proportionality. That is why, having moved from the legislation that has been on the statute book for some time to enhancing the powers of seizure, we are very much more focused on encampment and all that goes with overnight encampment than on the individual’s right to protest. The balance we have tried to strike is to preserve the individual’s right to protest but deal with what has been a very difficult issue for all Governments—the encampment and the materials associated with it not just on the green of Parliament Square Garden but on the paving areas around it. I will come on to displacement because I realise that that is a particular problem.
Parliament Square Garden is a World Heritage Site surrounded by important historic buildings, such as Westminster Abbey. Its location opposite the Houses of Parliament also makes it a focus for protests, and rightly so. But we need to remember, as noble Lords have already said in contributions today, that others come to Parliament Square for a number of reasons. My noble friend Lord Sharkey touched on this. Some come as tourists to see the Houses of Parliament, Big Ben and Westminster Abbey; others, as a cultural experience by visiting a World Heritage Site; or as individuals interested in the democratic process by seeing where Parliament is situated.
We all witnessed the occupation of Parliament Square Garden by the democracy village encampment last summer which prevented members of the public and visitors using and enjoying the garden. Noble Lords have also had experience of trying to access that part of the square themselves and seeing the monopoly that those particular protesters had on that piece of land. The courts have said that Parliament Square Garden is not a suitable area to be used for any sort of encampment. More recently the High Court has also said:
“Parliament Square Gardens is not a suitable location for prolonged camping; such camping is incompatible with the function, lawful use and character of Parliament Square Garden and it is also inconsistent with proper management of the area as a whole … members of the public have been and would be precluded from using the area occupied; the area in question is the area nearest to an important entrance to the Houses of Parliament”.
The Government and I think that we in this House and the other place would agree with the court’s findings.
The democracy village encampment caused significant damage to the garden, which has required considerable remedial works by the Greater London Authority, during which time nobody could enjoy this unique space. Others have drawn attention to the statues in the garden, which are important to our nation’s history, which the visitor to London would quite naturally wish to access, photograph and take a closer look at. The Government are clear that the same applies to the ongoing encampment on the footways adjoining Parliament Square Garden. It is not acceptable that a few individuals should trump the wider public enjoyment of this unique location, deter people from visiting the area and even deter others from protesting on the footway.
As noble Lords will know, there has been quite a monopoly on this area by key groups who have not only caused the problems I have just described to the public visiting the square, but have monopolised it in terms of other representative groups who also want the opportunity to protest peacefully and make their views known on a wide number of issues in the vicinity of Parliament. That is something which the Government’s Bill, which is before the House at the moment, does not seek to prohibit. The Government have brought forward measures to have a small controlled area in which certain activities—namely, erecting tents and the unauthorised use of loudhailers—are prohibited. We believe that this is a proportionate and targeted response, which is the minimum necessary to deal with the particular misuse of tents and structures on Parliament Square Garden and the footways.
Our approach is aimed at targeting specific problems on a small area of Parliament Square and empowering local authorities to take action by giving them the ability to enforce relevant by-laws more effectively. We have not tried to address the misuse of public space by changing the laws governing the right to protest. We think the same framework governing protest in the rest of the country should also govern protest around Parliament. People have the right to protest, but it is the encampment aspect of it that we have sought to address in the Government’s legislation. We have instead addressed the behaviours that we consider are unacceptable around Parliament and have applied the law to everyone, not picking out those exercising rights to protest. So if people want to protest for days, weeks and months, they can, which answers a point raised by the noble Lord, Lord Desai. What they cannot do is erect tents or construct permanent or semi-permanent encampments to do so. The noble Lord, Lord Ramsbotham, described it as “living on site”, and that is what we have sought to address.
I appreciate my noble friend’s intention in bringing this Bill to Parliament—