Protection of Freedoms Bill

Baroness O'Neill of Bengarve Excerpts

Monday 12th March 2012 Lords Chamber

Moved by

[Baroness O'Neill of Bengarve]

19: Clause 118, page 105, line 4, at end insert—
“( ) No order under subsection (1) appointing a day for section 103 to come into force shall be made until—
(a) the Secretary of State has produced and laid before both Houses of Parliament a response to any recommendations made in the post-legislative scrutiny review of the Freedom of Information Act;(b) both Houses of Parliament have given legislative effect to any recommendations arising from that review which require legislation to take effect; (c) the Secretary of State has laid before both Houses of Parliament any revisions to the code of practice issued under section 45 of the Freedom of Information Act 2000 (issue of code of practice by Secretary of State) made in pursuance of paragraph (da) of subsection (2), or of subsection (2A) of that section of that Act; and(d) both Houses of Parliament have passed a resolution affirming support for any such revisions to the code of practice.”

[Baroness O'Neill of Bengarve]

My Lords, the amendment addresses a range of issues on which we have had long discussions at Second Reading, in Committee and on Report, on the clauses dealing with proposed extensions of the application of the Freedom of Information Act 2000 to research data sets.

I thank the Minister especially for his agreement at Report to delay implementation of this part of the Bill until the completion of the post-legislative review of the workings of the Freedom of Information Act. Delay alone is not, however, enough, but it may be fruitful if used actively to deal with issues that have been raised in the course of the passage of this Bill. Amendment 19 sets out some conditions for a process for using this delay constructively. I hope that it builds upon the Minister’s indication at Report that the delay would be used.

So far amendments proposed to this part of the Bill have mainly met a uniform response that the exemptions in Freedom of Information Act already cover the case. In some instances perhaps they do, but it has not been easy to see that they do. There have been very few detailed explanations of how they do so, and no arguments that they can continue to do so in the world in which we find ourselves. That is a world in which new players, often in the Far East, combine high-quality IT with ambitions to be scientific and technological innovators, yet do not respect others’ IP and are protected by jurisdictions that provide no remedies for IP violations. These circumstances mean that arguing that there have been few requests for research data in the past is no adequate guide to the future.

--- Later in debate ---

[Lord Henley]

My Lords, I understand all the concerns that have been expressed by a number of noble Lords in the course of this debate, at earlier stages and in the large number of meetings that I have held with the noble Baroness, Lady O’Neill, and others over the preceding months. We want to address those points.

We understand the worries of the noble Lord, Lord Oxburgh, when he talks of the risk of serious damage to universities resulting from the Freedom of Information Act. I remind him that that Act was passed 10 years or so ago and came into effect some five years ago, and so far that damage has not happened. We understand his concerns, though, and will continue to try to address them, and I will continue to give assurances today, as I have done on earlier occasions.

The amendment—it is always important at Third Reading to discuss the amendment, not wider issues—seeks to delay the commencement of Clause 103 until the concerns of the noble Baroness and others about the reuse of data sets are addressed through the revised code of practice under Section 45 of the Freedom of Information Act, and more generally about the cost of FOI requests and the adequacy of exemptions. The noble Baroness asked me to comment on those last two, but that really ought to wait until we have dealt with that post-legislative scrutiny. The noble Baroness is right to highlight these by way of amendments, but we are agreed that putting them into the Bill is not the appropriate way forward. I hope therefore that she will find the following comments of some use.

I turn first to the Section 45 code of practice, through which we intend to provide guidance about the data-set provisions in the Bill—for example, on licensing conditions. Neither Clause 102 nor Clause 103 will be commenced before the revised code has been put in place. We will consult, as is required under Section 45, the Information Commissioner in drawing up the revised code before it is laid before Parliament.

We must develop guidance that ensures that the application of Clause 102 on data sets is understood and clear in order to ensure that the perceived problems described over recent months are avoided and that clarity is provided. Clearly, the views of experts working with data sets will be important in developing that guidance, and those will be taken account of to ensure that we get the guidance right.

I shall say a little more about post-legislative scrutiny of the Act. That assessment, which is under way now, of the operation of the Act is the best way of addressing more general concerns. Given that the Freedom of Information Act applies to a very wide range of bodies, it is important that comprehensive evidence is collated from a wide range of interested parties before deciding what changes might usefully be made. Once again, I can provide some reassurances.

On the timing, I do not anticipate the committee taking so long to publish its recommendations that there is any significant likelihood of Clause 103, or for that matter Clause 102, being commenced first.

However, I must exercise a little caution over subsequent legislation to implement any recommendations. We all understand that secondary legislation is relatively quick to bring forward and revised guidance even quicker. However, I am sure noble Lords understand that enacting primary legislation would necessarily take somewhat longer and could therefore delay the enhancement of the right to data for a considerable time. I am sure the House of Lords will also understand that I cannot pre-empt the outcome of the deliberations of the Justice Select Committee, sitting under Sir Alan Beith, which are being informed in part by evidence submitted by the higher education sector. Therefore, I cannot predict exactly what action the Government will consider it necessary or appropriate to take as a result.

However, I can reassure the noble Baroness, Lady O’Neill, that we do not intend to drag our feet following publication of that post-legislative scrutiny. Whatever actions are deemed appropriate in the light of the Justice Select Committee’s recommendations will be taken as quickly as possible. It is important for public authorities and users of the Freedom of Information Act alike that it functions as effectively as is appropriate. Therefore, the Government will consider the evidence collated during post-legislative scrutiny, including that presented by the higher education sector, as they ensure that this is the case.

As I have already indicated several times, we certainly want to maintain, protect and enhance the leading position of the United Kingdom research sector. That is why I hope that, given my assurances about timing and what post-legislative scrutiny will involve, the noble Baroness will withdraw her amendment. I assure her that the review will continue and that we will act on it as quickly as we can once we have the results of the scrutiny.

[Baroness O'Neill of Bengarve]

My Lords, I thank the Minister for listening to what the process set out in Amendment 19 is. I understand his reluctance to make any commitment under the heading of introducing changes that may be recommended by Sir Alan Beith’s committee but that require primary legislation. For that reason, I shall withdraw the amendment.

However, on other matters this has been like sweeping a very long and dusty floor with all the dust still in front of us. We will need to look with great care at the codes of practice. A code of practice is often a fragile instrument and these data sets are of very high value. We have to be careful in what we do, lest we wish we had done something else at the end of it. With those assurances, I thank the Minister for his sustained attention to these less than thrilling issues and beg leave to withdraw the amendment.

Amendment 19 withdrawn.