Protection of Freedoms Bill

Baroness Stowell of Beeston Excerpts

Wednesday 15th February 2012 Lords Chamber

Moved by

[Baroness Stowell of Beeston]

54B: Clause 67, page 55, line 33, leave out from “person,” to end of line 35

[Baroness Stowell of Beeston]

My Lords, in moving Amendment 54B, I will speak also to Amendments 54C to 54H, 54P to 54V, 60 and 61. This group of government amendments to Clauses 67 and 77, and the equivalent Northern Ireland provisions in Schedule 7, deals with barring decisions and barred list information.

Clause 67 provides that a person will be barred by the Independent Safeguarding Authority from working with children or vulnerable adults only if that person has been, is or might in the future be engaged in regulated activity. As my noble friend has already made clear this afternoon and at all stages of the Bill so far, in seeking to scale back the disclosure and barring scheme, the Government believe that it is disproportionate to bar a person if they have never worked in regulated activity and have no prospect ever of doing so. However, having listened carefully to the concerns raised in this House and by organisations such as the NSPCC, we have concluded that where someone has been convicted of a crime on the list of the most serious offences—that is, an offence that leads to an automatic bar without the right to make representations—the Independent Safeguarding Authority should bar that person whether or not they work or intend to work in regulated activity. An automatic bar without representation would apply to convictions for the most serious sexual and violent offences, such as, in the case of the children’s barred list, the rape of a child. In these cases, there are no conceivable mitigating circumstances—that is why representations are not permitted—and there can be no question that the person is a risk to vulnerable groups.

Amendments 54B to 54E give effect to these changes in England and Wales, and Amendments 54P to 54S make similar changes to Schedule 7 in respect of Northern Ireland. Amendment 60 is consequential on Amendments 54B to 54E, and Amendment 61 is consequential on Amendments 54P to 54S. The other amendments in this group concern the provision of information by the Independent Safeguarding Authority to the police. Clause 77(4) states that the Independent Safeguarding Authority must, for one of a number of specified purposes,

“provide to any chief officer of police who has requested it information as to whether a person is barred”.

The current drafting requires the Independent Safeguarding Authority to provide to the police information only about whether a particular person is barred rather than the whole barred list.

The police have indicated that they need this information in real time—for example, if they were to stop someone driving a school minibus and needed to know whether they were barred. In practice, making requests to the Independent Safeguarding Authority on a case-by-case basis would not always provide the police with the information in the necessary timescale. Amendments 54F and 54G therefore provide that the ISA must provide to the police the whole barred list. The police will then be able to put appropriate flags on the PNC, and will have immediate access to barring information when they need it. Amendment 54H ensures that this requirement to supply the whole barred list does not extend to information provided to the prison and probation services. Amendments 54T, 54U and 54V provide for the same arrangement in Northern Ireland. I beg to move.

[Baroness Royall of Blaisdon]

My Lords, I am grateful to the noble Baroness for her clear explanation. I wholeheartedly welcome this amendment, for which we have been calling since the Bill was first introduced. As my honourable friend the Member for Hull North said in another place:

“There is a very good reason why someone who commits a serious offence is barred from working with children—because they pose a serious risk to children. That should mean that they are automatically barred from working with them”.—[Official Report, Commons, 11/10/11; col. 228.]

I have to say that I was astonished by the Government’s original proposal that a man convicted of raping a child would not automatically be barred from working with children. I am grateful to the Government for listening and introducing this amendment which clearly puts right what was, I believe, a miscalculation of risk.

I have one or two questions for the noble Baroness but I hope not to detain her for long. She will know that the amendment which I tabled in Committee not only reinstated automatic barring but provided for an appeals process for individuals. Do the Government plan to review the existing appeals processes—based on written submission by the individual—to allow for appeals hearings in person, as were provided for by my amendment? How do the Government propose to ensure that there will be a consistent and proportionate approach to enhanced disclosures across all police authorities?

[Baroness Stowell of Beeston]

My Lords, I am grateful to the noble Baroness, Lady Royall, for her support for this amendment. As I said in my opening remarks, we have listened carefully and are pleased to table this amendment. The only thing that is perhaps worth making clear is that the absence of an automatic bar does not give anybody an automatic right. We have ensured that anybody who has been convicted of the most serious crime and has no opportunity to make representation is automatically barred. However, this does not mean that those who are not automatically barred have an automatic right—the opposite is not true for them. A proper process will follow.

As regards the amendment tabled by the noble Baroness in Committee and plans to review the existing appeals process, we are ensuring that representations can be considered in advance. The change we are making to the barring and vetting process will mean that somebody who is about to be employed in a regulated activity, and is therefore subjected to checks of the kind we are discussing, will receive the certificate and have the opportunity to challenge any information that is on it before it is made available to the employing body. Therefore, the opportunity for that challenge is at the start of the process rather than after a certificate has been issued to a prospective employer or organisation for which somebody might volunteer. Representations can include oral representations—they do not necessarily have to make their appeals or representations in writing—but at the moment we are not planning any further changes to the appeals process.

On the noble Baroness’s final point about the police process, if I understood correctly, the point that she was making was that this system of ensuring availability of the barred list should be consistent across all police authorities. I can confirm that that is the case.

Amendment 54B agreed.

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Moved by

[Baroness Stowell of Beeston]

54W: Clause 79, page 72, line 16, at end insert—
“120AD Registered persons: copies of certificates in certain circumstances
(1) Subsection (2) applies if—
(a) the Secretary of State gives up-date information in relation to a criminal record certificate or enhanced criminal record certificate,(b) the up-date information is advice to apply for a new certificate or (as the case may be) request another person to apply for such a certificate, and(c) the person whose certificate it is in respect of which the up-date information is given applies for a new criminal record certificate or (as the case may be) enhanced criminal record certificate.(2) The Secretary of State must, in response to a request made within the prescribed period by the person who is acting as the registered person in relation to the application, send to that person a copy of any certificate issued in response to the application if the registered person—
(a) has counter-signed the application or transmitted it to the Secretary of State under section 113A(2A) or 113B(2A),(b) has informed the Secretary of State that the applicant for the new certificate has not, within such period as may be prescribed, sent a copy of it to a person of such description as may be prescribed, and(c) no prescribed circumstances apply. (3) The power under subsection (2)(b) to prescribe a description of person may be exercised to describe the registered person or any other person.
(4) In this section “up-date information” has the same meaning as in section 116A.”

[Baroness Stowell of Beeston]

My Lords, I will also speak to Amendment 55 in the names of my noble friend Lord Addington and the noble Baroness, Lady Royall, and to government Amendments 58, 59, 62 to 69 and 72.

First of all, I should say how grateful I am to my noble friends Lord Addington and Lady Heyhoe Flint, who my noble friend Lord Addington has indicated is unable to be with us today, and to other noble Lords—notably the noble Baroness, Lady Grey-Thompson—for the time that they have taken to talk to my noble friend Lord Henley and me about their concerns about the issue of certificates. I hope that, given the amendment that I am able to move today, noble Lords will feel that it is no longer necessary for them to move the amendment in their names.

Although the intended effect of Amendments 54W and 55 is broadly similar—namely, that a copy of the criminal record certificate should be sent to the registered body as well as the applicant after a specified period has elapsed—their actual impact is significantly different, as I have said. We have listened to the concerns expressed about the single certificate provisions, and we are keen to ensure that there are no safeguarding gaps in respect of those individuals already employed. Amendment 54W therefore provides a facility for the Secretary of State to send to a registered body a copy of a criminal record certificate in specific and limited circumstances.

This facility will apply where a registered body uses the new updating service introduced by Clause 83 and is informed that a new certificate should be applied for—in other words, that there has been new information since the most recent certificate. If the registered body informs the Secretary of State that the individual has not sent to it a copy of their certificate within a prescribed period—we envisage a period of some 21 days —and requests a copy of the new certificate, the Secretary of State must comply with that request.

However, a copy of the certificate will not be sent if prescribed circumstances apply, principally when the individual has challenged the information on the new certificate, which is what the noble Baroness and I were just discussing with regard to the last group of amendments. Any such requests made by a registered body will need to be made in a timely manner—there is provision to prescribe a time limit—to ensure the smooth operation of these arrangements.

Our proposed change will be particularly relevant to large organisations which consider certificates centrally, and which will be able to advise their local branches of any issues arising. This applies in particular to the examples that my noble friend Lord Addington will no doubt draw on in his contribution to today’s debate.

We recognise that there may be occasional instances in which an applicant delays providing a copy of the certificate to their employer. The amendment provides a way for registered bodies to see a copy of the new certificate in those circumstances, while still ensuring that, when an applicant has challenged the contents of the certificate, the employer will not see that information until the challenge has been resolved.

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[Baroness Royall of Blaisdon]

My Lords, I was very pleased to add my name to the amendment in the name of the noble Lord, Lord Addington. As he said, it is not a perfect solution to the problems created—it does not address the concern of voluntary organisations up and down the country that individuals with minor and irrelevant criminal histories will be deterred from volunteering by having personally to submit their certificates to organisations, and it could strengthen the concern of groups with a high turnover, such as the care sector, that the bureaucracy caused by eradicating what was a quick and automatic process will mean that key roles are not filled quickly enough. However, I believe that accepting the amendment will provide the best iteration of what will potentially be a messy and bureaucratic process, and I think that the clarification requested by the noble Lord will be important to organisations’ understanding of the process.

I also note with pleasure the Government’s own amendment. I welcome the fact that, again, they have listened to the concerns of this House. However, I fear that the ultimate result of the changes to the process of CRB disclosure will be a system that is more complex for organisations to administer, and I worry that this could have a stifling effect on our voluntary sector.

I understand that two separate costs will be involved in the new portable CRB checks: a cost for initial disclosure and a cost for an ongoing subscription to update and validate the disclosure on a rolling basis. How do the Government propose to ensure that they do not create a two-tier system in which some individuals pay for only initial disclosure and do not access the new portability benefits by paying for a subscription? Will the Government confirm whether volunteers will be charged for the ongoing subscription, and why are they seemingly preventing the portability of checks between work with adults and work with children? It looks as though employers will have to apply separately for CRB checks and barring information, despite the fact that the Government are bringing the two organisations under one roof through the new Disclosure and Barring Service. Is this the case? Perhaps I am mistaken.

[Baroness Stowell of Beeston]

I am grateful to my noble friend Lord Addington and the noble Baroness, Lady Royall, for their remarks during this short debate. I start by responding to a point made by the noble Baroness, Lady Royall, about the potential for the new arrangements that we are putting in place to deter people from volunteering or to make the process more complex. I would disagree with that. There is the very clear and simple principle to which I referred a few moments ago that, in putting themselves forward, people will understand that they will be subjected to the necessary checks in order to safeguard young people and vulnerable adults. They will know that they will get the opportunity to see that certificate before it is issued not just to a prospective employer, but perhaps to a small group which is run by people who are volunteers themselves—not a big organisation. I think some people will find comfort in that.

The noble Baroness is right to say that there are some complexities to this wider topic and we have acknowledged that in the course of our debates today. However, we live in a very sophisticated world and I do not think that we should have a system that is not sophisticated enough to ensure that we address those who might put our children at risk. We should also make sure that those who are very able and who would do a really good job working with young children and others are not barred by us having a system that deters them. I understand where the noble Baroness is coming from but I disagree.

My noble friend raised some points about the amendment that we are discussing today. I repeat that we are talking about the single certificate and how a body could check that the person it wants to work with it is suitably cleared. I note what he said about volunteers being encouraged to get more involved in civic society. It could be argued that the new system that we are putting in place will make it easier to accommodate that because the online process, and the system of allowing someone to use the portable arrangements, will mean that we are trying to support people doing something and that we are providing a system to make that work effectively.

My noble friend asked again about the guidance that we have referred to already. I absolutely understand the point he is making that the organisations, particularly those that survive on the goodwill of the volunteers who work with them, want clarity in ensuring that they are doing the right thing and know how and when to pursue the checks and how and when to follow them up. I can make it absolutely clear to my noble friend that we will develop the guidance in consultation with the voluntary organisations and the sporting bodies that he has introduced during the passage of the Bill. We will want to outline best practice so that they know when is the right time to pursue an individual and check further for the evidence that they need. For example, if the registered body informs the Secretary of State that the individual has not sent it a copy of the certificate within a prescribed period which we envisage to be 21 days, it would have to wait 21 days before making a representation to the relevant body.

We have listened very carefully to the concerns that were expressed. We want to make sure that the guidance we introduce will provide organisations with the cover that people who are put in positions of responsibility feel that they deserve in order to make sure that they exercise their responsibilities properly. I hope that that provides the assurance that my noble friend seeks.

The noble Baroness asked about costs and charges, and whether volunteers would be charged for updating. I cannot give her a response today, but I will come back to her on that. She asked also about the difference between CRB checks and barring checks. They exist for different purposes. When somebody is employed, about to be employed or is volunteering to do regulatory activity for an organisation, the organisation has a statutory obligation to ensure that an application is made for that person to be checked and for a certificate to be issued. If the activity is unregulated, the organisation can still pursue a check if it wishes. In the process of the application being made, the authorities will determine whether the barring aspect of the check will kick in. It will not be a case of somebody making a specific request for the barring check; it will happen in the course of the process of application. The uncertainty will be taken care of and the decision will be made by those with the necessary information.

I hope that I have answered the concerns and points raised today by noble Lords. I beg to move.

Amendment 54W agreed.

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[Lord Collins of Highbury]

My Lords, I support my noble friend’s amendments, which would make common-sense improvements to the operation of the Freedom of Information Act. I will not repeat the arguments he has made so eloquently, but I would like to raise a few points.

These amendments strengthen the individual’s right to freely access public information and the presumption in favour of openness and accountability in public bodies. The democratisation of knowledge and communication through the internet is the most important revolution of our age. People simply do not accept bureaucratic barriers to information any more, and we must have legislation that is alive to responding to new realities. It is therefore essential that the processes for accessing information do not work against the principle that the burden should be on the body providing the information, not on the individual seeking it. This includes the cost of seeking such information and I urge the Government to think again if they are planning to increase charges.

The 40-day maximum cap on complying with freedom of information requests is both simple and workable. As my noble friend pointed out, it comes from the recommendations of the Information Commissioner, who said:

“In cases where the public interest considerations are exceptionally complex it may be reasonable to take longer but, in our view, in no case should the total time exceed 40 working days”.

The House has learnt first hand the frustration of delays that can be caused by decisions and successive appeals on the basis of public interest, which no doubt we shall return to when we resume consideration of the Health and Social Care Bill.

We must seize every opportunity to ensure that the process itself never becomes the reason why individuals are denied access to public information. We must also ensure that the principle of public accountability at the heart of the Freedom of Information Act established by the Labour Government is not diluted by changes in the nature of delivery of public services, as noble Lords have pointed out. As my noble friend has said, the public have a right to access information about how their money is spent and I hope the Minister will seize this opportunity to restore the levels of public sector transparency enjoyed before the Localism Bill was enacted.

[Baroness Stowell of Beeston]

My Lords, I start by making it clear that this Government very much support freedom of information and increasing openness and transparency—there is absolutely no doubt about that. Indeed, I am sympathetic to Amendment 55ZA, moved by the noble Lord, Lord Wills, in relation to the timeliness of public interest deliberations, and his proposal to make the Information Commissioner’s recommended best practice a statutory requirement.

Public authorities must answer freedom of information requests promptly. They must not be unnecessarily slow in responding, and any extension to the time limit for responding to such requests should only be claimed where absolutely necessary. As I mentioned to the noble Lord when we debated similar amendments tabled by him in Committee, I have some experience—although not in government—of being on the receiving end of FOI requests that are complex and invoke public interest tests.

As I said then, it is certainly the case that, in general, timeliness in responding to freedom of information requests is good. In 2010, 86 per cent of requests were answered by bodies monitored by the Ministry of Justice within 20 working days. It is also worth noting that in central government time extensions for the consideration of the public interest test remain relatively rare and the proportion of requests which have resulted in such an extension fell to 4.5 per cent in 2010.

[Lord Wills]

Will the noble Baroness confirm that those figures do not cover local government? Will she further confirm that it is her understanding as it is mine that most of the interests that the citizens of this country have are in local authority functions and not central government functions?

[Baroness Stowell of Beeston]

I can certainly confirm that the figure I quoted for the extension of requests under the public interest test relates only to central government. As to general requests under FOI, these bodies were monitored by the MoJ. I am afraid that I do not have to hand which bodies they are. The figures do not cover local government.

However, I accept that there is room for improvement, especially where the deadline is extended to allow consideration of the public interest test. The Information Commissioner is watchful of public authorities where timeliness is an issue and has taken effective action in this area. In 2011, the commissioner announced that out of 33 bodies being monitored in relation to timeliness issues, 26 had made sufficient improvement to be removed from his watch list. While further action is required from the remaining bodies, it is clear that the Information Commissioner’s Office has been effective in improving timeliness.

The introduction of new statutory deadlines is a potential way of strengthening the Freedom of Information Act, as the noble Lord has put forward, provided that it does not lead to hasty decisions that are not fully informed. An absolute limit of 40 days raises some concerns about the potential for such an effect and therefore we need to give the impact of changes of this type full consideration before their introduction. For that reason, I cannot accept his amendment today.

As the noble Lord has predicted I might say, but not for the reasons he suggests, this is something that I strongly believe should be properly scrutinised and considered in the course of post-legislative scrutiny, which is now under way by the relevant Select Committee of the other place, chaired by the right honourable Alan Beith. I certainly will ensure that he receives the official record of our debate today.

It is also worth pointing out that I genuinely think that the proposal put forward by the noble Lord, as much as it has merits, requires very careful consideration. I will look forward to his contribution to the process of post-legislative scrutiny that is ongoing.

Amendment 55ZB, again in the name of the noble Lord, Lord Wills, seeks to extend the Freedom of Information Act to information held by contractors working on behalf of public authorities about the performance of those contracts where those contracts are worth more than £1 million. The noble Lord has found support today from the noble Earl, Lord Erroll, my noble friend Lord Lucas and the noble Lord, Lord Collins, on this issue. As the noble Lord, Lord Wills, is aware, the Government have extended the FOI Act and are taking steps to extend it further. We have made an order under Section 5 of the Act extending its scope to, among others, the Financial Ombudsman Service. We have commenced consultations with more than 200 further bodies about their possible inclusion through future Section 5 orders and we intend to consult more than 2,000 housing associations later this year in relation to their possible inclusion.

In addition, Clause 103 of this Bill will extend the Act to companies wholly owned by two or more public authorities, thereby removing the anomaly whereby a company is subject to the FOI Act only if wholly owned by one public authority but not by two or more. I hope that the noble Lord recognises that these are significant changes.

I understand the point that the noble Lord and others have made today that as services are subcontracted out, whether by local government or by other public services which have been mentioned today, the public should not be left short of any information that might be needed to assess the effectiveness and efficiency of those services. But as I mentioned to the noble Lord in Committee when we debated this, even when a service is subcontracted out, it is still the responsibility of the public authority in terms of the accountability for that service to the public. It is the relevant organisation which should be held to account. In the way in which the contracts are constructed, it should be possible for the public to receive from the contracting authority the information that is needed in order to ensure that the services being carried out and paid for with their taxes are actually performing as they would want them to.

As my noble friend Lord McNally stressed last year, it is important to ensure that changes to the way public services are delivered do not undermine our pledge to increase openness and accountability, and there is certainly a challenge to be met here. I would like to restate that our continued opposition to this amendment does not stem from any lack of commitment to the cause of increased openness and accountability. We are already considering this issue and it will be further considered in the response to the Cabinet Office consultation on the draft transparency and open data strategy.

I may have covered this point, but I want also to say to the noble Lord that there is a provision in the FOI Act as it stands that extends its scope to public bodies. I believe that it is set out in Section 5. If and when other public authorities, bodies or organisations should be covered by the Act, we do not need new legislation, or we will be subject to the kind of delay that he seems to think post-legislative scrutiny would bring about. We actually have a mechanism to ensure that as and when we feel it is right and proper to extend the Act, we can do so.

[The Earl of Erroll]

My Lords, I have a brief question for the noble Baroness. Is she saying that public authorities should be writing into their contracts a provision that would allow for freedom of information requests, and that is what she is relying on rather than it being put into the law?

[Baroness Stowell of Beeston]

No, I am not saying that. I am not in a position to go that far because it would take us into an area on which I do not have the authority to speak today. I am making two separate points. One is that a public authority is the body which is accountable to the public for any services that it might subcontract out. In the course of its contractual arrangements with the subcontractor I would expect, in order to ensure it is properly accountable, it should ensure that it is able itself to access the information it needs. I do not think it is proper to prescribe the detail in the way that has been put forward by the noble Lord. For example, it is not clear how the £1 million contract threshold would be calculated. How would additional payments which might take the value over £1 million be taken account of? Different public authorities might take different approaches to valuation. If that happens, the approach will not be applied consistently. I worry that the amendment might be attractive on its face but deceptively difficult to operate on the ground. I am not saying that issues such as this are insurmountable; I merely use this as an illustration of why careful consideration is necessary to ensure clarity for public authorities, the Information Commissioner and users alike.

I have also made the point previously that to comply with FOI requests for contractor information public authorities would need to have access to any information held by the contractor that is potentially relevant in terms of responding to the request. Such a requirement to share all such information with the public authority so that the authority might comply with FOI requests could adversely affect the effective delivery of the contract. Again, I am sure that solutions to this issue exist, but they require careful consideration.

I reassure the noble Lord, Lord Wills, that our opposition to the amendments results from the need to make sure that effective and proportionate solutions are developed. It does not result from a lack of a commitment to transparency or the effective operation of the Freedom of Information Act. I therefore invite the noble Lord—

[Lord Wills]

Before the Minister invites me to withdraw the amendment, will she answer two questions for the purpose of clarification? The first is in relation to the undertaking that she gave in Committee to contact the Information Commissioner. Has such contact been made? If so, what was the result of it? If it has not, when will it be made? Secondly, she referred earlier to her belief that the Government have the mechanism and the will to act promptly should they decide that it is necessary to do so, and that the delays that I fear will happen will not take place. Is that mechanism Section 5 of the Act and, if not, what mechanism is she referring to other than primary legislation?

[Baroness Stowell of Beeston]

On the former of his questions, I am not able to give the noble Lord a reply today, but I will follow it up with him in due course. On the latter, I am not proposing any new legislation; I am referring to Section 5 of the FOI Act, in that it gives us the opportunity and the provision, should we need it, to extend the Act to cover new bodies in the way that we are using it right now. I hope that that answers the noble Lord’s question and that he will feel able to withdraw his amendment.

[Lord Wills]

I am grateful to the Minister for a characteristically gracious and thorough response. I am grateful, too, for the support that I have received from all sides of the House for both amendments. I am sorry that the Government have not taken account of the compelling cases made by the noble Earl, Lord Erroll, the noble Lord, Lord Lucas, and my noble friend Lord Collins on the Front Bench. I note what the Minister said in relation to Amendment 55ZB and my fear that any legislation will create a delay. She referred to Section 5. I am afraid that this only makes my point: the extension of the coverage of the Act under Section 5 to which she referred, and to which the Government always refer as a great indicator of their commitment to freedom of information, was, I have to tell the Minister, work put in train by the previous Government. I was the responsible Minister. It has taken all this time. That work was started in around 2008—I cannot remember exactly when. Four years later, this Government are now able to claim credit for that. The extension would not necessarily cover all the areas that should be covered by my amendment, so if the Minister is relying on that as a mechanism for speed in rectifying this problem, I am afraid that she is just wrong.

I hope that the Government will look again at this issue. I hear what the Minister says and I have no doubt about her personal commitment to transparency, but all the noises that we hear in the media as emanating from Whitehall are of the deep hostility of the entrenched, vested interests of the state to this agenda of transparency. All I can say is that I wish the Minister well in her forthcoming battles with those vested interests.

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[Lord Berkeley]

This amendment is designed to include Trinity House within the scope of the Freedom of Information act. The noble Lord, Lord Henley, has reminded the House this evening that a review of the FOI Act is going on, which is very welcome, but I am hoping that the Government will accept my amendment on the basis that they have already committed to include Trinity House in the FOI Act, as I shall demonstrate, and it would save a lot of time and effort.

Trinity House is the lighthouse and navigation aids authority that maintains the navigation aids around the coast of England and Wales. I think it should be included because I believe it is a public body. Ships going into UK ports pay light dues into a central fund called the General Lighthouse Fund, which is administered and disbursed by the Department for Transport to the three lighthouse authorities in England, Scotland and Ireland. This amendment would bring Trinity House in line with the Northern Lighthouse Board, which looks after the lights in Scotland and is already covered by FOI. If Ministers are concerned about how much extra work it would be for the GLF, I understand that the Northern Lighthouse Board has received just over 40 FOI inquiries, so I do not think it is any great effort for lighthouse authorities to be included.

I thought of including the Commissioners of Irish Lights in this amendment, but since the Minister for Shipping, Mike Penning MP, is at the moment negotiating with the Irish Government a very welcome change so that the lights around Ireland are not funded by ships going into UK ports by the time of the next election, I thought I would leave the Commissioners of Irish Lights out.

The Independent Light Dues Forum wrote to the Ministry of Justice on 25 January 2011 welcoming the ministry’s announcement about opening public bodies to public scrutiny and the possibility of including Trinity House within FOI. The ministry responded on 23 February last year saying that Trinity House would be consulted about possible inclusion, which is absolutely right, of course. On 5 May, I received a letter from the noble Lord, Lord McNally, that stated:

“We intend to extend the Act to bodies which we believe to perform functions of a public nature, such as the Trinity House Lighthouse Service, through secondary legislation under section 5 of the Act rather than the Protection of Freedoms Bill”.

He did not say why. It would achieve the same objective if this Bill were amended now.

When she replies, will the Minister say why it matters which legislative route is to be used to deliver the same outcome? I think it is quite important that this happens quite quickly. It is a year since this was first raised, and I hope that the Minister will accept my amendment, if only to avoid me bothering her again. I beg to move.

[Baroness Stowell of Beeston]

My Lords, I am grateful to the noble Lord, Lord Berkeley, for his introduction of his amendment. As he explained, the Government announced on 7 January last year our intention to consult a number of bodies about them being subject to the Freedom of Information Act by virtue of an order made under Section 5(1)(a) of the Act. It is a shame that the noble Lord, Lord Wills, is not in his place because this is relevant to the earlier debate.

A body may be included in such an order to the extent that it exercises functions of a public nature. As the noble Lord, Lord Berkeley, said, this consultation includes the Trinity Lighthouse Service and is currently ongoing. The consultation process is an important one. It is designed to ensure that all relevant legal and policy factors are considered before a final decision is made about whether some, or all, of the functions of a body such as Trinity House should be covered by the Act.

The Corporation of Trinity House undertakes a number of important functions. Without wishing to express a view while the consultation is ongoing, I can understand why the noble Lord might consider its functions as a general lighthouse authority to be the sort of thing that could be covered by the FOI Act. As he said, the letter that he received from my noble friend Lord McNally stated that to be the case. The fact that the Northern Lighthouse Board is already covered obviously provides another point of comparison.

However, the Corporation of Trinity House also undertakes a number of other functions as a charity and as a provider of deep sea navigation pilots for ships trading in northern European waters. In light of this, we need to consider carefully which, if any, of the corporation’s functions should be brought within the Act. The consultation process currently taking place is designed to allow for this sort of consideration to take place.

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[Lord Berkeley]

Perhaps I might ask the noble Baroness about the length of the consultation period. The letter that I quoted from, dated 5 May 2011, from the noble Lord, Lord McNally, said:

“We are currently in the process of consulting the bodies concerned”.

It is very unusual for a government consultation to go on for nine months. Have the Government started another consultation? It is very good to have such long consultations, but it is a bit unusual. When is the consultation on the Trinity House issue going to finish? I would be very grateful for the noble Baroness’s response.

[Baroness Stowell of Beeston]

We certainly plan to conclude the consultation fairly soon, and to bring an order under Section 5 for all the new public bodies that we are currently consulting on later in the year.

[Lord Berkeley]

I am very grateful to the noble Baroness for that answer and I beg leave to withdraw my amendment.

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Moved by

[Baroness Stowell of Beeston]

70: Clause 114, page 100, line 42, after “Part 1” insert “and any Welsh provision”

[Baroness Stowell of Beeston]

My Lords, this amendment and those grouped with it are all minor technical amendments. I beg to move.

Amendment 70 agreed.

Moved by

[Baroness Stowell of Beeston]

71: Clause 114, page 100, line 42, at end insert—
“(2) The Welsh Ministers may by order made by statutory instrument make such transitional, transitory or saving provision as the Welsh Ministers consider appropriate in connection with the coming into force of any Welsh provision.
(3) In this section “Welsh provision” means any provision of this Act so far as it falls within section 118(3).”