Protection of Freedoms Bill

Baroness Thornton Excerpts

Thursday 12th January 2012 Grand Committee

Moved by

[Baroness Thornton]

151E: After Clause 100, insert the following new Clause—
“Information to be communicated
(1) In section 1 of the Freedom of Information Act 2000 (general right of access to information held by public authorities) after subsection (4) insert—
“(4A) Should the communication of information under subsection (1)(a) and (b) be delayed beyond the time limit for compliance specified under section 10(1), the applicant will be given the option of requesting that the information communicated is the information extant at the time of final release, taking account of any amendment or addition of information made between the time the request is received and the time when the information is to be communicated, unless there are grounds for significant new concerns as to the exempt nature of any new information under Part 2 (exempt information).””

[Baroness Thornton]

My Lords, I am delighted to be taking part for a short time in this distinguished Grand Committee, whose debates I have been following with interest. I suspect that I am not the first noble Lord to realise the relevance and immediacy of the debates that have been taking place here, particularly on this part of the Bill, concerned, as it is, with the use of and access to public information, or, in the case which I wish to draw to the Grand Committee’s attention, lack of access.

I hope that the Grand Committee will forgive me as an interloper into its deliberations but I wish to put a particular issue before it which seems pertinent to the matters it is discussing. I wish to move Amendment 151E and speak to Amendment 151F. Amendment 151E aims to tackle the problem of information that is communicated post the appeals process being out of date by granting applicants the option of receiving the most up-to-date version of the said information, if relevant. The relevant part of the amendment states, in proposed new subsection (4A):

“Should the communication of information under subsection (1)(a) and (b) be delayed beyond the time limit for compliance specified under section 10(1), the applicant will be given the option of requesting that the information communicated is the information extant at the time of final release, taking account of any amendment or addition of information made between the time the request is received and the time when the information is to be communicated, unless there are grounds for significant new concerns as to the exempt nature of any new information under Part 2 (exempt information)”.

I will go on to talk about the dilemma that we face in the House in general at the moment, but we have tabled this amendment because, if you go through the whole freedom of information appeal process, it could be many months before the Information Commissioner grants that appeal and says that that information should be released. If the information you are seeking is updated regularly, obviously the information that you need may be that which is available now, not that which was available eight months ago when you started down the road of putting down your freedom of information request, so this is about up-to-date information.

Amendment 151F seeks to insert a new clause. This aims to prevent a government use of appeals to block the release of evidence for a specific period of time—that is, when a Bill is being debated—by prohibiting the Royal Assent of any Bills where the release of key information is still subject to an appeals process. The amendment seeks to appeal against information notices by public authorities. Subsection (1) of the proposed new clause states:

“In section 57 of the Freedom of Information Act 2000 (appeal against notices served under Part IV) after subsection (2) insert”,

the points as outlined in our amendment.

In all the time that I have been in your Lordships’ House—since 1998, and certainly since the passage of the freedom of information legislation—I do not recall a situation like the one facing the House at the moment. In a nutshell, the House is being denied what might be—and probably is—pertinent information during the passage of legislation, and is being expected to scrutinise a very large and important Bill without full information that might influence its view about parts or all of it. I bring this dilemma to Grand Committee for consideration, and amendments that might remedy the situation. I am sure noble Lords will be pleased to learn that I have no intention of exposing the Committee to the rights and wrongs of the Health and Social Care Bill. However, I would appreciate the Committee’s consideration of an important issue—one which might occur again.

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[Lord Henley]

My Lords, I welcome the noble Baroness to this Bill. When I saw she was going to be moving this amendment I wondered whether I should have asked my noble friend Lord Howe to step in and deal with it, but I think he has quite enough on his plate at the moment. As the noble Baroness made quite clear, she does not want me to deal with this from the point of view of the Department of Health. She accepts it has every right to appeal the issue and that the Government can appeal it further through all the appropriate courts. Although this is a matter for the Department of Health, it obviously has implications for wider government. Therefore it is of concern and they have the right to appeal these matters.

As she asked me to do, I will confine my remarks—particularly when I get on to Amendment 151F, the second of her two amendments—to the broad principles, because that is what she wants me to address on this occasion. No doubt she has had and will find ways of debating these matters further, and at some length, when she continues the debates on the health Bill. I want to deal first, rather briefly, with Amendment 151E, which proposes that where a response to a freedom of information request is not issued within 20 working days the applicant must be given the option of requesting any updated or new information,

“unless there are grounds for significant new concerns as to the exempt nature”

of such material. I want then to deal with the broad principles relating to Amendment 151F, concerning,

“Appeals against information notices by public authorities”,

and why we do not accept that her amendment is an appropriate way of dealing with this.

First, with regard to Amendment 151E, I accept that we would certainly want to encourage all public authorities to provide the most up-to-date information in such circumstances where it is appropriate and reasonable to do so, but the proposal we have here is fraught with difficulties. It could make it very difficult to conclude a request taking more than 20 working days, even where the deadline has been extended for legitimate reasons, given that new information might continuously be produced and the existing information would be continuously updated. That could have real disadvantages for the requester of that information if previous versions of the information that they might be interested in seeing were not ultimately disclosed because the obligation to disclose those versions had been superseded by an updated request.

Further, the effect of the option to request updated information being exercised will be to create in effect a rolling request for information each time the 20-day limit is exceeded. That might delay the information originally requested from reaching the requester, and will mean that the public authority expends time answering one version of the question only to see that work disregarded if it is superseded by an updated request. Neither of those are sensible results. I also believe that the amendment could lead to the undesirable outcome where public authorities rush decisions to complete cases within 20 working days, even where there are legitimate grounds to take longer. Therefore they either withhold uncontentious information or release sensitive information inappropriately.

I turn now to the second of the amendments—

[Baroness Thornton]

I would be grateful if the Minister could address the issue. The register of risk is a very good example of this. Were my honourable friend and the Evening Standard to have succeeded ultimately and were the Government to have acceded to the Information Commissioner’s ruling to release the information, the register of risks of November 2010 would not have been the relevant document. It was mentioned that it would not be very much use to my honourable friend because it would be that of November 2010, not November 2011. There is a genuine issue here which I would be very grateful if the Minister could address.

[Lord Henley]

I do not really see how it applies in the particular case that the noble Baroness is referring to, when she is talking about a 20-day limit and, if that is exceeded, how it would affect the November 2010 or November 2011 health risk register.

I shall come on to what I think is the more important part—

[Baroness Thornton]

I am very sorry to press the Minister on this matter, but I think I have been completely clear about this. I explained that a register of risks is a living document. It is a traffic-light process of red, amber and green in terms of the risks in any given policy area. The Minister must be very familiar with it because all government departments use them. A register of risks published in November 2010 would not be relevant in November 2011 when we in the House of Lords were discussing the health Bill.

I am perfectly happy to accept that this may be an incompetently worded amendment, but the Minister has not answered the question. Are the Government saying that when, under freedom of information, people ask for information that is then outside the 20 days and it goes to appeal, and the Government lose that appeal and the information may therefore be a year old, the Government will ensure that the up-to-date information is made available, if that is relevant?

[Lord Henley]

Obviously we want to provide the most up-to-date information that is appropriate. If this goes to appeal and it is found that we should be providing this information, we would provide that November 2010 information, but it would then be open to the noble Baroness to put in a request for the later information. Having had that decision by the tribunal, the court or whatever, that information would then be provided in the appropriate manner, because we would have lost that case and it would have become clear that that sort of information was that which should be provided.

[Baroness Thornton]

For the record, if the Government lose this appeal and publish this register of risks on this Bill, it will be not the November 2010 register of risks but the November 2010 risks plus the up-to-date version. Is that what the Minister is saying to me?

[Lord Henley]

I am not going to give an absolute guarantee of that sort without proper notice at this stage. However, I would have thought that it is fairly obvious that if something has been through the courts or the tribunal, or at whatever stage the Government decide that they are not going to appeal any further, and the courts have decreed that that sort of information ought to be available, it would be proper to provide the later information because it would be the same information that was being requested, other than the fact that it was at a later time. It would still be the same request being made, and it would have been decreed that that was appropriate. We would be bound by that decision.

Perhaps I might move on to the noble Baroness’s second amendment, with which I have even greater problems. In Amendment 151F, she proposes that no Bill may be submitted for Royal Assent where information directly relevant to that Bill has been requested under the Freedom of Information Act and where an appeal against an information notice issued by the Information Commissioner in the course of an investigation into the handling of the request is under consideration.

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I fully appreciate the frustration that may be felt by requesters when they do not receive the information they want as quickly as they would like, but it would be inappropriate and disproportionate to delay the passage of a Bill while such an appeal was under way for entirely legitimate reasons. It would also introduce an inappropriate political dimension into the FOI appeals process. The commissioner, who is, as we know, independent of government, would inevitably be mindful of the likely impact on the passage of the Bill were he to issue an information notice.

[Baroness Thornton]

I am sorry to interrupt the Minister again but did I understand him to say that it was disproportionate to delay the passage of a Bill? But what if the information is relevant to the passage of the Bill? This is the problem we have now. I am sure the noble Lord intends to enlighten me on that point.

[Lord Henley]

Yes, I think it is disproportionate to use the FOI process to delay the passage of a Bill and I do not draw back from those remarks— particularly when the appeal is under way for entirely legitimate reasons, as my colleagues in the Department of Health have made clear.

Perhaps I may go on, if the noble Baroness will let me. It also brings a political dimension into the process. The commissioner, who again I stress is independent of government, would obviously have to be mindful of the likely impact on the passage of a Bill were he to issue an information or decision notice during the passage of related legislation that he might expect to be appealed. Given that a decision on whether and when to issue a notice might indirectly impact on the passage of legislation, there is a real risk that his actions could be viewed through a political prism. That is not what we want and would have an adverse effect on his ability to act in a way that is—and is seen to be—both proper and impartial.

[Baroness Thornton]

Is the noble Lord saying that the ruling of the Information Commissioner—and the words he used, which I quoted to the Committee earlier in my remarks—was political in some way?

[Lord Henley]

I have not said that at all. I have said that what the noble Baroness is saying in her amendment would bring in a political dimension because it could cause delay to the passage of that Bill.

Obviously that risk could be avoided by the commissioner simply refusing to issue a notice while any Bill that he thought was related to the request was passing through Parliament. However, that would then cause even greater delay in him deciding whether or not to issue the notice, with an obvious disadvantage to the parties involved, particularly to the person who has requested the information. In either case, this would be to the potential detriment of the effective operation of the Freedom of Information Act and to the perception of the commissioner’s independence.

[Baroness Thornton]

This is really very important. Is the Minister saying, suggesting or even inferring that the use of freedom of information by Members of Parliament—and I have put the odd one in myself, and been a victim of it, from time to time—is not appropriate during the passage of any legislation, because a Member of Parliament may want that information to assist them in their deliberations or their input into that scrutiny?

[Lord Henley]

I regret to say that the noble Baroness is now getting to the stage where she is deliberately trying to misunderstand me on every occasion. There is no desire to stop people putting in a request for freedom of information. All we are saying is that her amendment, which in effect delays the passage of the Bill while that process is going on, is not an appropriate way in which to deal with it, and brings in the political dimension to the Bill. The amendment also undermines the premise that the Freedom of Information Act is motive blind by introducing a requirement to consider whether information has been requested in connection with a particular Bill.

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[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.

[Baroness Thornton]

I cannot guarantee the last bit from the Minister—that this issue is over for this Committee or for the progress of this Bill. This is a matter of constitutional importance to this House and an issue between the Government and Parliament. The Government had a choice. When the Information Commissioner ruled that this information on the register of risks was relevant to the passage of this Bill, he made a very important constitutional point. By denying the House that information, the Government are asking the House of Lords to consider a Bill without the information that it needs to do so. We are not saying that any third party should seek to stop the passage of any legislation—and I am perfectly happy to take advice and redraft the amendment. But the Minister has completely failed to address the constitutional point that it raised here, which is not about the Health and Social Care Bill but about what happens if an Information Commissioner says that some information is relevant to the passage of legislation through this House and any Government deny it to the House. That is a very serious matter indeed. Of course, I will withdraw the amendment, but I do not think that the matter ends here or that it is limited to the Health and Social Care Bill.

Amendment 151E withdrawn.