Intellectual Property Bill [HL]

Baroness Warwick of Undercliffe Excerpts

Wednesday 22nd May 2013 Lords Chamber

[Baroness Warwick of Undercliffe]

My Lords, I join others in congratulating the noble and learned Lord, Lord Walker of Gestingthorpe. The clarity and pertinence of his maiden speech indicate what we have missed in the 10 years he served previously in this House when he felt that he must exercise restraint. I look forward to his further contributions to our debates.

At this Second Reading I want to speak on the same issue that I raised in the Queen’s Speech debate last week: that of Clause 19. I can be brief. I am delighted to see that Clause 19 contains provisions that will provide a new exemption under the Freedom of Information Act for information connected with research at pre-publication stage. I endorse and hope to reinforce the points so eloquently made on this issue by the noble Baroness, Lady Brinton. I note that the Clause 19 provision is a carefully worded and limited exemption that will be available for use in certain limited circumstances. It is worth noting, as others have said, that such an exemption already exists in the Scottish freedom of information legislation.

Many of us in this House, notably the noble Baroness, Lady Brinton, worked hard to persuade the Government of the need for such an exemption during the passage of the Protection of Freedoms Bill. We were not successful then, although Ministers gave us a very careful hearing. Subsequent post-legislative scrutiny of the Act confirmed that there is indeed a need to ensure that research that is still under way should be protected.

Universities UK argued consistently that existing exemptions are inadequate, but also made it clear that universities are certainly not hostile to the Freedom of Information Act, or to greater openness in research. Universities have in fact done a great deal to ensure that the majority of FOI requests are complied with. A recent survey carried out for Universities UK by Jisc showed that universities complied with 63% of FOI requests in 2010. There have also been real moves towards further openness in research through a commitment to open access. Most universities have a repository that could be used to showcase and share all their open-access publications, as well as doctoral theses and other material. Increasingly, such repositories are also used to support research management and reporting. UK universities, backed by the Government and funders, are leading the way internationally in providing free online access to research publications and data.

Having said that, universities are fairly unusual among the so-called “public authorities” that are subject to the Freedom of Information Act. As independent bodies that are decreasingly reliant on public funds, they also operate in a highly competitive environment. I do not believe that the Freedom of Information Act fully anticipates the complications that arise when dealing with FOI requests in the university context. This has been demonstrated to good effect by a number of recent cases involving university research.

Until now universities have had relatively few requests for information relating to research, but this appears to be changing. Recent high-profile instances illustrate how FOI requests can be used to intimidate researchers working in controversial fields or to gain competitive advantage. To give one example, during the passage of the Protection of Freedoms Bill, I understand that the University of Oxford received a request for research data from a large nationwide health study, submitted by a company with a significant commercial interest in it. Although the request was subsequently not pursued, the research group lost significant research time in attempting to rebut the request, and the university incurred significant legal costs in the process.

Universities UK has examples of academics who received FOI requests relating to ongoing research from people who they believed to be their academic competitors. Queen Mary, University of London, had a case where research data was requested while the analysis was still being undertaken. They feared that releasing the data would lead to their losing the chance to publish their own results in respected journals. Like all universities, it pointed out that publications are vital in the assessment of quality as part of the research excellence framework, and of course in attracting future funding. Universities argue that if research data are made public prematurely, before the normal scrutiny and challenge of the peer-review process, it could not only undermine an individual or an institution’s reputation for quality but lead to misleading information and data getting into the public domain.

I do not believe that this was how the Freedom of Information Act was intended to work, and I do not believe it is in our national interest that this situation should be ignored. I warmly welcome the fact that the Government are acting now to prevent such damage occurring.