Protection of Freedoms Bill

Earl of Erroll Excerpts

Wednesday 15th February 2012 Lords Chamber

[Lord Wills]

My Lords, both amendments in this group were debated in Committee, so I will not detain your Lordships long by rehearsing the arguments again. I am bringing them back because they will improve the Bill by protecting citizens' existing rights to transparency —although they will not extend them—in ways that are consistent with the Government's overall objectives. I am bringing them back also because so far the Government have offered no good reason for rejecting them.

Amendment 55ZA aims to cut down on delays in responding to freedom of information requests, which can often defeat the intent of the legislation. Such delays can be of more than a year. It is in line with the Information Commissioner's guidance that normally an extension should not be needed but where it is, it should not exceed a further 20 working days. Too often, the guidance is ignored. The amendment will make it more difficult to do so.

In Committee, when I withdrew an associated amendment, I asked the noble Baroness, Lady Stowell, to contact the Information Commissioner for evidence about the problems that he had encountered from delays in the process of policing the Freedom of Information Act, particularly in relation to the offence of altering records with intent to prevent disclosure. This is a most serious problem for the Information Commissioner in carrying out his functions in accordance with the wishes of Parliament. I would be grateful if in reply the Minister could tell noble Lords what the outcome of that contact has been.

Amendment 55ZB tackles a consequence of the Localism Act, which will restrict public access to information that the public currently have a right to gain access. As public services currently delivered by local authorities and other public bodies are contracted out—as increasingly they will be under the provisions of the Bill—they will be removed from the scope of the Freedom of Information Act. The amendment would restore the status quo: no more than that. So far, the Government have given no adequate justification for resisting the amendment. The amendment is proportionate. Very small businesses, for example, will not be caught by it. The Freedom of Information Act and regulations already contain exemptions to protect the legitimate interests of business, such as trade secrets or information likely to prejudice commercial interests.

The Government’s response in the past—I know the Minister will recognise this—has been that they would prefer to consider these amendments in the light of post-legislative scrutiny of the Freedom of Information Act. I understand that approach. As a delaying tactic, it is pretty good, and on the surface, at least, it looks plausible. However, there are two problems with it. First, the Government’s argument would be more plausible if they had not already done what they say they should not do: that is, dealt with transparency in local government piecemeal through the Localism Act and pre-empted the results of post-legislative scrutiny of the Freedom of Information Act. They have done that because the Localism Act already changes the status quo. It does so by weakening transparency in local government, not by strengthening it.

The second problem is that, should the post-legislative scrutiny and the Government’s response to it conclude that there should be action in these areas, and they may well do that, it is likely to take years before an appropriate legislative vehicle can be found to implement these changes. Your Lordships will be well aware of the complexities of the legislative progress and of how long it takes legislation to come before Parliament. There is no guarantee at all. I will be delighted if the Minister can correct me in her response and tell me that the Government already have plans to bring forward this legislation, but just not in the Bill. I would be delighted if that were the case. The reality is more likely to be that it will take years before an appropriate legislative vehicle can be found. That was certainly the experience of my party when we were in government and I doubt whether it is very different now.

In the mean time, over those years, despite the coalition agreement pledging to increase transparency, the right of citizens to have vital information about public services discharged in their name, for which they have voted and for which they pay, will be weakened, not strengthened. I hope the Government will now take the opportunity that these amendments offer to secure greater transparency in the government of our country for the people we all serve and accept these amendments. I beg to move.

[The Earl of Erroll]

I shall say a few words because I would have added my name to these amendments if I had been a bit more alert about them. I think they are very sensible. Of the two, I think Amendment 55ZB is probably the more important, although opportunities for delay are always a problem, so I think Amendment 55ZA is sensible.

In the atmosphere we are going into where there is an awful lot of rejigging of authorities and shared services and procurement, there are a lot of shenanigans going on behind the scenes with people trying to wheel contracts this way and that and shuffling them through different routes. The Government might find it quite useful to have some outside eyes keeping an eye on what is going on here and there, not to penetrate commercial secrets or commercial confidentiality, but sometimes some practices are going on that bear closer scrutiny.

I think this could go some way to help open up some areas and possibly to assuage unfounded suspicions. Sometimes people develop conspiracy theories in a completely unjustified way. A freedom of information request could expose the fact that the person is barking up completely the wrong tree, but sometimes it may be justified. I think it is very sensible to include this, or otherwise you will have a raft of things taken outside the Freedom of Information Act that are very useful for keeping an eye on what is really going on in the way that we are putting so much through various other sectors.

[Lord Lucas]

I quite agree that this is something we need to watch. We have similar problems in the health Bill where, for reasons I entirely approve of, activities that used to be done by state bodies may in future be done by private ones. We need to make sure that that does not mess up our objectives on freedom of information, which are, I believe, and certainly should be, towards greater access to information rather than less.

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[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—

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[Lord Nickson]

My Lords, I have made a rare appearance here because I thought that the Scotland Bill would be coming up yesterday and was suitably disappointed. I did not come to speak in this debate. However, having spent a lifetime in industry and having also been fortunate enough to be the chancellor of a very junior Scottish university to that of my noble friend Lord Sutherland, I should like to say to the Minister and the Government that I have never heard a debate in this House containing such conviction, unanimity and passion, and given with such authority from so many sides. I am deeply impressed by what I have heard. I merely rise to support the amendments and to plead with the Minister and the Government to take what has been expressed with great seriousness.

[The Earl of Erroll]

My Lords, I should like to add a couple of words to the debate. I have a sort of interest in that I am helping a New Zealand company called Pingar, which works in the area of contextual data extraction from large unstructured data sets—what are called “big data”.

One is aware that there is a huge amount of information out there, particularly in public data sets, which can be reused very usefully, and on that I agree with most of what the noble Lord, Lord Lucas, said. We must try to make this information available in useful ways. We could make a lot more use of this information to help the country, and indeed humanity, as a whole.

I agree entirely with the noble Lord that the definition of data set is most peculiar. When information is analysed and put into tables and some sense is made of it, further information may then be extracted and combined with other data, and that is probably the best use that can be made of it. Therefore, it seems a bit odd to include in the definition only raw data before they are analysed. However, it is probably that I just do not properly understand the Bill and all its ramifications in that area.

However, there is an area where I sympathise entirely with these two amendments. A research establishment in a university is publicly funded and is at the cutting edge, and it may spend a lot of money acquiring raw data. Having to reveal those data to someone else before anything is done with them is like giving that other person a free ride regarding all their data acquisition. Why should someone not be second into the field, waiting until someone else has spent all the money acquiring the data, asking for the data set and then running their own analysis? For a researcher, the most valuable part is the raw data.

I found it fascinating that on Amendments 55ZA and 55ZB the Minister was urging secrecy—we had to keep all this stuff from the Civil Service secret so that citizens could not find out whether their money was being used usefully. Now, we are opening up everything where public money has been spent so that UK plc can advance itself in the research area and so on. We are suddenly opening that up so that anyone can get hold of it.

The first of the two amendments relates to putting copyright restrictions on data sets to make sure that they cannot be taken freely, yet in other legislation the Government are making sure that we give large amounts of money to large American corporations which have bought copyright from British creators so that they can enforce that copyright. Therefore, we are looking after the interests of large commercial companies but we are not looking after the interests of our research establishments and universities. I am terrified that they are going to lose the competitive edge that they might have.

The interesting thing that came out of the whole Crick/Watson DNA episode was the fact that they got together—there was a meeting of minds in an informal environment where they exchanged ideas. Again, what worries me is that the Government are trying to prevent that with their Immigration Rules and tier 2 immigration arrangements so that we will no longer attract people and encourage a flow of brains in and out of the country. That would be far more valuable than trying to open up data sets so that other people could use them abroad.

[Baroness Royall of Blaisdon]

My Lords, I support Amendments 55A and 56. I do not believe that this is about restricting the scope of the Freedom of Information Act; it is about fixing the Act to fit the purpose. We have heard compelling arguments about disincentives to young researchers and to collaboration and about the potential competitive disadvantage that our universities could suffer. Our universities are one of the most important drivers of jobs and growth in this country. They enrich the cultural fabric of our society. If universities in England, Wales and Northern Ireland believe that they are at a competitive disadvantage compared with those in Scotland, the US and Ireland, among others, I believe that we need to have a safeguard in place. We should heed their concerns and seek to revise our legislation as soon as possible. I support both amendments.