Local Audit (Public Access to Documents) Bill

Edward Leigh Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Friday 24th March 2017 Commons Chamber

[Mr Chope]

I am told by my hon. Friend the Member for Bury North from a sedentary position that the Committee lasted only 11 minutes. I am sure that he will be able to explain further in due course.

Currently, a person who is registered as an elector in a local authority area has the right to inspect and have copies of a wider range of accounts and related documentation under section 25 of the 2014 Act and therefore has no additional benefits under section 26. Amendment 2 addresses the issue of electors in other local authority areas, who have no such rights unless they can show that they are “persons interested” under section 26. At no time, in my submission, has it been more important for electors in other local authority areas to be able to see what is going on elsewhere. Following the abolition of the Audit Commission, which provided easily accessible local authority data, it has become more difficult to make comparisons, despite the importance of comparative data for accountability and policy making.

[Sir Edward Leigh (Gainsborough) (Con)]

I chair the Public Accounts Commission, and we have been looking at the accountability of local government. My hon. Friend makes a good point: the National Audit Office, which audits all central Government Departments—a massive task—is now effectively the auditor of local government. Although I favour the reform, my hon. Friend is right to raise the fact that there is undoubtedly much less detailed inspection of local government audit and finance as a result.

[Mr Chope]

My hon. Friend speaks with great knowledge and experience on this matter. The amendment is, in a sense, supported by my hon. Friend the Member for Calder Valley (Craig Whittaker). On Second Reading, he intervened on the Minister to ask,

“might not the Government—in the interests of honesty, openness and accountability—consider…opening things up completely, well beyond the intention of the Bill, so that anybody can access this information?”

The Minister, my hon. Friend the Member for Nuneaton (Mr Jones), said,

“I shall come on to that point a little later and explain why the balance is right.”—[Official Report, 25 November 2016; Vol. 617, c. 1211.]

Unfortunately, apart from asserting that the measures in the Bill were proportionate, the Minister never got on to that important point. I hope that the Under-Secretary of State for Communities and Local Government, the hon. Member for Brigg and Goole (Andrew Percy), will be able to address that shortcoming.

I was somewhat perplexed by a comment made by my hon. Friend the Member for Brigg and Goole, who was the Minister in Committee on 7 February:

“I am reminded of Margaret Thatcher, who in her maiden speech introduced the Public Bodies (Admission to Meetings) Act 1960, which was in a similar vein; it was about opening up local government to journalists and other interested parties.”––[Official Report, Local Audit (Public Access to Documents) Public Bill Committee, 7 February 2017; c. 4.]

With the greatest respect to my hon. Friend, I think that the core of Margaret Thatcher’s Bill was ensuring that the public had access, which is what I seek to achieve with this amendment. We need more open, public access, just as the late Baroness Thatcher wanted the public to have access to local authority meetings. Her references to journalists in the 1960 Act were mostly about ensuring that accredited representatives of newspapers who attended such council meetings were provided with reasonable facilities for taking their report. I do not think it is fair to pray in aid our distinguished former Prime Minister as a supporter of the Bill, but not amendment 2. I suspect that the noble Baroness would have been a strong supporter of the amendment.

The amendment is highly relevant in the current climate, in which many councils seek to reorganise themselves into new structures—you know that as well as anybody does, Mr Speaker. At district council level, Buckinghamshire, Dorset, Lincolnshire, Oxfordshire and Kent are all toying with that idea, and I have no doubt that many others will do so. At present, it is difficult for a local taxpayer to get hard access to information about what is happening in another council, despite the fact that that local council may aspire to take over the assets and income of the council in which the taxpayer is resident.

I will illustrate that point with an example from Bournemouth. In speaking of Bournemouth, may I say how proud those of us who live near Bournemouth are of the way in which my hon. Friend the Member for Bournemouth East (Mr Ellwood) conducted himself on Wednesday? That was an example of public service at its best, and I fear that what I am about to say compares very unfavourably with his conduct.

--- Later in debate ---

[Sir Edward Leigh]

I want to speak directly to my hon. Friend’s amendment in terms of understanding what other local authorities are doing. I see the Minister sitting in his place. We have had hugely controversial arguments in Lincolnshire about whether to have a mayor, and I and others managed to defeat that. There is now a proposal—it is only a rumour—that North Lincolnshire Council may want to take over or merge with West Lindsey, which I represent. As an elector of West Lindsey, I have absolutely no way of knowing what is going on in North Lincolnshire. I think that if that is being discussed in private, electors in West Lindsey, who have a crucial interest in that, should have a right to know what is going on.

[Mr Chope]

My hon. Friend makes a good point, and it is in essence what I have been saying about the position in Bournemouth. If Bournemouth is to take over or merge with Christchurch in a unitary authority, the people in Christchurch need to know the nature of Bournemouth Borough Council’s debts and liabilities and how it conducts its proceedings, particularly in planning. One of the key losses in such a merger would be the loss of Christchurch Borough Council’s control over its own greenbelt and planning policy. That is one of the biggest concerns that my local residents have. They fear that they will lose control over the quality of their local environment, which they currently control through local planning policy.

The amendment seeks to ensure that anybody can get access to such information, rather than just limiting it to journalists. Obviously, the information to which I referred earlier will become available only when the audit for this financial year is conducted, and that may be rather later in the day than most people would wish.

--- Later in debate ---

[Mr Chope]

My hon. Friend has tried, probably very successfully, to torpedo my amendment. I accept the implied, or even indeed the express, criticism that he has articulated. However, I would fall back on the general common-law interpretation of “politician”, which is probably the best way of dealing with that, without specifically having to define it in the amendment.

Amendment 4 would clarify the law by making it clear that “persons interested” also includes non-domestic ratepayers. I raise that issue because it was the focus of the court case of R. (on the application of HTV Ltd) v. Bristol City Council, reported at EWHC 1219. Paragraph 48 of the judgment of Mr Justice Elias on 14 May 2004 said that he had

“reached the conclusion that the interest which the claimant has as a non-domestic ratepayer is sufficient to bring it within the concept of ‘persons interested’.”

In that case, Bristol City Council had argued to the contrary, citing in support the changes to non-domestic rate legislation in the Local Government Finance Act 1988. With forthcoming changes—the introduction of the 100% retention of business rates, and the pooling of business rates across local authorities—it is worth using this opportunity to clarify and put on the record that the existing legislation should expressly incorporate the rights of non-domestic ratepayers. That is the background to amendment 4.

Amendments 5 to 7 are alternative ways of limiting the term “journalist” in the Bill to real journalists. It is noteworthy that section 1(4)(c) of the 1960 Act provides that

“duly accredited representatives of newspapers attending for the purpose of reporting the proceedings for those newspapers shall…be afforded reasonable facilities”.

The National Union of Journalists website sets out what is needed to establish that someone is an accredited journalist. An accredited journalist must have

“Employer Identification: Business card, employer I.D. badge, or letter of assignment on corporate letterhead. (Letterhead must identify media outlet name, address and phone)”

and

“Proof of Assignment: Sample by-lined article published within the past 6-months, or current masthead that includes the reporters name & title, or official letter of assignment from a media outlet.”

Those are necessary, for example, for a person to be admitted to a press conference as an accredited journalist. It seems to me that if we are to extend such rights to journalists, we should encourage those journalists to be accredited, rather than amateur journalists.

[Sir Edward Leigh]

Why? We are moving into a completely different digital age in which people can set up blogs and Facebook pages. This is just inevitable, and my hon. Friend is slightly living in the past when he talks about the NUJ and journalists having to be accredited. He is just trying to put his finger in the dam, and it is not going to work. We need to have complete openness and complete transparency.

[Mr Chope]

That is the first time that anyone has suggested I am living in the past. To take my hon. Friend’s point, if we are to give privileged access to journalists—our hon. Friend the Member for Aldridge-Brownhills is seeking to give journalists privileged access compared with other members of the public—those journalists need to be qualified in the sense that they understand the law, not just people who are prejudiced or not objective and who do not have the standards that we normally expect of journalists. My feeling is that if we are to give them special privileges, they should be duly accredited.

As I have said, I have expressed that point in alternative ways: we could also refer to them as professional journalists. As you may know, Mr Speaker, there is a society called the Society of Professional Journalists, which requires a professional journalist to adhere

“to a strict code of ethics so as to maintain and preserve public trust, confidence and reliability”—

I am sure my hon. Friend the Member for Gainsborough (Sir Edward Leigh) thinks it important that journalists should adhere to a strict code of ethics—

“To ensure this the process of ‘gate keeping’ is upheld within mainstream media. This relies on all experienced and trained journalists and editors to filter any nonfactual information from news reports before publication or broadcasting.”

I do not want to go into the whole issue of fake news, but it is probably now more important than ever for us to ensure that there is some basis for the reports put forward by journalists, and how can that be policed unless by a body such as the National Union of Journalists or the Society of Professional Journalists?

--- Later in debate ---

Hooray. Why then is the period within which this can be done limited to 30 days? As I said in the context of the available statistics on the take-up of those powers, the period seems to have little impact. But if, as the Minister hopes, there is an exponential increase in take-up following my amendments and this proposed legislation, would it not be desirable to spread the load over a longer period than 30 days, so there is not a great surge of activity over a specific 30-day period? I cannot understand why it should not be possible to access accounts beyond the 30-day period, once they are audited, produced and available, and that is the purpose of amendment 11.

[Sir Edward Leigh]

My hon. Friend speaks with authority and knowledge, so this intervention is a genuine request for information. We have the Freedom of Information Act 2000. I would like to hear from him—I suspect the House would like to hear it, too—how the ability of a member of the public to get information about local authorities relates to his or her freedom to get information about central Government.

[Mr Chope]

I do not hold myself up as an expert on the Freedom of Information Act, but local authorities are subject to it, just like any other public body. Freedom of information depends on being able to know what question to ask. Quite often, it is only when one looks at the accounts, or documents relating to the accounts, that we know what question to ask. Freedom of information powers can be more potent because they can be exercised at any time and the local authority is under an obligation to respond within, I think, 20 days or a reasonable period. They can be more potent, but the base information that enables people to understand what questions they really want to ask can probably be ascertained only by inspecting the documents.

--- Later in debate ---

[Mr Chope]

My hon. Friend may make a fair point. One problem is that some councils are really open and transparent. They receive very few freedom of information requests because they make information available. I will come on to an example where that has not been happening, and even councillors say, “Will I have to make a freedom of information request to get information from the chief executive of the council on which I serve?” That situation is intolerable. A lot depends on the culture of a council.



I was first elected to Wandsworth council in 1974—this is going back a long way—in the aftermath of a big corruption scandal. Immediately prior to 1974, the housing committee chairman of the Labour council had been sentenced to a term of imprisonment for receiving corrupt payments from someone called T. Dan Smith. After that, the culture in Wandsworth changed: everything was open. Tender documents were open, so everyone could see what was happening. It is a pity that that transparency is not the norm in so many councils throughout the country.

Amendment 12 would remove the restriction in section 26(4)(a) of the 2014 Act on the entitlement of a person

“to inspect…any part of any record or document containing information which is protected on the grounds of commercial confidentiality”.

There is an interesting interaction between the freedom of information rules and the rules relating to a council’s access to documents under the powers in the 2014 Act. The amendment does not go the whole way—it would not remove the restriction on copying—but it was inspired by a recent set of events in Christchurch. Local people wanted to get to the truth of an extraordinary episode.

You will remember, Mr Speaker, that we had an Adjournment debate about beach huts in Christchurch just before the summer recess. During that debate, I drew the House’s attention to an extraordinary state of affairs. Christchurch borough council had entered into an agreement with an organisation called Plum Pictures to develop overnight residential beach huts as part of a competition organised by the Channel 4 programme “Amazing Spaces”. It did not need to obtain planning permission. There was a big stink about it all, and—partly, I think, as a result of the Adjournment debate—the contract was aborted. The council’s scrutiny committee then started an inquiry.

Despite the recommendations of the committee, which reported two or three weeks ago, the councillors have still not been shown a copy of the original contract, although it had been negated. The council is citing commercial confidentiality. I wrote to its chief executive on 3 August last year asking to see a copy of the competition and access agreement with Plum Pictures, but I have still not received a response. I had been waiting for the result of the scrutiny committee’s inquiry, but the chief executive is apparently not obliged even to comply with its recommendations.

On Second Reading, my hon. Friend the Member for Eddisbury (Antoinette Sandbach) said:

“Clearly, the aim of the Bill is to throw the light of transparency on council proceedings where taxpayers’ money is being spent. In that regard, it is vital that commercial confidentiality is not used as a tool to hide documents and that these proceedings become more open.”—[Official Report, 25 November 2016; Vol. 617, c. 1203.]

I know that amendment 12 has the support of colleagues who participated in that debate.

Amendment 13 complements amendment 12 by enabling past as well as current contracts to be looked at. Amendment 14 would remove the definition of commercial confidentiality from the Bill so that it relied on existing common law. There is a mass of documentation about common-law commercial confidentiality, linked with the rules relating to freedom of information. In view of the time, I shall not go into the details now, but it seems to me that if we want the Bill to achieve its objective, there is no point in maintaining the ability of councils to impose a complete closedown by asserting that information is commercially confidential—which is all that has to happen.

The amendments would enable a member of the public to look at the document concerned, although not to copy it, and then to make his or her own assessment of whether it was commercially confidential, and whether it was in the public interest for it to be made more widely available. I think that the current tight drafting, and the restrictions on any material that is, or may be, commercially confidential, is a big weakness in the Bill.

I said at the beginning of my speech that I would keep the most radical amendment until the end. Amendment 10 would extend the right to inspect documents relating to the accounts of a health service body. I do not understand why, at a time when there is so much public concern about what is happening in various branches of the NHS—whether it be trust hospitals, clinical commissioning groups or other organisations—we are not allowing members of the public to have access to the relevant documents. We know, for example, that some NHS chief executives and other staff and administrators have received massive pay-offs. At the end of the day, the costs are not just borne by the national taxpayer but are taken out of local budgets, because they are allocated to clinical commissioning groups such as the one in Dorset.

I ask my hon. Friend the Member for Aldridge-Brownhills this question: why should not local people, including local journalists, be assisted by the Bill? On Second Reading, the Under-Secretary of State for Communities and Local Government, my hon. Friend the Member for Nuneaton, said:

“by giving journalists the right to access recent accounting information from a range of local public bodies, the Bill will assist them in ?their investigations”. —[Official Report, 25 November 2016; Vol. 617, c. 1210-11.]

[Sir Edward Leigh]

My hon. Friend is on to a very good point. We are dealing with a powerful issue, and there is not really enough time for us to discuss it today, but let me explain what I want the Bill to do. Again, I am addressing the Minister, because I think that the Government must get a grip on this. I want a culture that enables all members of the public—not just members of the National Union of Journalists, not just cliques, not just councillors, not just Members of Parliament—to have access to the accounts of not only those who work in local government and health services but those who work in academies, where huge salaries are often paid. That is what should happen in a modern age.

[Mr Chope]

I hope that the Minister will be able to respond to what my hon. Friend has said. I know that health is not his direct responsibility, but I am sure that he will have been briefed by his colleagues, because he obviously had notice of the amendment.

Surely this is an opportunity for the Government to demonstrate again to the public of the United Kingdom that they are on their side and will do everything in their power to ensure that there is proper scrutiny and accountability in relation to bodies that consume so much public resource. In my area, there continues to be a big conflict over a proposed merger between Poole hospital and the Royal Bournemouth. Eventually, during the last Parliament, I was able to persuade the Competition and Markets Authority that the merger should not be allowed to go ahead.

However, I have been told that covert discussions are taking place, and that the two hospitals are trying to persuade the authority to change its normal rule—that a merger cannot proceed within the next 10 years—in this particular instance. However, it is all happening under the radar: Joe Public does not know about it. That strikes me as another example of the sometimes cavalier way in which some of our local health organisations are operating.