Advanced Research and Invention Agency Bill

Lord Clement-Jones Excerpts

Committee stage
Monday 22nd November 2021 Grand Committee

20A: Clause 2, page 1, line 11, at end insert—
“(d) support the UK Government’s obligations under the Climate Change Act 2008.”Member’s explanatory statement
This amendment would require ARIA to have regard to climate change by ensuring that ARIA had an obligation to support the Climate Change Act 2008 and the obligations flowing from that Act.

[Lord Clement-Jones (LD)]

My Lords, since nobody else is speaking and I had prepared a response to the noble Viscount, Lord Stansgate, I might as well briefly respond. I was going to say—indeed, I am saying—that this is a slightly random collection of amendments to say the least. As the noble Lord is not here, I can perhaps adopt a slightly more doubtful tone. As my noble friend Lord Oates made plain in the very good debate on Amendment 1:

“If the purpose of DARPA was to protect the national security of the United States by retaining its scientific edge against the threat of the Soviet Union, today, the threat from climate change, although very different, is some orders of magnitude greater.”—[Official Report, 17/11/21; col. GC 86.]


He went on to say that he agreed that it should be part of ARIA’s objectives. I very much agree with him.

On Amendment 26A, many of us asked this question at Second Reading; indeed, that is why we have tabled, and will be discussing, Amendment 47 regarding the framework for ARIA. It is extraordinary that we do not yet know what the arrangements will be with UKRI, research bodies and so forth, particularly in view of what the Minister said last week in Committee:

“UKRI has a broad portfolio of projects that it funds to tackle climate change across 12 different areas”.—[Official Report, 17/11/21; col. GC 96.]


He set out what all those areas are, but the risk of overlap seems considerable. Therefore, it seems important that we get to know what the relationships are between ARIA and other research bodies.

I am rather lukewarm about the renaming of ARIA. The noble Lord, Lord Ravensdale, quoted the Science and Technology Committee saying that ARIA was a

“brand in search of a product”.

The problem is not the brand; we want to look under the bonnet and see what it is actually going to do. The name is not what many of us are concerned about.

[Baroness Chapman of Darlington (Lab)]

My Lords, in the absence of my noble friend Lord Stansgate, I should say a couple of words about his amendments. We tackled the issue of climate in some depth when we met last week; I thought that it was a useful discussion. On the name, I think that he was trying to get at why the change had been proposed. Perhaps the Minister, when he responds, can talk us through the Government’s thinking. I do not think that it amounts to a hill of beans, but it was something that my noble friend wanted to explore, to find out what was behind the change of thinking.

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[Lord Broers (CB)]

I would like to respond to that, which I find very interesting. I would like to know whether ARPA and DARPA have restraints on certain types of information. Having operated in industry in an R&D environment, I am familiar with the problems of what you have to keep secret and what you do not. In the American economy, by far the largest fraction of the vast amount of progress that is made is made in industry with private funds—and industry invests those private funds in R&D only if it can be assured that the products of that R&D will remain exclusive to it. I have been in situations where there has been industrial espionage and design manuals have been stolen for products that took billions to develop. Those thefts in the United States were of course prosecuted and those who obtained the information were fined large sums of money.

ARPA is going to be in that situation. It has to work with industry, using the results of its most advanced R&D, perhaps in new ways, to come up with new systems. It must be able to sign some memorandum of understanding, or in some way say to industry that it will protect from public knowledge that information. In an industry where you are relying primarily on novel processes, you do not tend to patent things, because patenting them puts them in the public domain. You rely on trade secrets and, to have a trade secret validated as a trade secret, you have to show that you have done enough due diligence to make sure that the information is not generally available to your competitors.

It has been a problem internationally for the past several decades that there has been international espionage on a large scale to obtain information from inside industries in the West. I ask the Minister whether that is being taken into account. Clearly, what the noble Lord, Lord Fox, and others have been saying is incontrovertible: we do not want the agency at risk because people are wasting vast sums of public money. On the other hand, you have to take into account that, if ARIA is to be successful and produce new capabilities that can be commercially exploited for the benefit of the UK, there must be adequate protection of what in industry is normally commercially sensitive and secret.

[Lord Clement-Jones (LD)]

My Lords, my noble friend Lord Fox, in his amendment, and other noble Lords in theirs have pointed to the anomaly of ARIA not being subject to the Freedom of Information Act, and it has been a great pleasure listening to the noble Baroness, Lady Noakes, quoting Tony Blair with approval—a rare delight.

The Government have put forward a number of weak reasons to justify ARIA not being subject to the FoIA, and the noble Baroness, Lady Chapman, raised the first of them, the burden of responding to FoI requests—an extraordinary argument for a body that is going to have a budget of £500 million over the first three years. Many bodies subject to the FoIA have tiny budgets and staff numbers compared with those that ARIA will enjoy.

The noble Baroness, Lady Noakes, called it costly, but will it be for ARIA? Interestingly, the noble Lord, Lord Browne, raised a number of questions prompted by the comparison or assertion that the Minister made at Second Reading that, because we do not have to pay for access to freedom of information requests, they will be pouring into ARIA, unlike in the United States. As the noble Lord, Lord Browne, pointed out, actually the requests to each of the research councils is pretty much on a par with those that are put to DARPA. I do not think that that argument is there either.

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[Lord Callanan (Con)]

I start with Amendment 24 from the noble Baroness, Lady Chapman, Amendment 32A from the noble Viscount, Lord Stansgate, and Amendment 39 from the noble Lord, Lord Clement-Jones, which all deal with the Freedom of Information Act. As I said at Second Reading, our decision not to subject ARIA to FoI was made after much consideration. As on so many of these things, I find myself in full agreement with my noble friend Lady Noakes and I thank my noble friend Lord Patten for his support during the Second Reading debate.

I was hoping that some of my noble friends who have been in government would comment on how they found the Freedom of Information Act in government. From my point of view, it is a truly malign piece of legislation. At the risk of trashing his reputation even further in the Labour Party, I agree with Tony Blair on this matter. I agree with the noble Lord, Lord Fox, that all information on government contracts et cetera should be published, even if it is embarrassing for the Government. However, I think he will find that all the contracts to which he refers were not released under freedom of information but under normal government contract transparency.

In my experience, not much is ever released under freedom of information that causes any problems for government; it is normally stuff that is released in the normal transparency of contract negotiations and government transparency returns. I am fully in favour of decisions, and information about them, being released, but I fail to see how the processology of government benefits at all from FoI disclosures. I find that people just modify their behaviour and communication to take account of the fact that private conversations may be released in the future. I genuinely do not think that it achieves anything at all, but that is my personal perspective and not necessarily a matter for this debate. It was also new to me to discover at Second Reading that the US charges a fee for freedom of information disclosures. I think that is an excellent idea, even if it is only a nominal amount to get rid of some of the somewhat spurious fishing expeditions that many go people in for. Anyway, that is a separate matter for different discussions.

In contrast to UKRI, which comprises the seven research councils, ARIA is a new, unique organisation that we anticipate will attract a disproportionate number of FoI requests for its size. On the point made by the noble Lord, Lord Browne, I would reiterate, as I did at Second Reading, that comparisons between ARIA and DARPA do not hold, precisely because, as I said, DARPA adds a standard fee to the requester, which is not comparable to the situation in the UK, although we should certainly consider it.

[Lord Clement-Jones (LD)]

My Lords, if I may have the privilege of intervening—a wonderful feeling, having been under different rules for a period of time—does the Minister not accept what the noble Lord, Lord Browne, said: that the individual research councils receive no more than the number of requests that DARPA receive, something of the order of 47? It is quite coincidental that the average is 47. Why does the Minister think that ARIA will be inundated with freedom of information requests?

[Lord Callanan (Con)]

Because it is a fairly new and exciting agency doing new things. I suppose we will have to disagree on that. There is no point and nothing to be gained by doing otherwise. In designing ARIA, we are envisaging a lean agency that will employ people in the tens. I do not know how many people across government are currently employed to respond to the hundreds if not thousands of FoI requests that we get, but given the bundles of documentation that sometimes pass my desk, there must be many hundreds of civil servants engaged in doing nothing other than responding to these fishing expeditions. As I said, ARIA will be an agency employing people in the tens, with around 1% of the R&D budget.

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[Baroness Chapman of Darlington (Lab)]

My Lords, I rise briefly to support the amendment from the noble Lord, Lord Fox. It seems entirely appropriate that this committee should involve itself in asking for information from ARIA. I am fairly confident, given the Minister’s responses so far, that he would not share that view. This is the same theme that we have been on throughout all our deliberations. Whether it is this specific proposal, or one of the others that we have been trying to tempt the Government with, I am sure that we will be back at this in a couple of weeks’ time.

[Lord Clement-Jones (LD)]

This has been such a short debate that it is barely worth winding up. I will just reinforce the point that this is a cultural issue, in the sense that we are trying to get over here. It was interesting that the Minister made the rather runic comment that ARIA will interact with Select Committees of this House and the other place in the normal way. I think what we are trying to do is underline the fact that we need rather more than that; we need disclosure as well—otherwise, we are worried that we will not get that. Good heavens, the committee might even look at the framework document when it eventually sees the light of day. How about that? That would be quite novel.

One has seen the benefit of committee reports. The Science and Technology Committee has made extremely constructive comments around ARIA and UKRI. It has demonstrated the benefit of parliamentary scrutiny. Why do the Government think that parliamentary oversight is such a bad thing?

[Viscount Stansgate (Lab)]

I rise briefly to emphasise the points made by both Front Benches and to say that the Government should welcome an amendment that enables ARIA to be subject to investigation by both Select Committees in both Houses. One of the strengths of Parliament is its Select Committee system, and the reputation of the Science and Technology Committee in another place is very high. I think that, when the Government look back on ARIA in 2031, they will rather wish to have put on record their support for amendments such as this, for the reasons given.

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[Lord Callanan (Con)]

Amendments 38, 41 and 43 are consequential on the omission of Clause 10 from the Bill and the narrowing of the power we talked about earlier to make consequential amendments through regulations. The Delegated Powers and Regulatory Reform Committee suggested that any necessary consequential amendments should be added to Schedule 3, so we are responding to that recommendation here. The amendments apply to ARIA a set of relevant obligations that would usually apply to “public authorities”, which are sometimes defined in reference to Schedule 1 to the Freedom of Information Act 2000, which, of course, ARIA is not listed in. Bespoke provisions therefore are required.

I will briefly summarise the obligations that will apply to ARIA as a result of these amendments. The first relate to the Income Tax (Earnings and Pensions) Act 2003 and the Social Security Contributions (Intermediaries) Regulations 2000, with which I am sure all noble Lords are intimately familiar. This legislation includes the off-payroll working rules, which are designed to ensure that individuals working like employees but through their own company—usually a personal service company—pay broadly the same income tax and national insurance contributions as those who are directly employed. These rules have been reformed over the past five years to improve compliance by moving the responsibility for determining whether the off-payroll working rules apply from the individual’s personal service company to the client engaging them. That reform came into effect in the public sector in April 2017, and in the private and voluntary sectors on 6 April this year. I do not believe that there is a justification for ARIA to be treated differently from any other public bodies here.

The second element is the Data Protection Act 2018, which gives the GDPR effect in UK law. Through the Bill as it was introduced, ARIA would already be subject to the normal requirements of the GDPR, but the obligations on public authorities are different, in terms of the bases for data processing and governance and oversight arrangements. Similarly, in this case, I do not believe that there is a justification for ARIA to be treated differently from other comparable bodies in this important area.

Finally, the amendments to the Enterprise Act 2016 and Small Business, Enterprise and Employment Act 2015 allow us to avoid a situation where ARIA is considered part of the private sector for the purposes of business impact assessments of regulatory activities. Again, I do not believe that it is appropriate for impacts to ARIA, as a public sector body, to be included in any such considerations. I also do not believe that it would be appropriate for ARIA to avail itself of the support available through the office of the Small Business Commissioner, which is intended for private sector entities. So, while public authority obligations in other legislation have been considered, they were not assessed to be sufficiently relevant to ARIA to make further amendments here. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, there is a splendid irony in what the Minister has just said as he trotted through the contortions of these amendments. I think he had a former life as a contortionist: it was quite extraordinary, really.

I do not think that these amendments are consequential; I think they are “Oops, we forgot something, actually”, as far as the Bill is concerned. Because of the way they treated the FoIA, suddenly everybody woke up to the fact that, for the purposes of that, ARIA was not a public body, because the Government had been so keen not to define it as a public body and therefore it had to be defined as a public body for the purposes of other legislation in a rather different way. So I do not think that this is consequential—except that it is something that probably should have been thought about when the original FoIA omission decision was made. No doubt everything will be clear after Report: the Minister will have his definition of a public body, everything will be logical and clear, and we will not have to have contortions such as this.

[Baroness Chapman of Darlington (Lab)]

I thank the noble Lord for his explanation, which I find rather more digestible than the Minister’s. It would be very inconsistent of me not to make this one point: we would not need to be going through all of this had the Government done what they ought and subjected ARIA to FoI. It shows what a strange decision it was that the Government have had to do all this. I just wanted to make that point, really. I do not think there is much more to say about all of this except that, should the Government change their mind, or have their mind changed, on Report, we might have to have this kind of carry-on again as a consequence. Let us hope that we do.

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[Baroness Noakes (Con)]

If ARIA does not exist until the Act is commenced, how can there be a framework agreement that involves ARIA being a party to the agreement to be tabled before the commencement of the Act?

[Lord Clement-Jones (LD)]

My Lords, I do not need to do very much more. My noble friend is finishing this symphony of a Bill Committee con brio, with metaphorical charabancs, mystery and magic. What more do we need at the end of a Bill stage?

I point out that the equivalent UKRI document of 2018 runs to 60 pages and 16 chapters. It covers a huge range of information: the purpose of UK research and innovation, its powers and duties, its aims, the partnership principles, and the responsibilities of the CEO. It then goes on to deal with devolution and relationships with other bodies, public appointments to UKRI, reviews of boards and committees, and so on. There is some really important content in the UKRI framework document, and I am sure that the ARIA document will not be very different. I very much hope that the Minister will reconsider the decision. On the arrival of the CEO, the Minister said that it followed the Treasury’s standard template. Even something in draft, which does not have to be agreed by the CEO, would seem fundamental to our understanding of what ARIA is going to do.