Protection of Freedoms Bill

Lord Rosser Excerpts

Thursday 12th January 2012 Grand Committee

[Lord Rosser]

My Lords, my noble friend Lord Wills has set out the objectives of the amendment, which seek to improve the delivery of a transparent and open system of government through the previous Government’s groundbreaking Freedom of Information Act. They are in line with the Government’s own pledge to improve and extend the drive for greater transparency. The Freedom of Information Act provided a mechanism for the Government to extend the scope of the Act, as my noble friend has already explained. By placing a duty on the Government to report annually on their activities to maintain or extend transparency through further designation of public authorities and on public authorities to report on their efforts to comply with the Act, the amendment will create a driver that will strengthen and adhere to the principles and purpose of the Act. I very much hope that we will hear a positive response from the Minister to the amendment.

[Baroness Stowell of Beeston]

My Lords, as my noble friend has already made clear this afternoon the Government are very committed to greater transparency and to making sure that the Freedom of Information Act introduced by the previous Administration operates as effectively as possible. That is behind our commitment to introduce post-legislative scrutiny of the Freedom of Information Act, which is now under way and being carried out by the Justice Select Committee.

As the noble Lord, Lord Wills, explained, Amendment 151B would place a duty on the Secretary of State to publish an annual report detailing the Government’s actions in relation to Section 5 of the Freedom of Information Act, which enables the Act to be extended to bodies performing functions of a public nature or providers of public services under contract. Amendment 151D proposes that public authorities are required to publish annual reports containing prescribed classes of information about their compliance with the Freedom of Information Act and environmental information regulations.

In relation to Amendment 151B, I fully appreciate the need for transparency in relation to the Government’s exercise of the power in Section 5 of the Freedom of Information Act. The Government are, and will continue to be transparent in this area. We have given advance notice of planned consultations under Section 5 and, of course, any order made under that section is subject to the affirmative procedure. We see no practical benefit in introducing a requirement to publish an annual report. I also agree with the sentiment behind the noble Lord’s Amendment 151D regarding the transparency of freedom of information activity. Public authorities should be accountable for their performance in respect of freedom of information requests and actions. However, I am not persuaded of the case for introducing a statutory requirement to publish an annual report along the lines proposed here. We need to be alert to the resource implications before placing any new burdens on public authorities. That said, I recognise that the transparency of freedom of information performance across the public sector is also something to which Parliament may wish to return, as I have already said, in the post-legislative scrutiny that is now under way. While I sympathise with the sentiments behind the amendment, in light of the fact that that post-legislative scrutiny will provide a forum for such proposals to be properly considered in the round, I hope that he will feel able to withdraw his amendment.

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[Lord Wills]

My Lords, I am sure that the Minister and her officials heaved a heavy sigh when they saw these amendments on the Marshalled List, because they have seen them—or something similar to them—before, during the passage of the Localism Bill through this House. I made the detailed arguments for the amendments then and those arguments remain essentially the same, so I will not detain your Lordships for long by rehearsing them all again. However, the Government’s unsatisfactory response to my previous amendments has pushed me into tabling them again. There is no difference between us on the policy objective. The Government are committed to greater transparency. We all agree on the importance of that, so again I am baffled as to why the Government persist in producing such unsatisfactory reasons for resisting what I continue to believe are modest, practical amendments designed to realise their own policy objectives.

Amendment 151C deals with the information that the public can obtain under the Freedom of Information Act about the work done for a local authority under contract using the public’s money. This has become particularly important since the passage of the Localism Bill, which envisages that a growing proportion of local authority functions will be carried out by other bodies under contract. Under the Freedom of Information Act as it now stands, the public will be denied the access that they currently have to increasing amounts of information about local authority functions discharged on behalf of the public, for the public, using public money. This amendment would ensure that the public retained at least some of that access to information about those functions, even when they were subcontracted to private sector companies. The amendment is proportionate. Very small businesses would not be caught by it, as there is a limit of £1 million on the size of contract that would be covered by it. The Freedom of Information Act and regulations already contain exemptions to protect the legitimate interests of business, trade secrets or information likely to prejudice commercial interests.

Why do the Government resist this? There is no good reason that I have yet been able to discover. The Minister, the noble Lord, Lord McNally, said that the Government are committed to reducing the regulatory burden on business. I agree that that is a desirable commitment, but it is not in all circumstances an overriding one. Of course, businesses find regulations irksome and burdensome, but Governments still impose them in the public interest. The Government are doing it now with the banking sector, for example. The noble Lord, Lord McNally, then said that he does not want to deal with transparency issues piecemeal but would rather look at this after post-legislative scrutiny of the Freedom of Information Act. We have heard that argument for resisting amendments many times this afternoon. I understand the reasons for it—it is commendable that the Government are doing this post-legislative scrutiny—and it might be a plausible argument for resisting this amendment were it not for the fact that the Government have already done what the Minister said that they should not do. In other words, they have dealt with the issue of transparency in local government piecemeal, pre-empting the results of post-legislative scrutiny of the Freedom of Information Act. They have done that through the passage of the Localism Bill which has the effect not of increasing transparency for local authority functions but of restricting it. If they were to follow their own logic, they would not have put through the Localism Bill in that way, pre-empting the results of post-legislative scrutiny.

All this amendment does is to seek to maintain the status quo—not to deal with it piecemeal by extending or restricting it—for public access to information about local authority functions carried out on the public’s behalf using public money. I really cannot see any good reason for resisting this amendment and I hope that the Minister will no longer do so. I live constantly in hope.

Much the same arguments apply in support of Amendment 152A, which would bring companies controlled by local authorities within the scope of the Freedom of Information Act. Again, there have been exchanges on this and the Government previously rejected it on the grounds that it would, “create uncertainty” for requesters about the coverage of the Act,

“given that companies could pass in and out of transfer of shares”.

As I said previously, I agree that there might occasionally, if not often, be some such uncertainty. These transfers of shares are not a frequent occurrence, as the Minister will be aware, but this sort of thing can easily be clarified. It hardly constitutes a compelling argument for keeping secret from the public important information about how their money is spent.

Clearly, when the noble Lord, Lord McNally, was making this argument he must have recognised that it was not altogether compelling because he then tacked on another argument on the back of it. His letter said:

“Where a company is only partly owned by the public sector, there is an increased likelihood that areas of its business will be unrelated to the public sector”.

Of course that is true, but again it is not a reason for keeping secret from the public those areas of business which are paid for by the public and operate on their behalf. I know that there are very clever officials advising the Minister, and very clever lawyers advising Ministers as well. They are perfectly capable of drafting this amendment better than I have been able to do to cover this eventuality. I hope that the Government will extend transparency and ask their officials and lawyers to get drafting. I beg to move.

[Lord Rosser]

My Lords, once again my noble friend Lord Wills has set out the purpose of these amendments. As he has said, one of them extends the duties under the Freedom of Information Act to a public authority, including local authority services which have been contracted out, where the contract made by a public authority with any person is for any sum over £1 million. The second amendment extends the definition, as he said, of a publicly owned company for the purposes of falling within the terms of the Freedom of Information Act to extend to companies where at least 50 per cent of their shares are held in public ownership—that is, by one or more relevant authorities.

One point that my noble friend homed in on has been the desire of this Government to move more and more activities away from being directly provided by public authorities, including local authorities—he referred to the Localism Bill—and instead to see them contracted out. Yet when they are contracted out in this way into the private sector, it removes the access to information which is currently there through the Freedom of Information Act. On the one hand, then, we have a Government who say that they want to increase transparency and, on the other hand, through Bills such as the Localism Bill we find that on issues and activities where it was formerly possible to obtain information under the Freedom of Information Act when a public authority, including a local authority, was undertaking them, it will no longer be possible to get that information. The Public Bodies Bill was another Bill which will encourage this move.

Unless the Government are prepared to indicate some sympathy with this amendment and to look at going down this road, at least to accept the amendment’s spirit if not its direct terms—and, as my noble friend has said, not to try and fob everybody off by saying, “Well, there is post-legislative scrutiny taking place”, because nobody knows how long that is going to take—then I suggest that their claims to want to extend transparency are somewhat hollow, since their own activities as a Government are reducing that level of transparency.

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[Baroness Hamwee]

My Lords, I support the thrust of the two amendments, or either of them. As the noble Lord, Lord Wills, has said, it is important to give the official who is tasked with applying the legislation the tools to do the job properly. After all, he and his office are in the best position to analyse where the obstacles are. This is a clear problem and he has been clear about the need for a solution. I hope we use this opportunity—I do not like the jargon—to add to the toolbox.

[Lord Rosser]

I support the amendments. I certainly do not intend to explain the purpose of them because my noble friend has already done that. The key point is that it is the view of the Information Commissioner, based on his or her experience, that there should be the opportunity, if necessary, to have cases heard at the Crown Court. Obviously, this relates to the severity of the fine that can be imposed because there is a restriction if a case is dealt with in the magistrates’ court. The issue of the timescale within which proceedings have to be initiated has also been raised.

I hope the Government will be able to give a sympathetic response, not least because the amendments are based on views that were expressed, I think in evidence to the Justice Select Committee on 13 September last year, by the Information Commissioner and the changes that that individual felt were necessary in the light of experience.