Protection of Freedoms Bill

Lord Scott of Foscote Excerpts

Thursday 12th January 2012 Grand Committee

[Baroness Warwick of Undercliffe]

My Lords, I added my name to this amendment because, as noble Lords will know, I have a long-standing interest in promoting the interests of our universities. Like others, I feel that when the Freedom of Information Act was passed, this House did not foresee how its provisions would relate to the university context. The Act’s intention—to increase public access to information held by public authorities—is right.

In relation to university research, like others, I strongly support access to research data and the transparency of the research process. That is a culture that the Government should encourage, not least because it will increase public confidence in science and research and will also help the research community to make the most of the products of its collective work. However, access to research information must be balanced with the need to support the research process itself. It is not in the national interest to provide access to information in a way that inhibits research in contentious areas, discourages people taking part in research projects or drives commercial research funders away from the university research base. Nor is it in our national interest to put a brake on the competitive position of our universities internationally.

There are already exemptions that can be used by university research staff to refuse to disclose information requested under FOI. The ICO has done much to explain, in sector-specific guidance as the Minister indicated, how the exemptions can be applied by universities, but I do not believe that they go far enough. For example, although there is an exemption for commercially sensitive information, how does that apply to university research? Research is a competitive business, where the challenge is always to publish first. If your findings are already in the public domain, it becomes quite difficult to get a journal to take your article. Your standing in the research excellence framework will be affected. Your ability to secure future funds, grants and contracts may be compromised. Your reputation, and that of your institution, will be hit.

Can the Minister explain what protections exist to prevent a competitor academic requesting your research data as they emerge? Universities UK, which supports this amendment and has provided an extremely helpful briefing to which other speakers have referred, has given an example of exactly this situation, in which a researcher was subject to FOI requests from a former collaborator who was now at a different institution. Another example comes from Queen Mary, University of London, where a research team was subject to an FOI request while still conducting its analysis. The university believed that,

“releasing data at the individual-participant level would prejudice publication of future study papers … and could set a precedent that may affect our ability to attract research funding and participants in the future”.

Releasing data before the process of validation and analysis is complete also carries the risk that misleading information will get into the public domain. We know that this is a particular concern in medicine, where misleading information can have serious consequences for public health. The peer-review system in the UK is one of the major strengths of our research base because it ensures that, before findings are published, they are checked by experts. This helps to ensure that poorly designed and executed research with dubious findings does not enter the public domain. As the noble Baroness, Lady Brinton, mentioned, the Environmental Information Regulations include a protection for,

“material which is still in the course of completion, to unfinished documents or to incomplete data”.

Why cannot FOI have something similar?

We all want universities to do more to work effectively with business. Indeed, the Minister of State for Universities made an announcement about this only last week. The fact that university research can be subject to FOI causes difficulties in working with commercial research partners. Negotiations can often be long and difficult. Businesses will look at the recent cases where research findings have been requested by companies with a commercial interest in the data and wonder—quite legitimately, in my view—whether they would not be better off doing research with non-university research bodies that do not carry that responsibility.

I, too, want to mention that in Scotland there is now a pre-publication exemption—on which the proposal in the amendment is modelled—which has been used to deal with exactly this point. Let me quote an example from one Scottish university, which received an FOI request for the annual report written for the funder of some early-stage research. There was no commercial value in the findings to date, but the report described avenues that could, with further investigation, yield commercially valuable results. Not surprisingly, the university wanted to use this information to apply for further funding, but that would have been compromised by releasing the report to potential competitors. The request was refused using the Scottish pre-publication exemption. Will the Minister tell the Committee whether he believes that it is right that researchers in Scotland and, as the noble Baroness, Lady Brinton, has said, in Ireland and the United States should have this protection that our universities do not have?

I note that Universities UK is not alone in calling for this House to scrutinise the way in which this Bill relates to university research. The Wellcome Trust, the Association of Medical Research Charities and the Ethical Medicines Industry Group have all written to noble Lords in relation to this, especially in support of the amendments tabled by the noble Baroness, Lady O’Neill. I urge the Minister to consider whether he can accommodate these concerns by accepting this amendment. I do not believe that it will do any harm. It is clearly limited in its scope and it could do a great deal of good.

[Lord Scott of Foscote]

My Lords, I rise to express my complete support for the spirit and intention behind this amendment, which has been so cogently and lucidly explained by the three noble Baronesses in whose names it stands. I rise simply to make a drafting point on the amendment, which some of your Lordships may think is a rather tedious reason. It proposes two conditions to be applied to,

“Information obtained in the course of, or derived from, a programme of research”,

to enable that information to qualify as exempt information. The two conditions are under paragraphs (a) and (b) of new subsection (1A) that the amendment would insert into Section 22 of the Freedom of Information Act.

My point relates to the condition under paragraph (a), which states that,

“the programme or project is continuing with a view to a report of the research … being published by”,

bodies specified in paragraphs (a)(i) and (a)(ii) in the amendment.

I puzzled over the identity of the possible publishers who would fall under those categories. Paragraph (a)(i) refers to,

“a public authority as defined by section 3 of this Act”,

which would exclude other public authorities that are not so defined. Paragraph (a)(ii) refers to “any other person”. When the word “person” is found in statute, it may include, according to the Interpretation Act,

“a body of persons corporate or unincorporate”,

but that depends on the context. An authority which is not a public authority as defined in Section 3 could be a corporate or unincorporated body and could qualify as a person. It is the contrast between the two that might, if someone wanted to argue the contrary, raise some doubt.

I began to wonder why it was necessary to identify the proposed publishers at all. The important condition is that,

“the programme or project is continuing with a view to a report of the research … being published”.

It really does not matter by whom the matter will be published because anyone will do. I think that that is the intention behind paragraphs (a)(i) and (a)(ii), although the language used might suggest the contrary. Therefore, I respectfully suggest that the words in those paragraphs (a)(i) and (a)(ii), and the preceding preposition “by”, should go and that the condition in paragraph (a) should simply refer to,

“the programme or project is continuing with a view to a report of the research … being published”.

Doubt and confusion is simply raised by the attempt to specify the individuals or organisations which fall under paragraphs (a)(i) or (a)(ii).

[Baroness Blackstone]

My Lords, I support these amendments but I, of course, defer to the noble and learned Lord who is much better versed in the legal aspects of the drafting of this amendment. I ask that the Government accept the amendments in principle but possibly come back with a redrafted version with the omissions proposed by the noble and learned Lord.

Quite a lot of comments have been made about scientific and medical research, but I want briefly to speak as a social scientist. When they undertake empirical research, social scientists are heavily dependent on the agreement of individuals to participate in surveys, whether they are large-scale quantitative surveys or small-scale qualitative surveys.

I respectfully suggest that, unless this amendment or something like it is accepted, it will be more difficult for social scientists to carry out their work. Advanced data manipulation techniques make it much more difficult to guarantee the anonymity of data even where personal information has, as far as possible, been removed or redacted from data sets. I noticed that the Minister did not respond to my particular question about whether financial support would be given when extensive redaction has to take place. This causes particular concern when highly sensitive information is provided by individuals whose identity may need to be protected to save them from harm. Given the difficulties of guaranteeing effective protection of identity, the research community in the social science world has raised a number of concerns that the very process of securing informed consent from potential subjects of research may stop them participating at all. That would be a disastrous consequence.

Finally, I want to pick up the point made by several speakers about the fact that other jurisdictions have managed to come up with legislation whereby the issues raised today have been dealt with. This may be a sensitive week in which to ask the Minister to have a look at Scottish legislation passed in the Scottish Parliament. Nevertheless, I think that he and his officials should do so. Moreover, it is also very important that we look at the Irish legislation, which is rather broader based in how it treats universities for these purposes or research associated with academic work—it may not be done in a university; it may be done in a separate research institution. The noble Baroness, Lady Brinton, read out the section of the Irish Act. Mention has been made of the United States. I ask the Minister a direct question. Has he looked at those three pieces of legislation in those three countries? If so, what has made him decide not to follow the same route? It would be very helpful to have a direct answer to that question.

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[Lord Henley]

I regret to say that the noble Baroness is now getting to the stage where she is deliberately trying to misunderstand me on every occasion. There is no desire to stop people putting in a request for freedom of information. All we are saying is that her amendment, which in effect delays the passage of the Bill while that process is going on, is not an appropriate way in which to deal with it, and brings in the political dimension to the Bill. The amendment also undermines the premise that the Freedom of Information Act is motive blind by introducing a requirement to consider whether information has been requested in connection with a particular Bill.

[Lord Scott of Foscote]

Can the Minister help me or the Committee in indicating whether law officers have given any advice on the implications of this amendment from a constitutional point of view? I have in mind the prospect of a Bill being introduced in one or other House—it does not matter which—being passed in that House and going to the other House and being passed in that House too, perhaps with a commencement date specified in the Bill. All that would be needed to become part of the law of the land would be Royal Assent. If the result of the proposed amendment becoming embodied in the statute is to bar the presentation of the Bill, passed through both Houses, prevent it from receiving Royal Assent and becoming law of the land according to its tenor and the will of Parliament, it would be a very strange constitutional state of affairs. It would mean that the previous Act would fetter the ability of the current Parliament to pass and bring into effect its own Bills. Does the Minister think that this is the sort of point on which a constitutional opinion from the law officers would be necessary?

[Lord Henley]

My Lords, as I am sure that the noble and learned Lord will be aware, we never comment on the advice that we might or might not have received from the law officers, and I am not prepared to comment on this occasion. However, I join the noble and learned Lord in speculating on the very odd constitutional effects that an amendment such as this could have on the passage of legislation. It cannot be right that by submitting an appeal an outside party can restrict the passage of legislation. That is the crucial point in relation to this amendment. I will give way to the noble Lord, Lord Wills, in a moment if he can just keep calm. It would restrict the passage of legislation in Parliament and in effect govern how this place or another place does its business.