Protection of Freedoms Bill

Lord Sutherland of Houndwood Excerpts

Monday 12th March 2012 Lords Chamber

[Lord Oxburgh]

My Lords, I have added my name to this amendment. I think it is widely accepted that when the freedom of information legislation was originally conceived, little or no thought was given to the effect that it might have on universities. In the event, this is of less importance today because since that time there have been major changes in the role of universities, but it means that the new legislation should reflect those changes—and frankly, this has not happened. The purpose of this amendment is to ensure that the outcomes of post-legislative scrutiny are taken fully into account before the relevant parts of the Bill come into force. Unless they are, there is a risk of serious damage to our university system. It is damage that will not make tabloid headlines. It will be slow and incremental, but it will be certain.

Under current legislation, universities are regarded as “publicly owned companies” and carry the concomitant Freedom of Information Act disclosure obligations. This is in spite of the fact that they now receive more of their income from private sources than from the Government—a greater proportion, in some cases, than private companies. This comparison is relevant because, following the policies of successive Governments, universities are now expected to behave as private bodies, collaborating and/or competing with private industry in commercialising their research. They are also in competition for students with each other, with overseas universities and with private universities. Under the legislation as it stands, they cannot do any of this on equal terms because details of their plans, costings and research activities may have to be disclosed.

On the matter of university/industry collaboration, the present disclosure arrangements, to which my noble friend Lady O’Neill has referred, are deeply unattractive to business because of the belief, right or wrong, that the confidentiality of collaborative work may depend on discretionary exemptions that can be challenged. Such collaborations are difficult enough to set up in the first place, and uncertainty over the implications of FOI can cause the company simply to walk away.

One of the first questions that have to be addressed by scrutiny is whether the current definition of a publicly owned company is satisfactory. Another is whether there is a presumption in favour of disclosure of all the information held by such a body, or whether there is a class of competition-relevant information for which the presumption might be non-disclosure. This problem is not addressed by the current system of exemptions. It may be worth pointing out, and this relates to the cost question raised by my noble friend, that there is a recent example of a university incurring massive legal fees of over £250,000 in a case in which it believed that the release of data requested would put its staff at risk from animal rights activists.

Another serious question is whether there should there be any qualification of the right of access to public body information. At present, anyone anywhere in the world can exercise that right. Should the right be restricted to UK citizens and bodies? To offer an example, a British university was conducting a study for Cancer Research UK into the factors that influenced the behaviour of young people smoking tobacco. An FOI request for the data was received from a foreign tobacco company. It is clear that the funders of the research would not have wished the data to be released to the company and, to pick up an earlier point, might well not have funded the work at the university had they regarded this as a possibility.

A final area that requires attention and clarification is the conflict that can arise between the requirements of FOI legislation and obligations under other laws. There are examples of conflicts with the Data Protection Act, the Animals (Scientific Procedures) Act and environmental information regulations. The purpose of our amendment is therefore to ensure that full weight is given to the outcome of the scrutiny and that Parliament has the opportunity to confirm that it is satisfied with the Government’s response.

Some of the points that I have made have already been made and submitted in evidence to the scrutiny group by Universities UK and the Russell Group in their submissions to the scrutiny process. I strongly support all the points made by my noble friend in her speech.

[Lord Sutherland of Houndwood]

My Lords, the speeches that we have heard from two very senior practitioners in relevant fields make a powerful case. I shall not run through their arguments again, nor the ones that I put forward during the previous stage of the Bill. I simply underline the fact that if people of this calibre are expressing concerns and those concerns could be dealt with by using the government procedure of post-legislative scrutiny to inform practice, that is a very reasonable request and I hope that the Minister will feel free to accede to it.

[The Earl of Erroll]

My Lords, I, too, spoke about this danger at an earlier stage of the Bill, and I think the amendment is sensible. Sometimes there are unintended consequences when we make rules, but in this case, because people have seen that there are almost certainly going to be some adverse consequences for UK research establishments, it is sensible to delay implementing this part of the Bill until we have thought about it a little harder and seen some results from other places.