Localism Bill

Lord Wills Excerpts

Thursday 23rd June 2011 Lords Chamber

Moved by

[Lord Wills]

52A: Schedule 2, page 207, leave out lines 27 to 30 and insert—
“(2) Except to the extent that regulations under section 9GA(4) prescribe otherwise, meetings of a local authority executive or of a committee of the executive are to be open to the public.”

[Lord Wills]

My Lords, I shall also speak to Amendments 133A to 133C and Amendment 181A, which are in my name. I should perhaps apologise to the Minister and her officials for having given them relatively little time to consider these amendments. I will of course understand if she is not yet in a position to respond substantively to all of these amendments, but I should be grateful if she would undertake at least to consider them and perhaps respond in due course. These amendments are grouped together because they all deal with the application of the Freedom of Information Act to bodies being given greater powers under this Bill and are all informed by the principle that with greater power should come greater accountability. It is a principle which of course, chimes with the coalition agreement. As I am sure the Minister will not need me to remind her, it states:

“We will extend the scope of the Freedom of Information Act to provide greater transparency”.

Amendment 52A is my attempt to deal with the issue raised by the amendments which have just been discussed. It is designed to try to increase the transparency of local authority agreements. For those authorities operating executive agreements new regulations are to be made, as the Minister has just said, governing the circumstances in which meetings and documents must be open to the public. I take it that the assumption behind these provisions is that the new regulations will be brought into force before or at the same time as the new executive arrangements take place. However, if that does not happen and new executive arrangements come into force before the proposed regulations, the default position will be that an executive will be free to decide for itself which of its meetings are to be open to the public and which are to be held in private.

In theory, at least, executives would be free to hold all their meetings in private if they so chose. Amendment 52A reverses that default position. In the absence of regulations—with the best will in the world, regulations do not always appear when Ministers intend— this amendment ensures that all meetings of the executive or its committee would have to be held in public. In my view, that is a better default arrangement than one which permits executives to exclude the public from all of their meetings and operate entirely in private until such regulations are made.

Clearly, this is not the most fundamental safeguard of openness and, as my noble friend Lord Beecham and the noble Lord, Lord Shipley, have said, it is difficult to get the wording right on this issue. Everything will depend on the provision of the regulations that are to come. However, as I understand they are not available yet, even in draft, it is difficult at this stage of the proceedings to comment further. However, I hope that this amendment will be at least a start in bringing transparency to such proceedings.

Amendments 133A to 133C set out to improve the transparency of services delivered by a local authority through others. The Bill envisages that a growing proportion of local authorities’ functions will be carried out for them by other bodies operating under contract. Amendment 133A deals with what information the public can obtain under the Freedom of Information Act about the work done for an authority under contract. If the authority carries out the work itself, all information about that work is subject to the Act but the public's rights to information are less straightforward when the work is done by a contractor.

Section 1 of the Freedom of Information Act establishes that the right of access is to information which a public authority holds. Section 3(2)(b) of the Act provides that information which another person holds,

“on behalf of the authority”,

is treated as being held by the authority itself. However, how much of the information that a contractor holds about the contract is held on behalf of an authority? The answer is not self-evident. The contract itself may specify that particular information is to be treated as held on behalf of the authority or that a specified type of information must be provided to the authority, if it asks for it to help it answer a freedom of information request. Yet what if such a provision applies only to a very limited class of information? The effect may be then to exclude from access any information which is not specifically mentioned.

For example, in 2007, Islington Council received a freedom of information request for information about the criteria used to reward parking attendants for good results. I am sure that noble Lords will know that this is an electrically sensitive issue for many motorists in London and elsewhere in the country. The parking attendants were employed by National Car Parks Ltd under a contract with the council. The rewards included bonus performance payments and points that could be spent at Argos. The requestor wanted anonymised information about the rewards provided to the best performing parking attendants, including the number of penalty charge notices issued by them, the number of complaints involving those attendants and the number of notices subsequently cancelled. The requestor clearly suspected that the incentives were leading attendants to issue as many notices as they possibly could, regardless of any justification—clearly, a matter of considerable public interest.

The council replied that it did not hold such statistics and that the contract did not give it the power to obtain them from the contractor. The Information Commissioner then examined the contract in force at the time and found that it imposed no requirement on National Car Parks to provide statistical information about the Argos points, the performance payments to individual staff or the criteria used to decide who should receive these. He concluded that this information was not held on the council's behalf and not accessible to it under the Freedom of Information Act, yet that information was central to any attempt to understand whether the incentives were encouraging notices to be issued improperly. That is exactly the kind of problem that may occur when people attempt to use the Freedom of Information Act to obtain information about contracts.

Amendment 133A attempts to deal with this issue by stating that any new contract entered into in future by a local authority will be “deemed to include a” contractual “freedom of information provision”. It stipulates that all information about the performance of the contract which is held by the contractor is,

“deemed to be held on behalf of the … authority for the purpose of … the Freedom of Information Act”.

Incidentally, this would also apply to the Environmental Information Regulations, which provide a parallel right of access to environmental information. If such a request for information is made about the performance of the contract, that information would be within the scope of the legislation, even if held by the contractor. No confidentiality clause would be capable of setting that provision aside. The intention is that the public's right to information—that right to “greater transparency” included in the coalition agreement—should be the same whether a particular task was carried out in-house or contracted out.

--- Later in debate ---

[Baroness Hanham]

My Lords, I thank the noble Lord, Lord Wills, for his fairly extensive exposition on the Freedom of Information Act and its relationship with local government. I am sure that he will forgive me if I say that, not having had any detail of his speech beforehand, I simply am not out of my own head going to be able to answer all the important points that he raised, but I will do my best to cover some of them. If, later, we find something of significance, I will make sure that we write to him in response.

We have already discussed Amendment 52A, as the noble Lord acknowledged. I cannot say anything more than that we are very much in favour of open access to meetings of local authorities, but we recognise that there are occasions when confidential information has to be discussed—for example, information on contracts and members of staff. Meetings have to be closed sometimes, but we will make it clear that there has to be a presumption in favour of openness. We think that it is there anyway but we will underscore it.

My noble friend Lord McNally had hoped to be here because he has an overall eye on freedom of information. While I am very happy to take on anything, that seems to be one step too far, but he has asked me to say, in response to this, that the Government are committed to increasing transparency and that, almost without exception, central and local government are proactively publishing information about their contracts online. As noble Lords know, it is a requirement of government to do that and many local authorities have now taken that up and are doing it, which means that access to contract information is available to anyone who wants to see it. We feel, too, that in what is being done we have struck a balance between commitments to increase transparency and commitments to reduce regulatory burdens, particularly on business. I will go into that further in a minute. We do not believe that it is necessary to extend the Freedom of Information Act to those bodies at present with information about contracts with public authorities, which can be requested from them. A local authority can be quizzed about any contract that it has and we are proactively publishing contractual information online.

Amendment 133A would impose unacceptable additional burdens on business, similar to those that would be imposed if the Freedom of Information Act was extended to companies—not public companies but private ones. The Government have included provisions in the Protection of Freedoms Bill, to which the noble Lord referred, to extend the Freedom of Information Act with very limited exceptions to all companies wholly owned by public authorities. A few more of those will be coming up in the light of the legislation.

We have considered the extension of the Freedom of Information Act to companies where a majority of shares are owned by any number of public authorities, but to take this step would create uncertainty over which bodies were subject to the Act, particularly as bodies could pass in and out of its scope on transfer of shares. Should there be a strong argument for including a specific body, the option of inclusion through other means, such as an order under Section 5 of the Freedom of Information Act, still remains.

Amendment 133C would introduce a statutory requirement for the publication of an annual report by every local authority, including the smallest parish councils receiving very low volumes of freedom of information requests. We do not think that that is a burden that should be borne. Statistics about compliance with the Freedom of Information Act for government departments and a range of other central government bodies are already published voluntarily by the Ministry of Justice—indeed, the noble Lord may have generated this—on a quarterly basis. We would obviously encourage the publication of similar information by other public authorities receiving a significant number of freedom of information requests, including those within local government. The Freedom of Information Act will shortly be subject to post-legislative scrutiny, as I am sure the noble Lord knows, when it will be reviewed to ensure that it is delivering an efficient and effective mechanism by which the public can exercise their right to know and hold government to account.

Finally, on extending the Freedom of Information Act to cover the Housing Ombudsman, it is worth noting that we are planning to extend the Act to a considerable number of new bodies through legislation and we intend to keep those under review. While I do not say “in”, I do not say “out” at the present time.

I am very conscious that I have not been able to do anything like justice to all that the noble Lord has said. I hope that he will forgive me for that. I have answered some of the questions arising from the tabling of the amendments, although I appreciate that the noble Lord went wider than that to some extent. As I said in my previous commitment, we will go through Hansard to make sure that, if there is anything I have not touched on adequately, we will come back to it and write to him.

[Lord Wills]

I am grateful to the Minister for that reply. Of course, I understand and I apologise again for not having given her and her officials longer to consider these matters in more depth. I am also extremely grateful to the noble Lord, Lord True, and my noble friend Lord McKenzie for their contributions to this debate. I understand what the noble Lord, Lord True, says about the burdens on local authorities. I am well aware that transparency can be extremely frustrating and irritating for all those in executive authority.

The noble Lord is right: I am an enthusiast for freedom of information legislation. I think that I was almost alone among my ministerial colleagues in being such an enthusiast and I have no doubt that the same sentiments as he has just articulated are to be found widely among local authorities. All that I can say to the noble Lord and all those who find this legislation irksome, which I well understand, is that I believe passionately that in the end greater transparency helps to improve the services that we all work to deliver, whether in local government or central government. I wish that I shared his confidence that statutory freedom of information requirements are not necessary, which I think was the burden of his remarks. If I shared his confidence, I would not have put down these amendments. Sadly, I do not.

I am grateful also for the contribution made by my noble friend Lord McKenzie, but most of all I am grateful to the Minister for the spirit in which she engaged with these amendments. However, her response was not quite as welcoming instinctively as I would have hoped, so I ask her to scrutinise the amendments in more detail and perhaps to consult the noble Lord, Lord McNally. I do not say that because I discount any possible burdens put on local authorities or contractors and small businesses. As someone who ran a small business in the past, I am deeply conscious of the need to avoid putting burdens on small businesses. These amendments were framed not to place a disproportionate burden on anyone. Perhaps on closer scrutiny that will become apparent.

I am willing to accept any suggestions for amendments and I am sure that the Government would be able to improve the drafting. The key point that I ask the Minister to take away is that, if the Government do not engage with the issues behind these amendments—not necessarily to accept these amendments as worded but with the issues behind them—that will mean, potentially, over time, a significant diminution of transparency in the operation of local authorities and those whom they contract to provide services for them. That is very serious for those who believe in freedom of information. It is in breach of a fundamental tenet of the coalition agreement, which is why I hope that this Government will take it seriously.

This Government are committed to greater transparency, but I suggest that, unless these amendments are engaged with in some form or other, we will see the progress towards greater transparency being reversed. I hope that the Minister will be able to write to me to reassure me on that point and possibly even to meet me before Report if she would be so kind, so that we could discuss these issues in more detail. With that, I beg leave to withdraw the amendment.

Amendment 52A withdrawn.

--- Later in debate ---

[Lord Beecham]

My Lords, this is the first in a series of amendments on the position of standards committees. A small number of us might like to have seen the Standards Board preserved, but clearly that will not happen. The focus of this amendment and subsequent amendments, which will be moved by other noble Lords, is on the preservation of standards committees in councils. This amendment deals with the position on page 256 of the Bill of authorities which currently have such committees and it would amend the previous legislation to omit most, if not all, of those listed. It is probably an accident of grouping that it appears here rather than with Amendment 97, to which I have added my name and which the noble Lord, Lord Tope, will move. I assume that the noble Baroness will not be here. I apologise to your Lordships for the fact that if we go more than a few minutes past seven o’clock, I will not be here either because I need to get back to my home in the north tonight. In case that eventuality arises, I add my strong support to the requirement for standards committees to be preserved. We need a mechanism in councils that is independently chaired—other amendments go into the detail of how such a procedure might work—to retain the confidence of the public in the standards to be observed by those who represent them locally. I hope that it will not be the same as the standards regime in another place but experience suggests that there is a need for a properly constructed scheme under which complaints can be ventilated and dealt with speedily, locally and impartially to sustain confidence in local democracy. To that end I move this amendment and indicate my support for the subsequent amendments.

[Lord Wills]

I hope that my noble friend will comment on a concern brought to me by a constituent when I was the Member of Parliament for North Swindon, which powerfully illustrates the case that he is making for the amendment.

A couple of years ago the constituent came to me with his concerns about the Wyvern theatre in Swindon, which is owned by Swindon borough council but the management of which is contracted to a private company. My constituent had learnt that the business of the lead member in the Swindon borough council cabinet with primary responsibility for letting this management contract had been given thousands of pounds worth of business—from memory, it had been given £10,000 to £12,000 worth of business—by the theatre. It was clear that the councillor concerned had acted properly in leaving the room whenever this contract was discussed. However, that did not satisfy my constituent who made the point to me over and over again that if a Minister had been in an analogous position there would have been a scandal and the Minister would have had to resign. He kept saying to me that even if the councillor had done nothing wrong himself, the private management company might still be trying spontaneously to curry favour with that councillor as his decisions could be of enormous importance to its commercial well-being.

I told my constituent that in my view there was nothing necessarily wrong with a councillor getting business in this way. Councillors are not paid a salary in the same way as Members of Parliament are, for example, and most councillors need to earn a living. I told my constituent that the way to deal with the matter was to find out whether a proper procurement process had been followed, whether the contract had been put out to tender, if it had not been, why not, and if it had been, how many people had responded to the tender, what prices had been offered and whether the contract had been awarded on price, quality or for some other reason—in other words, whether it was all transparent. My constituent pursued this route and I did so on his behalf. We went to the council, which could not do anything. We went to the private company which was not covered by the freedom of information legislation and refused to give any information, so the situation was completely opaque and remains so to this day.

I hope the Minister will agree that such a lack of transparency on such a potentially sensitive issue is not acceptable and that this amendment may provide a way to tackle the opaque nature of such a transaction. I am sure that this situation is not unique to Swindon. If the amendment is not acceptable, perhaps the Minister can come up with some other proposal. I hope my noble friend will agree that his amendment would help to deal with this sort of issue.

[Lord Beecham]

My Lords, I am not sure that it would. Standards committees were established to investigate allegations about members’ conduct. If a member has complied with the requirements of registering an interest and declaring it, unless there was any evidence on the part of a complainant that he had done something improper such as lobbying colleagues behind the scenes or something of that kind, I cannot see that the standards committee route would avail. Other processes might be worth pursuing—for example, via the audit committee of a council or possibly the district auditor. However, I cannot see, in the particular circumstances that my noble friend has outlined, that that would fall within the province of a standards committee or the Standards Board. There does not seem to be a sufficient prima facie case of misconduct on the part of an elected member who has actually declared an interest and absented himself from a decision-making process. I am sorry that that does not sound too helpful, but the system was not designed for such a case as that which my noble friend has outlined.