Protection of Freedoms Bill

Lord Wills Excerpts

Wednesday 15th February 2012 Lords Chamber

Moved by

[Lord Wills]

55ZA: Before Clause 102, insert the following new Clause—
“Time limit for decisions involving the public interest
In section 10(3) of the Freedom of Information Act 2000 (time for compliance with request) after “circumstances” insert “provided that it complies not later than the fortieth working day following the date of receipt”.”

[Lord Wills]

My Lords, both amendments in this group were debated in Committee, so I will not detain your Lordships long by rehearsing the arguments again. I am bringing them back because they will improve the Bill by protecting citizens' existing rights to transparency —although they will not extend them—in ways that are consistent with the Government's overall objectives. I am bringing them back also because so far the Government have offered no good reason for rejecting them.

Amendment 55ZA aims to cut down on delays in responding to freedom of information requests, which can often defeat the intent of the legislation. Such delays can be of more than a year. It is in line with the Information Commissioner's guidance that normally an extension should not be needed but where it is, it should not exceed a further 20 working days. Too often, the guidance is ignored. The amendment will make it more difficult to do so.

In Committee, when I withdrew an associated amendment, I asked the noble Baroness, Lady Stowell, to contact the Information Commissioner for evidence about the problems that he had encountered from delays in the process of policing the Freedom of Information Act, particularly in relation to the offence of altering records with intent to prevent disclosure. This is a most serious problem for the Information Commissioner in carrying out his functions in accordance with the wishes of Parliament. I would be grateful if in reply the Minister could tell noble Lords what the outcome of that contact has been.

Amendment 55ZB tackles a consequence of the Localism Act, which will restrict public access to information that the public currently have a right to gain access. As public services currently delivered by local authorities and other public bodies are contracted out—as increasingly they will be under the provisions of the Bill—they will be removed from the scope of the Freedom of Information Act. The amendment would restore the status quo: no more than that. So far, the Government have given no adequate justification for resisting the amendment. The amendment is proportionate. Very small businesses, for example, will not be caught by it. The Freedom of Information Act and regulations already contain exemptions to protect the legitimate interests of business, such as trade secrets or information likely to prejudice commercial interests.

The Government’s response in the past—I know the Minister will recognise this—has been that they would prefer to consider these amendments in the light of post-legislative scrutiny of the Freedom of Information Act. I understand that approach. As a delaying tactic, it is pretty good, and on the surface, at least, it looks plausible. However, there are two problems with it. First, the Government’s argument would be more plausible if they had not already done what they say they should not do: that is, dealt with transparency in local government piecemeal through the Localism Act and pre-empted the results of post-legislative scrutiny of the Freedom of Information Act. They have done that because the Localism Act already changes the status quo. It does so by weakening transparency in local government, not by strengthening it.

The second problem is that, should the post-legislative scrutiny and the Government’s response to it conclude that there should be action in these areas, and they may well do that, it is likely to take years before an appropriate legislative vehicle can be found to implement these changes. Your Lordships will be well aware of the complexities of the legislative progress and of how long it takes legislation to come before Parliament. There is no guarantee at all. I will be delighted if the Minister can correct me in her response and tell me that the Government already have plans to bring forward this legislation, but just not in the Bill. I would be delighted if that were the case. The reality is more likely to be that it will take years before an appropriate legislative vehicle can be found. That was certainly the experience of my party when we were in government and I doubt whether it is very different now.

In the mean time, over those years, despite the coalition agreement pledging to increase transparency, the right of citizens to have vital information about public services discharged in their name, for which they have voted and for which they pay, will be weakened, not strengthened. I hope the Government will now take the opportunity that these amendments offer to secure greater transparency in the government of our country for the people we all serve and accept these amendments. I beg to move.

[The Earl of Erroll]

I shall say a few words because I would have added my name to these amendments if I had been a bit more alert about them. I think they are very sensible. Of the two, I think Amendment 55ZB is probably the more important, although opportunities for delay are always a problem, so I think Amendment 55ZA is sensible.

In the atmosphere we are going into where there is an awful lot of rejigging of authorities and shared services and procurement, there are a lot of shenanigans going on behind the scenes with people trying to wheel contracts this way and that and shuffling them through different routes. The Government might find it quite useful to have some outside eyes keeping an eye on what is going on here and there, not to penetrate commercial secrets or commercial confidentiality, but sometimes some practices are going on that bear closer scrutiny.

I think this could go some way to help open up some areas and possibly to assuage unfounded suspicions. Sometimes people develop conspiracy theories in a completely unjustified way. A freedom of information request could expose the fact that the person is barking up completely the wrong tree, but sometimes it may be justified. I think it is very sensible to include this, or otherwise you will have a raft of things taken outside the Freedom of Information Act that are very useful for keeping an eye on what is really going on in the way that we are putting so much through various other sectors.

--- Later in debate ---

[Lord Wills]

Will the noble Baroness confirm that those figures do not cover local government? Will she further confirm that it is her understanding as it is mine that most of the interests that the citizens of this country have are in local authority functions and not central government functions?

[Baroness Stowell of Beeston]

I can certainly confirm that the figure I quoted for the extension of requests under the public interest test relates only to central government. As to general requests under FOI, these bodies were monitored by the MoJ. I am afraid that I do not have to hand which bodies they are. The figures do not cover local government.

However, I accept that there is room for improvement, especially where the deadline is extended to allow consideration of the public interest test. The Information Commissioner is watchful of public authorities where timeliness is an issue and has taken effective action in this area. In 2011, the commissioner announced that out of 33 bodies being monitored in relation to timeliness issues, 26 had made sufficient improvement to be removed from his watch list. While further action is required from the remaining bodies, it is clear that the Information Commissioner’s Office has been effective in improving timeliness.

The introduction of new statutory deadlines is a potential way of strengthening the Freedom of Information Act, as the noble Lord has put forward, provided that it does not lead to hasty decisions that are not fully informed. An absolute limit of 40 days raises some concerns about the potential for such an effect and therefore we need to give the impact of changes of this type full consideration before their introduction. For that reason, I cannot accept his amendment today.

As the noble Lord has predicted I might say, but not for the reasons he suggests, this is something that I strongly believe should be properly scrutinised and considered in the course of post-legislative scrutiny, which is now under way by the relevant Select Committee of the other place, chaired by the right honourable Alan Beith. I certainly will ensure that he receives the official record of our debate today.

It is also worth pointing out that I genuinely think that the proposal put forward by the noble Lord, as much as it has merits, requires very careful consideration. I will look forward to his contribution to the process of post-legislative scrutiny that is ongoing.

Amendment 55ZB, again in the name of the noble Lord, Lord Wills, seeks to extend the Freedom of Information Act to information held by contractors working on behalf of public authorities about the performance of those contracts where those contracts are worth more than £1 million. The noble Lord has found support today from the noble Earl, Lord Erroll, my noble friend Lord Lucas and the noble Lord, Lord Collins, on this issue. As the noble Lord, Lord Wills, is aware, the Government have extended the FOI Act and are taking steps to extend it further. We have made an order under Section 5 of the Act extending its scope to, among others, the Financial Ombudsman Service. We have commenced consultations with more than 200 further bodies about their possible inclusion through future Section 5 orders and we intend to consult more than 2,000 housing associations later this year in relation to their possible inclusion.

In addition, Clause 103 of this Bill will extend the Act to companies wholly owned by two or more public authorities, thereby removing the anomaly whereby a company is subject to the FOI Act only if wholly owned by one public authority but not by two or more. I hope that the noble Lord recognises that these are significant changes.

I understand the point that the noble Lord and others have made today that as services are subcontracted out, whether by local government or by other public services which have been mentioned today, the public should not be left short of any information that might be needed to assess the effectiveness and efficiency of those services. But as I mentioned to the noble Lord in Committee when we debated this, even when a service is subcontracted out, it is still the responsibility of the public authority in terms of the accountability for that service to the public. It is the relevant organisation which should be held to account. In the way in which the contracts are constructed, it should be possible for the public to receive from the contracting authority the information that is needed in order to ensure that the services being carried out and paid for with their taxes are actually performing as they would want them to.

As my noble friend Lord McNally stressed last year, it is important to ensure that changes to the way public services are delivered do not undermine our pledge to increase openness and accountability, and there is certainly a challenge to be met here. I would like to restate that our continued opposition to this amendment does not stem from any lack of commitment to the cause of increased openness and accountability. We are already considering this issue and it will be further considered in the response to the Cabinet Office consultation on the draft transparency and open data strategy.

I may have covered this point, but I want also to say to the noble Lord that there is a provision in the FOI Act as it stands that extends its scope to public bodies. I believe that it is set out in Section 5. If and when other public authorities, bodies or organisations should be covered by the Act, we do not need new legislation, or we will be subject to the kind of delay that he seems to think post-legislative scrutiny would bring about. We actually have a mechanism to ensure that as and when we feel it is right and proper to extend the Act, we can do so.

[Baroness Stowell of Beeston]

No, I am not saying that. I am not in a position to go that far because it would take us into an area on which I do not have the authority to speak today. I am making two separate points. One is that a public authority is the body which is accountable to the public for any services that it might subcontract out. In the course of its contractual arrangements with the subcontractor I would expect, in order to ensure it is properly accountable, it should ensure that it is able itself to access the information it needs. I do not think it is proper to prescribe the detail in the way that has been put forward by the noble Lord. For example, it is not clear how the £1 million contract threshold would be calculated. How would additional payments which might take the value over £1 million be taken account of? Different public authorities might take different approaches to valuation. If that happens, the approach will not be applied consistently. I worry that the amendment might be attractive on its face but deceptively difficult to operate on the ground. I am not saying that issues such as this are insurmountable; I merely use this as an illustration of why careful consideration is necessary to ensure clarity for public authorities, the Information Commissioner and users alike.

I have also made the point previously that to comply with FOI requests for contractor information public authorities would need to have access to any information held by the contractor that is potentially relevant in terms of responding to the request. Such a requirement to share all such information with the public authority so that the authority might comply with FOI requests could adversely affect the effective delivery of the contract. Again, I am sure that solutions to this issue exist, but they require careful consideration.

I reassure the noble Lord, Lord Wills, that our opposition to the amendments results from the need to make sure that effective and proportionate solutions are developed. It does not result from a lack of a commitment to transparency or the effective operation of the Freedom of Information Act. I therefore invite the noble Lord—

[Lord Wills]

Before the Minister invites me to withdraw the amendment, will she answer two questions for the purpose of clarification? The first is in relation to the undertaking that she gave in Committee to contact the Information Commissioner. Has such contact been made? If so, what was the result of it? If it has not, when will it be made? Secondly, she referred earlier to her belief that the Government have the mechanism and the will to act promptly should they decide that it is necessary to do so, and that the delays that I fear will happen will not take place. Is that mechanism Section 5 of the Act and, if not, what mechanism is she referring to other than primary legislation?

[Baroness Stowell of Beeston]

On the former of his questions, I am not able to give the noble Lord a reply today, but I will follow it up with him in due course. On the latter, I am not proposing any new legislation; I am referring to Section 5 of the FOI Act, in that it gives us the opportunity and the provision, should we need it, to extend the Act to cover new bodies in the way that we are using it right now. I hope that that answers the noble Lord’s question and that he will feel able to withdraw his amendment.

[Lord Wills]

I am grateful to the Minister for a characteristically gracious and thorough response. I am grateful, too, for the support that I have received from all sides of the House for both amendments. I am sorry that the Government have not taken account of the compelling cases made by the noble Earl, Lord Erroll, the noble Lord, Lord Lucas, and my noble friend Lord Collins on the Front Bench. I note what the Minister said in relation to Amendment 55ZB and my fear that any legislation will create a delay. She referred to Section 5. I am afraid that this only makes my point: the extension of the coverage of the Act under Section 5 to which she referred, and to which the Government always refer as a great indicator of their commitment to freedom of information, was, I have to tell the Minister, work put in train by the previous Government. I was the responsible Minister. It has taken all this time. That work was started in around 2008—I cannot remember exactly when. Four years later, this Government are now able to claim credit for that. The extension would not necessarily cover all the areas that should be covered by my amendment, so if the Minister is relying on that as a mechanism for speed in rectifying this problem, I am afraid that she is just wrong.

I hope that the Government will look again at this issue. I hear what the Minister says and I have no doubt about her personal commitment to transparency, but all the noises that we hear in the media as emanating from Whitehall are of the deep hostility of the entrenched, vested interests of the state to this agenda of transparency. All I can say is that I wish the Minister well in her forthcoming battles with those vested interests.