§ (" . When a public authority has declined to disclose information, the public authority shall consider whether, by deletion or summarisation or otherwise, the relevant information may be rendered into a form where it is suitable for disclosure.").
§ The noble Lord said: When a public authority finds itself, for good reason, unable to disclose a whole set of information available to it, I should like to be sure that it has a positive duty to make as much as possible of that information available to the applicant; it might be by deletion. I understand that that is provided for in the structure of the Bill. I should be grateful for confirmation of that.
§ I am not sure that summarisation is covered. If I were to ask a school for its examination results, it might reasonably refuse to provide me with the full details because that would disclose the names of each person who had taken the examinations which was its private information. However, by an act of summarisation and deletion, the school could reach the point at which I could no longer identify that, or individual classes, although I could draw conclusions about the performance of individual teachers, which might also be thought to be undesirable. I seek a reassurance about the fact that the school will have a duty to do that and that it will not be able to hide behind the fact that some of the data, or a level of detail in the data, might reasonably be regarded as exempt information. I beg to move.
§ Lord Mackay of Ardbrecknish
My noble friend asks two interesting questions, one of which involves a large document, part of which was clearly exempt but other parts of which were not. As my noble friend said, it would be useful to have clarification about whether public authorities would be under an obligation to release those parts that were not caught by the Bill, although they would have to remove those parts that were caught by it.
My noble friend's second point may be more difficult to achieve, although if some records cannot be made public because of information in them—perhaps the names of the people involved—it is fair to ask whether there would be an obligation on authorities to produce a summary that excluded those names. The two interesting points that were raised by my noble friend need clarification.
§ Lord McNally
This may be an appropriate moment to recall the point that was raised by the noble and learned Lord, Lord Archer of Sandwell, and in the Select Committee, namely, that the Irish Government have invested much time and money preparing public servants and helping them to think constructively about how to make the Bill work. The amendment 931 involves a classic case. If there had been proper training, requests that could be partially satisfied would be approached in that positive manner. Do the Government already have in mind a programme of training, such as that which was explained to us by the Irish commissioner? That programme has had an impact on the culture of the Irish public service and on its efforts to respond constructively to requests.
§ Lord Falconer of Thoroton
We have been discussing whether the Bill in effect permits partial disclosure. It will in fact require that when some of the information that is requested is exempt but other information is not. The right of access in Clause 1 involves information that is recorded in any form. That means that the right of access attaches to the content of documents or records rather than to the documents or records themselves. When a document contains a mixture of disclosable and non-disclosable information, the disclosable information must be communicated to the applicant.
On the point about summarisation, Clause 10 states that when applicants have a preference for one of certain specified means in which they wish the information to be communicated to them, the authority shall, so far as is reasonably practicable, give effect to that preference. The means specified involve copying of the information, inspection, or a digest or summary of the information. If the applicant requests a copy of the document that contains the information or to inspect the actual document, Clause 10 requires the authority to give effect to that preference so far as is reasonably practicable to do so. That includes "blanking out" information, such as names that cannot be disclosed. Similarly, if the applicant has requested a digest or summary of the information, the authority must also comply with that request, if it is reasonable to do so. I hope that that deals with the points that were raised by the noble Lords, Lord Lucas and Lord Mackay of Ardbrecknish.
Training, we accept, is vital. That is already in hand across government and in particular in the Home Office, which is responsible for the freedom of information provisions. The commissioner will have a role in disseminating advice on the Bill's operation. We fully expect the commissioner to provide training materials. Clause 45 contains obligations to produce codes of practice which, I believe, have already been made public. With regard to training —although this will apply to every public authority—the code of practice states:All communications in writing to a public authority fall potentially within the scope of the Act if they seek information and must be dealt with in accordance with the provisions of the Act. It is therefore essential that everyone working in a public authority … is familiar with the provisions of the Act, of the codes of practice issued under its provisions and any relevant guidance on good practice issued by the commissioner. Authorities should ensure that proper training is provided.932 The process has started, its importance is recognised and the commissioner will have a role to play. There is obviously a long way to go, but we fully recognise the importance of the process.
§ Clause 2 [Public authorities]:
§ 6.15 p.m.
§ Lord Mackay of Ardbrecknish moved Amendment No. 26.
Page 2, line 16, at end insert—
("( ) any Minister of the Crown, government department, local authority, government appointed task force, quasi-autonomous body, any body carrying out public administration at a national, regional or local level or any other body where either—
§ The noble Lord said: The amendment refers to those bodies that will be captured by the Bill. Currently, quangos, task forces and goodness knows which other bodies that are created by governments who pretend that those bodies have little or nothing to do with government, are listed in Part VI of Schedule 1. That schedule contains a pretty exhaustive list, which includes organisations such as the Apple and Pear Research Council. It is hard to establish whether any bodies have been missed out from the list.
§ I tabled the amendment against that possibility, and against the possibility that the Government will establish more task forces, quangos and similar bodies. In order to list the bodies in the schedule, the Secretary of State would have to designate them. However, the requirement that will be placed on them uses the word "may". A body could be established and it could function for some time before it fell within the Bill's ambit. I tabled the amendment to deal with that situation. The amendment uses a catch-all definition and it would ensure that every obscure quango was covered. It is self-evident that if more than half of the funding was received from the Government, the relevent body would be caught by the Bill. I want to go further and ensure that a body that was set up by another body would also be caught by the Bill. If the body from which one wanted some information received more than half of its funding from a body that in its turn received more than half of its funding from the Government, it should fall within the scope of the Bill.
§ My second approach to the matter—this is an either/or approach—involves the situation in which a majority of members were appointed by the Government. That would clearly affect many quangos and task forces—I suspect that it would affect all task forces, whose members are usually appointed by the 933 Government. My approach would ensure that the list in Schedule 1 was always kept up to date. I beg to move.
§ Lord Lester of Herne Hill
I am sympathetic to the aims of the amendment. We had a similar problem on the Race Relations (Amendment) Bill, which imposes a duty on public authorities not to discriminate. The question was how to define the public authorities that were caught by the new duty. There have been great arguments about whether to set down a list, as under the data protection legislation, or to have a more inclusive definition, as under the Human Rights Act 1998. After a good deal of discussion in this House, the Home Secretary accepted both. He agreed that a specific list would give legal certainty, but he also agreed to a general catch-all provision. I should have thought that that was desirable in this case, although I am not wedded to the specific amendment.
§ Lord McNally
I have a more basic inquiry. I know that the noble Lord, Lord Mackay of Ardbrecknish, is concerned about what the noble Lord, Lord Haskins, does. Is he confident that the catch-all would enable him to find out at last?
§ Lord Lucas
Am I right in understanding that even as the Bill stands, let alone under the amendment, a number of charities will fund themselves subject to the requirements if they receive substantial government support to deal with issues such as people who sleep rough on the streets?
§ Lord Molyneaux of Killead
I have been caught up in various voluntary and quasi-voluntary bodies. I cannot help being surprised by the Treasury's generosity in funding and part-funding so many bodies. All too often, when someone feels that the information that they may be handling or discussing should not be revealed to the public gaze, their colleagues tend to comply with the suppression of such information for the sake of peace and harmony. The amendment is desirable. I know that the Minister will listen sympathetically, as usual. I hope that at some stage he will table an amendment in line with the proposals of the noble Lord, Lord Mackay of Ardbrecknish.
§ The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton)
The amendment has potentially very wide implications. It would automatically include within the definition of "public authority" certain groups or classes of body that the Government have provided should be considered individually and covered only if appropriate.
We do not disagree in principle about many of the groups that the noble Lord, Lord Mackay, wants covered. I entirely agree that government departments and local authorities should be brought within the freedom of information requirements. However, the amendment is unnecessary because it would list government departments and local authorities generically as public authorities. Parts I and II of Schedule 1 already do that.
934 It is also unnecessary to list Ministers of the Crown as public authorities separately from their departments. For the purposes of the Bill, Ministers are covered in respect of their statutory responsibilities within the definition of a government department. In practice, they will hold little information that is not held by their department.
I also depart from the noble Lord in the way in which the amendment would treat other classes of bodies. The issues are reasonably straightforward. We believe that it is right to use a generic description to cover a class of bodies when possible. We have done so for a large number of such classes or groups in Parts I to V of Schedule 1. Those generic descriptions include many bodies that carry out public administration at all levels of public service. However, in many cases it is not possible to identify a generic description that properly or effectively describes the bodies that may need to be covered at any time. The amendment has fallen into that trap.
We have looked long and hard at the definitions of non-departmental public bodies, quangos—or quasi-autonomous bodies, as the amendment calls them—and other similar titles. We concluded that such definitions were too vague or unreliable to be of practical use in freedom of information legislation. Clarity is essential for the bodies themselves, because the public will want to know which bodies are included, and for the information commissioner, who will be responsible for enforcing the requirements.
Similar concerns of definition arise for the term "government appointed task forces", which is also used in the amendment. Are they different from working parties? Should a working party be considered within the same generic description as an advisory group?
All such bodies are different from bodies that carry out public administration, but who is to say what functions are contained within the general description of "public administration"? Should it matter that only a small part of the functions of a body carrying out public administration might be on work of a public nature? The amendment would not allow such a fine distinction. Any such body would be automatically designated for freedom of information purposes and all the information that it held, whether it related to work of a public or private nature, would be brought within the disclosure requirements.
The Government's approach is more considered and more focused. We have included any public body that we are aware of that carries out functions that ought to come within the scope of the Bill either under a generic description or by listing it in Parts VI and VII of Schedule 1.
We do not claim that the lists are exhaustive, although we have consulted widely to ensure that they are as comprehensive as we can make them. We recognise that some bodies may be missing and have provided that the Secretary of State may amend the schedule using the powers granted in Clause 3. To allow sensible flexibility, Clause 6 provides additional powers to enable an order to apply the Bill only to 935 limited descriptions of information or to amend an entry in Schedule 1 to apply the Bill only to limited descriptions of information held by a public authority.
The Secretary of State has powers under Clause 4 to bring within the scope of the Bill private bodies that carry out public functions or provide a public service under contract. That includes voluntary organisations and charities. However, an important qualification is that any order made under Clause 4 must follow a process of consultation with the appropriate person or persons and must specify the functions of the public authority designated by the order. That is a better way of addressing the concerns about the propriety and effectiveness of coverage of such bodies under the Bill.
The final part of the amendment would automatically bring within the scope of the Bill any body that receives a majority of its funding from the Government or from a body that receives more than half of its funding from the Government. What would happen if the funding changed? Would the body cease to fall within the meaning of the amendment? The provision would also cover organisations in which the majority of members of the managing body were appointed by the Government or subject to management supervision by another public authority.
The Bill has been criticised for its complexity of drafting, but the amendment might win a Pulitzer prize for opacity. I understand the desire to ensure that no stone is left unturned behind which a body carrying out a public function might hide from the spotlight of the legislation, but we need to stress again the importance of clarity about which bodies are brought within the scope of the Bill and which functions are covered. I venture to suggest that the amendment fails against either test.
The Government have proposed a sensible way of ensuring the widest possible coverage commensurate with the need to be clear and fair. The Bill provides for the Secretary of State to have the flexibility to bring relevant bodies within its scope when appropriate. I commend our approach and I invite the noble Lord, Lord Mackay, to withdraw the amendment.
§ 6.30 p.m.
§ Lord Mackay of Ardbrecknish
I am grateful to the Minister for that detailed reply. I thought that he was about to accuse me of tabling a "cumbersome and bureaucratic" amendment—the words that he uses to describe the Political Parties, Elections and Referendums Bill. Did he feel that I would be lonely without him at the other Dispatch Box after all the days that we have had on that Bill—and with all the days that we still have to come?
I have listened with some care and I shall read Hansard with some care. There is a problem. If a body receives public funds and the public wish to find out what has happened to those funds, they could come up against a brick wall the moment that the money goes to the body in question if it is not listed in the schedule.
I shall have to study carefully and discuss with others the exact consequences of what the noble Lord has said. If a member of the public who tries to find out 936 how public money is spent by a body finds that it is not covered by the Freedom of Information Bill—or Act, as it will be—that member of the public rightly may be concerned that something which should not be hidden is being hidden.
I fully accept that my definitions are not as they should be. However, at least they address the point that a body which receives more than half its funding from the Government cannot be considered to be entirely non-public, because clearly it is. Equally, if more than half the members of a body have been appointed by the Government, clearly it is not a public body, at least in part.
If the noble Lord, Lord McNally, reads Appendix 1, he will see that I may even achieve my objective and have the noble Lord, Lord Haskins, come to the House to answer for his task force. However, frankly I believe that that is fairly unlikely; it will probably be the Minister who answers. None the less, we should be able to find out a great deal about what that task force does. It would not be able to hide from us its activities and the papers that it produces because it would be caught by this Bill.
As I said, I believe that this issue contains a problem which we shall have to pursue. I even believe that if a charity receives more than half its money from the Government, the public have a right to know what is going on in that charity. However, I fully appreciate that such access would apply only to that part of the charity's work which is funded by government money and not to other parts of its work which are not funded by such money.
It is clear that we shall have to consider this matter further. I am grateful to the Minister for his explanation. We shall read it with care and decide whether we need to approach the matter in a slightly different way and return on Report with another amendment to deal with those issues. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Ardbrecknish moved Amendment No. 27:
Page 2, line 26, at end insert ("on a contractual or agency basis").
§ The noble Lord said: This amendment was suggested to me by the Law Society of Scotland. I always do what lawyers tell me to do and that is why I tabled it.
§ The purpose of the amendment is very much exploratory because in recent years the concept of a public authority has undergone considerable redefinition. Much work which was once undertaken directly by local authorities and government is now performed by the private sector. Indeed, even legal work for local authorities is contracted out. I live in Wandsworth in London and the refuse collection there is contracted out and operates extraordinarily efficiently, so far as I can see. In other places, many of the councils' civil engineering services are also contracted out. The Law Society considers that some 937 clarity should be brought to bear on whether those bodies are covered by the Freedom of Information Bill.
§ This amendment is not unlike the one that we have just debated in that it concerns bodies that carry out some public and some private work. How are those bodies covered? That is the question that I pose on behalf of the Law Society. I also ask whether the Government need to address certain definitions in relation to contracting-out services in the light of the huge changes which were begun by the Conservative government and, of course, continued by the Labour Government. I beg to move.
§ Lord Bach
I am grateful to the noble Lord for explaining what he means by this amendment and for explaining that he seeks clarity. I hope that I can provide that.
This amendment would have the effect of limiting the definition within the Bill of when information is considered to be held by a public authority. If left as it is at present, Clause 2 would provide that information is so held either if it is held by the authority, unless it is holding it on a third party's behalf, or if,it is held by another person on behalf of the authority".The amendment seeks to alter the latter instance to the extent that it must he held by the third party on either "a contractual or agency basis".
I say immediately that we agree that the usual situation will be that the basis on which information is held by a third party on behalf of a public authority will be contractual or as an agent. The clause covers that at present and, to that extent, the amendment is unnecessary.
At first it was not clear to us what was behind the noble Lord's amendment. Of course, now that the noble Lord has moved it, it is clear. We feel that if the amendment were carried forward—I now know that that is not the intention today—its implications might be quite serious.
By limiting the definition, as the amendment seeks to do, only to information held on a contractual or agency basis, too rigid a stricture would be placed on the type of information which public authorities would have a duty to disclose under the Bill. Perhaps I may point out to the Committee that a danger arises from the possibility that bodies may exist whose relationship with a public authority does not come within the strict legal definition of either a contract or an agency but they may hold information to which access should be afforded under the Bill.
Perhaps I may provide the Committee with an example. Were an NHS trust to transfer some of its records to a body such as the Wellcome Institute for the History of Medicine, there may be some uncertainty as to the basis on which the latter body held that information. Any such uncertainty in the coverage of the Bill would be unwelcome. That is why we cannot accept the amendment as it stands.
With regard to the noble Lord's question as to whether the contracted-out functions of public authorities are covered, the answer is that they can be 938 covered by an order under Clause 4. The amendment that he has moved in order that we may have a brief discussion does not strictly cover that point. I invite the noble Lord to withdraw his amendment.
§ Lord Mackay of Ardbrecknish
I thank the noble Lord, Lord Bach, for his reply. This begins to look like a replay of the political parties Bill with, first, the noble Lord, Lord Bassam, and then the noble Lord, Lord Bach. I had better resist the temptation to introduce a political parties (amendment) Bill.
I am grateful to the noble Lord for his explanation. I am surprised that his officials did not understand at what the amendment was aimed. However, I believe that he has made it clear that the concerns of the Law Society are not well founded and it can rely on the comments that the noble Lord has just made. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Lord Mackay of Ardbrecknish moved Amendment No. 28:
After Clause 2, insert the following new clause—