§ 8.31 p.m.
§ House again in Committee on Clause 3.
Lord Falconer of Thoroton moved Amendment No. 57:
Page 2, line 35, leave out ("or by a government department") and insert ("by a government department or by the National Assembly for Wales").
§ The noble and learned Lord said: This is a substantial group of amendments concerning the operation of freedom of information in the devolved administrations in Wales and Northern Ireland. The amendments which the Government now table—I shall deal with the points raised by the noble Lord, Lord Roberts—involve no new policy but are necessary to ensure that freedom of information is applied on a consistent basis across the United Kingdom and the devolved administrations in Wales and Northern Ireland.
§ I take the amendments in groups. I turn first to government Amendments Nos. 57 to 59, 61, 62, and 68, and Amendment No. 63 tabled by the noble Lord, Lord Roberts of Conwy. The First Secretary of the National Assembly for Wales has asked that the National Assembly be treated as a distinct body in Clause 3 and elsewhere and not subsumed within the definition of government department. This necessitates a number of amendments to the Bill where we refer currently to the National Assembly. Paragraph 5 of Schedule 1, to which the noble Lord, Lord Roberts, referred earlier, already provides that the National Assembly is a public authority for the purposes of the Bill and nothing in these amendments affects that.
§ Amendment No. 62 deletes the provision which provides that the reference to a government department in Clause 3 includes reference to the National Assembly. That deals with one of the points raised.
§ Amendments Nos. 57 to 59 insert specific references to the National Assembly to ensure that bodies and offices established by it may be included by order in Schedule 1 as public authorities for FoI purposes. Amendments Nos. 61 and 68 have the effect that before making an order in relation to a Welsh or Northern Ireland public authority under Clause 3 (to add or delete an entry) or Clause 6 (to amend an existing entry) the Secretary of State must consult the devolved administration. These amendments recognise on the face of the Bill the roles of the National Assembly for Wales and the Northern Ireland Assembly in relation to the devolved administrations. I commend the amendments to the Committee.
§ Amendment No. 63—the amendment spoken to by the noble Lord, Lord Roberts of Conwy—asserts that the National Assembly for Wales is a public authority in its own right. I have said that paragraph 5 of Schedule 1 already makes that clear. The government amendments I have just described further clarify the position. In particular the deletion of the provision which provides the reference to a government department includes the reference to the National Assembly. That was one of the points the noble Lord raised. In the circumstances of our amendments I do not think that the amendment in the name of the noble Lord, Lord Roberts of Conwy, adds anything. I ask the noble Lord to consider withdrawing that amendment in due course.973
§ I turn to the government amendments which deal with the scope of the exemptions at Clauses 33 and 34. In furtherance of the general policy in relation to the manner of reference to the National Assembly set out above, Amendment No. 168 in part deletes the provision which included the National Assembly within the reference to "government department" for the purposes of Clause 33. Amendment No. 168 compensates for this by inserting a specific reference to the National Assembly into Clause 33 to ensure that the clause continues to apply to information held by it. For the sake of clarity, Amendments Nos. 178 and 180 to 182 provide that the clause covers the policy of the devolved administrations and clarify the application of the clause to the executive committee of the National Assembly.
§ Amendment No. 179 has an effect in relation to both of the devolved administrations and to the UK Government. The listing of the "ministerial communications" defined in subsection (3) of Clause 33 makes it clear that the provision in relation to such communications applies to internal communications between parts of the same administration, for example Ministers of the Crown, but not communications between different administrations. It introduces an additional category of communications between assembly secretaries. This addition is required to ensure that the Assembly First Secretary and other assembly secretaries are dealt with in a manner comparable to Ministers of the Crown and Northern Ireland. I commend the amendments to the Committee.
§ I turn to the amendment which relates to Clause 34 and the "qualified person". Amendment No. 183 includes within Clause 34 a specific reference to the National Assembly. Amendment No. 186 is consequential. Amendments Nos. 194 to 196 are concerned with the definition of "qualified person" for the purposes of Clause 34 in relation to Welsh and Northern Ireland public authorities.
§ Amendments Nos. 194 and 196 provide that the qualified person for Welsh public authorities, except the Auditor General for Wales and Northern Ireland public authorities, is an officer or employee of the authority authorised by the Assembly First Secretary or the First Minister and Deputy First Minister acting jointly or, if not, then the authority itself. In relation to the Auditor General for Wales, Amendment No. 195 provides that the holder of that office is to be the qualified person.
§ A number of definitions are introduced. Amendment No. 355 introduces a definition of "Welsh public authority". Subsection (3) of the new clause would have the effect of requiring that the Secretary of State must consult the National Assembly for Wales before making any order. Given the limited nature of the order-making power, and the requirement of consultation, the Government do not believe that there is any need for a parliamentary procedure in respect of such orders.
§ Amendment No. 365 relates to the definition of a Welsh public authority and is consequential on Amendment No. 355.974
§ Amendment No. 360 provides that Northern Ireland public authority means any public authority other than the Northern Ireland Assembly or a Northern Ireland department whose functions are excercisable only or mainly in or as regards Northern Ireland and relate only or mainly to transferred matters.
§ Amendment No. 359 defines "executive committee" in relation to the National Assembly. Amendment No. 351 deletes the provision which includes the National Assembly for Wales within the definition of "government department" for the purposes of this clause. Amendment No. 350 also makes another modification. It clarifies that Clause 39 cannot be relied upon by one UK government department in relation to confidence owed to another UK government department or by one Northern Ireland department in relation to confidence owed to another Northern Ireland department. I commend these amendments to the Committee.
§ Amendments Nos. 235, 331 and 356 are concerned with the duty to consult with the relevant authority in Northern Ireland on issues relating to public records. Amendment No. 235 replaces a reference to the Northern Ireland Minister responsible for public records in Northern Ireland with a reference to the appropriate Northern Ireland Minister as the person the Lord Chancellor shall consult before issuing or revising his code of practice.
§ Amendment No. 331 replaces a reference to the Northern Ireland Minister responsible for public records in Northern Ireland with a reference to the appropriate Northern Ireland Minister as the person the public authority shall consult before refusing a request for any information contained in a historical record.
§ Amendment No. 332 makes it clear that Clauses 64 and 65 do not both apply to the same information. Were this to be the case it would be a nonsense. Clause 64 is concerned with cases where a public authority holds information in an historical record. It provides that a decision not to disclose in the public interest should not be taken without consulting the Lord Chancellor.
§ Clause 65 applies to information that is held by the Public Record Office. It deals with historical records more fully—we shall presently consider relevant amendments. The consultation requirement in Clause 64 is reflected in those amendments. It would therefore be highly inappropriate for Clauses 64 and 65 to apply to information that was held by the Public Record Office.
§ Amendment No. 356 defines the appropriate Northern Ireland Minister as the Northern Ireland Minister in charge of the Department of Culture, Arts and Leisure in Northern Ireland.
§ That was a long and rather technical list of amendments which are necessary to ensure that the system works in Northern Ireland and Wales. They introduce no change in policy. In that context, the Bill has always made provision for consultation between the Lord Chancellor, the Northern Ireland 975 administration and the Northern Ireland public authorities. The amendments introduce technical changes to ensure that the policy has effect.
§ Before the supper break, the noble Lord, Lord Roberts of Conwy asked why Assembly subsidiaries should be dropped from Schedule 1. Assembly subsidiaries will still be covered in two ways: first, by Clause 5, which relates to wholly owned companies, and, secondly, by any orders that are made under Clauses 3 or 4 as appropriate. It was felt that it was inappropriate to treat Assembly subsidiaries in a blanket way—they were in effect previously being treated in that way. The noble Lord also asked whether there was confusion about coverage of the Assembly. The answer is no. The definition of government departments now excludes the Assembly—that is covered in Schedule 1—and we believe that that is right. We referred to the Assembly in some clauses—for example, Clause 33—by including it in the definition of government departments. We now agree that it is better simply to refer to the Assembly in its own right throughout the Bill. That is what this long and slightly dry group of amendments has done. I beg to move.
§ Lord Roberts of Conwy
I am grateful to the Minister for the tidying-up operation that has clearly taken place. His description of the amendments makes it clear that the provisions relating to the National Assembly for Wales have been considerably improved. However, that begs the question about the consultations that occurred with the National Assembly before the Government tabled their amendments.
The Minister should take on board the fact that consultation between central government and the National Assembly for Wales is not as refined, polished and advanced as it should be. However, he paid a clear tribute to the First Secretary, Mr Rhodri Morgan, who has obviously taken the matter in hand. As a result, the Bill's provisions relating to Wales are better. We shall of course study the amendments once the Bill has completed its Committee stage and before we reach Report.
Who will supervise the Bill's implementation in Wales? Apart from the National Assembly, a host of bodies is contained in Schedule 1. Those bodies, which include the Ancient Monuments Board for Wales and the Arts Council for Wales, are responsible to the National Assembly. I accept that under the Bill's provisions, the National Assembly is a public authority that is accountable; so, too, are what I might call the subsidiary authorities that are responsible to the National Assembly. For example, how will the information commissioner work in Wales? Will he or she have a specific relationship with the National Assembly, or will he or she deal directly with the bodies that are subsidiary to the Assembly?
I am glad that the noble Lord took on board the point that was made about consultation. The arrangement by which the Secretary of State will consult the National Assembly is ably dealt with in 976 Amendments Nos. 61 and 68. I dare say that there is further provision for consultation before making additions to or subtractions from the list in Schedule 1.
The position of the National Assembly for Wales is in marked contrast to that of the Scottish Parliament, which is, so far as I can make out, excluded from the Bill. That is not the case with the Northern Ireland Assembly. Before the introduction of the amendments to which the Minister has spoken, the provisions relating to the Northern Ireland Assembly were rather better than those relating to the National Assembly for Wales.
I note the Minister's comments on the Welsh Assembly's subsidiaries, which will still be covered. However, some bodies are not mentioned in Schedule 1, namely the Cabinet of the National Assembly and the associated committees. I assume that the Bill will cover them through the title of the National Assembly for Wales. A further problem involves local authorities, especially in view of the provisions in the Local Government Bill for cabinet-style government.
I conclude with a question. Are the Government sure that under the proposed new cabinet system for local government, local authorities will still be subject to the Bill's provisions?
§ Lord Lucas
I take this chance of riding on our general discussion about Wales to ask the Minister to clarify the position of the Welsh language under the Bill's provisions. Am I right in thinking that an application under Clause 7 could be made in Welsh? The provisions of Clause 10(1)(a) suggest that a request that the reply be received in Welsh would have to be acted on. Under Clause 19(1), would information provided in English be deemed to be not reasonably accessible to someone who was a Welsh speaker? To pursue the matter further, what is the position of someone who does not speak English or Welsh and who is a relatively recent immigrant or a member of a minority community? Would the Bill entitle such a person to ask for, and expect to receive, information in the language that he happens to speak?
§ Lord Cope of Berkeley
My preliminary advice is that the amendments improve the Bill no end with regard to Wales. We support them. One can only wonder how a provision as odd as defining a government department as including the National Assembly for Wales was ever included, particularly when other clauses specifically contradict that. The National Assembly should never be regarded as a government department. It is clearly a public body.
Scotland is excluded under Clause 78 because it is within the authority of the Scottish Parliament to carry forward any equivalent legislation. The United Kingdom Government are covered in so far as their powers extend to Scotland, but not the departments affected by devolution. My information is also that the amendments clarify the position for Northern Ireland.
§ Lord Falconer of Thoroton
To respond to the noble Lord, Lord Roberts of Conwy, we are alive to the need for consultation, particularly on the Bill. There is 977 regular consultation between Home Office officials and the National Assembly for Wales about the terms and implementation of the Bill. The noble Lord was right to identify that many of the changes were brought forward at the request of the First Secretary.
I was asked who will supervise the implementation of the Bill in Wales. Every public authority is required to produce a publication scheme. That has to be approved by the information commissioner, who is responsible for the day-to-day implementation of the Act.
For the purposes of the Bill, the public authority is the National Assembly for Wales. The Cabinet and its committees will be subsumed in that. Equally, executive or cabinet-style local authority committees are covered by reference to the local authority.
The noble Lord, Lord Lucas, asked about a question put in Welsh. Welsh language requests will be dealt with in accordance with the Welsh language scheme that will apply in relation to the relevant authority.
I think that that deals with all the questions that have been asked. I commend the amendments to the Committee.
On Question, amendment agreed to.
Lord Falconer of Thoroton moved Amendments Nos. 58 and 59:
Page 2, line 38, leave out ("or by a government department") and insert ("by a government department or by the National Assembly for Wales").
Page 2, line 41, leave out ("or by a government department") and insert ("by a government department or by the National Assembly for Wales").
§ On Question, amendments agreed to.
§ [Amendment No. 60 not moved.]
Lord Falconer of Thoroton moved Amendments Nos. 61 and 62:
Page 3, line 9, at end insert—
("( ) Before making an order under subsection (1), the Secretary of State shall—
Page 3, leave out line 12.
§ On Question, amendments agreed to.
§ [Amendment No. 63 not moved.]
§ Clause 3, as amended, agreed to.
§ Clause 4 [Further power to designate public authorities]:
§ [Amendments Nos. 64 and 65 not moved.]
§ Clause 4 agreed to.
§ Clause 5 agreed to.978
§ Clause 6 [Public authorities to which Act has limited application]:
Lord Cope of Berkeley moved Amendment No. 66:
Page 4, line 16, leave out paragraph (a).
§ The noble Lord said: I shall speak also to Amendment No. 67. Clause 6(3) allows the Secretary of State to limit by order the right of access to specified information that is held by a public authority. The provisions were described in another place as "housekeeping measures"—a phrase that was used a little earlier. They allow the Government to amend the Bill to take account of changing functions. We support the idea behind the provision but the question is how it should be worded.
The Bill says that the Secretary of State may by order amend Schedule 1,
by limiting to information of a specified description the entry relating to any public authority".
§ Amendment No. 66 would require the Secretary of State to specify the functions of the public authority that were to fall within or without the Bill, rather than particular information. That is more desirable.
§ Amendment No. 67 would limit the Secretary of State's power by removing the ability to amend any limitation. He could still remove a limitation if he wished to do so. I beg to move.
§ Lord Bassam of Brighton
The amendments would deny the Secretary of State the power to make an order to limit to information of a specified description the entry in Schedule 1 relating to any public authority and would remove the power to amend any such limitation.
When the amendments were debated in another place, my honourable friend the Parliamentary Under-Secretary of State, Home Office, acknowledged the potential mischief at which they were aimed, but we still believe that they are unhelpful—I do not often use that word—and unnecessary in dealing with the perceived mischief.
Members of another place were clearly concerned that the limited order-making power in Clause 6(3) could be abused by Ministers intent on removing whole areas of information from the provisions of the Bill.
The Government have listened to those concerns and responded. Our proposals do not allow the Secretary of State to use his powers arbitrarily. Any order made under Clause 6(3) would be subject to the affirmative resolution procedure by virtue of Clause 80(2)(a). That means that any proposal to vary or limit the scope of an existing entry in Schedule 1 could be given effect to only after the careful consideration and approval by Parliament of a draft order. We believe that that is a sufficient safeguard.
Amendments Nos. 66 and 67 go further than is reasonable. They would remove much-needed flexibility in the approach to coverage under the Bill. It currently applies to tens of thousands of public authorities, many of which pursue functions that are conferred on them otherwise than by primary 979 legislation. It is right that the Bill should have a mechanism for excluding information relating to functions that public authorities have acquired by other means when it is not appropriate for such information to be subject to the rights in the Bill.
We do not want to get carried away with the Bill's proposals. Very few entries contain such limitations and we do not intend to increase that number dramatically by use of the order-making power in Clause 6(3). However, it is a necessary power. I hope that I have encouraged the noble Lord to withdraw the amendment.
§ 9 p.m.
§ Lord Hunt of Wirral
I believe that it would greatly assist the Committee if the noble Lord could provide examples of the kind of limitation which he believes Ministers should be allowed to make regarding documents or information relating to a specific description. I can well understand that he is putting forward a general argument but it is in relation to a specific power. If the Minister could provide examples of the kind of power which he proposes should rightly be exercised under this extension, I believe that that would enable us to understand why that is so necessary.
§ Lord Bassam of Brighton
I am not sure that, as of this moment, I can answer the noble Lord. However, if the noble Lord, Lord Cope, is happy to withdraw the amendment, I can assure the Committee that I understand the point that is being made and shall be happy to expand on it on Report.That may be the more appropriate way in which to deal with the matter.
§ Lord Cope of Berkeley
Perhaps the Minister would send us a letter, as he has done on other such occasions. In the past, he has frequently been very kind when dealing with other Bills to write on matters of this type. I believe that the Minister was quite right to stress the fact that there is an affirmative resolution procedure. I understand that that was inserted by a government amendment in another place. It covers these provisions and that does help. However, for the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendment No. 67 not moved.]
Lord Falconer of Thoroton moved Amendment No. 68:
Page 4, line 20, at end insert—
("( ) Before making an order under subsection (3), the Secretary of State shall—
§ On Question, amendment agreed to.
§ Clause 6, as amended, agreed to.
§ Clause 7 [Request for information]:
Lord Archer of Sandwell moved Amendment No. 69:
Page 4, line 40, at end insert ("and expressed to be made pursuant to this Act").
§ The noble and learned Lord said: This amendment deals with a matter which has been adverted to in earlier debates. I am not even sure that it has not been overtaken by those debates. However, it is a point for which I am indebted to the Clifford Chance partnership.
§ As the Bill is currently drafted, any request for information which is in writing, states the name and address of the applicant and describes the information requested is within Clause 7 of the Bill. If that information is not provided, the whole machinery of the Bill is triggered: the charging of fees, the consideration of public interest and the right of appeal.
§ Not everyone who writes to a local authority asking a question intends or wishes to spark off all that machinery. Therefore, I ask my noble and learned friend whether we should limit such action to cases where a person wishes to invoke those rights under the Bill. Thus, I tabled the amendment, but in a spirit of being helpful. Some Members of the Committee seem to find it surprising that I should ever be in a spirit of being helpful. However, I sought to limit the operation of the Bill where it does not seem appropriate to apply it.
§ Since I tabled the amendment, it has been pointed out to me that I may be being too helpful. Many people—perhaps most—will not know of their rights under the Act; they will not even know of the Act. As I ventured to say earlier, not every pub and every mothers' union in the country are making this their major topic of conversation. Therefore, I was asked whether it would be too easy for a public authority which does not wish to disclose information to say, "Well, the request does not mention the Act; let's ignore it".
§ If the two arguments are to sit together—and I believe that there is force in both—and if the information requested is available to the public authority, surely it should answer the question or justify its refusal to answer under the Act. From what my noble friend Lord Bassam said in answer to an earlier debate, I understand that that is the Government's intention, although it will not be a legal requirement under the Act.
§ Therefore, the person who asks the question will be alerted to the existence of the Act and the rights which it accords him. He can then decide whether he wishes to invoke his rights under the Act. If he decides that he wishes to activate the whole process, he will then be aware of the option and can make his choice.
§ Having put the two sides of the argument and the process by which I arrived at this dilemma, I confess that I am not sure whether I support my own 981 amendment. However, I believe that it may be worth a discussion and I should be most grateful to hear my noble and learned friend's reactions.
§ Lord Phillips of Sudbury
Before the noble and learned Lord sits down, I should be grateful if he could tell me in whose interest Clifford Chance advanced the amendment.
§ Lord Archer of Sandwell
Like many others who have written to us, I believe that they did so genuinely in the interests of getting the Bill right.
§ Lord Goodhart
Like the noble and learned Lord, Lord Archer of Sandwell, we, too, are uncertain as to whether the amendment is helpful. I believe that probably it is not. Whether through a code of practice or otherwise, if local authorities are asked the kind of simple, routine questions that they tend to be asked and answer for nothing now, such as, "What is the date of the next council meeting?", I hope that they would simply provide an answer without requiring the applicant to go through the rigmarole of making it an application under the Act.
However, where a request for information is made, I believe that it is right that it should be treated as being made under the Act. Therefore, as the noble and learned Lord, Lord Archer, said, if a fee is to be charged, the applicant for the information will be told that and will then decide whether or not to proceed. That seems to me to be preferable to being told that the question does not qualify as a request for information under the Act and that therefore it will not be dealt with.
§ Lord Hunt of Wirral
Perhaps I may intervene. I believe that the amendment provides the opportunity to reflect for a moment on the need to make the procedure simple so that people can gain access to information and documentation simply by writing in to ask for it.
When I had responsibility for this area I was keen to ensure that any request under the code did not trigger into action a great bureaucratic machine. The noble Lord, Lord Phillips, asked a penetrating question as to why the largest law firm in the United Kingdom should consider this matter. I believe that it did so in the right spirit, which was to try to ensure that a request for information can be answered promptly, swiftly and without triggering a great bureaucratic consequence. This is a welcome opportunity to remind ourselves that we must keep it simple, so that people can gain access to that information to which they are entitled.
§ Lord Cope of Berkeley
The noble and learned Lord, Lord Archer, said that the first half of his speech was intended to be helpful, but I actually agree with the second half! One noble Lord who considered this matter—I would not dream of looking around the Committee and agreeing with him—suggested that this provision was a "lawyers' ramp" in that it ensures that lawyers need to be involved in making the 982 application because only lawyers, as opposed to ordinary individuals, are likely to know of all the different powers under the Act. For that reason I agree with my noble friend Lord Hunt that we should keep it as simple as possible. Therefore, I do not support the first half of what the noble and learned Lord, Lord Archer, said, but I support the second half.
I believe that requests should be submitted in writing. I am not sure whether the words "in writing" cover an e-mail request, which would be electronically written rather than physically written on a piece of paper. We could explore that on another occasion. It does not arise directly out of this amendment, but it arises out of the clause. We are told that the Government are an Internet-friendly government, so presumably that is intended to be covered by the words "in writing". No doubt, if a request comes in that form, a reply may be in writing. My noble friend Lord Lucas has had difficulty acquiring information from government departments in electronic form, but perhaps in future it will become much easier.
§ Lord Bassam of Brighton
I am grateful to the noble and learned Lord, Lord Archer, for telling the Committee that he does not fully support his own amendment! That has made my job a lot easier. As currently drafted, the Bill applies to all requests for information. Therefore, whether the applicant mentions the Act or not, the Bill applies to any request for information as long as it is made in writing. For the benefit of the noble Lord, Lord Cope, e-mail requests are covered by the term "in writing". I believe the reference is Clause 7(2). In making the request in writing the name of the applicant and an address for correspondence will need to be covered as well. Of course, that would cover e-mails.
Lest anyone runs away with the idea that the approach that we have taken in the Bill is novel, I should remind the Committee that under the Code of Practice on Access to Government Information, there is no requirement on the applicant to cite the code in any request for information. The same is true for requests under the Data Protection Act 1998 and the Environmental Information Regulations. That is an approach that is standard in access regimes. In any event, there are sound reasons of principle behind that policy.
I do not want us to lose sight of the purpose of the Bill. It creates new rights for all citizens and, as such, the rights exist without the need to rehearse them. It is enough that the citizen requests information; in the main, he or she should have to do no more. It will be his or her right to receive that information, subject to exemptions. There are also practical considerations that speak against the amendment. The same rules should govern the release of all information by public authorities. I am sure that the Committee will agree that there should be no scope for two similar requests to be dealt with differently, not least where they are made in the same form.
Moreover, I believe that the amendment could reduce the effectiveness of the Bill to act as a catalyst to open up the public sector. For the Bill to be such a 983 catalyst, the onus for applying the rules of freedom of information should be on authorities, who should take responsibility for the duties that the Act will impose on them. By requiring applicants to quote the Act when making their request, the amendment places the onus on applicants to trigger the rights that the Freedom of Information Bill confers, with the result that authorities could lose that sense of responsibility for applying the legislation. I hope that the noble Lord will feel able to withdraw his amendment.
§ Lord Archer of Sandwell
I am grateful to all Members of the Committee who have participated in this short debate and to my noble friend for outlining the Government's thinking. One matter that clearly emerges is that there is no substitute for good faith on the one hand and common sense on the other. If someone visits the town hall to inquire the time because he has lost his watch we do not expect him to be referred to the machinery of the Bill. However, all that we now seek to do will collapse if public authorities do not have good intentions in this respect. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 agreed to.
§ 9.15 p.m.
Lord Cope of Berkeley moved Amendment No. 70:
After Clause 7, insert the following new clause—