§ (" . Public authorities must assist applicants in making requests for information.").
§ The noble Lord said: In moving Amendment No. 28, I wish to speak also to Amendment No. 29. Also in this group is Amendment No. 81 in the name of my noble friend Lord Lucas.
§ We almost ran a trailer for this debate earlier. These amendments all have the same aim: to ensure that on the face of the Bill people who seek information from public authorities will be assisted in that search; otherwise, a severe danger exists that the public may become hopelessly lost in seeking an answer to a question. Dare I say it (I have said it before), I believe that they will become hopelessly lost in trying to work through the Act to discover what their rights are. They may well need help and guidance.
§ The code of practice which we introduced when in government required bodies to guide applicants towards the information they sought. That was art important aspect of the code. Someone may require, for example, information about acute hospital beds in some part of the country. They may go to the wrong place to seek the information. The person being asked could reply simply, "We do not hold that information", and shut the door. What we and, I am sure, the Government want is for the official to say, "We do not hold that information but I suggest that you go to such and such a body. They hold the information and they will help you". We are attempting to achieve that here.
§ My noble friend proposes the same thing in a slightly different way and I am unsure whether I prefer his amendment or mine. I hope that the Government will appreciate what we are trying to achieve and come forward with their own amendment later.939
§ I am told that most freedom of information laws, including those of New Zealand, Australia and Ireland, place authorities under a statutory obligation to assist requesters. The Irish Act implies that such a duty is so important that it is in the Long Title. Under this Bill the authorities would be encouraged, but not required, to provide assistance. I believe that it would be well worth our while to firm up this matter, so that it becomes a duty and so that public officials at whatever level of government will realise that they are under an obligation to help somebody on his or her way to the information that he or she seeks. I believe that our aim is fairly self-evident. I beg to move.
§ Lord Lucas
Amendment No. 81, standing in my name, says much the same as that of my noble friend. I share with him a conviction that this is a crucial change to make to the Bill; that there must be an obligation on public authorities to help if ordinary citizens are to feel that they have the rights that are provided for under this Bill.
There is a potential danger in these amendments in that they may make it impossible to answer parliamentary questions in the way that Ministers have become accustomed and in the way that I was accustomed to answering them, which is the unhelpful answer which studiously avoids giving the crucial piece of information that would help the inquiring noble Lord on to the next awkward question.
If there were a duty to assist included in the Bill, we would have a right to contact the Ministry and say, "What question should I ask?" One would have a right to receive the kind of information one sought and the Ministry would have to help. Fortunately, Clause 19, under which there is no such right, comes to the rescue. We have a right to ask parliamentary questions, therefore we will not be able to use the Freedom of Information Bill and Ministers will continue to give us blocking answers to parliamentary questions while helping the public. This amendment is without danger to proper ministerial practice and should be adopted.
§ Lord Archer of Sandwell
I believe that the two noble Lords who have spoken have drawn attention to a genuine problem. My concern goes a little wider than theirs. In order to lay a foundation for exercising the rights under the Bill, a member of the public has to make a request in the form set out in Clause 7. It is not a demanding requirement, but members of the public may be less familiar than your Lordships will be by the end of our deliberations with the provisions of this Bill. It is not a usual topic of conversation in the clubs and pubs of my former constituency.
Someone who meets a member or an official of a public authority on the steps of the town hall and simply asks a question may have no idea that he is purporting to exercise rights under any Act at all and he may not know what chain of events he is setting in motion. He may not know that under Clause 7, unless he makes a request in writing, it will not be a request under the Act, still less, that if he were to scribble it on the back of an envelope that he would totally 940 transform matters because all the consequences of the Bill would come into force. If the public authority did not wish to be troubled with the matter, it may not inform such a person of the situation.
If a public authority does not intend to answer a question, it would not be asking too much to say that in the Bill there should be guidance about what it should do. Perhaps there could be a small booklet that sets out the rights and how to enforce those rights. If the Government have plans to produce such a booklet, perhaps my noble and learned friend will tell the Committee. I believe that we would be wrong to leave the matter in the air.
§ 6.45 p.m.
§ Lord Lester of Herne Hill
These amendments are designed to promote a cultural change, away from the culture of secrecy to which the Minister referred earlier. As long ago as 1982, as the noble Lord, Lord Mackay of Ardbrecknish, pointed out, the New Zealand parliament found it appropriate to introduce a similar provision into its freedom of information Act, as did the Commonwealth of Australia.
Perhaps most strikingly of all, again as the noble Lord, Lord Mackay, has said, in 1997 in Ireland, in a country that was—I say with affection—at least as full of the culture of secrecy as this country, Ireland's parliament dealt with this matter not once but twice: in the Long Title and in a substantive provision in the Bill. Kevin Murphy, the admirable Information Commissioner, to whom my noble friend Lord McNally has already referred, speaking on 19th November 1999, at the University of Glasgow said:At first sight it might not seem that deepening the public awareness and understanding of the Act is of great relevance to changing the culture of secrecy in the public service. However if people really understand their rights then they will be able to exercise them wisely. Judicious exercise of the rights conferred by the FOI Act can encourage public bodies to change their practices".Preferably that needs to be dealt with in the Bill, but certainly in a code of practice in a way that makes it quite clear that officials are to be user-friendly and to help people who make requests under the Bill so as to avoid the continuation of the bad old past with which we are all familiar.
§ Lord Norton of Louth
I support the amendments. On the face of it, they are extremely sensible and they are central to realising the intent of the Bill. Without them it is possible for an authority, in effect, to frustrate the whole intention of the Bill.
Clearly, someone who knows the process, understands his rights and is determined to acquire the information will do so—the measure provides for that—but what about those who do not understand the process and who are not determined? One can envisage an authority frustrating them by asking why they want the information and not volunteering what is available and not assisting them.
941 My noble friend Lord Lucas mentioned that we have touched on this point in earlier amendments. In responding to Amendment No. 25 the noble and learned Lord, Lord Falconer, referred, quite properly, to Clause 10(1)(c) under which an applicant can request information in summary form. However, if the information is not requested, there is no obligation on the authority either to volunteer or to indicate that that information may be usefully provided in that form. The amendment would embody the spirit of the Bill and I believe that without it problems would arise.
The noble Lord, Lord Lester, touched upon the argument that there may be a case for not including it on the face of the Bill, but for putting it in the code. I see the argument for that, but my preference would be for something to be on the face of the Bill, perhaps in the form of the amendments before the Committee, and for the code of practice to flesh out the matter and how it should be given effect.
The amendments touch on an important point. I believe that the amendment in the name of my noble friend Lord Lucas goes more to the spirit of the Bill, although in terms of drafting I believe that the amendments of my noble friend Lord Mackay are preferable. Those are important points and there is a case for putting something on the face of the Bill.
§ Lord Hunt of Chesterton
I also support the general idea behind these amendments. Noble Lords have talked about public authorities and government departments, but of great concern to the scientific community is the fact that a huge amount of information is issued by agencies. Government agencies are not listed as such. I presume that organisations such as the Ordnance Survey, the Meteorological Office, many health departments and so on are included in government departments. Clarity on that matter would be helpful.
There must be greater encouragement to openness. New Zealand, which is often lauded as an open country, was the first in the world to introduce exorbitant costs for certain kinds of data. It required great protests by other countries to make New Zealand take a more sensible view. Therefore, cost as well as openness is very important.
Another feature about which the scientific community is extremely concerned is the ready electronic access of information. The point made earlier by the noble Lord, Lord Lucas, was extremely important. This should be seen as part of making assistance very easy. I am trying to do something about the fact that the House of Lords does not receive meteorological forecasts and data from one of its own agencies in an easy and open fashion. One has seen recent reports from the United States that people are able to obtain information from government electronically very quickly in a way that is not possible in this country. That is all part of our expectation of how the Bill will impact on people. I hope that the way that the Bill is presented, including this clause, will assist that.
§ Lord Bassam of Brighton
The Government recognise that these amendments are well meaning.
942 Each in its own way seeks to place a duty on public authorities to assist applicants either to understand or exercise their rights under the Bill. The noble Lord, Lord Lester, put his finger on it when he said that it was all about a cultural change. I agree with that. Amendment No. 81 moved by the noble Lord, Lord Lucas, seeks to achieve that by placing a duty on the authority to give reasonable assistance to an applicant, having regard to the relevant guidance in the Secretary of State's code of practice. The two amendments moved by the noble Lord, Lord Mackay of Ardbrecknish, seek to achieve a comparable result, although in this case the duty to assist a member of the public in making a request for information is to be unlimited, while the public authority is required to provide such assistance as is practicable in assisting the applicant to understand the access and appeal procedures within the Bill.
I well understand the good intentions which have informed both noble Lords in moving these amendments. It is an understatement to say that I have considerable sympathy with the desire to ensure that the public is able to enjoy the rights which this Bill will provide. However, we do not believe that the amendments as drafted necessarily offer a sensible way forward.
When we replied to the report of the Select Committee on Public Administration on the White Paper, the Government accepted the need for authorities to give such assistance as set out in the amendments. However, on reflection, the Government decided that the best way to ensure that was not through the creation of statutory duties along the lines proposed by either of the noble Lords. The reason for this is that statutory duties must be clear and definite if they are to have genuine meaning, not only so that authorities are clear as to how to follow them but so that the enforcement body, in this case the commissioner, can be sure when duties have been breached.
The proposed amendments would place a duty on authorities which would be vaguely defined and therefore difficult to enforce. What are reasonable steps in one situation may be very different in another, depending on the type of request, the type of authority and the type of questioner. The kind of assistance that a large government department might reasonably give to an individual requester would be different from the kind of assistance that a GP might reasonably be able to give to a multinational drug company that made a request. It is all rather vague. The Government believe that these good intentions might well lead to bad law. The amendment moved by the noble Lord, Lord Lucas, would help in seeking to give guidance as to what might be considered reasonable by referring to the provisions set out in the code of practice which my right honourable friend the Home Secretary will issue.
Clearly, it is good practice for authorities to give help where it is appropriate and in a manner that is appropriate. I am certain that the code is the correct place for such advice to be set out. We have, therefore, drafted the Bill to include a requirement that the Secretary of State's code of practice under Clause 44 should include guidance on the provision of advice by 943 public authorities to persons who propose to make, or have made, requests for information from them. But we have gone further than that. Clause 46 of the Bill places specific duties on the information commissioner to provide advice to the public and, importantly, to perform her duties under the Bill in such a way as to promote good practice and the observance of the requirements of the legislation and the provisions of the codes of practice by public authorities.
I have a problem, however, with the noble Lord's amendment which would introduce a requirement that those aspects of the code should be mandatory. The strength of the Government's proposals is precisely that they leave the code as a flexible medium. This means that the code can set out the kind of assistance authorities should give in broader terms than is possible in a statutory provision. It also means that the commissioner, when issuing practice recommendations to authorities which have failed to comply with the code, can have regard to current best practice in making her decision, not just the strict letter of a statutory provision. I shall have more to say about enforcement of good practice in a moment.
§ Lord Lester of Herne Hill
It would assist the Committee if it could see the draft code during these debates to see whether some statutory provision is needed or whether it is well taken care of in that code. Is it possible for the draft code to be made available before Report stage so that the Committee can consider its contents?
§ Lord Bassam of Brighton
I believe I am right in saying that a copy of the draft is in the Libraries of both Houses. If the noble Lord wishes to have it, I undertake to provide a copy to him and other Members of the Committee who have taken part in the debate.
I need to say a word about Amendments Nos. 28 and 29 spoken to by the noble Lord, Lord Mackay of Ardbrecknish. The first of those amendments would introduce a statutory duty on public authorities to assist applicants to make a request for information, which is a very desirable outcome. To that extent the amendment echoes the intention behind the earlier amendment moved by the noble Lord, Lord Lucas. Strangely, the amendment in the name of the noble Lord, Lord Mackay, makes that statutory duty an open-ended one by missing out the qualification that the noble Lord, Lord Lucas, thought appropriate; namely, that the assistance offered should be "reasonable".
If Amendment No. 28 were accepted every public authority would be under a statutory duty to make available an unspecified amount of its resources and energies at the behest of an applicant to assist that applicant to make an application. When would that duty be fulfilled—only when that applicant had framed his or her "ideal" request? Clearly, in the circumstances that would be over the top because of the burden which it could place on such authorities, many of which, we should recall, would be small 944 bodies or even individuals. They could be school governing bodies, my favourite small local authority, Adur District Council, a primary care group or a general practitioner. The burden on some of those public bodies could he quite disproportionate.
The second amendment of the noble Lord, Lord Mackay, requires that a public authority should be under a duty expressly to assist an applicant to understand the procedures for making an application for information or appealing against a refusal to disclose information. I welcome the recognition in this amendment, if not the earlier one, that any duty should be qualified—in this case by what is practicable—and not open-ended. However, while I welcome the amendment I cannot commend it to the Committee for reasons that I have already explained; namely, in essence the duty is inappropriate in such circumstances.
I said that I would return to the issue of enforcement. I fully accept that compliance with the published codes of practice would not be enforceable in the courts in the same way that a statutory duty might be. As the provision is drafted, the information commissioner has the power to look at compliance and issue practice recommendations. I believe it would be an exceptional authority which wilfully ignored such a recommendation, particularly given the commissioner's powers to name and shame in any report that she might make to Parliament. An additional point is that the code of practice could be referred to in any test case which was the subject of judicial review. The powers of naming and shaming should not be underestimated in regard to public sector bodies keen to keep the confidence of the public they serve.
Perhaps I may pick up one or two points that have been raised in the debate.
§ 7 p.m.
§ Lord Richard
Before my noble friend leaves that point, may I ask him a question on what he has said already? He said that there will be a duty on public authorities to advise. That is contained in the code. Is there any duty to assist as well as advise?
§ Lord Bassam of Brighton
My understanding is that they will have a duty to both advise and assist. I think the two come together.
§ Lord Bassam of Brighton
Yes, I think that is right.
My noble and learned friend Lord Archer asked a simple question; will the Government produce a booklet? It will not be a matter for the Government, it will be a matter for the information commissioner. But we expect to prepare information for the use of both authorities and applicants. The noble Lord, Lord Lester, asked whether there will be any provisions in the code of practice? The answer is yes. The draft code—as I said earlier—is published and it contains provisions on good practice as regards providing assistance.
945 That covers most of the questions that were asked earlier.
§ Lord Archer of Sandwell
Before my noble friend sits down, perhaps he will answer the other question which I put to him. Will the code recommend that authorities give assistance to people whose request for information does not fall within the Act—for example, because it is not in writing? They may not know that they have to put the request in writing. Will authorities be required to point them in the right direction?
§ Lord Lucas
I am grateful to the Minister for his replies. I shall read them with great interest. However, I think the Government are missing the fundamental importance of this area; namely, the confidence required by an ordinary member of the public when dealing with local authorities or whoever, in knowing that that authority is under a duty to do its best to assist him, rather than, as has been our common experience—particularly for Members of the Committee opposite in their long years of Opposition—dealing with a source of information who is half the time doing his very best not to give any information or advice in a helpful way. If we wish to end that culture, or at least if we wish not to duplicate that culture with members of the public, which is extremely frustrating and off-putting for them, we need to have something firmer in the Bill.
The noble Lord, Lord Richard, asked whether there is presently on the face of the Bill any mention of assistance as well as advice. At present there is not. It should be there in Clause 44(2)(a) or thereabouts. I hope my noble friend will agree that, given the advice that the Minister has given us, we need to give thought to how we can anchor that with some clarity on the face of the Bill in order to make absolutely obvious to a member of the public that a public authority is under a duty to assist him.
§ Lord Mackay of Ardbrecknish
I am grateful to the Minister for his fairly long reply. I thought it was stronger on the textual analysis of my amendments than it was on actually addressing the principles behind my amendments, which were backed by the noble Lord, Lord Lester, and indeed by noble Lords behind him. I was not at all convinced by the argument about codes of practice. My memory is not so short that I cannot recall the phrase,If pressed, promise a code of practice",and that keeps it out of the Bill.
§ Lord Lucas
Under the Bill, will the noble Lord have to turn over his speaking notes so that we can see the advice on the matter?
§ Lord Mackay of Ardbrecknish
I can tell that it says "resist" without even looking. It seems odd that the Government should set their mind against the proposition that we should have something on the Bill. I accept the textual analysis of my amendments. But I 946 remember being told by Members of the House, when I was leading for the government, that the idea of reasonableness in all the circumstances was well-known in legal circles and was not a problem for the courts to resolve and so on. So it seems to me that it will not be difficult to devise a clause which will meet the requests made by noble Lords.
I shall not read them out, but perhaps I may commend to the Minister Section 13 of the Official Information Act 1982 in New Zealand; Section 15(3) of the Freedom of Information Act 1982 in Australia; and Section 6(2) of the Freedom of Information Act 1997 in Ireland. They all deal with this problem on the face of the Bill. Those of us who think that this should be on the face of the Bill will probably read what the Minister says, regroup and return with an amendment which even his textual analysis will not be able to knock down. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 29 not moved.]
§ Schedule 1 [Public authorities]:
Lord Falconer of Thoroton moved Amendment No. 30:
Page 44, line 11, leave out paragraph 6.
§ The noble and learned Lord said: These are amendments which are good housekeeping in line with commitments made in another place that we would ensure that the list of public authorities is kept up to date. The amendments do not introduce any new policy, but we propose changes which fall into one of four categories.
§ First, we have looked again at the way in which schools and further and higher education institutions are described in Part IV of Schedule 1. Schools have no legal identity and it is inappropriate to make them the subject of statutory obligations. Therefore, we have to change the reference to a reference to the governing body of the school or education institution. Information about institutions which do not have governing bodies, such as pupil referral units and maintained nursery schools, will be accessible through the local education authority directly responsible for such institutions. Similar arrangements are made in respect of schools and education institutions in Northern Ireland. Let me stress that this change does not reduce or limit the coverage of such bodies under the Bill. It simply ensures that the policy of including them within the scope of the legislation can have effect.
§ Secondly, a number of bodies are added to the schedule. These are bodies which were not identified on earlier trawls. They include, among others, the General Medical Council, the General Dental Council, the Insurance Brokers' Registration Council and the London Transport Users' Committee.
§ Thirdly, there are five entries to be deleted from the schedule. These are in respect of the entries relating to the police functions of the Port of London Authority, the Commonwealth Institute, the Local Government Commission for Wales and the Cardiff Bay Development Corporation, together with a duplicate entry for the Public Health Laboratory Service Board. 947 These deletions are necessary either because our further research has shown that the entry would not be appropriate because the status of the body has changed or the initial inclusion was made in error. The police function of the Port of London Authority, the Commonwealth Institute, and the Cardiff Bay Development are examples of the former, while the entry relating to the Local Government Commission for Wales is quite clearly a confusion with the Welsh local government boundary commission.
§ Lord Roberts of Conwy
Amendment No. 30 deletes paragraph 6 of Schedule 1. Paragraph 6 states:An Assembly subsidiary as defined by section 99(4) of the Government of Wales Act 1998".That in turn means any body corporate or other undertaking, of which the National Assembly is a parent, any trust of which the Assembly is a settlor and any charitable institution of which the Assembly is a founder. Will he explain why there has been that change of mind on the part of the Government? Will he also explain why in paragraph 5 of the schedule the National Assembly for Wales is listed as a public authority, but Clause 3(8) of the Bill states that,'government department' includes the National Assembly for Wales"?Furthermore, Clause 81 states that "government department" does not include the National Assembly for Wales. Is it not clear that there is still a considerable amount of confusion in the Bill with regard to the position of the National Assembly and of other bodies related to it or subservient to it in Wales? Will the noble and learned Lord clarify the position?
§ Lord Falconer of Thoroton
The Bill requires amendment in relation to the National Assembly for Wales. In group 10 on the groupings list, to which we shall come later, there is a whole series of amendments which deals with the noble Lord's point. Perhaps I may deal with his specific point then because there is a whole structure of amendments in relation to the position of the National Assembly for Wales.
I indicated that the entry relating to the Local Government Commission for Wales is clearly a confusion for the Welsh Local Government Boundary Commission. As a result, an amendment has been made in that respect. The police function of the Port of London Authority has been transferred to the Port of Tilbury (London). This latter body will be consulted with a view to being brought into the scope by an order under Clause 4.
Finally, the amendments make some minor changes to the names of bodies already listed. Taken together the amendments update the schedule and maintain its accuracy. The Government intend that Schedule 1 will be reviewed regularly and kept up to date. Clauses 3 and 6 make provision for any further updating to be done as and when necessary. I beg to move.
§ Lord Cope of Berkeley
I am slightly hesitant to intervene in these debates as I did not take part in the proceedings at Second Reading. However, as the 948 Minister knows, my noble friend Lord Mackay of Ardbrecknish has left to go to Scotland in order to assist at the funeral of the right honourable gentleman Donald Dewar. Those who heard my noble friend the other day when the tributes were paid will fully realise why. I have therefore undertaken to take over his role for the remainder of the evening, however long that may prove to be.
What interests me is that it takes 25 amendments to put right a straightforward list, one would have thought, of government bodies. Those of us who have become alarmed about the huge proliferation of government bodies are interested, although not surprised, to see that the Government initially did not know what bodies they were responsible for, got the names of some of them wrong and have had to correct them. It is a frighteningly long list when one looks at it from that point of view. But the fact that the Government got some of the names wrong is a cause for worry. It is a little like a company not knowing what subsidiaries it owns. That would be extremely worrying in the private sector.
However, I certainly do not wish to stop the Government correcting the list. I note what the noble and learned Lord said about it having to be corrected in the future. That was an accurate prediction.
§ Lord Falconer of Thoroton
I said "kept up to date". I beg to move.
On Question, amendment agreed to.
Lord Falconer of Thoroton moved Amendments Nos. 31 to 55:
Page 45, line 29, at end insert—
(" . The London Transport Users Committee.").
Page 46, line 11, at end insert—
(" . A Community Health Council established under section 20 of the National Health Service Act 1977.").
Page 47, leave out lines 4 to 23 and insert—
(" . The governing body of a maintained school, within the meaning of the School Standards and Framework Act 1998.
.—(1) The governing body of—
(2) In sub-paragraph (1)—
Page 47, leave out lines 25 to 36 and insert—
(" .—(1) The managers of—
(2) In sub-paragraph (1) "managers" has the meaning given by Article 2(2) of the Education and Libraries (Northern Ireland) Order 1986.
.—(1) The governing body of—
(2) In sub-paragraph (1) "governing body" has the meaning given by Article 30(3) of the Education and Libraries (Northern Ireland) Order 1993.
.—(1) Any person providing further education to whom grants, loans or other payments are made under Article 5(1)(b) of the Further Education (Northern Ireland) Order 1997.").
Page 48, line 9, leave out paragraph 73.
Page 48, line 34, at end insert
("The Advisory Committee on Consumer Products and the Environment.").
Page 49, leave out line 9.
Page 49, line 15, at end insert—
("The Airborne Particles Expert Group.").
Page 50, leave out line 7.
Page 50, line 23, at end insert—
("The Commission for the New Towns.").
Page 50, leave out line 43.
Page 51, line 2, at end insert—
("The Council for Professions Supplementary to Medicine.").
Page 51, leave out line 33.
Page 51, line 48, at end insert—
("The General Chiropractic Council.
The General Dental Council.
The General Medical Council.
The General Osteopathic Council.").
Page 52, line 1, leave out ("Fund").
Page 52, line 38, at end insert
("The Insurance Brokers Registration Council.").
Page 53, leave out line 4.
Page 53, leave out line 18.
Page 54, leave out line 18.
Page 54, line 21, leave out ("Relations").
Page 54, line 33, at end insert—
("Resource: The Council for Museums, Libraries and Archives.").
Page 55, line 38, at end insert—
("The United Kingdom Central Council for Nursing, Midwifery and Health Visiting.").
Page 56, line 36, at end insert—
("The Civil Service Commissioners for Northern Ireland.").
Page 57, line 28, at end insert—
("The Northern Ireland Civil Service Appeal Board.").
Page 58, line 5, at end insert—
("The social fund Commissioner appointed under Article 37 of the Social Security (Northern Ireland) Order 1998.").
§ On Question, amendments agreed to.
§ Schedule 1, as amended, agreed to.
§ 7.15 p.m.
§ Clause 3 [Amendment of Schedule 1]:
Lord Cope of Berkeley moved Amendment No. 56:
Page 2, line 27, leave out ("may") and insert ("shall").
§ The noble Lord said: In moving this amendment, I wish to speak also to Amendments Nos. 60, 64 and 65. Amendment No. 56 seeks to alter the word "may" to "shall". As we discussed in connection with the previous group of amendments, changes will undoubtedly be required to Schedule 1. In those circumstances, it is important that the Secretary of State should not merely have the option at his discretion to alter the list but should be under an obligation to alter the list. If it turns out that there is an error in the list, or a development takes place and a body is not added to the list for the time being, an individual seeking information may find that he is frustrated by the fact that the Secretary of State has not done so. If the Secretary of State is under an obligation, it is more likely to happen.
§ Amendment No. 64 relates to the same power in Clause 4. The amendment seeks to make it a duty on the Secretary of State rather than an option to add any necessary bodies that come along. Amendment No. 65 seeks to make it a requirement that the Secretary of State should consult the commissioner and should allow not less than 20 working days for people to respond to such consultation. The Secretary of State is already under a duty to consult people to whom the order relates. As the Bill stands, the bodies have an infinite amount of time in which to respond and can delay doing so if they do not wish to fall foul of these provisions or to be enmeshed in these provisions too quickly. The 20 working days apply mainly to them. It would be an advantage if the commissioner were also consulted at the same time as the people to whom the order relates.
§ Amendment No. 60 gives the Secretary of State the duty rather than the discretion to remove bodies when they have ceased to exist. The list is long enough. We do not want it cluttered up with bodies that should not be on it. We think that the Secretary of State should have a duty to do that and to keep the list up to date. I beg to move.
§ Lord Falconer of Thoroton
Amendments Nos. 56 and 60 would have the effect of removing the Secretary of State's discretion in respect of making orders bringing bodies within the remit of the Bill. If they satisfied the criteria, they would have to be brought in. If we were to accept the amendments it would mean 951 that the Secretary of State would have to include in Schedule 1 bodies such as the security and intelligence agencies, even though it has been a matter of common agreement between the parties that it is necessary to exempt all information held by these agencies from the scope of the Bill in order to preserve their ability to carry out their duties effectively in the interests of the nation.
The amendments could also lead to administrative nonsense. They take no account of the life-span of any body. it is possible that a body may come into being, perform its functions and be almost at the point of completing its task before the Secretary of State has had a chance to make an order. Nevertheless, under these amendments he would have to make an order which would have the effect of bringing the body within the scope of the Bill for only a very short period before it was wound up. Although it is a point to which I shall return later, I should perhaps note that under Amendment No. 64 the Secretary of State would then be under a duty to make a further order removing the entry in respect of that body from the list in Schedule 1.
I want to be clear about the Government's intentions in respect of coverage under the Bill. We have produced a Bill which provides rights of access to information held by an astonishingly wide range of public sector bodies. It is right that the public should have that access. It is our intention that the normal and proper course of action would be that, whenever the Secretary of State becomes aware of the creation of a new public authority, he should seek to ensure that it is brought in as quickly as he reasonably can. In some cases that would be achieved through the primary legislation setting up the new body. In other cases there will be no need to take action because it will be covered by one of the generic descriptions in Parts I to V of Schedule 1. In some instances the Secretary of State would need to use the order-making powers in Clauses 3 and 4, but as the lists in Parts VI and VII of Schedule 1 show, many of the bodies which might be brought in under the order-making power of Clause 3 may be relatively or absolutely small bodies and offices. Many others which will fall to be considered under the Clause 3 powers may be working groups or task forces set up with a limited lifespan or having no real independent character from their parent or sponsoring department. Comparable considerations are likely to apply in the exercise of the Clause 4 powers.
We believe it is sensible that in those circumstances the Secretary of State should have some discretion to consider the full facts and implications of listing for FoI purposes before proceeding to make an order—not so that information can be withheld from the public, because in almost every case it is likely that the information will be available from another authority, but because it would be irresponsible to designate all those meeting the broad criteria as public authorities without regard to other relevant considerations.
These amendments could impact disproportionately in particular on those authorities which are to be brought within the scope of the order-making power in Clause 4. The criteria under Clause 4 are 952 relatively broadly drawn and have at the margins some areas for debate as to whether a body is performing public functions. A statutary requirement to include all bodies ultimately held by a court to fulfil the criteria could well lead to the Bill's coverage extending far into what would generally be regarded as purely private areas. A discretion on the part of the Secretary of State would avoid that risk.
Furthermore, the amendment would effectively negate the requirement at Clause 4(3), which requires the Secretary of State to consult any person in respect of whom he proposes to make an order. These amendments would require the Secretary of State to make the order irrespective of the outcome of the consultation. That would be an obvious nonsense.
Amendment No. 64 would require the Secretary of State by order, to remove the entry in Part VI or Part VII of Schedule 1 which relates to any body which no longer meets the criteria to be designated as a public authority by virtue of the conditions set out in Clause 3. I can understand that this amendment would be argued as complementary to those we have just looked at and in effect no more than a reassurance that the lists at Schedule 1 would all be kept up to date and that no body would be inappropriately required to fulfil the duties of a designated public authority for the purposes of this Bill.
The order-making power in Clause 3(5) is necessary so that the lists may be routinely updated to remove dead wood: that is, bodies which no longer exist or no longer meet the necessary criteria for listing as public authorities. However, in truth this amendment adds nothing to that purpose. No amendment is required to ensure that such dead wood is removed in order to be satisfied that the scope of the Bill is not exceeded because of a public authority's changing circumstances. The Bill already achieves exactly that form of housekeeping.
Clause 3(4) ensures that Parts VI and VII are self-regulating by providing that a body or office ceases to be a public authority by virtue of its inclusion in the schedule if it ceases to satisfy the conditions in subsections (2) or (3) of that clause. Therefore it is quite unnecessary to provide a relevant duty for the Secretary of State. The Government recognise the importance of ensuring the widest possible coverage of public service functions within this Bill, but placing inflexible duties on the Secretary of State in the way these amendments propose would be wrong. I would urge the noble Lord to withdraw these three amendments.
If I may now turn to Amendment No. 65, it would have the effect of requiring the Secretary of State to consult the commissioner in every case before making an order under Clause 4. I can understand the noble Lord's concern to ensure that Ministers make a decision to designate a person or body under the powers in Clause 4 only after the most careful consideration. However, I wonder just how the noble Lord could conclude that placing a duty on the Secretary of State to consult the commissioner in each and every case would assist in delivering that outcome.
953 It may be that in some cases the commissioner has detailed knowledge of the kinds of information which a body holds and will have taken a view as to whether and to what extent that body ought properly to be considered to be exercising functions of a public nature. In such circumstances I accept there would be value in consulting her but in many instances there is no reason to believe that the commissioner will have any knowledge of the relevant circumstances. In other cases there might, and would, be no dispute as to whether the body should be designated for FoI purposes and therefore little would be gained by imposing an obligation to consult where the result is obvious and the information commissioner may have nothing to add.
I cannot see what is gained by quoting this duty. That does not mean that the Secretary of State ought never to consult the commissioner. I have set out circumstances in which that might be sensible but an across-the-board duty does not look at all sensible.
I turn now to the second part of the amendment which would introduce a requirement to allow 20 working days for any response to the statutory consultation required by Clause 4(3) before any order to designate a public authority can be made. I understand the noble Lord's concern not to see organisations bounced into responding to a consultation, but I can assure him that the Government have no desire unnecessarily to increase the burden on private sector organisations and that we shall not do so in this respect either.
As your Lordships will be aware, government guidelines already provide that a reasonable period shall be allowed for responses to any public consultation exercise. Of course we will need to be flexible in how we apply these guidelines, but as a general principle we shall look to ensure that the normal guidelines of a minimum eight weeks' response timetable are followed for consultations in respect of any proposal to make an order under Clause 4 of the Bill. I would suggest that is a more appropriate way of dealing with a particular problem and the question of representations than setting out a statutary timetable. I would therefore urge noble Lords to withdraw their amendments.
§ Lord Norton of Louth
Before the noble Lord sits down, on Amendment No. 56 I understand completely the argument he is advancing against inserting the word "shall". I also appreciate that in effect what he is doing is reading into the record that the expectation is that the Secretary of State shall normally schedule a body but will not do so in all circumstances, for the reasons given. Would the noble and learned Lord be amenable if an amendment were proposed which provided a form of words placing the onus on the Secretary of State to do that without making it a requirement, rather than just leaving it on the face of the Bill, where it is simply at the Minister's discretion, 954 in a way through shifting it in the direction the Minister has clearly indicated he would expect the Secretary of State to go?
§ Lord Falconer of Thoroton
I do not think that would necessarily be appropriate because I have indicated what the reasons are. I have done it in some detail precisely for the reasons indicated by the noble Lord. Flexibility, I believe, is quite important as long as one sets out the intention, as I have done, of creating discretion. If one does it in a different way one is in a sense unnecessarily and possibly damagingly limiting the discretion. I think the way we have proposed is the most effective way of achieving the purpose.
§ Lord Cope of Berkeley
I have some sympathy with what the noble and learned Lord said although some points did slightly alarm me. There is no intention on my part or that of my noble friend to include the security services in the provisions of this Bill. I must admit that I thought that Clauses 21, 22 and so on were sufficient to ensure that and therefore that this amendment did not go against that principle. Of course I may be wrong about that.
I was slightly alarmed by the idea that government bodies might be born, live and die without ever being in existence long enough to get enmeshed in these provisions. That does seem to suggest a huge proliferation of government bodies of an extremely short-term nature and also that the Secretary of State does not have in mind to be all that nippy in inserting new bodies into this list.
Nevertheless, as my noble friend Lord Norton indicated, the Minister has given us food for thought on these matters. We shall duly—I shall not carry the analogy too far—think about them. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.