HL Deb 27 October 2000 vol 618 cc648-56

1.48 p.m.

Baroness Hamwee

rose to move, That an humble Address be presented to Her Majesty praying that the order, laid before the House on 8th August, be annulled (S.I. 2000/2060).

The noble Baroness said: My Lords, I should declare an interest as deputy chair of the Greater London Assembly. I must not in your Lordships' House speak on behalf of the Assembly—nor indeed on behalf of the mayor—although I am not sure that I could ever speak quite on behalf of the mayor. However, I am privy to the GLA's views and I base my remarks on those.

For me there is no personal conflict because I believe that information concerning government at every level and the public sector should be in the public domain unless there is a very good reason for it not to be. In the title of the order we see the words "Protected Information". It would more accurately be called "Restricted Information".

Before I comment on the detail of the order, I should like to make a general point. The order was laid before Parliament during the Recess and came into force while both Houses were still in recess. Thus it was not possible for a Member of either House to pray against it. In August I was advised by the Clerks that I could apply to the noble and learned Lord the Lord Chancellor to recall the House so that we might debate the order, but I thought it fairly likely that he would not have been amenable to such a request. I therefore did not ask him so to do. However, I am glad to have the opportunity to raise the matter today.

This is a serious matter. Such an arrangement forms a block on Parliament's opportunity to scrutinise the actions of the executive. The order has been made under the provisions of the Greater London Authority Act 1999. Under the Act, the Assembly has the power to require the attendance of witnesses and to order the production of documents. The Secretary of State is permitted by the legislation to prescribe categories of information and documents which a person may refuse to give or to produce. Similarly, the Secretary of State may prescribe categories of information which a functional body—such as Transport for London, the new body which, once the Tube has been transferred, has been set up to deal with the whole of London's transport, or the fire authority, the Metropolitan Police and the London Development Agency—may refuse to provide to the mayor.

The Assembly can require information and the production of documents from members of staff both of the Greater London Authority and of the functional bodies, past and present chairs and members of the functional bodies, contractors and their employees, recipients of GLA grants and their employees, and past and present mayors and members of the Assembly. Each of these categories can claim the benefit of the protection afforded by this order. To put that into a more realistic light, the Assembly is entitled, for example, to summon contractors of a functional body—such as contractors for Transport for London—to appear before it. I believe that it would be, to put it bluntly, daft for the Assembly not to be able to require that information should be produced; otherwise—again, to put that more accurately—it would allow the contractors to refuse to disclose information unless a good reason is offered.

Before the order was laid, consultation took place between the Government and the Greater London Authority. 1 must acknowledge that amendments were made to the original draft. However, there remain some serious concerns. The initial draft provoked responses which dealt with two areas of general concern, as well as other matters of detail. It was believed that the main principle to establish should have been that the mayor and the Assembly should have access to all documents unless they were deemed confidential for a specifically defined public interest reason.

The order is based largely on the provisions contained in the Local Government Act 1972. The relevant schedule to that Act on which this order is based has as its main application the means by which to define categories of information which are not be discussed in the presence of the general public. That is a rather different scenario from the one which would apply in the case of the Assembly. I believe that it is inappropriate for an order dealing with the right of access for the mayor in carrying out his executive functions or the Assembly in its role as a scrutineer. It ignores the ability of the mayor and the Assembly to receive information in confidence. I should say to the House that, although I dislike the situation where anyone acting in a public role receives information on a confidential basis—namely, so that it cannot be disclosed to the general public—even that is better than not receiving such information at all.

A number of other objections were raised on the draft order and, as I have said, some of those have been addressed in the final form of the order. The schedule to the order sets out the categories of proscribed or protected information. Perhaps I may deal with some of the paragraphs and give examples of where the GLA, and therefore myself—having been given the brief—consider that problems could arise.

The first paragraph concerns information relating to employees of the various bodies in question. The current wording does not address the ability of the functional bodies to prevent access to information on the employment contracts of senior officers. Public companies, as well as local authorities, must publish in their accounts details regarding employment. At a time when concerns continue to be expressed as regards "fat cat salaries"—to put it in to colloquial language—I think that it would be entirely right for the Assembly to be able to require the functional bodies such as Transport for London to provide that kind of information. Transport for London, which is chaired by the mayor, has recently appointed a new chief executive who will be paid a very substantial salary. It so happens that the current mayor has made that information public, although the detail as regards performance bonuses has not yet been finalised. We do not yet know those details and it may be that Transport for London will decide that it does not wish to make such information public. That is the kind of information that the Assembly should be able to require and to put into the public domain.

Paragraph 3 deals with information in connection with legal proceedings. In order that the Assembly may fulfil its scrutiny functions, it needs to know fully the reasons for the actions undertaken by a functional body. I accept that occasionally the detail of a particular proceeding could not appropriately be discussed in draft. However, the order as presently worded could prevent access to information on litigation which, if the Assembly were to discover it, could identify systems failures. For example, it could be a series of adverse decisions or settlements as regards similar personal injury or employment tribunal cases. If these were put into the public domain, a stream of discrimination claims might be disclosed.

Paragraph 4 deals with information relating to actions in preventing the investigation or prosecution of particular crimes or regarding techniques or methods of criminal investigation. It is worth making the point that while there is no right to summon information from the Metropolitan Police, this paragraph would prevent access to investigations being undertaken by the functional bodies. It has been suggested to me that if the Stephen Lawrence case were to take place today, the mayor and Assembly could be excluded from access to information other than sight of the final public report.

Noble Lords will recall the case of the nun who fell asleep on a bus and was subsequently prosecuted for not having a ticket. It would be a nonsense if that kind of matter could not be investigated. Despite discussions which have been conducted between officers of the Greater London Authority and government officials, we believe that a little alteration in the drafting before the order was produced in its final form could have helped to ameliorate at least some of the GLA's concerns in this area.

Paragraph 6 deals with information on the protection of prominent people, national security and counter terrorism. Paragraph 7 addresses the provision of police services for national or international purposes. I do not, of course, suggest that anti-terrorism measures should be put on the GLA's website for the benefit of those who may wish to see the plans, but I do not understand why budget information cannot be made available, on at least a confidential basis, to the mayor and the Assembly. This would not prejudice operational activity. As I understand it—the noble Baroness, Lady Hanham, may be able to confirm this—it used to be the case that borough leaders were made privy to information about total budget costs on a confidential basis.

I make these points because the Metropolitan Police carry out activities of a national and international nature. It is important that, when scrutinising the expenditure of London's police, Londoners should be confident that their elected representatives know the balance in the budget of what is spent on policing in London for London, and what is spent on activities which have an international flavour.

That could be extended to the question of where the instructions may come from for policing a particular demonstration. Your Lordships will recall the controversy surrounding the demonstrations at the time of the visit of members of the Chinese Government. That is the kind of thing that London's elected representatives should be able to question.

The whole of the schedule uses the terminology "information relating to", and then it lists the categories. It does not, for instance, mention "information required to ensure the confidentiality of"—in other words, it is too broad. If particular information needs to be withheld for good reason, there may be an argument for that. If information should not be splashed across the Evening Standard or put up on the GLA's website, there should be a framework to enable its production on a confidential basis.

London's government is in its early days, I know, but I hope that the Minister will acknowledge that there is a need for a swift review of the principle of the order and its mechanisms. London's newly elected representatives are eager—for themselves and for their successors—to do their job of scrutinising the actions of the mayor and London's functional bodies and working for the good of London. They should be able to carry out that duty without unnecessary hindrance. I beg to move.

Moved, That an humble Address be presented to Her Majesty praying that the order, laid before the House on 8th August, be annulled (S.I. 2000/2060).—(Baroness Hamwee.)

Baroness Hanham

My Lords, I am aware that the Motion moved by the noble Baroness commands all-party support on the Greater London Authority.

The Government's intention to prescribe the information that the mayor and the Assembly could require from its functioning bodies was laid out in the Greater London Authority Bill, but I am not aware that it attracted a great deal of attention at that time. Perhaps that was because what was to be prescribed was not given much detail or much thought during the passage of the Bill.

What now appears to have happened is that, following two consecutive consultation processes on the matters to be prescribed, the Government have apparently encompassed areas, which the noble Baroness has outlined, which could reasonably be seen to be legitimate information for the Greater London Authority to have. The noble Baroness has identified some of these areas and one wonders what objection there could be from a functioning body to either supplying the information requested or being open to questioning about it.

The passage of the Freedom of Information Bill has opened up the amount of information which can reasonably be protected by a public body. It is plain that the functioning bodies—which, again, the noble Baroness has detailed—are just such authorities. For them to be able to protect information from the Greater London Authority on matters which affect the latter's modus operandi seems to be drawing the net too wide.

The Greater London Authority can, in any event, protect the information by using Section 12 of the Local Government Act 1979 to discuss sensitive issues in private. The level of prescription in this order seems to be moving in the wrong direction to the intentions of the Freedom of Information Bill and against "the cultural change to openness" to which the noble and learned Lord, Lord Falconer, referred in this House the other day.

There may and probably should be a constraint on some information, such as the personal details of staff, contract negotiations while they are in progress—but even here it is difficult to see why they should not be shared in private with the Greater London Authority or with the mayor who may be overseeing them—legal proceedings which are sub judice, matters of security or sensitive criminal investigations. No one disagrees that matters such as these should continue to be prescribed as not being open to even the Greater London Authority's eyes.

Paragraph 7 seems to be drawn unduly wide. As the noble Baroness said, local government leaders used to meet the Receiver of the Metropolitan Police to discuss the budget—not other matters. While one would not want national security to be jeopardised, many aspects of the police service—such as the budget—could be safely disclosed.

In the two consultation processes the Government will no doubt have received conflicting advice—it would be odd if they did not. They will therefore, not unreasonably, have charted a middle road in deciding what should be prescribed in this first order. It is unfortunate that, although it was one of the consultees, the only way the Greater London Authority can now see to further influence what it sees as being the adverse aspects of this order is by this Prayer.

I hope that the Minister will be able to provide some indication that further discussions between the Government and the elected members of the Greater London Authority can take place quickly to try to iron out a practical and sensible way forward. The order is now issued. Perhaps the best that can be achieved is for such an undertaking to be given in this House today.

Baroness Farrington of Ribbleton

My Lords, when the Greater London Authority Act 1999 was going through Parliament, Ministers consistently made clear that Section 63 and Section 395 orders would be used to establish appropriate arrangements to protect privacy and confidentiality.

They also stressed that categories of information defined by the orders would be a subset of those categories that local authorities may, but are not obliged to, disclose to the public as set out in Schedule 12A to the Local Government Act 1972. We believe that this is the appropriate use of Section 12A, and we do not agree with the noble Baroness, Lady Hamwee.

During the progress earlier this year of what is now the Local Government Act 2000, Ministers undertook to review the categories of exemption listed in Schedule 12A with a view to ensuring that councils could not use the categories to withhold information unnecessarily that should properly be open to the public. This consultation paper will be issued later this year. I assure both noble Baronesses that its findings will be taken on board in the review of this order.

The basis for our case is clear and lies in statute. As the noble Baroness, Lady Hamwee, is aware, Section 58 of the GLA Act makes it clear that the Assembly is treated as a principal council for the purposes of Part Va of the Local Government Act 1972. I appreciate that the Assembly and the elected mayor are the first of their kind in the country. We are breaking new ground. However, we consulted widely with the GLA before the order was made and both sides agreed that this was the most appropriate vehicle.

The provisions in Part V of the Local Government Act 1972 mean that the Assembly can exclude the public from meetings at which there might be disclosure of exempt information of the sort listed in Schedule 12A to that Act. The noble Baroness, Lady Hamwee, used that as an underlying part of her argument as to why the Assembly should receive information. But the Assembly is not obliged to withhold such information from the public. It can choose to make it available. So the only way in which the functional bodies can guarantee that information does not become public is not to provide it in the first place. That was the basis for laying the protected information order.

I should like to address the point made by the noble Baroness, Lady Hamwee, about timing. As she knows, the authority only fully took up all its powers on 3rd July. We took the view that the most important process would be that of consultation. The order is subject to negative resolution and can, therefore, be laid when Parliament is not sitting. We felt that that was important in order to allow for a proper period of time. The period was limited, but the Government made every effort to involve and consult the GLA, and that led to the delay in laying the order.

The Minister in the other place, Keith Hill, was conscious of the newly formed status of the GLA. He has offered to review the order in six months, which will be in January next year. That may answer some of the points raised also by the noble Baroness, Lady Hanham. We shall review how well arrangements have worked and whether any changes are required. That offer was welcomed by the chair of the Assembly, Trevor Phillips, in writing on 14th August on behalf of all Assembly members.

Ministers made it clear to the Assembly and to the mayor that government tried to balance the interests of the mayor and the Assembly on the one hand with those of the bodies and individuals that would be required to hand over documents and information on the other.

The order as laid takes on board a number of the changes that the GLA asked for. I should like to deal in particular with the point about the allegation that the categories of information are too broad. The power in Section 61 of the GLA Act, the Assembly's power to require attendance at assembly meetings, does not limit the Assembly just to ordering the functional bodies to hand over information. It extends the remit to organisations which receive GLA grants and those providing services to the GLA. As such, we were urged in the consultation process to balance the Assembly's right to obtain information with ensuring that these organisations are protected against unreasonable demands made on them by the GLA.

Other changes were requested by the GLA, particularly with regard to police and crime matters. I think all noble Lords will agree that this is a sensitive issue. The Home Office felt that it could not accept any changes that might undermine protection for certain information held by the Metropolitan Police Authority, for example, on the investigation of particular crimes. We had strong representations from the functional bodies during the consultation process and felt it important to take those on board. There is nothing in the order to prevent the Metropolitan Police Authority voluntarily giving general information on provision of police services for national or international purposes. I am quite sure that the members of the GLA will wish to monitor carefully how successfully that works.

We know that the Assembly and the mayor can receive information in confidence but there is a concern about the openness regime. We have watched with interest the degree to which the GLA has conducted its business in public. We fear that it may be difficult for the Assembly to change this stance and to start holding more meetings in private—the noble Baroness, Lady Hamwee, mentioned this—just to address the concerns about confidential and sensitive information being examined in public. However, I am quite sure that that is the kind of issue that the GLA will wish to consider most carefully in the review.

We believe that the mayor should be entitled to the maximum reasonable disclosure from the GLA's functional bodies. In defining what is reasonable, we undertook to include what we regarded as particularly sensitive. I refer to the kind of examples that we seek to protect. Examples are information that would constitute a breach of confidence if disclosed, information that relates to the prevention, investigation or prosecution of a particular crime, or that constituted advice, information or action connected to legal proceedings.

I note the examples that the noble Baroness, Lady Hamwee, gave with regard to a trend in a particular area. I shall want to consider that point carefully and write to the noble Baroness. We do not want to prevent the Assembly doing the job it was elected to do but deep concerns were expressed by the functional bodies during the consultation.

The noble Baroness mentioned information that would constitute information about contracts of employment. I remind the House that the GLA is merging together very different contracts of employment. During the consultation it was stressed strongly that former employees who were transferred under TUPE are entitled to have their privacy maintained in this regard if that is written into their contracts. I have no doubt that the noble Baroness will want to consider that matter further in due course. Just because we have prescribed a category in this order does not ensure that information within it will be kept secret. The body may still give it to the mayor or the Assembly voluntarily.

The noble Baroness, Lady Hanham, referred to freedom of information. Clause 38 of the Freedom of Information Bill makes clear that the Data Protection Act 1998 will remain the key legislation for the regulation of personal information held by authorities and other bodies. In Clause 41 we exempt information which constitutes a trade secret or information whose disclosure would, or would be likely to, prejudice the commercial interests of any person.

We believe that we have established within this order a delicate balance between the interests that were expressed during the consultation. As I said earlier, we are dealing with a very new kind of body. For that reason, and because we want to make sure that if changes are needed there is an opportunity to make them, we have offered to hold a review in January. I sympathise with the noble Baroness's complaint that the order was laid during the Recess. However, I am sure she would agree that lack of consultation would have been an additional complaint had we not allowed sufficient time for that.

I stress that the order does not prevent an open exchange of information on a voluntary basis. I hope that the noble Baroness will feel able to withdraw her objection. I thank those who have taken part in the debate.

Baroness Hamwee

My Lords, I thank the noble Baroness, Lady Hanham, for her support and the Minister for her response.

I am aware that there is nothing to prevent voluntary disclosure. But I believe that our job is to deal with the worst circumstances rather than when life goes well. The Minister talks about balance; and it must be a matter of judgment where that balance lies.

I am grateful to the Minister for her comments on the strand of cases. I hope that there is force in some of the other examples I gave. No doubt they will be used again in discussions in the review. I am grateful for what she said about that. I believe that the Greater London Authority agreed with the Government on the issue of breaches of confidentiality. That is not a matter between us.

I note what the noble Baroness said, too, about the review of Schedule 12A. She rightly reminds the House that, although not a local authority in a general sense, the Greater London Authority is the first authority where the executive scrutiny is split. In that sense, the GLA forges the way for local government. I take the point about the more broad-ranging interests. However, for that reason I believe that the matter is all the more important.

It is time that we allowed the Minister to go away and nurse her cold. I beg leave to withdraw my Motion.

Motion, by leave, withdrawn.

House adjourned at twenty-two minutes past two o'clock.