HL Deb 11 May 2004 vol 661 cc166-73

4.9 p.m.

Read a third time.

Clause 54 [Restriction on disclosure of information]:

Baroness Noakes moved Amendment No. 1:

Leave out Clause 54.

The noble Baroness said: My Lords, throughout our proceedings Clause 54 has been the most controversial clause in the Bill. Its deletion has been recommended by the committee of the Assembly which considered the Bill and was supported by the Welsh Affairs Committee in another place. At previous stages of the Bill these Benches and the Liberal Democrat Benches have also argued that it should be removed. The Auditor-General for Wales has never concealed his dislike of the clause.

I acknowledge that the Minister and his colleagues in the Wales Office have tried hard to resolve the issue. On Report, the Government introduced amendments to allow Clause 54 to be changed by statutory instrument to bring it into line with any amendment to Section 49 of the Audit Commission Act 1998. But that did not take us to whether the Government proposed to change Section 49. Agreeing to change a clause if a section in another Act is changed is a useful undertaking if it is clear beyond peradventure that the Government are resolved to change that section. We had not reached that point when we last considered the Bill on Report.

Let me briefly restate our objections to Clause 54. We believe that applying criminal sanctions to the wide-ranging prohibitions on disclosure of information in Clause 54 is wrong in principle. It means that potential whistleblowers, who we should value in a free society, would be treated more harshly, and would be more likely to be deterred. in relation to local government audit than in any other public sector audit environment.

Let me place on record my thanks for the further work that the Minister has done since Report. He wrote to me last week setting out the Government's latest position and I hope that he will be able to repeat that from the Dispatch Box today. The Government's approach is to align Section 49, and then Clause 54, with the Freedom of Information Act. In doing so, I understand that there will still be circumstances where the Government believe that criminal sanctions will he appropriate for the disclosure of information. Will the Minister say something about those circumstances? At present, Clause 54 is a blanket provision. Can the Minister paint a little more detail about what the refined prohibitions will look like?

When we debated this on Report, the Minister said that he understood that the Auditor General for Wales would take account of the planned changes to Section 49, and therefore to Clause 54, if he sought to use the Clause 54 powers before they were modified. Given the Auditor General's sensible position on this clause, I believe that we can have confidence in that. But will the Minister confirm that the Auditor General will be involved in the evolution of detailed changes. The Minister's letter to me referred to the Wales Office being in touch with the Office of the Deputy Prime Minister and the Department for Constitutional Affairs. I am sure that the ODPM will involve the Audit Commission in relation to changes to Section 49, given the commission's particular attachment to that section. I would not like the Auditor General to be marginalised in those discussions. After all, we have had rather a lot of the English tail wagging the Public Audit Wales dog throughout the Bill.

I hope that the Minister will be able to respond positively to these points. I beg to move.

Lord Livsey of Talgarth

My Lords, I apologise for the absence of the noble Lord, Lord Thomas of Gresford, who has been very involved in the Bill. He is unable to attend this afternoon. I wish to make only a few points on these amendments.

The issue of Clause 54, which concerns whether there should be disclosure and possible sanctions, is a very serious matter. I have seen the correspondence of the Minister on this issue. The noble Baroness has made a number of important points in her speech and I know that the noble Lord, Lord Roberts of Conwy, has made some very pungent remarks in relation to these matters from experience in the former Welsh Office. I believe that, as far as public audit is concerned, the disclosure of information is extremely important. There have been discussions about that aspect during the course of proceedings on the Bill and Amendment No. 162 removed the restrictions on the disclosure of information.

The Local Government Association put forward the argument that it is for the electorate, not an auditor, to decide whether it was satisfied with the services provided. I would submit that electors need facts and it is the auditor who establishes the facts upon which the electorate can judge issues, in particular in relation to expenditure. This is a very important matter. But there are signs of concessions in the attitude that the Government have taken to this matter and it is certainly not the wish of the Liberal Democrat Benches to push this matter further at the present time. I find Clause 54 particularly interesting and fundamental in terms of principle and accountability. I hope that the Minister can satisfy us on these matters.

4.15 p.m.

Lord Evans of Temple Guiting

My Lords, it will be recalled that on Report the Government moved an amendment that would enable them, by order, to repeal or relax the restriction on the disclosure of information in Clause 54. The proposed amendment would reflect the findings of a review of statutory bars to the disclosure of information being undertaken by the Department for Constitutional Affairs under Section 75 of the Freedom of Information Act 2000.

On Report, I confirmed that the order-making power could be used only for the purpose of repeal or relaxation. It could not be used to impose any further restriction. During debate on the amendment the noble Baroness, Lady Noakes, expressed her concern, which she repeated this afternoon, that: We are being invited to leave an unacceptable clause in the Bill against a promise of unspecified amendments in the future".—[Official Report, 1/4/04; col. 1479.] Both the noble Baroness and the noble Lord, Lord Thomas of Gresford, who were joined this afternoon by the noble Lord, Lord Livsey, sought more information on the nature of the changes to Clause 54 that the order implementing the DCA's Section 75 review recommendations would facilitate. These are concerns that the noble Baroness re-emphasised today and she feels that Clause 54 should be deleted from the Bill.

I was happy to confirm on Report that the Government fully understood the concerns expressed about Clause 54 and I gave a commitment that we would take into account all those concerns in a consistent and responsible way. We believe that the government amendment to facilitate a subsequent change in the light of the DCA review bears testimony to that commitment.

At this comparatively early stage in proceedings—the overall DCA review is not scheduled to conclude until this autumn with the first order implementing its findings being brought forward before the end of the year—I said that I could give no guarantee that I would be able to give any further details of proposed changes at Third Reading. I can, however, report to noble Lords that the Office of the Deputy Prime Minister, as the department with responsibility for the Audit Commission Act, has now formally instructed the DCA to incorporate an amendment to Section 49, the precursor to an amendment to Clause 54, in the first Section 75 order, which will be introduced as soon as possible and certainly before the end of this year. The process of amendment has been formally put into play.

The instruction is wholly consistent with the Government's preferred treatment for Section 49 that I indicated to noble Lords on Report. The provisions underlying presumption against disclosure will be changed to an overall presumption in favour of disclosure. Freedom of information legislation is very complex and it would be inappropriate for me to preempt the detailed drafting of the Section 75 order. I want to stress again that we are still at a very early stage in the process.

That said, the practical effect of what is proposed is that information obtained by the Audit Commission or an auditor during the course of an audit or study and held by any public authority could be disclosed by that public authority within the spirit of the Freedom of Information Act. Where the same information is held by any organisation not subject to the Freedom of Information Act, they would also be entitled to disclose it, subject to a limited number of exceptions. At present, such information is subject to an absolute exemption from disclosure under the Act.

A person or body would be able to make a formal request for information to any public authority under the provisions of the Freedom of Information Act. The presumption in favour of permitting disclosure by a public authority or its staff would not be limited to formal requests for information under the Freedom of Information Act. Section 75 orders allow for ancillary provisions, and it is proposed that the amendment to Section 49 would also cover the voluntary release of such information—proactive disclosure—not related to formal requests, provided it was not of an inappropriate nature.

The noble Baroness, Lady Noakes, specifically asked what exemptions to disclosure would remain following the Government's proposed amendment. For the purposes of the Freedom of Information Act, information that could prejudice the exercise by any public authority of its auditing functions is classified as exempt information. If the Commission, or another public authority, thought that the release of requested information could be prejudicial in this way, the Act requires it to apply a public interest test in order to decide whether it can be lawfully withheld.

Details of inappropriate proactive disclosure, for the purpose of inclusion in the Section 75 order, are still being considered. However, in the Government's view, examples of such disclosure that the Government would deem unlawful could be the release of personal information, or the premature release of unverified information for inclusion in an audit report or study. I said during our discussions on Report that these are both examples of disclosure that the Auditor General for Wales's office has indicated he may envisage as exceptions to the presumption in favour of disclosure. A further example of unlawful disclosure could be the release of information for what could be described as malicious or self-serving reasons, such as for motives of personal gain, or with the intention of inflicting harm.

The Government are of the view that a criminal sanction is still required as a deterrent against instances of unlawful disclosure. The nature of this criminal sanction is still under consideration. I can confirm. however, that the categories of unlawful disclosure provided for in the order will be reasonable, and not undermine the new overall presumption in favour of disclosure. We will, of course, keep the noble Baroness, Lady Noakes, closely in touch with progress.

Both the Section 75 order amending Section 49 of the Audit Commission Act, and the order-making powers enabling the amendment of Clause 54, will be subject to the approval of both Houses of Parliament.

The noble Baroness, Lady Noakes, asks about the role of the Auditor General for Wales in the amendment process, and I can confirm that he or she will be consulted as this work develops.

I do hope that in this rather lengthy speech I have gone a long way towards allaying the noble Baroness's concern and demonstrating the Government's commitment to progressing this issue in a consistent and reasonable way. With that in mind, I would ask her to withdraw her amendment.

Baroness Noakes

My Lords, I thank the Minister for that comprehensive statement and the constructive way he has worked with these Benches and the Liberal Democrat Benches on this difficult issue throughout the course of this Bill. The information he has provided has taken us a lot further than we had reached on Report, and that is extremely useful. I also thank the Minister for offering to keep me in touch with developments. The only thing left for me to say is that I serve notice that we will be looking at the Section 75 order with very great interest, and look forward to a debate on this, if necessary, later this year. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Evans of Temple Guiting moved Amendment No. 2: After Clause 56, insert the following new clause—

"PROVISION OF INFORMATION TO AUDIT COMMISSION (1) The Auditor General for Wales must, on request, provide the Audit Commission with any information it may reasonably require for the purpose of making comparisons, in the discharge of its functions under sections 33 and 34 of the Audit Commission Act 1998 (c. 18), between local government bodies in Wales and other local government bodies. (2) In this section "local government body" has the meaning given in section 53(1) of the Audit Commission Act 1998 (c. 18).

The noble Lord said: My Lords, in moving government Amendment No. 2, I shall also speak to government Amendments Nos. 3, 6, 5 and government Amendment No. 8, which should have been grouped with this group and appears right at the bottom of the Marshalled List by mistake. I apologise for that.

During our discussions on Amendment No. 5, when originally tabled by the noble Baroness, Lady Noakes, for consideration on Report, the Government expressed the view that a potentially wide-ranging mandatory duty on one body to co-operate with another in undertaking a study, irrespective of the circumstances, could unacceptably limit its operational flexibility in respect of the exercise of its own functions.

I did give an undertaking, however, that the Government would consider incorporating in the Bill a mutual duty to provide information for comparative purposes on the Auditor General for Wales, the Audit Commission and the Commission for Healthcare Audit and Inspection. The Government amendments tabled for consideration today, we believe, fulfil that commitment.

Government Amendments Nos. 2 and 8 would require the Auditor General for Wales to provide the Audit Commission and the Commission for Healthcare Audit and Inspection respectively with any information they may reasonably require to undertake relevant reviews and studies in the exercise of their functions.

Government Amendments Nos. 4 and 6 place a reciprocal duty on the Audit Commission and the Commission for Healthcare Audit and Inspection to provide information that the Auditor General for Wales may reasonably require for the purpose of making comparisons between Welsh and English local government and health bodies, while undertaking studies in accordance with his functions. I beg to move.

Lord Roberts of Conwy

My Lords, I thank the Minster for introducing his government amendments about information duties as between the Auditor General, the Audit Commission and the Commission for Healthcare Audit and Inspection. Our own amendment in this group is Amendment No. 5, but I see that it is amply covered by government Amendment No. 6.

The Government's amendments derive, as the Minster has acknowledged, from the debates in Grand Committee and on Report as to the information that the Auditor General needs. Indeed, these amendments go further than that, and include the Commission for Healthcare Audit and Inspection. These amendments concern information provision, and therefore fall short of the broader duty of co-operation for which my noble friend Lady Noakes had previously argued. But we concede that these amendments meet our concerns at least halfway and, on the basis that half a loaf is better than none, we are very happy to accept them.

I should like to apologise to the House for my absence from all proceedings on this Bill after Second Reading, following a close family bereavement. I thank all your Lordships, in all parts of the House, who extended their very generous condolence to my family. I must also give a very special thank you to my noble friend Lady Noakes—who herself suffered the loss of her father during the same period—for not only bravely carrying on, but subjecting the Bill to her inimitable professional scrutiny. The willingness of the Government to listen has paid off, and I am sure that the noble Lords on the Front Bench opposite will agree that the Bill leaving your Lordships' House is much better than the one presented to it. A great deal of the credit for that goes to my noble friend Lady Noakes.

4.30 p.m.

Lord Livsey of Talgarth

My Lords, I should like to add to those words of the noble Lord, Lord Roberts of Conwy, and indeed to sympathise with the situations that he and the noble Baroness, Lady Noakes, faced in the past few months.

The provision of information for comparative purposes is undoubtedly vital in auditing. It is very important that such information is objective. As the Minister indicated, wording that deals with any additional information which the auditors may reasonably require would satisfy us that the Bill is in better shape than it was before. The provision of information is vitally important.

I thank my noble friend Lord Thomas of Gresford—who I know would very much have liked to have been here today—for the hard work that he put into the Bill and for his forensic, investigative and positive approach to the Bill. He has done an excellent job on it and I should like that to be recognised in the House.

On Question, amendment agreed to.

Lord Evans of Temple Guiting moved Amendment No. 3: After Clause 62, insert the following new clause—

"PROVISION OF INFORMATION BY CHAI (1) The Commission for Healthcare Audit and Inspection must, on request, provide the Auditor General for Wales with any information he may reasonably require for the purpose of making comparisons, in the discharge of his functions under sections 145 and 145A of the Government of Wales Act 1998 (c. 38) in relation to a Welsh NHS body, between the Welsh NHS body and English NHS bodies and cross-border SHAs. (2) Subsection (1) does not require information to be provided in circumstances where (but for that subsection) the disclosure of the information would contravene section 136 of the Health and Social Care (Community Health and Standards) Act 2003 (c. 43) (restriction on disclosure of personal information by CHAI). (3) In this section "English NHS body" and "cross-border SHA" have the meaning given by section 148 of that Act.

On Question, amendment agreed to.

Clause 71 [Commencement]:

Lord Evans of Temple Guiting moved Amendment No. 4: Page 41, line 29, after "Schedules)" insert ", except section 69,

The noble Lord said: My Lords, in moving Amendment No. 4, I shall speak also to the second government amendment in this group, Amendment No. 7.

Amendments Nos. 4 and 7 are both technical amendments. Amendment No. 4 excludes reference to Clause 69 from Clause 71, which sets out the National Assembly's commencement powers under the Bill. The exclusion is needed because Clause 69 includes an interpretation of references to the Assembly in the Bill and as a consequence will need to be commenced upon Royal Assent, subject of course to the Bill's successful passage through Parliament.

Amendment No. 7 corrects a drafting error in respect of a reference to Section 51 of the Health and Social Care (Community Health and Standards) Act 2003 made in Schedule 2 of the Bill. The Bill as drafted refers to "reviews or investigations" undertaken by the Commission for Healthcare Audit and Inspection under Section 51 of the Act. In fact, Section 51 makes provision only for the undertaking of reviews, and for this reason the amendment deletes the words "or investigation". I beg to move.

On Question, amendment agreed to.

Schedule 2 [Minor and consequential amendments]:

[Amendment No. 5 not moved.]

Lord Evans of Temple Guiting moved Amendments Nos. 6 to 8: Page 56, line 8, at end insert—

"51B PROVISION OF INFORMATION TO AUDITOR GENERAL FOR WALES The Commission must, on request, provide the Auditor General for Wales with any information he may reasonably require for the purpose of making comparisons, in the discharge of his functions under sections 41 and 42 of the Public Audit (Wales) Act 2004, between local government bodies in Wales and other local government bodies."

Page 58, line 42, leave out "or investigation"

Page 58, line 43. at end insert— 58A After section 69 insert—

"69A PROVISION OF INFORMATION BY AUDITOR GENERAL FOR WALES The Auditor General for Wales must, on request, provide the CHAI with any information it may reasonably require for the purpose of making comparisons, in the exercise of its functions under sections 51, 52 and 57, between English NHS bodies and Welsh NHS bodies."

On Question, amendments agreed to.

An amendment (privilege) made.

Lord Evans of Temple Guiting

My Lords, I beg to move that this Bill do now pass.

I should like to express our gratitude to noble Lords, in particular to the noble Baroness, Lady Noakes, for the extraordinarily detailed scrutiny that she and other noble Lords have given to the Bill during its passage through your Lordships' House. I said at Second Reading that we wanted the Bill to be as good as possible and that we would take account of what was said. Some 23 amendments have been made to the Bill as a direct or indirect result of proposals and comments made by noble Lords. We are very grateful for the extraordinary work that has been done on the Bill by all sides of the House.

I also acknowledge the contribution of the noble Lord, Lord Roberts, to the Bill. He has, as we have expressed, all our sympathy. I was away with flu on the first day of Committee; as we know, he, too, was away. I should therefore also like to thank my noble friend Lord Davies, who, at two hours' notice, took on the first day of Committee. It has been a very successful operation. I again thank everyone who has worked so hard on the Bill.

Moved, That the Bill do now pass.—(Lord Evans of Temple Gutting.)

On Question, Bill passed, and sent to the Commons.