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Freedom of Information (Designation as Public Authorities) Order 2011

Volume 731: debated on Monday 17 October 2011

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Freedom of Information (Designation as Public Authorities) Order 2011.

Relevant document: 28th Report from the Joint Committee on Statutory Instruments.

My Lords, the purpose of this draft order is to bring the Association of Chief Police Officers, or ACPO, the Financial Ombudsman Service, or FOS, and the Universities and Colleges Admissions Service, or UCAS, within the scope of the Freedom of Information Act. The effect of the order is to apply the Freedom of Information Act to those functions of each body which appear to the Secretary of State to be of a public nature. That amounts to all the functions of ACPO and FOS and the applications and admissions functions of UCAS.

This Government are committed to ensuring greater openness and transparency in order to enable the public to hold to account those who deliver the services affecting their day-to-day lives. The coalition agreement set out this intention, stating that the Government would,

“extend the scope of the Freedom of Information Act to provide greater transparency”.

This order is part of our work to meet this commitment.

The Freedom of Information Act gives any person the legal right to request access to recorded information held by a public authority. It applies to more than 100,000 public authorities, including central government, schools, the NHS, local authorities and some publicly owned companies.

This order designates three additional bodies as public authorities for the purposes of the Freedom of Information Act, using the powers contained in Section 5 of the Act. Section 5 enables the Secretary of State to designate a person as a public authority either if they appear to the Secretary of State to exercise functions of a public nature or if they provide, under contract made with a public authority, any service whose provision is a function of that authority. The order covers bodies falling within the first limb: bodies which appear to exercise functions of a public nature.

Where a body is designated as a public authority under this limb, it is also necessary, under Section 7(5) of the Act, for the order to specify each of the body’s functions which appear to the Secretary of State to be of a public nature. Only those functions specified in the order will be subject to the Act. So an order under Section 5 can bring all or just some of a body’s functions within the scope of the Freedom of Information Act. Therefore, to understand how the order extends the Freedom of Information Act, it is important to look not just at which bodies the order designates but at which of their functions the order specifies.

With that background in mind, I turn to the detail of the order before us today. The order designates both ACPO and the Financial Ombudsman Service for all of their functions, and UCAS for its main functions, as public authorities for the purposes of the FOI Act. Before making the order, all three bodies were consulted and their functions analysed to determine which of them appeared to be of a public nature.

I turn first to ACPO, which provides leadership for the police force, aims to improve policing, acts as a voice for the force and provides the strategic police response in times of national need. By way of background, it is worth noting that the individual chief police officers who comprise ACPO are already subject to the Freedom of Information Act.

The draft order lists each of ACPO’s functions. These functions are derived from ACPO’s objects as listed in its memorandum and articles of association. Each function makes a fundamental contribution to the policing of the state, both individually and collectively. On this basis, the Secretary of State has concluded that all of ACPO’s functions appear to be functions of a public nature and this order will bring them all within the scope of the Freedom of Information Act.

The Financial Ombudsman Service administers an ombudsman scheme in the financial services sector under which certain disputes can be resolved quickly and informally by an independent person. The Financial Ombudsman Service’s functions are set out in statute. It provides an alternative, impartial dispute resolution process to the courts. There is a strong public interest and benefit in the provision of impartial, non-profit-making regulation of financial services. As all of the Financial Ombudsman Service’s functions are directed towards the provision of this service, this order will bring them all within the scope of the Freedom of Information Act.

UCAS’s main function is to provide and maintain a central application and admissions services for higher education and certain further education establishments. It also provides other, more commercially based functions, such as the provision of marketing services. The majority of bodies for which UCAS provides and maintains a central applications and admissions service are already subject to freedom of information legislation. There is clearly a strong public interest and benefit in the provision of an efficient and fair means of applying for entry to such bodies. Indeed, if these services were not provided by UCAS, it would fall to those educational bodies that are already subject to the Freedom of Information Act to provide them instead. This provides a clear basis for concluding that the applications and admissions function appears to be public in nature. However, UCAS’s other commercial functions can be seen as distinct from the central applications services that it provides and are not considered to be functions of a public nature. This order therefore includes only UCAS within the scope of the FOI Act for the purposes of providing a central applications and admissions service to bodies already subject to Freedom of Information legislation.

As I have outlined, the Secretary of State concluded that the three bodies subject to the order appear to varying degrees to exercise functions of a public nature. As a result, it is appropriate that these bodies be subject to the same scrutiny as other public authorities, so that they become more open, transparent and accountable. This order will achieve that aim for three bodies, but this is just the start. The Government are currently consulting more than 200 further bodies about their inclusion in future orders, alongside pursing primary legislation to extend the scope of the Freedom of Information Act to more publicly owned companies.

I hope noble Lords will agree with me that this order is an important step towards greater transparency, and I commend it to the Committee.

My Lords, I wonder if the Minister would just answer a simple question. I used to have some relationship with the police service. It is not at all unusual for police services from time to time to get caught up in security matters. It follows from that equally that the subject occasionally occurs in ACPO matters. The Minister said that all activities would be subject to the Freedom of Information Act. How will we resolve that particular dilemma if ACPO finds itself discussing security concerns?

My Lords, the Minister mentioned the discussion that took place within the coalition Government that brought these particular organisations forward. He also mentioned that there was an intention further to widen the scope of the Freedom of Information Act. Under one of those headings, could he tell us why there is an official at Her Majesty’s Revenue and Customs who claims that he cannot give information as to why he signed off a particular deal, which resulted in a big financial company being excused millions of pounds in disputed tax? He has pleaded confidentiality and I understand that he is appearing before the Public Accounts Committee in the other place to answer for that. The Minister knows that I do not like springing things on him, but will he answer two questions? First, why was it not brought forward or was it considered? Secondly, will he, in future, look into the scope of the so-called confidentiality clauses quoted by this officer to justify not giving the full details of why he allowed the appeal from that financial company?

The order before us is welcome, in general terms. As the extension of the operation of the Freedom of Information Act to the three bodies concerned was first raised as long ago as 2007, there has been plenty of time for grave, or even limited, concerns to be raised about the matter. There are, consequently, only some quite small matters that spring to my mind as being worthy of inquiry. These arise not so much from the propositions themselves as from the impact assessment, which was published in June of this year, and the very helpful Explanatory Memorandum.

This memorandum describes ACPO as being a professional body, not a staff association. I find that concept a little hard to come to terms with because there seem to be occasions when ACPO does, to some extent, consider matters that are peculiar to the police and may not have a direct public impact. I am thinking, for example, of whether it would be desirable for their reactions to a proposed restructuring of the police to be identified as the views of individuals participating in a debate on the subject. It is clear that the views of ACPO as a whole on such a restructuring should be engaged, but it cannot be entirely desirable for the way that debate took place to be made public. I know that individual members of ACPO are already subject to inquiry under the Freedom of Information Act, so perhaps I am splitting hairs. However, there must be matters that it is appropriate for professional associations not to disclose because they apply to them and not necessarily to the public.

The more important issue arises from the indication that the Government are continuing the process of scrutiny of the consequences of the Freedom of Information Act, although this may be just a failure of understanding on my part. The Explanatory Memorandum that we have been given indicates that that is an ongoing process, but that the results might be known by the end of this month. That is referred to in paragraph 12, “Monitoring & review”. It states that any changes to be made to the FOI Act as a whole will be contained in a memorandum to be submitted to the Justice Committee later this calendar year. How extensive and deep will the inquiry be? Are all the departments and all the many bodies covered being asked to make a submission? That must create a very considerable body of work.

That should be viewed in conjunction with what was stated in the impact assessment of the policy review; namely, that there will be no arrangements in place that will allow a systematic collection of monitoring information for future policy review. To invite all the bodies covered by FOI to make submissions once as a kind of big research exercise is perfectly sensible and reasonable, and was envisaged when the Act was brought forward. However, if we are to maintain proper parliamentary oversight of the effectiveness of this scrutiny, this openness and the purposes of the Act, it would make sense if problems that arose in the administration of the Act were noted and tabulated so that it was relatively easy for the bodies, where there is a conflict, to produce that information without going into the difficult process of historical digging, which would take far longer and require more public funding. I rather question the wisdom of not having a systematic collection of monitoring information for future policy reviews if that is the case.

Apart from that relatively minor matter, I endorse the intentions of the Government and am glad that these provisions have been brought forward.

My Lords, I thank the Minister for introducing the order so clearly and other noble Lords who have asked questions of some importance, particularly the final question, which the noble Lord, Lord Maclennan, majored on, which was around the Government’s plans for reviewing the Freedom of Information Act.

I know that the Minister is giving what they nowadays describe as a keynote address this Thursday at the Westminster Legal Policy Forum on the very topical subject of:

“The future of Freedom of Information—challenges for expansion”.

I, alas, cannot be present because of duties in the House. If this sounds like an advertisement to go and hear the noble Lord, that is exactly what it is. However, I hope that he may be able to say something both this afternoon, in response to his noble friend Lord Maclennan, and on Thursday, because I know that he has particular duties in ministerial terms as far as this Act is concerned. I hope that he can perhaps unveil slightly today what he may say to his other audience on Thursday.

We support the order. The Freedom of Information Act was one of the substantial achievements of the previous Government. It will be long-standing and of substantial value to our freedoms. It does not always seem that way if you are sitting in a ministerial chair or even in a senior civil servant’s chair. It can be awkward, difficult and seem sometimes almost impossible, but that is precisely why it is in existence. So we support both the Act and this minor order—minor not for the three bodies involved but in the great scheme of things. It was in March 2010, as paragraph 8.4 of the Explanatory Memorandum tells us, that the decision to bring these bodies within the Act under Section 5 was made and communicated to each body. We are delighted to see the order before the Committee today.

My only question to the Minister is one that I mentioned to him briefly earlier. We read in paragraph 8.4 that two of the bodies “welcomed publicly” the fact that an order such as this one was to be made, bringing them within the scope of the Act. It does not say anything about the response of the third body, UCAS. Can the Minister help the Committee with how UCAS responded?

As I said at the start of my few remarks, we support what the Government are doing on this occasion.

My Lords, first, I apologise for being slightly late. I was listening to the debate on the Floor of the House and noticed that this subject had come up. I thought that I would come up and listen to the Minister.

I can well understand that we are talking about the chief police officers of England, Wales and Northern Ireland. Of course, we have a devolved Parliament for Scotland, and there are several police forces in Scotland. Will the Minister consult the Scottish Parliament to see that freedom of information will be available in this respect for police authorities north of the border?

The Minister has said that he, on behalf of his party, welcomes freedom of information. It did not stop those who were in an executive position complaining about freedom of information after it was pushed through Parliament. Many officials and Cabinet Ministers sleepwalked through that particular incident. I make no complaint about the legislation; I simply ask the Minister a question. Many journalists use freedom of information so that they can get what is best described as an angle for their particular story. When they ask the question and there follows a period of, let us say, 27 days—although I may be contradicted on that—I have known it to be the case with matters of the House that they have complained bitterly that the freedom of information was given to them and to the general public. They have complained bitterly that it spoiled their story that everybody else should get the information. Freedom of information is about everybody getting that information. They are on record as complaining; they are using it as a device to get a scoop, or whatever they call it.

I feel strongly that once the information is issued to the applicant for that freedom of information, it should be put in the public domain immediately afterwards. In other words, if the information is given to the applicant at 2 pm on a given day, by one minute past two everyone should be able to get that information. I know that some people say that the identity of an applicant should not matter and that you should not know who they are. However, it is a bit rich if an application is made by someone sitting in garret in Toronto, asking for information, which takes a considerable amount of public funding. We should at least know whether a taxpayer of this country is making that application. Can the Minister mention that? It is not fair that someone who has nothing else to do with their time in another country can make an application and no one has to say where they come from. That is very important.

I understand that in the Republic of Ireland, where an applicant seeks information from every local authority in that country and submits an identical question to each of them, the legislation of the Republic says, “Wait a minute. Let’s hold it there. This means that an official is working on it in every local authority”. Time is time. If an official is drawing this information together, it can cost a substantial amount. I hope that we look out for such situations when someone is seeking information just for the sake of gathering it and having officials in an authority running around.

In the same way, if a ministerial Question is submitted by a Member of this House or the other place and an identical Question is tabled by another noble Lord or elected Member, the Minister would say, “I refer to the reply I have given to the noble Lord on such and such a date”. That means that there is no duplication. I hope that due concern is given to the fact that we should not have duplication.

My Lords, I am very grateful for all the contributions, which have been extremely helpful in putting this order in perspective.

Let me deal first with the point raised by the noble Lord, Lord Dixon-Smith. If it was thought that a matter discussed by ACPO was should properly be protected for reasons of national security, the Act contains the capacity to claim exemptions for that information. That can, of course, be challenged through the Information Commissioner, The noble Lord is right to say that ACPO could sometimes discuss security matters but the Act makes provisions for the protection of national security in those circumstances.

The noble Lord, Lord McAvoy, raised a specific case in relation to Her Majesty’s Revenue and Customs. I cannot comment on individual cases. HMRC can protect commercial confidentiality in its dealings. I will be as interested as the noble Lord is to discover what the Public Accounts Committee finds out but it is a matter for that committee, rather than for us.

My noble friend Lord Maclennan, pointed out that the matter of those three bodies was first raised in 2007 and 2009. I am surprised not to see the noble Lord, Lord Wills, here, who turns up at these debates like Banquo’s ghost to point out that he was about to do X or Y on freedom of information, or that the noble Lord, Lord Bach, was. I acknowledge that this is part of a process started under the previous Administration. Indeed, I consider the Freedom of Information Act to be one of their great successes. The noble Lord, Lord Bach, is quite right: the fact that Ministers and public officials are sometimes discomfited by the Act has always been proof positive that it was a good piece of legislation.

My noble friend Lord Maclennan, asked how ACPO can have free and open discussions before ACPO policy is decided. We understand that bodies need a space in which to work out their policy but, as I recall, that was the great argument about Cabinet discussions as well. There is always a tension between having the right to know what has gone on in an organisation and protecting free discussion before a collective decision is made. ACPO welcomed its inclusion, and I am quite sure that it will manage to work out how to operate under the Act.

I understand the concern of my noble friend Lord Maclennan that we seem to be engaging in a one-off exercise, but that is not true; we will continue to monitor the working of the Act. I am very pleased that we have moved more quickly than we needed to post-legislative scrutiny; that is entirely healthy. The document to which the noble Lord referred is being prepared by my department as part of the process of post-legislative scrutiny. It will be an assessment of the working of the Act, which will provide a basic working document to the Justice Committee to allow it to start its work of post-legislative scrutiny.

That process will go in parallel with the exercise being carried out by my right honourable friend Francis Maude on the right to data, in which we will also try to push the boundaries of the citizen’s right to know about information. I understand where my noble friend is coming from in asking where all this fits. We are perhaps not moving in straight order on this, but we are getting the job done. By the end of this process many more organisations will be covered by freedom of information. We will have a lot more information proactively coming from government through the right to data process. As a result, we will have much more open government, with all the benefits that come from it.

I turn to points raised by the noble Lord, Lord Martin, a number of which I thoroughly agree with. There have been journalists who have turned freedom of information into a kind of cottage industry. I again hope that the transparency agenda will make this less necessary, and that people will get the information that they want. I take his point about immediate publication. In pushing forward the agenda we press organisations to publish immediately or as soon as possible. In certain circumstances there may be a reason to consult and delay, but in the main I agree with what the noble Lord, Lord Martin, said. This is not information for an individual journalist; this is public information, and should be made public as quickly as possible.

I was interested in his points about the Republic of Ireland. I was on the pre-legislative committee that looked at freedom of information. The noble Lord, Lord Bach, is nodding; he will recall that one of the most enthusiastic pieces of evidence we received about freedom of information was from the Irish freedom of information director.

Was it the Minister who came before us? The interesting thing about that was that the Irish have had post-legislative scrutiny of their own legislation and have brought in a number of restrictions, such as the one that the noble Lord, Lord Martin, referred to. They have brought in charges for some aspects of freedom of information.

The critics of freedom of information say that it puts unfair burdens and great costs on departments, as referred to before by the noble Lord, Lord Martin. I hope that the Justice Committee will take a good look at how the Act is working, take evidence from its critics and supporters, and then take us forward as we have indicated.

On the question that the noble Lord, Lord Martin, raised about ACPO Scotland, freedom of information is a devolved matter, and the inclusion of ACPO Scotland is a matter for the Scottish Government. I hope I have covered the issues raised—

I do apologise. The noble Lord, Lord Bach, raised that and I found the answer, which is twofold. Of the three, it was UCAS which raised some concerns when discussions began. Its concerns were the costs it would face in complying with the FOI Act, how it would protect sensitive information, and other costs outlined in the impact assessment. During consultation it was satisfied that the FOI Act exemptions could protect this information, and since those consultations it has been happy to see itself included within the ambit of the Act. I apologise that I got carried away with the questions asked by the noble Lord, Lord Martin. Does he have another?

If the Minister is getting carried away, I will perhaps push my luck. I noted that the Minister stated in his reply that he would encourage these organisations to put the information out to the applicant and the general public almost simultaneously. Encourage is not quite the word I was looking for. There should be a commitment to do this. For example, if an applicant asked a police authority for a piece of information then it could, by all means, give that information out at 2 pm on a specific day, but by 2.01 pm the rest of the world should know about it.

So far as I understand at the moment, what we can do is urge best practice by the wide range of bodies that deal with a very wide range of requests. I recently went to Northampton to congratulate the local authority on setting standards for devolving freedom of information which we thought were best practice. It is very difficult to have a single diktat for such a wide range of bodies, but the Justice Committee, when it does its post-legislative scrutiny, can perhaps look at this, and consider whether the Act should be given more teeth to have a one-size-fits-all approach.

There would be counterarguments that small bodies have more difficulty in managing freedom of information. However, the point that the noble Lord, Lord Martin, is pressing is very valid. Except in matters of national security, or if there are specific matters that argue against immediate publication, freedom of information is not in the ownership of the requester but in the ownership of the public at large. Freedom of information is the right to know of the public at large. I also take the point—if it is not already doing so I urge the Justice Committee to look at this—that it seems a bit rum for someone to be in favour of freedom of information but want anonymity when asking for it. I would be very interested to see what is considered best practice here. I would have thought there was considerable argument to say that if somebody asks for freedom of information they should not be worried that somebody else knows they have asked for it. That is another matter which will be given thorough consideration. In the mean time, I commend this order.

Motion agreed.