Select Committee on Public Administration Third Report


THE SCOPE OF THE BILL

24. The Bill's coverage, as Professor Birkinshaw told us, makes it "unusual, or unique, in a freedom of information framework".[19] Like other Freedom of Information Acts, it covers central government bodies. Like the Irish Act, it extends its coverage to local government as well. But by bringing in private sector organisations performing public functions, it goes well beyond all other Freedom of Information legislation of which we are aware. It properly reflects the intermeshing of public and private sector bodies in contemporary governance. Not only does it cover a wide range of authorities; it covers a wide range of information as well. It gives a right of access to "information" recorded in any form, not just to documents;[20] and the right is retrospective—it applies to information recorded in the past, not just to information recorded since the Bill's commencement, as in the Irish Act, for example. There remain a few bodies which are excluded: the various security services (which we deal with below, paragraphs 74 to 77); bodies for which the Scottish Parliament has legislative competence for Freedom of Information, including the Scottish Parliament itself; and, at present, the UK Parliament. The Consultation Document refers to "further discussions which are underway with the Parliamentary authorities about the inclusion of Parliament itself and bodies accountable to it within the scope of the Bill".[21] Parliament (or the equivalent) is included in some other legislation on Freedom of Information; we recommended in our previous Report that it should be included here as well;[22] and we can see no reason to change our views. We strongly welcome the extensive coverage of the Bill and recommend that it is applied to Parliament (as is proposed in the Consultation Document).

25. The breadth of coverage has affected some of the other provisions of the Bill. It may be hard to apply the same standards to a general medical practitioner as to the Department of Health. The Government have made this point on a number of occasions, and we accept it. In a number of places in the Bill, however, they have chosen to respond to it by putting in place provisions which are suitable for small authorities as well as large ones, rather than to make different provisions for different circumstances. In some cases, however, where the Bill specifies an order-making power, the Bill allows different provisions to be made in different circumstances. We hope that this will be used to ensure that the requirements on larger, especially central government, bodies, will be strong and effective.

26. Some have been disappointed that the Bill is not more explicit on which bodies should be brought under it. Clifford Chance have suggested that the fact that all bodies are not listed in the schedule creates a risk that some may never be brought under the Act.[23] Clause 1 applies the Bill to the public authorities listed (either by name or generically) in Schedule 1. These include government departments, the armed forces, NHS bodies, local government, educational bodies and the police. Clause 2 provides the Secretary of State with the power to bring under the Bill a body set up by the Government in some form, or which is "exercising functions of a public nature", or is "providing under a contract made with a public authority any service whose provision is a function of that authority". The White Paper had referred to "statutory functions".[24] That definition was not adopted in the Bill because, the Home Office explained, it would include a wide range of duties which were not necessarily appropriate to Freedom of Information legislation: for example, employers have functions under the health and safety legislation. In choosing "functions of a public nature" they said that they had regard to the way in which the courts were focusing much more on the nature of the functions with which a body is charged rather than on the source of those functions. To be caught by the provision, a body must have a "public element"; it must "seek to achieve some collective benefit for the public or a section of it, and the public must accept its authority to do so".[25] The Home Office gave, as an example of the bodies which might be brought under the Bill as performing a service whose provision is a function of a public authority, the provision of careers services under sections 8-10 of the Employment and Training Act 1973.[26]

27. Lord Lester proposed that it would be better to define public authority in the way the Human Rights Act does.[27] That Act defines a public authority as including courts and tribunals and "any person certain of whose functions are functions of a public nature".[28] The Home Office argues that using this definition would leave the actual scope of the Bill uncertain, and as it places duties on those subject to the Act, it should be clear what is expected.[29] We accept this point: it seems to us preferable that the Bill should specify authorities by name, even if this seems cumbrous, but it will be important to ensure that this produces a coverage as extensive as it needs to be.


19  Q.501. Back

20  The draft Bill's definition is not notably superior to that in overseas laws, and is in particular narrower than in the New Zealand Act which applies to both records and unrecorded information. Although some overseas acts provide a right of access to 'documents' or 'records' these terms are defined to include information recorded in any form. This is so for the Australian, Canadian, Irish and (since 1996) the American Freedom of Information laws. Back

21  Cm. 4355, para. 53. Back

22  HC (1997-98) 398-I, para. 37. Back

23  Ev. p.114. Back

24  Cm. 3818, para. 2.2. Back

25  Annex 6, Note 8. Back

26  Annex 6, Note 9. Back

27  Ev. p.110. Back

28  s.6(3). Back

29  Annex 6, Note 1. Back


 
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Prepared 29 July 1999