Draft Freedom of Information (Removal and Relaxation of Statutory Prohibitions on Disclosure of Information) Order 2004

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Sir Robert Smith: The Minister talks about very limited cases, but the explanatory notes say that the Government

''consulted with 20 other government departments''

about whether extensions should be made. Why was no thought given to consulting widely with the public bodies affected to see who else might be affected by the need for a bit more flexibility?

Mr. Leslie: We have thought about the effect of some of the changes on other institutions associated with the regulations. I will give the hon. Gentleman an example: we are looking to give a bit of flexibility to schools in respect of school holidays, and some people have asked why we have not done the same for universities. They, too, have long periods during the summer months when people are off and when the time limit might be difficult. We did not want to do that because we still want a tight regime. Also, universities, unlike schools, tend to have staff present throughout the summer months. Some asked why we did not allow extra time for compliance from parish councils, local authorities and others, but again we did not think that there was sufficient justification for that; they tend to have a staff presence for a longer period of the year. We have thought about other bodies that might require extra time for compliance.

Of course, that does not mean that the Information Commissioner will necessarily be absolutely rigid in all circumstances; if something occurs, such as an act of force majeure, he will obviously take a pretty

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pragmatic view of things but, by and large, we want a strong, clear regime. When the public make requests for freedom of information, we want that information to go out according to the spirit of the legislation. Typically, 20 working days is the guide.

I hope that the order and the regulations represent a responsible use of the powers given to the Government under the FOI Act. The additional information brought into the public domain by the order on the removal and relaxation of statutory prohibitions is to be welcomed, even if it is a very limited first step. The regulations on the time for compliance with requests make reasonable allowances for circumstances in which public authorities are unavoidably unable to comply with the time limits in the Act. With those comments, which I have tried to keep as brief as possible, I commend the order and the regulations to the Committee.

2.48 pm

Mr. Djanogly: We are here today to consider the draft Freedom of Information (Removal and Relaxation of Statutory Prohibitions on Disclosure of Information) Order 2004—I do like snappy titles. The order will amend seven enactments and repeal one that contained prohibitions on the disclosure of information. Those prohibitions would currently prevent a public authority from satisfying a request for information under section 1 of the 2000 Act. The order represents the first time that the power to appeal or amend existing legislation in section 75 of the 2000 Act has been used. We will not oppose the order, but I have a few queries about it.

I recognise the point made, quite rightly, by the hon. Member for West Aberdeenshire and Kincardine (Sir Robert Smith). The Minister talked about an ongoing process, but there has been plenty of time for the Government to do a full search of previous legislation to see in what other ways it should be amended. The introduction of the order is an attempt to ease the practical operation of the 2000 Act by reducing the range of enactments that public authorities will have to consider before making a decision to release information following a request. Of particular note is the proposal to amend section 49 of the Audit Commission Act 1998, which creates a criminal offence punishable by imprisonment. As I understand it, the section will be amended to permit disclosure by public authorities subject to the 2000 Act, except when to do so would prejudice the effective performance of their statutory functions. That would be punishable by a fine rather than by imprisonment.

How is that to be interpreted by statutory bodies and what factors should be taken into account in determining whether a particular disclosure will prejudice the performance of functions? Does the Minister anticipate many breaches of the new provision in the initial stages of its introduction while public bodies get used to the working of the provision? Surely the proposal is of little benefit to public authorities, as the need to consider both Acts remains when deciding how to answer a request. That is exactly what the order attempts to cut down on.

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On the amendment to section 20 of the Access to Justice Act 1999, will the Minister explain what factors were considered in the decision to impose the time restriction of 100 years? Finally, will he outline the consultation process that his Department undertook on this order?

I move on to the draft Freedom of Information (Time for Compliance with Request) Regulations 2004. They implement the power given to the Secretary of State under section 10(4) of the Freedom of Information Act 2000 to extend the period within which a public authority must comply with a request for information under the terms of the 2000 Act.

The current requirement for a public authority to reply within 20 working days of receipt of a written request is to be extended in the context of maintained schools, the archives authority, the armed forces and any information held outside the United Kingdom. Generally speaking, one might consider that the Minister's Department, after leaving four years for the Act's implementation, has shown how disorganised it has been by coming to the Committee with the proposals with only three weeks to go until implementation. Indeed, from the Conservative party's point of view, the fact that we have had to meet today to discuss these statutory instruments shows a clear failure on the part of the Government to administer a significant cultural and administrative change to the operation of thousands of public bodies across the whole country.

Clearly, it is important to ensure that the right of people to gain access to information held by a public authority, detailed in section 1 of the 2000 Act, is properly enforced. That is the function of section 10 of the 2000 Act. By imposing a time limit within which public authorities must comply with a request, we can ensure that genuine requests are not unnecessarily delayed or ignored. Having such a time limit is certainly in the public interest.

The Minister, however, now seems to be asserting that there are certain specific occasions on which it will not be possible for a public authority to produce a response within the designated time limit of 20 working days. We must not forget that what we are talking about is, practically speaking, an extension of a set deadline—whether it be an increase to 60 days for schools, 30 days for the archive services or, potentially, 60 days for information from the armed forces—to the detriment of the person requesting information.

The time limit was covered by the 2000 Act, and 20 days was set as the relevant figure. If the Government now intend to change the statutory limit, surely they should have conducted a full and thorough consultation with all the relevant public authorities to ascertain whether the 20-day limit remained appropriate. However, it has now come to light that that has not been the case prior to the introduction of the regulations, a point highlighted by the Labour-dominated Constitutional Affairs Committee in the report that it issued on 7 December and that said:

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''It is curious that even the Information Commissioner's office was not consulted. We do not consider that the question of possible extensions of the time limit of 20 days has been effectively handled by the DCA in respect of public sector bodies outside central government.''

Early in his initial comments, the Minister said that he had thought about consulting affected public bodies. He did not actually say why the Government failed to do so. To my mind, that is not acceptable. I would be grateful if the Minister could once again address the question of why, even if he thought about consulting, he did not do so.

I suggest that the likely reason that the request for the extension of time that forms part of the regulations came about in the first place was the DCA's incompetence in preparing the public authorities affected by the 2000 Act for the possible onslaught of information requests that may occur on 1 January 2005. To quote the Constitutional Affairs Committee again:

''The picture which emerged from the evidence we received was of uneven levels of success and a strong perception of a lack of strategic control and support from central government to other public bodies. The cause appears to have been a combination of a lack of consistent leadership by the DCA and an unclear division of responsibility for implementation''.

Based not least on the report of the Constitutional Affairs Committee, we have grave doubts about the Government's handling of the implementation of the Freedom of Information Act. In the context of today's business, that mismanagement has manifested itself in regulations that appear not have been fully consulted on and, if they are allowed to proceed, they may further add to the scrappy implementation of this new piece of legislation. I ask the Government to withdraw the regulations and come back when they have thoroughly researched and consulted all the relevant public authorities on the possible extension of time limits for responses to information requests. On that basis, I recommend to my colleagues that we vote against the regulations.

2.56 pm

Brian White: As someone who sat on the Public Administration Committee when the draft Bill was before us, I know that we went into a number of these issues at that time. When the Bill was going through this place and the House of Lords, such issues were raised. The legislation talks about wherever reasonably possible, which covers the situation that we are discussing.

I am at a loss to understand why the secondary legislation is being carried out. What makes it even more worrying, and the reason that I ask my hon. Friend the Minister these questions, is that the first draft of the code of practice contained the 20-day limit. That was subject to public consultation. The second draft, which came out at the end of last month, does not contain that 20-day limit. He says that it is in the legislation, but a bear of very little brain like me would be curious to know why it was right for the first edition, but not for the second. Why has the change happened? Why are the ministerial assurances given to the Public

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Administration Committee and the House of Lords during the passage of the Bill no longer appropriate? Why is this going ahead?

If it were not for the fact that the code of practice were going down this route, I would be happy with the statutory instruments. The Minister, as his usual ebullient self, has given reasonable grounds why the Committee should accept it. I would be happy to proceed along those lines. In the background, however, is the code of practice. Some of the comments coming out of Whitehall are quite worrying. Will he explain what has happened since the passage of the Act that requires a statutory instrument when the Act talks about reasonableness? It would be reasonable for the Information Commissioner to take into account the fact that a school was not open to provide the information, and I am sure that he would.

I cannot see why we are going down this route unless it is the thin end of the wedge. I ask the Minister to assure the Committee that it is not and that we will not see a plethora of such statutory instruments. The commitments and assurances that were given during the passage of the Bill meant that people like me did not push for the extra safeguards that the Public Administration Committee thought appropriate when it considered the draft legislation. We were prepared to accept the Bill on the basis that the assurances were contained in the code of practice, but they no longer seem to be. Perhaps the Minister could explain why.

2.59 pm

 

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Prepared 9 December 2004