Draft Freedom of Information (Designation as Public Authorities) Order 2011
The Committee consisted of the following Members:
† Ashworth, Jonathan (Leicester South) (Lab)
† Bell, Sir Stuart (Middlesbrough) (Lab)
† Brake, Tom (Carshalton and Wallington) (LD)
† Crockart, Mike (Edinburgh West) (LD)
† Djanogly, Mr Jonathan (Parliamentary Under-Secretary of State for Justice)
† Keeley, Barbara (Worsley and Eccles South) (Lab)
† Latham, Pauline (Mid Derbyshire) (Con)
† Liddell-Grainger, Mr Ian (Bridgwater and West Somerset) (Con)
† McCartney, Jason (Colne Valley) (Con)
McDonnell, John (Hayes and Harlington) (Lab)
† Paisley, Ian (North Antrim) (DUP)
† Shepherd, Mr Richard (Aldridge-Brownhills) (Con)
† Slaughter, Mr Andy (Hammersmith) (Lab)
† Vara, Mr Shailesh (North West Cambridgeshire) (Con)
† Wallace, Mr Ben (Wyre and Preston North) (Con)
† Wollaston, Dr Sarah (Totnes) (Con)
† Wood, Mike (Batley and Spen) (Lab)
Marek Kubala, Committee Clerk
† attended the Committee
First Delegated Legislation Committee
Tuesday 18 October 2011
[Hugh Bayley in the Chair]
Draft Freedom of Information (Designation as Public Authorities) Order 2011
4.30 pm
The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly): I beg to move,
That the Committee has considered the draft Freedom of Information (Designation as Public Authorities) Order 2011.
Good afternoon, Mr Bayley. The purpose of the order is to extend the Freedom of Information Act to the Association of Chief Police Officers, the Financial Ombudsman Service and the Universities and Colleges Admissions Service. The order will apply the Act to those functions of each body that 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. The Government are committed to delivering increased openness and transparency, so that the public can hold to account those who deliver the services affecting their day-to-day lives. The coalition agreement sets out that intention.
Ian Paisley (North Antrim) (DUP): Will the Minister confirm that nothing of a national security or intelligence nature will be made subject to a freedom of information request?
Mr Djanogly: It may be made subject to a freedom of information request, but I will come back to the hon. Gentleman on whether that would come within an exemption from answering the request. [Interruption.] In fact, I will do so now. The Freedom of Information Act contains a number of exemptions that can be used to refuse the disclosure of information where to disclose it would be harmful or against the public interest. Section 24 of the FOI Act provides for exemptions where they are required to safeguard national security, subject to the public interest test.
The coalition agreement set out our 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 that commitment. The FOI Act gives any person the legal right to request access to recorded information held by a public authority. More than 100,000 public authorities, including central Government, schools, the NHS, local authorities and some publicly owned companies are already subject to its provisions.
The order designates three additional bodies as public authorities for the purposes of the FOI Act, using the powers in section 5, which enables the Secretary of State to designate a person as a public authority if they
appear to the Secretary of State to exercise functions of a public nature, or provide under a contract made with a public authority any service that it is a function of that authority to provide. This order covers bodies falling within the first limb—bodies that appear to exercise functions of a public nature. When a body is designated as a public authority under that limb, it is necessary under section 7(5) for the order to specify each of the body’s functions that 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. Therefore, it is possible for an order under section 5 to extend the FOI Act to some or all of a body’s functions. To understand how the order extends the FOI Act, it is important to look not just at which bodies the order designates, but at which of their functions the order specifies.Having given that background, I turn to the detail of the order. It designates both ACPO and FOS for all their functions, and UCAS for its main functions, as public authorities for the purposes of the FOI Act. Before the making of the order, all three bodies were consulted and their functions analysed to determine which of their functions appeared to be functions of a public nature.
ACPO 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 FOI Act. The order lists each of ACPO’s functions, which are derived from ACPO’s objectives as listed in its memorandum and articles of association. Its functions make a fundamental contribution, both individually and collectively, to the policing of the state. On that basis, the Secretary of State has concluded that all of ACPO’s functions appear to be public in nature, and the 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, and its 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 FOS’s functions are directed towards the provision of that service, the 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 service 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 application and admissions service are already subject to freedom of information legislation. There is clearly a strong public interest in, and public benefit from, the provision of an efficient and fair means of applying for entry to such bodies. Indeed, if those services were not provided by UCAS, it would fall to educational bodies that are already subject to freedom of information legislation to provide them instead. That provides a clear basis for concluding that the application and admissions function appears to be public in nature.
However, the same cannot be said of all UCAS’s functions. Its commercial functions can be seen as distinct from the central application services that it provides and are not considered to be functions of a public nature. The order therefore only includes UCAS within the scope of the FOI Act for the purposes of providing a central application and admissions service to bodies already subject to freedom of information legislation.
As I have outlined, the Secretary of State has 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 for those bodies to be subject to the same scrutiny as other public authorities, so that they will be more open, transparent and accountable to the public. The order will achieve that aim for the three bodies. That, however, is just the start. The Government are currently consulting more than 200 further bodies about their inclusion in future orders, while pursuing primary legislation to extend the scope of the Freedom of Information Act to more publicly owned companies.
I commend the order to the Committee, and I hope that hon. Members agree with me that it is an important step towards greater transparency.
4.38 pm
Mr Andy Slaughter (Hammersmith) (Lab): We welcome this extension to the number of pubic bodies covered by the Freedom of Information Act 2005 from—to use the Minister’s figures—100,000 to 100,003. We do so because the previous Labour Government were proud of the legislation, and the Opposition remain proud of having introduced it. In fact, the bodies were told that they were likely to become subject to the legislation in March 2010, under the previous Government, as the explanatory notes make clear. The order is clearly a de minimis extension to the number of bodies covered, although the individual bodies are important. Looking at them singly, it seems a logical extension to include each of them.
On ACPO, I imagine that the Minister’s experiences are the same as mine, in that most of my dealings with ACPO are of a very public nature, and the ACPO committees perform a valuable function in policing and policing policy. Clearly, ACPO, as well as individual chief constables, should come fully into the public realm.
Logic says that if the Financial Ombudsman Service regulates the industry, it should be subject to transparency and scrutiny. I want to ask the Minister—more out of curiosity than a need to know—whether all ombudsmen are now subject to the Freedom of Information Act, or whether they will be gradually assimilated into it.
Ian Paisley: I am sure that the hon. Gentleman is mindful of the former Prime Minister’s words in his book, “A Journey”, where he says that one of his biggest regrets was the FOI legislation. Is the hon. Gentleman concerned that he is now gilding that lily?
Mr Slaughter: I have yet to write a book of my own—
Tom Brake (Carshalton and Wallington) (LD): I am sure it would be very long.
Mr Slaughter: It would, and no doubt freedom of information would be in there somewhere. I do not think that I can help the hon. Member for North Antrim much further in his exploration of the mind of the previous Prime Minister, sharp and resolute as it always was.
The Minister made the point in relation to UCAS that there would have been ways of obtaining the required information in any event, but the measures seem a more straightforward way of achieving that. I do not want to prolong the debate, because the proposal seems entirely sensible and we support it. I will simply mention—this is slightly beyond the remit of this Committee—two broad questions that arise. First, the Minister says that 200 bodies are being consulted at the moment. What is the process and timetable for that? Will we have a new statutory instrument for every three of those bodies? If so, we may spend a lot of time in this Committee. When does the Minister envisage a recommendation being made about their inclusion?
Secondly, I want to put on record that the substantial problem that I suspect that many colleagues have with the Freedom of Information Act is not the legislation itself, but its selective operation by public bodies, and the variation in responses, which range from helpful and speedy to deliberately obfuscatory and obstructive. That is something that the Government need to look at, because some public bodies—irrespective of party, type of organisation, and whether they are national or local—put more effort into avoiding the provisions of the Act than fulfilling their statutory duties. That is simply wrong. It is an abuse of legislation that this House has passed, and that needs the Government’s urgent attention.
4.42 pm
Tom Brake: I will be brief. I welcome the fact that ACPO will be covered by FOI. I always thought that its exclusion was an anomaly, given the role that it plays. At the risk of sounding like a broken record—Members will hear that it is a 78—I hope that Network Rail will feature in the list of 200 bodies that are being considered for possible inclusion under FOI, because many of the issues that surround ACPO also surround Network Rail. The organisation is a recipient and a spender of large amounts of public money. To all intents and purposes, all its activities are in the public domain and should be covered by FOI; so, too, should the increasing number of private contractors doing public works. I wonder whether they will be included in the 200 bodies to which the Minister has referred. We as a Government are spending huge sums of public money on contracts that are delivered by such private companies. They are delivering, in effect, public services, and it would be entirely appropriate for them to be subject to FOI as well.
Mr Slaughter: I agree—it is always a pleasure to agree with the right hon. Gentleman—in respect of bodies performing the function of public bodies. For example, I have had extraordinary difficulty obtaining any information about the funding of free schools in the past year.
Tom Brake: I thank the hon. Gentleman for his intervention, and perhaps the Minister will confirm in his response whether free schools are on the list. Academies have recently been brought under the scope of FOI.
Generally, when large sums of public money are being spent by organisations, whether in the public or private sectors, those bodies should be subject to FOI.4.44 pm
Mr Richard Shepherd (Aldridge-Brownhills) (Con): I ought to declare an interest, inasmuch as I am the parliamentary co-chairman of the Campaign for Freedom of Information. It is a fact that both the Conservatives and the Liberal Democrats entered the election with promises to extend the scope of the Act, and that undertaking also formed part of the coalition agreement. In January 2011, the Ministry of Justice announced that the Government would: increase the range of bodies covered by the Act, bringing the Association of Chief Police Officers, the Financial Ombudsman Service and the Universities and Colleges Admissions Service within its scope; consult a range of further bodies, such as examination boards, harbour authorities, the Local Government Association and the NHS Confederation, on coverage; and extend the definition of “publicly-owned company” in section 6 of the Act.
The draft order will implement the first part of the announcement by adding ACPO, FOS and UCAS to the list of public bodies in schedule 1. The decision to designate those bodies was announced by the previous Government following a consultation exercise in July 2009, but the changes were not implemented before the election. It is extremely disappointing that it has taken the Ministry of Justice so long to get round to designating them, particularly given that the Conservatives promised to extend the Act within weeks of the general election.
The measures announced by the present Government are a welcome improvement to the Act. However, before the election, both the Conservatives and Liberal Democrats promised that Network Rail would also be covered by the Act, and the Conservatives additionally promised to cover Northern Rock, but neither body has been covered. A report by the Public Accounts Committee published in July 2011 concluded that Network Rail, which received £3.7 billion of direct taxpayer support in 2009-10, was “not transparent”, and concluded:
“We are concerned about Network Rail’s use of ‘compromise agreements’ with departing employees, and that a review by the Regulator has been required to investigate the delayed disclosure by Network Rail of an issue regarding level crossing safety. We are concerned that Network Rail was not able to tell us the total value of compromise agreements it had entered into. The Department and the Regulator should ensure that Network Rail is subject to the same transparency requirements as public bodies, with full application of the provisions of the Freedom of Information Act.”
There are many other candidates for designation, including electoral registration officers and returning officers, whose decisions about voting facilities prevented some from voting at the previous election. They are appointed by local authorities, but have their own legal existence and are not currently subject to the Act. District auditors are another significant omission. The Information Commissioner’s line-to-take document dated 29 August 2006 states:
“Appointed auditors clearly have many of the characteristics of public authorities and it is notable that information relating to audits of central government bodies, which are carried out by the National Audit Office, are accessible under the Act since the
NAO is a public authority. The DCA is aware of the apparent anomaly and have told us, on a confidential basis, that consideration is being given to an Order.”What happened to that consideration?
The responsibilities and powers of the housing ombudsman are to be expanded under the Localism Bill. At present, complaints about social housing matters are dealt with by two different ombudsmen. Complaints about housing associations go to the housing ombudsman; complaints about local authority housing go the local government ombudsman. The Localism Bill proposes that, in future, a unified complaints system should apply, with both types of complaint going to the housing ombudsman. Surprisingly, the housing ombudsman is not subject to the Freedom of Information Act. The Localism Bill contains no provision to bring the ombudsman under the Act, despite the fact that the housing ombudsman is to take over important responsibilities from the local government ombudsman, who is subject to the FOI Act.
Finally, the public’s right to information is likely to be undermined by some Government policies. Under the NHS reforms, NHS services will be provided either by NHS bodies or by independent providers under contract. The NHS bodies that commission services will be subject to the FOI Act, but independent providers will not. The standard NHS commissioning contract contains a clause requiring providers to provide the commissioning bodies with information to help them answer FOI requests, but the clause appears to apply only to the specific information that the contract requires a provider to hold or report. The contract does not cover the full range of information that would be available from an NHS body under FOI.
As functions are transferred from NHS bodies to independent providers, the existing broad FOI right of access is likely to be increasingly constricted. To prevent that, any contractual disclosure provision must reflect the full breadth of the existing access right and not be limited to specified databases, statistics or reports, however numerous they may be. The disclosure provision should extend to any information that would assist in assessing the adequacy of a provider’s services. Furthermore, where a provider’s work consists primarily of treating NHS patients, the provider should be made subject to the FOI Act under section 5 of that Act.
There are similar concerns about the contracting out of local authority functions proposed by the Localism Bill. The more council functions that are carried out by contractors, the harder it will be to rely on the Freedom of Information Act to scrutinise what is being achieved. The Government have so far refused to support potential solutions to that; they prefer to defer consideration of the issue until post-legislative scrutiny of the FOI Act next year, which risks the emergence of serious gaps in FOI coverage in the meantime.
4.52 pm
Mr Djanogly: A wide selection of questions have arisen. Few of them are on the statutory instrument itself, but, importantly, they are relevant to the overall concept of extending FOI, so I will do my best to address the points raised.
First, the hon. Member for Hammersmith asked whether all ombudsmen are now subject to the FOI Act. I do not have a list here, but I will get back to him.
My understanding is that the vast majority of ombudsmen are subject to the Act, but, having said that, my hon. Friend the Member for Aldridge-Brownhills gave the example of the housing ombudsman, who is not subject to the Act. I will come back to that issue and address it in more detail.The hon. Member for Hammersmith also asked which other bodies are being brought under the scope of the Act. We are consulting on the inclusion of a number of bodies or classes of bodies in the Act. Subject to the outcome of that consultation, we will introduce further section 5 orders to bring those bodies within the scope of the Act. I take his point, by the way, on trying to avoid having many delegated legislation Committee sittings by grouping the bodies together. We have done our best to do so on this occasion, and I will keep his points in mind when we move forward. We also aim to consult housing associations later this year on their inclusion in the Act, and we aim to introduce orders for larger volumes of bodies once the consultation is complete.
My hon. Friend the Member for Aldridge-Brownhills and, to some extent, my right hon. Friend the Member for Carshalton and Wallington mentioned some of the bodies on which we are consulting. For the sake of clarity, I will set out the 19 bodies on which we are consulting under section 5: first, the Advertising Standards Authority; secondly, approved regulators under the Legal Services Act 2007, including the Law Society and Bar Council; thirdly, the British Standards Institution; fourthly, the Carbon Trust; fifthly, the Energy Saving Trust; sixthly, examination boards, where they are not already covered; seventhly, harbour authorities, where they are not already covered; eighthly, the Independent Complaints Reviewer; ninthly, the Independent Schools Inspectorate; tenthly, the Local Government Group; eleventhly, the National Register of Public Service Interpreters; twelfthly, the NHS Confederation; thirteenthly, the Quality Assurance Agency; fourteenthly, the School Inspection Service; fifteenthly, the Bridge Schools Inspectorate; sixteenthly, the Panel on Takeovers and Mergers; seventeenthly, the Parking and Traffic Appeals Service; eighteenthly, the Trinity House Lighthouse Service; and nineteenthly, the Traffic Penalty Tribunal.
My hon. Friend the Member for Aldridge-Brownhills and my right hon. Friend the Member for Carshalton and Wallington asked whether we would extend the Act to cover Network Rail. The Government are committed to making Network Rail more accountable to its customers, and believe that there is a strong case for its inclusion in the Freedom of Information Act. The Department for Transport is currently reviewing the structures and
accountability within the rail industry, and will wait until the structure of Network Rail is determined before further considering its inclusion within the scope of the Act.My right hon. Friend the Member for Carshalton and Wallington and the hon. Member for Hammersmith asked whether free schools are subject to FOI. The answer is yes; they were brought within the scope of FOI in the Academies Act 2010. My hon. Friend the Member for Aldridge-Brownhills asked why we are not extending the Act to electoral registration officers, district auditors, the housing ombudsman and Northern Rock. I can confirm that we plan to extend the Act to a considerable number of new bodies through legislation.
We intend to keep the bodies covered by the Act under constant review, so we may consider the addition of further bodies in the future. However, we consider there to be a strong argument for increased transparency for all bodies in receipt of public funds, and the Government’s open data consultation is proposing and consulting on an extension to the types of organisation to which an open data policy would apply. The FOI Act will be subject to post-legislative scrutiny to see how it is working in practice. Further policy in the area will, therefore, be developed in light of the evidence drawn from both sets of work.
My hon. Friend the Member for Aldridge-Brownhills asked why we are not including bodies that provide services under contract; he specifically mentioned NHS contractors. In that case, we struck a balance between our commitment to increasing transparency and our commitment to reducing the regulatory burden on businesses. We do not consider it necessary to extend the Act to those bodies at present, as information about contracts with public authorities can be requested directly from the authority letting the contract. In addition, central and local government are proactively publishing information about their contracts online. However, there is a strong argument for increased transparency for all bodies in receipt of public funds and, as I said, the Government’s open data consultation will address those types of issues as well.
This important order will increase openness, transparency and accountability, and ensure that ACPO, the Financial Ombudsman Service and UCAS are subject to the same scrutiny as other bodies that perform public functions.