Appendix
Draft S.I.
Freedom of Information (Designation as Public Authority and Amendment) Order 2018
1.The Committee has asked the Home Office for a memorandum on the following question:
Explain, in light of paragraph 5 of the Committee’s First Report of Session 2014–15 and paragraph 4 of its 26th Report of the current Session, the justification for the provision that would bring the Order into force on the day after the day on which it is made.
2.Paragraph 4 of the Committee’s Twenty-sixth Report of Session 2017–19 states:
In [the First Report of Session 2014–15], the Committee expressed the view that, where an affirmative procedure instrument imposes new duties which are significantly more onerous than before, and requires those affected to adopt different patterns of behaviour, there should be a period between the making of the instrument and its commencement which gives those affected a reasonable chance to adapt to the changes required. The Committee considered that, as a starting assumption, the period should be at least 21 days, and that the Government should provide strong policy reasons to justify any shorter period.
3.The Home Office has fully considered the Committee’s Report. However, we consider that there are strong policy reasons for the instrument to come into force on the after the day on which it is made.
4.The Home Office has considered whether the duty imposed on the National Police Chiefs’ Council (‘NPCC’) would impose a significant new burden or require the adoption of different patterns of behaviour. Our view is that the duties imposed on public authorities by the Act are not significantly onerous: see paragraph 10.2 of the draft Explanatory Memorandum. Further, the NPCC has voluntarily complied with the spirit of the Act since its creation in 2015. Its predecessor, the Association of Chief Police Officers, was subject to the Act from 2011. In this particular case, therefore, the changes required in the NPCC’s behaviour will be minimal (primarily consisting of beginning to defend cases before the Information Commissioner and Tribunals if and when requesters bring applications under s.50 of the Act).
5.This draft Order will extend the public’s right to information under s.1 of the Freedom of Information Act 2000 (‘the Act’) so as to include the National Police Chiefs’ Council (‘NPCC’). Both the Home Office and the NPCC wish this to occur as soon as possible. Delaying the Order’s entry into force means delaying the extension of the public’s right to know and delaying the opening of the NPCC up to further public scrutiny. It is this benefit that must be weighed against the modest burdens this Order will impose on the NPCC.
6.Furthermore, the NPCC has been intimately involved in the process leading to this Order, including by way of the formal consultation undertaken pursuant to s.5(3) of the Act last December (see paragraph 8.1 of the draft Explanatory Memorandum). It is aware that the Order is before Parliament. It has had (and continues to have) substantial time to adapt to the changes required. Adding a further delay to the draft Order’s entry into force will not serve the stated rationale of this rule, namely to protect the interests of those affected by it. To the contrary: the NPCC has repeatedly expressed its desire to be brought within the Act as quickly as possible.
7.This Order will extend the public’s right to know; it will impose modest additional burdens on the NPCC; and the NPCC, who wish this advance to happen as quickly as possible, have had extensive notice of it. In our view, therefore it is appropriate for the Order to come into force the day after the day on which it is made.
8.We hope that this Memorandum helps the Committee and are, of course, happy to provide any further assistance that the Committee requires.
Home Office
11 September 2018
Published: 12 October 2018