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Lord Mackay of Ardbrecknish moved Amendment No. 27:
- Page 2, line 26, at end insert ("on a contractual or agency basis").
The purpose of the amendment is very much exploratory because in recent years the concept of a public authority has undergone considerable redefinition. Much work which was once undertaken directly by local authorities and government is now performed by the private sector. Indeed, even legal work for local authorities is contracted out. I live in Wandsworth in London and the refuse collection there is contracted out and operates extraordinarily efficiently, so far as I can see. In other places, many of the councils' civil engineering services are also contracted out. The Law Society considers that some
clarity should be brought to bear on whether those bodies are covered by the Freedom of Information Bill.This amendment is not unlike the one that we have just debated in that it concerns bodies that carry out some public and some private work. How are those bodies covered? That is the question that I pose on behalf of the Law Society. I also ask whether the Government need to address certain definitions in relation to contracting-out services in the light of the huge changes which were begun by the Conservative government and, of course, continued by the Labour Government. I beg to move.
Lord Bach: I am grateful to the noble Lord for explaining what he means by this amendment and for explaining that he seeks clarity. I hope that I can provide that.
This amendment would have the effect of limiting the definition within the Bill of when information is considered to be held by a public authority. If left as it is at present, Clause 2 would provide that information is so held either if it is held by the authority, unless it is holding it on a third party's behalf, or if,
- "it is held by another person on behalf of the authority".
I say immediately that we agree that the usual situation will be that the basis on which information is held by a third party on behalf of a public authority will be contractual or as an agent. The clause covers that at present and, to that extent, the amendment is unnecessary.
At first it was not clear to us what was behind the noble Lord's amendment. Of course, now that the noble Lord has moved it, it is clear. We feel that if the amendment were carried forward--I now know that that is not the intention today--its implications might be quite serious.
By limiting the definition, as the amendment seeks to do, only to information held on a contractual or agency basis, too rigid a stricture would be placed on the type of information which public authorities would have a duty to disclose under the Bill. Perhaps I may point out to the Committee that a danger arises from the possibility that bodies may exist whose relationship with a public authority does not come within the strict legal definition of either a contract or an agency but they may hold information to which access should be afforded under the Bill.
Perhaps I may provide the Committee with an example. Were an NHS trust to transfer some of its records to a body such as the Wellcome Institute for the History of Medicine, there may be some uncertainty as to the basis on which the latter body held that information. Any such uncertainty in the coverage of the Bill would be unwelcome. That is why we cannot accept the amendment as it stands.
With regard to the noble Lord's question as to whether the contracted-out functions of public authorities are covered, the answer is that they can be
covered by an order under Clause 4. The amendment that he has moved in order that we may have a brief discussion does not strictly cover that point. I invite the noble Lord to withdraw his amendment.
Lord Mackay of Ardbrecknish: I thank the noble Lord, Lord Bach, for his reply. This begins to look like a replay of the political parties Bill with, first, the noble Lord, Lord Bassam, and then the noble Lord, Lord Bach. I had better resist the temptation to introduce a political parties (amendment) Bill.
I am grateful to the noble Lord for his explanation. I am surprised that his officials did not understand at what the amendment was aimed. However, I believe that he has made it clear that the concerns of the Law Society are not well founded and it can rely on the comments that the noble Lord has just made. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Ardbrecknish moved Amendment No. 28:
- After Clause 2, insert the following new clause--
(" . Public authorities must assist applicants in making requests for information.").
The noble Lord said: In moving Amendment No. 28, I wish to speak also to Amendment No. 29. Also in this group is Amendment No. 81 in the name of my noble friend Lord Lucas.
We almost ran a trailer for this debate earlier. These amendments all have the same aim: to ensure that on the face of the Bill people who seek information from public authorities will be assisted in that search; otherwise, a severe danger exists that the public may become hopelessly lost in seeking an answer to a question. Dare I say it (I have said it before), I believe that they will become hopelessly lost in trying to work through the Act to discover what their rights are. They may well need help and guidance.
The code of practice which we introduced when in government required bodies to guide applicants towards the information they sought. That was an important aspect of the code. Someone may require, for example, information about acute hospital beds in some part of the country. They may go to the wrong place to seek the information. The person being asked could reply simply, "We do not hold that information", and shut the door. What we and, I am sure, the Government want is for the official to say, "We do not hold that information but I suggest that you go to such and such a body. They hold the information and they will help you". We are attempting to achieve that here.
My noble friend proposes the same thing in a slightly different way and I am unsure whether I prefer his amendment or mine. I hope that the Government will appreciate what we are trying to achieve and come forward with their own amendment later.
I am told that most freedom of information laws, including those of New Zealand, Australia and Ireland, place authorities under a statutory obligation to assist requesters. The Irish Act implies that such a duty is so important that it is in the Long Title. Under this Bill the authorities would be encouraged, but not required, to provide assistance. I believe that it would be well worth our while to firm up this matter, so that it becomes a duty and so that public officials at whatever level of government will realise that they are under an obligation to help somebody on his or her way to the information that he or she seeks. I believe that our aim is fairly self-evident. I beg to move.
Lord Lucas: Amendment No. 81, standing in my name, says much the same as that of my noble friend. I share with him a conviction that this is a crucial change to make to the Bill; that there must be an obligation on public authorities to help if ordinary citizens are to feel that they have the rights that are provided for under this Bill.
There is a potential danger in these amendments in that they may make it impossible to answer parliamentary questions in the way that Ministers have become accustomed and in the way that I was accustomed to answering them, which is the unhelpful answer which studiously avoids giving the crucial piece of information that would help the inquiring noble Lord on to the next awkward question.
If there were a duty to assist included in the Bill, we would have a right to contact the Ministry and say, "What question should I ask?" One would have a right to receive the kind of information one sought and the Ministry would have to help. Fortunately, Clause 19, under which there is no such right, comes to the rescue. We have a right to ask parliamentary questions, therefore we will not be able to use the Freedom of Information Bill and Ministers will continue to give us blocking answers to parliamentary questions while helping the public. This amendment is without danger to proper ministerial practice and should be adopted.
Lord Archer of Sandwell: I believe that the two noble Lords who have spoken have drawn attention to a genuine problem. My concern goes a little wider than theirs. In order to lay a foundation for exercising the rights under the Bill, a member of the public has to make a request in the form set out in Clause 7. It is not a demanding requirement, but members of the public may be less familiar than your Lordships will be by the end of our deliberations with the provisions of this Bill. It is not a usual topic of conversation in the clubs and pubs of my former constituency.
Someone who meets a member or an official of a public authority on the steps of the town hall and simply asks a question may have no idea that he is purporting to exercise rights under any Act at all and he may not know what chain of events he is setting in motion. He may not know that under Clause 7, unless he makes a request in writing, it will not be a request under the Act, still less, that if he were to scribble it on the back of an envelope that he would totally
If a public authority does not intend to answer a question, it would not be asking too much to say that in the Bill there should be guidance about what it should do. Perhaps there could be a small booklet that sets out the rights and how to enforce those rights. If the Government have plans to produce such a booklet, perhaps my noble and learned friend will tell the Committee. I believe that we would be wrong to leave the matter in the air.
6.45 p.m.
Lord Lester of Herne Hill: These amendments are designed to promote a cultural change, away from the culture of secrecy to which the Minister referred earlier. As long ago as 1982, as the noble Lord, Lord Mackay of Ardbrecknish, pointed out, the New Zealand parliament found it appropriate to introduce a similar provision into its freedom of information Act, as did the Commonwealth of Australia.
Perhaps most strikingly of all, again as the noble Lord, Lord Mackay, has said, in 1997 in Ireland, in a country that was--I say with affection--at least as full of the culture of secrecy as this country, Ireland's parliament dealt with this matter not once but twice: in the Long Title and in a substantive provision in the Bill. Kevin Murphy, the admirable Information Commissioner, to whom my noble friend Lord McNally has already referred, speaking on 19th November 1999, at the University of Glasgow said:
- "At first sight it might not seem that deepening the public awareness and understanding of the Act is of great relevance to changing the culture of secrecy in the public service. However if people really understand their rights then they will be able to exercise them wisely. Judicious exercise of the rights conferred by the FOI Act can encourage public bodies to change their practices".
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