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The Earl of Northesk moved Amendment No. 237:
- Page 25, line 35, at beginning insert--
The noble Earl said: Our aim is straightforward: we seek to add what amounts to a purpose clause to the section describing the role of the information commissioner. Unsurprisingly, bearing in mind previous debates, we believe that to be particularly important given the proposals to merge the positions of Data Protection Commissioner and information commissioner.
Once the Bill is enacted, the role of the combined data protection and information commissioner will be vital. In principle, the main aim of the former incarnation was to ensure that people had access to personal information held on record. However, in practice the bulk of her work is concerned with ensuring that personal data are not misused by organisations or transferred between organisations unlawfully. In many cases, that involves ensuring that information remains secret rather than promoting openness. That is still a major contradiction at the heart of the Bill.
We acknowledge that the amendment will not resolve the contradictions--indeed, the Minister may argue that it could exacerbate them--but we believe that the Bill should stipulate that the purpose of the information commissioner is to facilitate the release of information. After all, this is a Freedom of Information Bill. What more important role can the commissioner have? I beg to move.
Lord Lucas: I have three small amendments in the group. Amendment No. 239 would insert the words "and spirit" to promote the observance by public authorities of the requirements and spirit of the Act. I lived for a long time under the aegis of the City code. It was successful because it imposed the spirit as well as the letter of the code on the people who were subject to it. A lot of clever people who were very good at getting round government regulations all the time and made a great deal of money out of doing so were unable to get round the code because they had to obey the spirit as well as the letter. As we are aiming for a culture change and do not want to encourage officials to look for legalistic ways round the provisions of the Act, the words "and spirit" would be thoroughly desirable.
The other two amendments question why, under subsection (3), the commissioner has to have the consent of a public authority to assess whether it is following good practice. The commissioner should be able to do that off her own bat whenever she wants and report on it independently, much as Ofsted reports on how well a local education authority is doing.
The purpose of Amendment No. 258 is to question the Government on what restrictions the inclusion of the words "with respect to those functions" places on the commissioner. I should like to be sure that after a couple of years, she is able to say that the legislation is failing because of some provisions in the Act and that there should be extra powers or things should be written differently. She should be able to say that it is time for amendments to be made to the Act. The commissioner, who is in the middle of these things, should be able to express such views. It is not clear to me from the wording of the Bill that she would be able to do so.
Lord Falconer of Thoroton: As regards Amendment No. 237, the Bill already enables the commissioner to promote access to information held by public authorities in general. It is envisaged that the commissioner will, for example, as part of that wider role, issue advice on a range of matters to assist both applicants and public authorities and thus facilitate public access to information held by public authorities. Therefore, Amendment No. 237 does not add anything and is unnecessary.
As regards Amendment No. 242, the second of the amendments in the name of the noble Lord, Lord Lucas, the commissioner has extensive powers to investigate a public authority if she believes that it is failing to comply with the provisions of the Act. Those are found at Clauses 49 to 51 and do not require the consent of the public authority. Clause 46(3) gives the commissioner the power, with the consent of the authority, to perform an additional auditing function in circumstances where there is no suggestion that the authority is not complying with the provisions of the legislation but would welcome her advice. It would be odd to give the commissioner the power to audit an authority's compliance with the Act without its consent, if there was no suggestion of non-compliance. If there is a suggestion of non-compliance, as I say, that can be dealt with under Clauses 49 to 51.
Amendment No. 258 is based on a misunderstanding of the breadth of the commissioner's functions. As drafted, the Bill would allow the commissioner to report to Parliament that she believed that the Act should be amended or that certain provisions prevented proper disclosure. That is what the noble Lord was primarily aiming at. But the commissioner cannot properly act outside the scope of her statutory functions and it would therefore be wrong to suggest that she could report to Parliament on her own, acting outside those functions.
Finally, as regards the reference to "spirit", the Bill as drafted places wide duties on the commissioner that include, but are not limited to, the enforcement of the right of access to information held by the public authorities. Amendment No. 239 goes beyond that. In this context, reference to the "spirit" of the Act would be unhelpful. It would simply lead to legal problems; nor is it clear what it is, if not compliance with good
The Earl of Northesk: I am grateful to the noble and learned Lord for his response. I am quite content at this stage and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 238 to 248 not moved.]
Clause 47 [Recommendations as to good practice]:
[Amendments Nos. 249 to 253 not moved.]
Lord Lucas moved Amendment No. 254:
The noble Lord said: I shall await the ministerial reply to Amendment No. 254. I do not know whether my noble friend wishes to speak to Amendment No. 255. Again, on Amendment No. 261, it saves a great deal of time first to hear the ministerial reply. I beg to move.
Lord Bassam of Brighton: I understand that Amendment No. 255 is not to be moved. I deal with the two amendments in the group to which reference has been made. As to Amendment No. 254, nothing in the Bill as drafted requires that information contained in a practice recommendation is exempt. We believe it is likely that the commissioner will wish to summarise any recommendations she may have made when she makes her annual report to Parliament, as required under Clause 48(1). It would be open to her to refer directly to such a recommendation in that report, or in any other report that she might decide to make under the provisions of Clause 48(2). To that extent, much of the information relating to practice recommendations will be routinely made available to the public.
The information commissioner is herself a public authority for the purposes of freedom of information. A member of the public would, therefore, be entitled to request that the commissioner, or the relevant public authority, should disclose information that she or it held which is contained in a practice recommendation. Amendment No. 254 would result in the disclosure of all the information in that recommendation, including, for example, any confidential or personal information which might have been included to illustrate a particular requirement for change. I do not think that that is sustainable in principle or practice. A fundamental principle of the Freedom of Information Bill is that it requires each application to be judged individually against the careful balance of rights which the Bill recognises. I have good reason to believe that in many cases the requirement of a blanket disclosure would result in considerable unfairness.
I turn next to Amendment No. 261. That amendment would have the effect that an applicant could apply to the commissioner for a decision in respect of failure to comply with the codes of practice
Lord Lucas: I am grateful for those explanations and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 255 not moved.]
Clause 48 [Reports to be laid before Parliament]:
[Amendments Nos. 256 to 258 not moved.]
Lord Cope of Berkeley moved Amendment No. 259:
("(A1) The purpose of the Commissioner is to facilitate public access to the information held by public authorities except where disclosure of specific information is exempt under the Act.").
Page 26, line 44, at end insert--
("( ) A practice recommendation shall never be exempt information under Part II of this Act.").
10 p.m.
Before Clause 49, insert the following new clause--
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