Lords Committee Stage
Note on Government amendments
Revised 7 September 2000
The government’s amendments for the Lords committee stage of the FOI bill appeared on the Parliament internet site on July 31(*). The amendments themselves provide a number of modest improvements to the bill
But they fail to address the outstanding concerns raised about the bill, expressed in over 200 amendments tabled by peers of all parties. In particular, they do nothing to deal with the many class exemptions, which allow information to be withheld without evidence of harm. The only gesture is to remove ‘statistical information’ about decisions which have been taken from the policy formulation exemption. If anything this merely exacerbates concerns about the exemption, highlighting the fact that it permits the suppression of other factual information, including statistics about forthcoming decisions.
Other amendments propose (a) changes to the ministerial veto, largely in line with those announced by the Home Secretary at the bill’s Commons report stage; (b) the deletion of clause 43 which allows new exemptions to be created by Parliamentary order; (c) the addition of a number of bodies to the list of authorities covered by the bill; and (d) moving of the bill’s public interest test from clause 13 to a new clause after clause 1. A number of other minor changes are also proposed.
It is still not known when the bill’s committee stage will take place. Although Lords business has been announced for the period from September 27 to October 6, it does not include the FOI bill. If the committee stage does not begin in the following week, there will be serious concerns about the bill’s future.
The main Government amendments are:
1. Ministerial veto
The range of bodies able to exercise a veto has been restricted, in line with the Home Secretary’s commitment at Commons report stage.
Under the bill at present, ministers, local authorities and certain other bodies could veto any Information Commissioner notice requiring disclosure of exempt information in the public interest. Other public authorities, with no direct right of veto, could ask a minister to veto a notice on their behalf.
The amendments would allow the veto to be used only for notices served on government departments, the Welsh Assembly and unspecified other public authorities, designated by order. The veto would no longer be available for notices served on local authorities, NHS and educational bodies, quangos, and most other bodies (apart from those to be designated by order).
A veto can only be issued by cabinet ministers, the first Secretary of the Welsh Assembly, the first minister and deputy first minister (acting jointly) of the Northern Ireland Assembly, the Attorney General, the Advocate General for Scotland or the Attorney General for Northern Ireland. Designated bodies would not have a direct right of veto but would have to ask a cabinet minister to exercise the veto for them.
The Home Secretary had promised that cabinet ministers would be required to consult their cabinet colleagues before issuing the veto. No amendment to this effect has been tabled. It is likely that a requirement to consult will be added to the Ministerial Code.
The limitation on the use of the veto is welcome. However, its retention for government departments and certain other bodies is a source of concern. The combination of the veto and the class exemptions mean that even information whose disclosure caused no harm at all, and which the Commissioner considered should be disclosed on public interest grounds, could be suppressed.
2. Public interest test
The public interest test has been moved from clause 13 (which will be deleted) to a new clause inserted after clause 1. The substance is largely the same, though the terminology has been changed. The main changes are:
* The public interest test would be slightly extended to cover personal information which is the subject of a notice under section 10 of the Data Protection Act 1998 [clause 38(3)(a)(ii)]. A notice can be issued to protect an individual from substantial and unwarranted damage or distress caused by the processing of his personal data.
* The public interest test would be removed from clause 34 (collective responsibility, frankness of advice, effective conduct of public affairs) but only in relation to information held by Parliament. (The public interest test would continue to apply to clause 34 for other authorities.)
* The words “where it appears to the authority” which appear in the clause 13 public interest test would be dropped. These implied that the Commissioner might not be able to substitute her decision on public interest for the authority’s. The Home Office had previously indicated that any such effect was not intended.
* Appeals against notices involving decisions on the public interest could now be made to the Tribunal. Provisions in clauses 49, 51 and 56 which prevented such appeals would be deleted. A minister could veto a notice after it had been served or, alternatively, after the Tribunal had upheld it.
* Those exemptions which are not subject to a public interest test are now referred to as “absolute exemptions”
* A number of redundant provisions (e.g. clause 14, dealing with fees for public interest disclosure) would be deleted.
The public interest provision is a positive measure. However, we are concerned that: the bill contains no time limit for reaching decisions on the public interest test. Decisions on whether information is exempt must be made within 20 working days. But decisions on whether to disclose exempt information in the public interest, can be taken over a longer, unspecified ‘reasonable’ period. Decisions will be issued in a two-stage process, with no deadline for the second stage. This would allow authorities to delay decisions on disclosure almost indefinitely.
A further concern is that the public interest test does not apply to a number of the bill’s exemptions. Most of these are ‘class’ exemptions, so information could be withheld even if disclosure would not cause harm and regardless of any public interest in revealing the information.
3. Statistical information and policy formulation
Amendments to clause 33 mean that the exemptions for policy formulation and ministerial communications would not apply to statistical information about a decision once it has been taken.
This does little to address concerns about the vast scope of these exemptions. They go well beyond those in the current open government code, in particular by protecting factual information as well as civil service advice; and allowing all such information to be withheld regardless of whether disclosure would cause harm.
A related amendment modifies the harm test in clause 34 in relation to statistical information. Clause 34 exempts information whose disclosure would ‘in the reasonable opinion of a qualified person’ be likely to prejudice collective responsibility, inhibit the frankness of advice or prejudice the effective conduct of public affairs. The words ‘in the reasonable opinion of a qualified person’ would not apply in relation statistical information (but would continue to apply to all other information).
Clause 13(5) would be deleted. Authorities will no longer be required to have particular regard to the public interest in disclosing factual information which has been or is intended to be used to provide an informed background to decision making. Arguably this provision is more helpful than the amendment which will replace it.
Note that the amendment does not even guarantee that all statistical data will be available. Statistics could still be withheld under clause 20, which exempts information which is likely to be published at an unspecified future date if it is reasonable to withhold them until that date. Statistics relating to forthcoming government decisions could still be withheld under clause 33. Statistics relating to decisions which have been taken could be withheld under clause 34 if disclosure would be likely to prejudice one of the broad interests set out in that provision. These exemptions, however, are subject to the bill’s public interest test.
The bill’s approach should be contrasted with the corresponding exemption to the Irish FOI Act. Factual or statistical information, and the analysis of such information, cannot be withheld under the Irish Act’s exemption [Freedom of Information Act 1997, section 20(2)(b)].
4. Power to create new exemptions
The government is proposing to drop clause 43, which allows new exemptions to be created by Parliamentary order. The clause has been heavily criticised, partly because it allows new exemptions to be created at short notice in time to deal with pending requests. The decision to drop it follows two reports from the House of Lords Select Committee on Delegated Powers and Deregulation expressing concern at the provision.
5. Authorities subject to the bill
Some bodies have been removed from the scope of the bill, while others have been added.
Those removed include the Cardiff Bay Development Corporation, the Commonwealth Institute and the Port of London Authority. These bodies have effectively been privatised.
Those added include: the Commission for New Towns; Community Health Councils; the Council for Professions Supplementary to Medicine; the General Chiropractic Council; the General Dental Council; the General Medical Council; the General Osteopathic Council; the UK Central Council for Nursing, Midwifery and Health Visiting; London Transport Users Committee; the Insurance Brokers’ Registration Council; the Civil Service Commissioners for Northern Ireland; the Northern Ireland Civil Service Appeals Board; the Northern Ireland social fund commissioner.
The definitions of various educational bodies have been changed, so that the governing body or managers of the body, rather than the body itself, is defined as the public authority. A number of other changes reflect changes to the name of public authorities. The Public Health Laboratory Service Board is listed twice in the current bill; one of these two references is now being deleted. A number of other amendments relate to the definitions of public authorities in Wales and Northern Ireland.
* Charges could be made for disclosing information whose cost exceeds the appropriate limit [New clause after clause 11]
* The class exemption in clause 28 would be extended to include investigations for military discipline offences.
* The class exemption for honours in clause 35 would be extended to also include the award of ‘dignities’. This exemption would apply to historical records for a maximum of 60 years (reduced from 75 years)
* There are further provision for the handling of requests for historical records.
* The exchange of information would be permitted between various Ombudsmen and the Information Commissioner or Data Protection Commissioner, subject to the confidentiality provisions of the relevant statutes.
Certain orders and regulations would have to be made under the positive resolution procedures. This applies to regulations under clause 73, implementing the Aarhus Convention on access to environmental information and orders designating those public authorities on access to environmental information and orders designating those public authorities on whose behalf ministers may exercise a veto.
Campaign for Freedom of Information,
9 August 2000
(*) The government amendments can be found at: