Constitutional Reform and Governance Bill Lords debate

The Constitutional Reform and Governance Bill, which includes amendments to the Public Records and Freedom of Information acts, received its second reading in the House of Lords yesterday. The amendments implement the Government’s response to the review of the 30 year rule year chaired by Paul Dacre.

The main effect of the amendments are:

(a) to cut the 30 year rule for the automatic release of old government records to 20 years, for some records

(b) to create a new exemption for communications between members of the Royal Family and public authorities

Move to a 20 year rule
The FOI Act allows requests for information to be made regardless of the age of the information concerned, so the old “30 year rule” no longer acts as a barrier to disclosure. However, it still operates as the point at which old government files, including cabinet papers, are proactively made public in The National Archives.

The transition to a 20 year rule will be phased in over 10 years by doubling the volume of records released each year. The proposed amendments would also lift some of the FOI exemptions after 20 years instead of 30 years as at present. Those that would be removed after 20 years are the exemptions for investigations (s 30), court records (s 32), audit functions (s 33), policy formulation (s 35), effective conduct of public affairs (s 36) – except in relation to Northern Ireland authorities, where the exemption would continue to apply for 30 years and legal professional privilege (s 42).

All other exemptions would continue for their present length of time. Those that would still operate for up to 30 years would be the exemptions for commercial interests (s 43), and devolved administrations (s 28). The honours exemptions would continue for up to 60 years, the law enforcement exemption for up to 100 years and remaining exemptions could apply indefinitely.

Royal Family
At present, information relating to communications with Her Majesty, other members of the Royal Family or with the Royal Household are exempt under section 37(1)(a) of the FOI Act. This exemption is subject to the Act’s public interest test, which in turn is subject to the potential use of the ministerial veto.

The effect of the amendments would be:

(a) to exempt information relating to communications with the monarch, the heir to the throne and second in line to the throne for (i) 20 years or (ii) till 5 years after the individual’s death, whichever is later. This exemption would no longer be subject to the public interest test.

(b) that communications with other members of the Royal Family would also be protected until 5 years after the individual’s death or for 20 years, but in these cases the public interest test would apply. 

The main effect of the change is therefore to rule out the possibility of any disclosure on public interest grounds of information relating to communications between the monarch, heir or 2nd in succession until 5 years after the individual’s death or 20 years, whichever is later.

During the debate, several Lords spoke about the amendments. In response, the minister, Lord Bach said:

The speech of my noble friend Lord Berkeley concerned one aspect of the review. The noble Baroness, Lady Young, asked why the change was being phased in gradually and wondered why it could not be done straight away. She asked whether we were covering our backs. The Dacre review recommended a phased approach to a reduction in the 30-year rule. Current estimates suggest that in central government alone departments hold at least 2 million files between 20 and 30 years old. I was asked about consultation on the transitional order. We will be working closely with central government and the wider archive sector to ensure that the transition to the new rule can be achieved in a fair and transparent manner.

The issue concerning the Royal Family was referred to by the noble Lord, Lord Pannick, and by my noble friend Lord Berkeley. This matter relates to the monarch herself and the next two in line to the throne. Just as it is a sovereign’s right and duty to counsel, encourage and warn her Government, it is also the right and duty of the heir to the throne to be instructed in the business of government to prepare him for the time when he will be king. Both these sets of rights and duties rely on well established conventions of confidentiality that were never meant to be superseded by the Freedom of Information Act. Therefore, we think that we have approached this part of the Dacre review in the right manner.

Read the debate here.
Latest copy of the Bill here and Explanatory Notes here.

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