Human Rights Committee concerned new National Crime Agency will be exempt from FOI

The Joint Committee on Human Rights (JCHR) has published a Report on the Crime and Courts Bill which will be considered at Report stage in the House of Lords from Tuesday 27 November. In its Report the Committee expresses concern that the new National Crime Agency to be exempt from the Freedom of Information Act:

19. The Bill provides for the NCA to be exempt from freedom of information (“FOI”) legislation. The NCA’s predecessor, the Serious Organised Crime Agency (“SOCA”) was similarly exempt from the FOI Act, but the functions which the NCA will take on from the UK Border Agency and the National Policing Improvement Agency were not previously exempt.

20. We asked the Government for its justification for excluding from the scope of the FOI legislation functions which were formerly within the scope of that legislation. The Government’s response is that the functions transferring into the NCA which were formerly within the scope of FOI legislation are expected to make up only a small part of the Agency (about 8% of staff and 5% of budget), and it is not considered possible to ring-fence the functions of the precursor agencies for the purposes of the application of FOI legislation. This, the Government explains, is because the NCA is being designed as an integrated whole—to ensure a free flow of information between the central intelligence hub and all parts of the Agency, and it would defeat the purpose of such an approach if individual parts had to be cordoned off as subject to the FOI Act. Precursor units are also considered to be unlikely to be clearly identifiable as distinct entities within the new NCA.

21. The Government also states that it is committed to ensuring that the NCA will be transparent, notwithstanding that FOI legislation will not apply to it. The Director General will be under a statutory duty to make arrangements for publishing information about the exercise of NCA functions, and the sorts of information that will be published will be set out in the NCA’s Framework Document, which will itself be published and laid before Parliament. The Government expects that as a result the NCA will in fact publish more information than its predecessors.

22. We are not convinced by the Government’s justification for reducing the coverage of freedom of information legislation by including within the NCA exemption functions which were previously covered by that legislation. We are concerned that reducing the coverage of this legislation in this way could create a dangerous precedent. It is not uncommon for this legislation to apply to certain of an organisation’s functions but not others, and we need a good deal more evidence from the Government to persuade us why the NCA should be any different.

During the Bill’s Committee stage in the House of Lords, Baroness Hamwee moved an amendment to to make the NCA subject to the FOI Act. Following a reply from the Home Office minister, Lord Henley, the Baroness said “I am afraid that I remain unconvinced” that the NCA “should be exempt in its totality”. She withdrew the amendment but said “this issue justifies further examination”.

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