Freedom of Information (Additional Public Authorities) Order 2008

My Lords, we are all deeply indebted to the noble Lord, Lord Tyler, for enabling us to have a short but, I hope, illuminating debate about the operation of the freedom of information legislation. He asked a number of fair questions about the criteria in relation to the order and went through an interesting list of organisations which he suggested ought to be included in the Act. He will know that we are undertaking a review at the moment and that, although that means I shall not answer directly some of the specific suggestions that he has made, we will be able to take account of what noble Lords have said this afternoon when considering the outcome of the consultation. The questions raised by noble Lords are perfectly reasonable. The beauty of the framework of the legislation is that it allows for flexibility and for bodies to be added to the list covered by the legislation. That was extremely sensible and it means that one can move with the times and with new situations. While not all the organisations listed in the order might seem the most exciting of organisations, none the less, it is an example of how there is flexibility to add organisations to the list. The noble Lord, Lord Tyler, has long been interested in—and a doughty campaigner for—freedom of information. I pay tribute to him and assure him that the Government are proud of the freedom of information legislation. We see it as a far-reaching reform to which we continue to be committed. There is no let-up in our enthusiasm for its operation. Of course there will always be legitimate reasons why some information should not be released by the Government. These matters have received a great deal of attention in relation to the Information Commissioner, the tribunal and more generally. There will continue to be cases that provoke argument and disagreement. However, the fact that this Government will find circumstances where they do not believe that information should be released does not mean that they are not committed to the principle of freedom of information. It is important that I make that clear to your Lordships this afternoon. I have used freedom of information legislation myself. The statistics in the report published yesterday, and in previous annual reports, show clearly that many thousands of requests have been made, many have been acceded to and many members of the public, media organisations and interested bodies have benefited. It is important that we celebrate the success of freedom of information. Sometimes the controversies and the publicity have tended to obscure the success of what has been achieved. I understand the issue raised by the noble Lord, Lord Tyler, about backlog and the role of the Information Commissioner, to whom I pay tribute. We are aware that the Information Commissioner is focusing on the backlog of cases. We have responded to his request for additional resources by increasing his funding to £5.5 million—an increase of £800,000 on the 2007-08 baseline figure. In response to the commissioner’s request for people as well as money, we have also established a scheme of secondments from central government to his office. This is already under way and it is a good thing because it is a two-way process. Staff from my department and other departments can be of assistance to the commissioner and there is also the beneficial impact, when they come back to their departments, that they help to imbue the philosophy of freedom of information more widely within government. We are debating Section 4 of the Act. It is through Section 4 that bodies that should be subject to the Act are added to Schedule 1. Schedule 1 lists the bodies, persons and office holders that are ““public authorities”” under the Act. Publicly owned companies—that is, companies wholly owned by the Crown or by a Schedule 1 public authority—are also subject to the freedom of information regime. Section 5 consultation is relevant to a number of organisations to which noble Lords have referred. However, I will start with Section 4, in response to the noble Lord, Lord Kingsland. Section 4 provides an order-making power to add bodies and office holders to the list of public authorities in Schedule 1. To be added to Schedule 1 by a Section 4 order, a body or office holder must meet both conditions set out in subsections (2) and (3) of Section 4. The first condition is that the body must be set up by the prerogative, an Act of Parliament or subordinate legislation, or by a Minister of the Crown, a government department, the Welsh Ministers, the First Minister for Wales or the Welsh Assembly Government’s Counsel General. The second condition is that bodies must have been wholly or partially constituted by appointment made by the Crown, a Minister of the Crown, a government department, the Welsh Ministers, the First Minister for Wales or the Welsh Assembly Government’s Counsel General. Similar provisions exist in respect of appointments to an office. What are the criteria for adding or deleting? Inevitably, new bodies and offices come into existence or become defunct with the passage of time. It is therefore important that the Act is kept up to date. Between 2002 and 2005, the Government made several Section 4 orders and we intend to make more in the future to ensure that Schedule 1 remains up to date. There is no reluctance on the part of the Government to add to the number of organisations that are covered by Section 4 when those organisations meet the criteria. The simple answer to the question posed is that, if new organisations come along that meet the criteria, we will consider them and add them to the list. Section 5 allows the Secretary of State to designate by order persons who appear to him either to exercise functions of a public nature or to provide under contract to a public authority services that are a function of that public authority. The Government published a consultation paper in October 2007 seeking views on whether this power should be used. The noble Lord, Lord Tyler, is right to say that the consultation has now closed. We received 130 responses. They are being analysed and we will present our response and proposals as soon as possible. I know that the noble Lord is tempted to ask me to define ““as soon as possible””. He will know that my department is energetic and will produce the response and proposals as quickly as we possibly can, but there are issues that will need to be considered. Lots of organisations could be involved. The fact that we have not published yet means that today’s debate can be fed into the consultation. The speeches of the noble Lord and other noble Lords have proved to be of such great value that they are a bonus to the full consideration that my department is giving to these matters. I completely understand the point that the noble Lord, Lord Tyler, makes about academy schools and some of the organisations that have been listed. These are the very matters that will be considered as a result of that work. As I said, we will consider them very carefully. On the organisations involved in criminal investigations, my understanding is that SOCA, which the noble Lord, Lord Tyler, mentioned, is exempt from coverage as a security body. That is consistent with Parliament’s treatment of the security services, secret intelligence services and GCHQ. I understand, although I was not involved, that this matter was debated when the Bill went through both Houses. Information provided by security bodies is exempt under Section 23 of the Act. The noble Lord probably does not agree with the philosophy behind it, but that explains why such organisations are not covered. The noble Lord, Lord Tyler, asked me about Network Rail. I have two answers. If one looks at its structure, one sees that it is a privately owned company that operates on commercial principles. Its main customers are not public authorities but train operating companies and freight operating companies. Interestingly, in July 2007 the Information Commissioner found that the structure, functions and accountability of Network Rail were unusual. The tribunal disagreed, however, with the Information Commissioner’s view that Network Rail was a public authority for this purpose on the basis that its functions were not functions of public administration. Because of that it is much more appropriate to consider whether bodies such as Network Rail should be subject to the provisions of the Act and embraced within the current consideration of Section 5. I would not like the noble Lord to think that Network Rail has simply been swept aside. Consideration is being given to it. I understand the point the noble Lord is making and we had an interesting discussion in Oral Questions this afternoon on the remuneration of directors when Members of your Lordships’ House were able to ask questions in relation to the structure of that organisation. As for Northern Rock, the Freedom of Information Act applies to publicly owned companies by virtue of Sections 3 and 6. Under the Northern Rock plc Transfer Order 2008 made under the Banking (Special Provisions) Act 2008, Northern Rock is expressly removed from the scope of the Freedom of Information Act. The noble Lord may ask why. Bodies covered by the Freedom of Information Act generally discharge functions of a public nature. Criteria which might be taken into account in determining this include the extent to which a body’s activities are underpinned by statute and whether the body exercises extensive or monopolistic powers. Northern Rock fulfils neither of these criteria and will not be carrying out public functions. Northern Rock will remain a commercial bank. The Act was not intended to apply to purely commercial concerns and therefore it is considered inappropriate for Northern Rock to be within the scope of the Act. Government Statements have made it clear that nationalisation would be only temporary and we think it would therefore be perverse for Northern Rock to be subject to the Act for a limited period of time only for it to be removed on reprivatisation. As the noble Lord agonises as to whether he is going to pursue this matter to a vote, I say to him that there will always be debate and argument about organisations which do not comfortably fit into Section 4 but come more into Section 5, and the extent to which they should be covered. When we see the outcome of the consultation, noble Lords will have a better understanding of the criteria we are adopting. I assure the noble Lord, Lord Tyler, that we see the Freedom of Information Act as a living, breathing organism which is subject to amendment by having organisations to be covered added to it. I hope that he will accept that, although he is disappointed that the outcome of the consultation is not yet apparent, we are enthusiastic in what we do, as the Prime Minister very clearly signalled when he announced the consultation last autumn, and that the points raised by noble Lords, all of which were entirely legitimate, will be very carefully considered.