Protection of Freedoms Bill

My Lords, I am grateful to the noble Lord, Lord Wills, for introducing and explaining his amendment, and also for the supplementary comments from the noble Lord, Lord Rosser. I am not going to apologise for the fact that this Government are carrying out post-legislative scrutiny of the Freedom of Information Act and that I will refer to it on several occasions during the course of these debates. Such scrutiny is a very important and proper way of looking at existing legislation to see whether it is working effectively and operating as intended and for looking at ways in which it can be improved in the round. As a new Member of your Lordships’ House, on many occasions over the past year I have heard references to the need for post-legislative scrutiny and how that would be an important part of any legislation that passes through Parliament. Therefore, we should see as a good thing the fact that we have that mechanism in place for this Act and that it is happening at this time. The noble Lord, Lord Wills has explained his amendments effectively, so there is no need for me to repeat any of what he said. However, as he said, these two amendments are similar to those he tabled during the passage of the Localism Bill through this House. I am sorry that the noble Lord does not feel that his concerns were adequately addressed on that occasion. As he says, my noble friend Lord McNally stressed during the debates on the Localism Bill the Government’s commitment to the Freedom of Information Act and described some of the measures that we are taking to extend its scope. For example, as the noble Lord is aware, the Bill includes a provision to extend the scope of the Act to companies wholly owned by two or more public authorities. We have also made an order under Section 5 of the Act extending its scope to, among others, the Association of Chief Police Officers. In addition, we are currently consulting more than 200 further bodies about their possible inclusion, and we intend to extend this consultation to more than 2,000 housing associations later this year. Our continued opposition to the proposals within these amendments does not stem from any lack of commitment to the cause of transparency. As my noble friend stressed last year, it is important that we ensure that changes to the ways in which public services are delivered do not undermine our pledge to increase openness and accountability. I absolutely share the point made by the noble Lord about that. This issue is already being considered as part of the Government’s response to the Cabinet Office consultation on a draft transparency and open data strategy, which is due to be published early this year. It is also an issue which the Justice Select Committee may wish to consider during its post-legislative scrutiny of the Act. It is, of course, open to noble Lords—I am sure the noble Lord, Lord Wills, with his experience and expertise in this matter will do so—to make representations to the committee as part of its work. More generally, it is important that we assess carefully the likely impact of any change against the benefits that it will bring. This is to ensure that transparency is both maintained and enhanced but with due regard to any burdens that might be imposed. For example, under Amendment 151C, it would be problematic for both contractors and public authorities to comply with freedom of information requests for contract information. Public authorities would need to have access to any information held by the contractor that is potentially relevant in responding to the request. Such a requirement to share all such information with the public authority so that it could comply with freedom of information requests could adversely affect the effective delivery of that contract. In particular, it might, for example, provide the public authority with commercially sensitive information on other matters to which the authority would not—or, arguably, should not—have access. In addition, Amendment 152A, for example, which seeks to make all companies more than 50 per cent owned by the public sector subject to the Act, would increase the risk of activities not relating to the public sector being made subject to the Act given the varied interests that these bodies might have. The noble Lord made reference to that argument before, but it is a very compelling argument. If there is a strong argument for including a specific body in relation to the specific things that it does, this is better achieved through other means, such as an order made under Section 5 of the FOI Act. However, as I have indicated, we are already extending the scope of the Act to all companies that are wholly owned by any number of public authorities, as provided for in Clause 101 of the Bill. Amendment 152A relates solely to the local government sector. As my noble friend Lord McNally explained to the House at the Report stage of the Localism Bill, it would not be appropriate, as is proposed in the amendment, simply to amend the Freedom of Information Act in relation to bodies that have entered into contracts with local government. In addition, although I do not think that this argument was deployed by my noble friend during the passage of that Bill, in preparing myself for today’s debate it seemed to me that the proposal could act as a disincentive to competition among contractors. That is another argument and reason why we should not necessarily go down this route. To conclude, I would like to reiterate to the noble Lord, Lord Wills, that our opposition to his proposals stems not from an aversion to increased transparency but from our desire to ensure that effective and proportionate solutions are developed. I hope, therefore, that the noble Lord will feel able to withdraw his amendment.