Protection of Freedoms Bill

My Lords, I am delighted to be taking part for a short time in this distinguished Grand Committee, whose debates I have been following with interest. I suspect that I am not the first noble Lord to realise the relevance and immediacy of the debates that have been taking place here, particularly on this part of the Bill, concerned, as it is, with the use of and access to public information, or, in the case which I wish to draw to the Grand Committee’s attention, lack of access. I hope that the Grand Committee will forgive me as an interloper into its deliberations but I wish to put a particular issue before it which seems pertinent to the matters it is discussing. I wish to move Amendment 151E and speak to Amendment 151F. Amendment 151E aims to tackle the problem of information that is communicated post the appeals process being out of date by granting applicants the option of receiving the most up-to-date version of the said information, if relevant. The relevant part of the amendment states, in proposed new subsection (4A): "““Should the communication of information under subsection (1)(a) and (b) be delayed beyond the time limit for compliance specified under section 10(1), the applicant will be given the option of requesting that the information communicated is the information extant at the time of final release, taking account of any amendment or addition of information made between the time the request is received and the time when the information is to be communicated, unless there are grounds for significant new concerns as to the exempt nature of any new information under Part 2 (exempt information)””." I will go on to talk about the dilemma that we face in the House in general at the moment, but we have tabled this amendment because, if you go through the whole freedom of information appeal process, it could be many months before the Information Commissioner grants that appeal and says that that information should be released. If the information you are seeking is updated regularly, obviously the information that you need may be that which is available now, not that which was available eight months ago when you started down the road of putting down your freedom of information request, so this is about up-to-date information. Amendment 151F seeks to insert a new clause. This aims to prevent a government use of appeals to block the release of evidence for a specific period of time—that is, when a Bill is being debated—by prohibiting the Royal Assent of any Bills where the release of key information is still subject to an appeals process. The amendment seeks to appeal against information notices by public authorities. Subsection (1) of the proposed new clause states: "““In section 57 of the Freedom of Information Act 2000 (appeal against notices served under Part IV) after subsection (2) insert””," the points as outlined in our amendment. In all the time that I have been in your Lordships’ House—since 1998, and certainly since the passage of the freedom of information legislation—I do not recall a situation like the one facing the House at the moment. In a nutshell, the House is being denied what might be—and probably is—pertinent information during the passage of legislation, and is being expected to scrutinise a very large and important Bill without full information that might influence its view about parts or all of it. I bring this dilemma to Grand Committee for consideration, and amendments that might remedy the situation. I am sure noble Lords will be pleased to learn that I have no intention of exposing the Committee to the rights and wrongs of the Health and Social Care Bill. However, I would appreciate the Committee’s consideration of an important issue—one which might occur again. I am sure that everyone is aware that the House has just completed more than 15 days in Committee on the Health and Social Care Bill. We are due to start consideration on Report of that extremely important, large Bill, possibly at the beginning of February. Some noble Lords may also recall that I challenged the Minister on several occasions to make available to that Committee, to assist its consideration, the register of risks on the Bill. The register of risks is a regular, updated component of good governance of any major programme and, as such, is easily accessible. Some noble Lords may recall that my honourable friend John Healey MP and the Evening Standard both submitted freedom of information requests in November 2010 to have the register of risks relevant to the Health and Social Care Bill released. Both parties went through the procedures of review and appeal with the Department of Health, finally appealing to the Information Commissioner. On Friday 2 November, the Information Commissioner ruled that, given the particular circumstances—the passage of primary legislation through Parliament—the register of risks should be released. He said in his judgment that, "““the Commissioner finds that there is a very strong public interest in disclosure of the information, given the significant change to the structure of the health service and the government’s policies on the modernisation will bring””." I raised the matter in the House on 14 and 16 November, asking for the information to be made available. The noble Earl, Lord Howe, informed the House that the Department of Health was appealing the decision of the Information Commissioner on 28 November. On 7 December I asked the House to consider regretting that decision. I failed in the Motion to Regret but there were some pertinent speeches across the House recognising the dilemma facing us in this instance. The noble Baroness, Lady Williams, said that unresolved, the issue might, "““hang like a dark shadow over the whole of the Report stage””.—[Official Report, 7/12/11; col.736.]" The noble and learned Lord, Lord Mackay of Clashfern, said: "““I hope … it would be possible””," for this to be available for, "““the beginning of Report””.—[Official Report, 7/12/11; col. 732.]" The Minister was unable to inform the House at that time how long the appeal process might take, or whether the risk register might ever or eventually be available to the House in time to be considered during the passage of the Health and Social Care Bill. He also said that some information might be made available. However, he said: "““I cannot share the detailed breakdown of the information recorded in the risk register, or the wording””.—[Official Report, 28/11/11; col. 16.]" It seems likely from the correspondence with my honourable friend John Healey and from mine with the Minister that the appeal will not have come to a conclusion before the Bill is due to start Report. There is disquiet, not only across the House but outside in the community of doctors, nurses and people in the NHS, that this matter has yet to be resolved. There may be a move to further defer consideration of the Bill until the matter is resolved. Of course, the Government and the Department of Health are quite within their rights to launch an appeal against the Information Commissioner’s ruling. That is not my point here. Indeed, should they lose that they may go further to another stage and appeal. The Government are quite within their rights to do that because they believe that there are important government-wide matters at stake. I am not disputing that right. That is not why I brought the matter to this Committee. However, the matter leaves us with a serious constitutional dilemma, which is the issue that these amendments seek to address. Will the Minister address that principle, rather than possibly giving the Grand Committee an explanation of why the appeal is taking place and why the Government feel as they do? The noble Earl, Lord Howe, adequately explained that to the House. That is not the point at issue here. This House exists to scrutinise and improve legislation. I believe, as I think other noble Lords do, that we must be confident that we have the tools with which to do the best job we can. In this instance, we are being denied those tools. The amendment almost certainly will not necessarily resolve the current dilemma but I ask the Committee to consider how best to ensure that this situation does not happen again. We think that these amendments are drawn tightly enough not to leave the issue open to unreasonable behaviour or abuse by either side—Parliament or the Government—by specifically outlining the circumstances under which the information should be treated. I hope that the Government and the Committee will agree. I beg to move.