Protection of Freedoms Bill

My Lords, I shall speak to Amendment 56, but in so doing I start by expressing my support for the amendment tabled by the noble Baroness, Lady O'Neill, and the noble Lord, Lord Sutherland. I will also be incorporating some of the points that the noble Baroness, Lady Warwick, would have made had she been able to be in her place, but for exactly the same reason as the noble Baroness, Lady O'Neill—the unfortunate and substantial delay in getting to this—other commitments have meant that she needs to be elsewhere in the Palace of Westminster. I also want to thank the Minister for the helpful meetings with him and his officials on the complex subjects of universities, the publication of their research and the implications for the practical working of the Freedom of Information Act. In Committee, I outlined a number of problems that universities face that are not analogous to the use of FOI in non-research areas of higher education institutions, not least because of the size, duration and complexity of many research contracts. Universities are mindful of their duties to respond to FOI requests elsewhere, and in the main they absolutely do. Also, the universities that we have talked to about the problems facing research and FOI are clear that this is not special pleading for the sector as a whole over freedom of information. Nor do they support any institution that does not comply with FOI requests in the mainstream. The issues here are quite specific. They are about whether the exemptions currently outlined in the Information Commissioner's guidance to the higher education sector can be effectively applied, given the nature of research and whether, in the case of commercial partners, it might give rise to suspicion by those partners that their own confidential data might be seen by others following an FOI request. In Committee, the Minister asked for evidence of where the current exemptions do not apply. Here, from the Information Commissioner's guidance to higher education institutions—which, for brevity, I shall refer to as HEI—are a handful of examples that researchers and their universities have told us really need clarification. The guidance on Section 22 refers to information intended for future publication. The information is exempt if it is intended for future publication and it is reasonable to withhold the information until that point, subject to the public interest test. While this will certainly apply to research data which an HEI intends to publish, provided that withholding the information is reasonable, it will not apply if there is no intention to publish the results at the time the request is made, which, as the ICO guidance makes clear, is the relevant time for him. In general, HEIs would expect the data supporting research conclusions to be published, or at least to be available to others, when the conclusions themselves are published. However, in the case of longitudinal studies, the decision to publish may not be made until a late stage in the study, not least because it is not clear what will be reported, or how. Moreover, usually the material is published in the form of a peer-reviewed article, which is often only the tip of a much larger iceberg of data that are not published. I am mindful here of the specific example that my noble friend Lady Sharp gave us at an earlier stage of these proceedings about the very complex data set that she managed for decades, which would certainly fall into that last category. Would the Minister clarify that the exemption does not specify that the publication needs to happen within a very limited time period? It could apply to long periods, including years, which may be acceptable in some specific cases—for instance, where research is at an early stage. Will the Minister also acknowledge that in the case of longitudinal studies the decision to publish may not be made until a late stage of that study, not least because it is not clear what will be reported and how? Will he confirm that normally the public interest will favour the completion of research before publication of the data on which it is based, whether that is intended or not? In another example, Section 36 of the Act is headed, ““Prejudice to effective conduct of public affairs””, and states that, "““Information … is exempt … if, in the reasonable opinion of a qualified person, disclosure … would … prejudice … the free and frank exchange of views for the purposes of deliberation, or … otherwise prejudice … the effective conduct of public affairs””," subject to the public interest test. Again, while the free and frank exchange of views may be necessary as part of the process of building up research results—for example, where a team of researchers is involved, sometimes over many institutions—and it is an essential part of peer review, as was recognised in McLachlan v ICO and MRC, this does not apply comfortably to research data that have been gathered, perhaps over a long period of time, for the purposes of analysis by the researcher himself as opposed to exposure to others. Nor is it obvious that the carrying out of research by HEIs, which are not arms of government, falls within the ““conduct of public affairs””. There are also practical difficulties for HEIs in relying on this exemption. The qualified person is usually the vice-chancellor, and involving the vice-chancellor may be a disproportionate requirement if it is simply understood that research information is entitled to a temporary period of embargo prior to publication of the research conclusions on an as yet indeterminate future date. Will the Minister explain how a, "““free and frank exchange of views for the purposes of deliberation””," can be applied to the collection and generation of research results at a stage prior to peer review or before discussion with third parties is envisaged? His clarification would help to deal with the fact that the current case law on this applies only to peer review. Will he clarify that university research activity falls within the concept of the ““conduct of public affairs”” and to what extent the vice-chancellor as the qualified person would need to be involved to defend a decision to use this exemption, given that often universities employ many thousands of staff, most of them research staff and teachers? Will he undertake to look at the mechanism underpinning the use of the exemption, subject to the recommendations of the Justice Committee? Another example is in Section 38, entitled ““Health and Safety””: "““Information is exempt … if … disclosure … would””," prejudice, "““the physical or mental health … or … safety of any individual””," subject to the public interest test. This will apply in cases where disclosure may result in the intimidation of researchers such as those involved in the use of animals in research, which we have seen shocking details of in the press, or harm arising from the public’s overreaction to misleading and incomplete research. However, not all cases are so extreme, and the harms cited above would not of themselves prejudice the physical or mental health or safety of any individual. This debate has shown that the issue is sufficiently important to justify looking more carefully at the legislation at the post-legislative scrutiny stage. Universities should not be required to try to bend exemptions that were not designed specifically for the purpose. Doing so means that universities and individuals are required to spend disproportionate amounts of time and money on expensive advice to try to make arguments to apply existing exemptions. My worry is that this adds up to a potentially disproportionate regulatory burden and, to be frank with the House, a waste of public money, given that most research grants are funded from the public purse. For this reason, I am pleased that Universities UK is calling for an independent review of the operation of the freedom of information in universities. It will form part of its submission to the process of post-legislative scrutiny that is being undertaken by the Commons Justice Committee. I look forward to hearing from the Minister on the questions that I have raised about the complexities that surround the exemptions for universities, and whether they are met by the guidance from the Information Commissioner.