Protection of Freedoms Bill

My Lords, some time ago my noble friend Lord Phillips of Sudbury said that he was looking forward to me summarising the gist of this debate. I have to say to him that I do not think I am capable of doing that and I am not going to attempt it. However, I was grateful for one or two comments from just one or two out of a large number of speakers. I single out the noble Lord, Lord Judd—perhaps I may refer to him as my noble friend, as he comes from the same county as I do. He referred to the importance of the principles behind the Freedom of Information Act. I think that it would have been slightly more helpful if we had heard a bit more in support of the principles behind that Act and what it was set out to do. It was an Act passed by the previous Government and one that we, under no circumstances, want to roll back at all. We understand the concerns put by the higher education sector. I would never be one to underestimate the concerns of the higher education sector, a sector that is probably better represented in this House than any other group in the country. I have been higher education spokesman in this House on two separate occasions so I know how powerful a body it is. Therefore, we listen to it with great care and I will take considerable care in everything I say. For that reason, I remind the House, as my noble friend did on an earlier amendment, that there will be a full post-legislative review of the workings of the Freedom of Information Act. That review is being carried out under my right honourable friend Alan Beith, the chairman of the Justice Committee in another place, and I shall certainly ensure that he gets a copy of this debate. Even if I did not send it to him, I am sure that he would take note of it. As I said, I do not think it is up to me to try to summarise the debate, but I want to try to allay some of the concerns that have been put by noble Lords. I start by dealing with the amendment moved by the noble Lord, Lord Sutherland, on behalf of the noble Baroness, Lady O’Neill. I fully accept her apology. I saw her at lunchtime today and I know perfectly well that she was not able to be here. Similarly, I say to my noble friend Lady Brinton that I knew that the noble Baroness, Lady Warwick, was not able to be here. One of the problems with the way in which we do business is that sometimes things happen and it is impossible for noble Lords to be present for a debate. In his new amendment, the noble Lord seeks to amend our new Section 11A of the Freedom of Information Act by making a further provision in relation to the conditions that may be specified in a licence authorising the reuse of copyrighted data sets. The intention behind the noble Lord’s amendment is to ensure that such licences contain conditions which restrict republication or communication of data sets to third parties. As currently drafted, the Bill provides that public authorities, when making their data sets available for reuse, must use one of the specified licences which will be set out in the code of practice in due course. This amendment seeks to allow the specified licences to set conditions on republication or communication of the data set to third parties. I do not believe that the noble Lord’s amendment is necessary because the specified licence may already set any conditions such as these. Whereas previously public authorities could have relied on their powers under copyright law not to allow reuse of their data sets, Clause 102 will allow all public authorities to license the reuse of data sets for which they hold the intellectual property rights, to the benefit of the public and in accordance with the Government’s commitment on transparency. The terms of the licences for reuse will be specified in the revised code of practice, which will ensure that standardised licences are used so that public authorities—universities—know what is required and the public know what to expect. Published licence terms will provide clarity, certainty and consistency as to how information and data can be reused. In most cases, public authorities will use the open government licence to make data sets available for reuse. Public authorities across the wider public sector are increasingly making their information, in particular their transparency data, available under the open government licence. The Government encourage the adoption of the open government licence throughout a range of policy guidance and by working with stakeholders. To the extent that we are affecting public authorities’ copyright rights, it is only in relation to making data sets available to the public for reuse under licence. If information is held by the public authority but is not owned by it, it is most likely that the rights to the information will be owned by a third party and therefore it would not have the authority to license its reuse. The clause does not affect any other rights and the licences will still require acknowledgement of the data sets’ ownership and source when reused, and will not allow for distortion, derogatory treatment or misrepresentation. By setting out the specified licences in the statutory code of practice, it will ensure that standardised licences are used, and these licences will cover all conditions on reuse which are considered appropriate. The statutory code of practice will be issued by the Secretary of State, who must consult the Information Commissioner and then lay the code before Parliament so that Parliament will have a chance to see it. However, licensing conditions, including any conditions on reuse, would be a matter for consideration when revising the code of practice. It is not appropriate to prescribe some of the conditions, as proposed by the noble Lord in the amendment, in primary legislation. The noble Lord also made some significant general points about the Freedom of Information Act and it is important that I address those, but I propose to address them in the context of my noble friend Lady Brinton’s Amendment 56. Before considering that amendment, I turn to Amendment 56ZA, in which my noble friend Lord Lucas has suggested that the whole clause could be removed in its entirety. I suppose that might be a solution for all noble Lords. We could start from scratch, but I am not proposing that at the moment. However, as my noble friend has indicated, his main purpose is to probe the definition of a data set, as provided for in this clause. I am grateful to him for meeting me last month so that I could better understand his concerns. I am also grateful to other noble Lords who came to a whole series of meetings. I have a sneaking suspicion that in this debate I should be offering yet further meetings with any noble Lords who wish to have them so that we can sort this out. This is something that we need to get straight before Third Reading. The Freedom of Information Act provides the public with a right to access information that is held by a public authority as defined by the Act. The intention of Clause 102 is to make available for reuse as much raw data held by public authorities—universities in this case—as possible so as to encourage greater transparency and accountability. The clause brings together access and reuse, and the Government believe that encouraging greater use of raw data sets and their reuse under licence will allow the public and organisations to use them, for example, to develop new applications. The definition of a data set in new Section 11(5) of the Freedom of Information Act is necessary as there is currently no such definition in that Act. However, I assure my noble friend that, in providing for a particular definition of a data set for the purpose of the new duty to release such data sets in a reusable format, we are not prohibiting the release of other data sets that have been subject to alteration or analysis, as they are already provided for in the Freedom of Information Act. It is important to be precise with the definition so that public authorities know what is expected of them when releasing raw data sets for reuse under the Act. Amendment 56, in the name of my noble friend Lady Brinton, seeks to introduce a new exemption in the Freedom of Information Act to provide enhanced protection for information relating to research programmes and projects. In responding to the points made by my noble friend and others, I hope that I will be able to provide appropriate reassurances on this issue. We are all agreed that the UK’s position at the forefront of international research must be protected and enhanced. I would not want to do anything that could endanger that. We are also agreed that, notwithstanding this Government’s commitment to transparency, adequate safeguards must exist within information rights legislation to make sure that that position is not undermined through inappropriate and premature disclosure. We understand the point that the universities made. From discussions that I have had, from the debate and from Committee, I am well aware of the concern that exists in the sector on this issue. Before outlining why I believe that adequate protection already exists, I will consider the cost of responding to requests. This point was raised by a number of noble Lords, in particular the noble Baroness, Lady Blackstone. Although a new exemption would not provide protection in this regard, I am aware that, for example, the cost of anonymisation and redaction is of major concern. The noble Baroness and others made that point. I assure her and others that the Government are mindful of that, and of the costs that it would bring to public authorities. The Freedom of Information Act, passed by the previous Government, provides that where it would cost more than a certain amount to locate information that has been requested, there is no obligation to provide it. The cost limits beyond which freedom of information requests need not be complied with, and the mechanisms for charging for information, are detailed in the Act and in regulations made under Sections 9, 12 and 13. I have the sections in front of me if noble Lords wish to study them in detail. These arrangements apply across the entire public sector, not just to higher education. It is therefore important that, while cost limits and fees should take into account the views of particular sectors, any discussion about correct levels should be conducted in the round. As I mentioned, the Act is currently subject to post-legislative scrutiny. It is for the Justice Select Committee in another place to make sure that it considers it in the right manner. I anticipate that it will want to look at what has been said. Therefore, I repeat that I will certainly write to Sir Alan and make it clear that we debated this in Committee and today, and I will make sure that the concerns first enunciated at Second Reading by the noble Baroness, Lady O'Neill, are relayed to him. In relation to Amendment 55A, the noble Lord, Lord Sutherland, questioned whether it was appropriate to amend the Act before the outcome of post-legislative scrutiny was known. That concern, too, was put to me in Committee. Through the Bill, we are introducing key transparency commitments set out in the coalition agreement. In the much wider exercise of post-legislative scrutiny we will look at what other changes could usefully be made to improve the Freedom of Information Act for the public and for all bodies subject to it. I appreciate the argument that the Government have asked Parliament to undertake post-legislative scrutiny of the Act and that we ought to wait for the outcome of the review before introducing Clause 102. However, we see the new right to data sets available for reuse as a different matter, and we are committed to implement our commitment to transparency and open data to release the benefits to the public as soon as possible. However, I will offer some reassurance on the timing of the commencement of Clause 102. As I indicated, we will need to revise the code of practice made under Section 45 of the Freedom of Information Act before the provisions can be brought into force. That will necessarily take time, and public authorities will need adequate notice. Given this, we do not envisage commencing the provisions before the summer, which will allow the post-legislative scrutiny process to take its course without delaying the commencement of the clause. We are committed to ensuring that the Freedom of Information Act works effectively, and post-legislative scrutiny is key to this. I turn back to some of the exemptions. The key is for the Government’s desire to ensure an appropriate level of transparency in public life not to undermine the ability of universities to carry out the sort of ground-breaking research for which they are justly renowned. In the ever more competitive environment in which our higher education institutions operate, the ability to do so free from obligations to reveal their thinking at too early a stage is crucial. The Freedom of Information Act seeks to achieve this balance by providing exemptions to the obligation to disclose material in response to a request made under the Act. The Act currently achieves exactly that balance. The noble Baroness, Lady Royall, was no doubt part of the team that steered the Act through this House. As I said in Committee and in further meetings with noble Lords, a number of exemptions protect research-related material. Therefore, the amendment provides alternative protection rather than necessary additional protection and is not necessary. Protection already exists in Section 43 for trade secrets and for information the disclosure of which would be at least likely to damage commercial interests, and in Section 41 for information provided in confidence. I think that we are agreed that it would be improper to provide an absolute guarantee of confidentiality in relation to research programmes, because the Act does not do so for any other type of commercially sensitive information. It is therefore appropriate for Section 43 to be subject to a public interest test in this context, as it is in all others. My noble friend’s proposed new exemption would also be subject to both a public interest and a substantial prejudice test, so she cannot believe otherwise. I am aware of other concerns relating to the scope of Section 43: for example, concerning its ability to protect information where future commercial exploitation is the long-term aim but is not yet realisable owing to a research programme being at an early stage. Concerns have also been raised about situations where a university’s financial and academic position may be undermined, and damage may be done to its ability to secure funding, to its research ratings or to its ability to attract high-calibre students. Again, these are entirely legitimate concerns. It is important that universities should be able to compete in an increasingly demanding marketplace. It is not for me to prejudge any request that might be submitted; it will be for the Information Commissioner to determine whether any decision taken by a university to employ an exemption is correct. Therefore, my further remarks will be hypothetical in nature. Section 43 will be relevant where commercial prejudice is likely, and may be used where the public interest test favours non-disclosure. I see no reason, for example, why in an appropriate case the exemption should not cover an early-days case of the sort I mentioned. The information that a particular research team was looking into an issue could itself be commercially damaging if it enabled a rival to gain an insight into the methods the team intended to use that it would not otherwise have had. This might be so despite the fact that details of the research were not yet available for commercial exploitation. As always, the facts of the case will be key and the university will have to show that there would be commercial prejudice and that the public interest favoured non-disclosure. I appreciate that I have spoken at length. I could go on about other exemptions—for example, in Sections 40 and 22—but now is not the time to do so. I will repeat, first, that we have a commitment to greater transparency, which is why we will not introduce new exemptions into the Freedom of Information Act unless the necessity for doing so is clearly demonstrated. Secondly, post-legislative scrutiny is taking place, and that will be the time to look at these matters. Having said that, I repeat that I am more than happy to have further discussions with noble Lords between now and Report.