| Public Audit (Wales) Bill [Lords]
|
|
Mr. Wiggin: I rushed off to get the Government of Wales Act 1998, but I could not find section 145B. I can find section 45(6)(b), but that does not fit with the line of argument. When was the Act amended and what is the correct wording? Mr. Touhig: I think the hon. Gentleman is confused because section 145B is a proposed new section to be inserted by the Bill in the Government of Wales Act. That is why it is not there yet. The Chairman: I think everybody is happy now. Amendment agreed to. Amendment made: No. 51, in clause 54, page 35, line 39, leave out '145B(3) or'.—[Mr. Touhig.] Question proposed, That the clause, as amended, stand part of the Bill. Mr. Wiggin: This is the most contentious part of the Bill. We call for the deletion of the clause as it restricts the disclosure of information and issues criminal sanctions for non-compliance. As I said on Second Reading, we are aware that the Government are unhappy with the clause and have gone some way to amend it, but such amendments and assurances have not gone far enough to ensure the protection of whistleblowers, who should not feel intimidated and unsafe in a free society. In expecting us to trust them that clause 54 will be amended once section 49 of the Audit Commission Act is amended in line with the Freedom of Information Act 2000, the Government must believe that we would Column Number: 57 never expect them to make a U-turn. However, they know as well as we do that that is by no means a certainty. I am surprised that the Liberal Democrats think it acceptable to agree to such a controversial and worrying clause on the Government's word. Discussing clause 54 on Second Reading, the hon. Member for Montgomeryshire (Lembit Öpik) said:
The conduct of locally elected authorities must be transparent and totally above board. The restriction of disclosure in the clause implies that a body with something to hide must be protected from the public. We maintain that it is wrong in principle to apply criminal sanctions for the disclosure of information. I am concerned that the provision for criminal sanctions will deter whistleblowers from disclosing information on issues other than those exceptions in subsection (2) on local government audit for fear of being treated more harshly than for disclosure relating to any other public sector audit. Will the Minister tell the Committee under what circumstances the Government consider criminal sanctions appropriate for the disclosure of information? On Report in the other place, Lord Evans of Temple Guiting said that
Will the Minister tell us whether there is a precedent for a Bill being passed on a promise that it will be amended once on the statute book? As it stands, we cannot leave this unacceptable clause in the Bill on such a promise. We need certainties about potential changes, which I hope he will give us. If not, the clause should not stand part of the Bill. Hywel Williams: In another place, on behalf Plaid Cymru, Lord Elis-Thomas noted the anxiety that has been expressed about the clause and its potential impact. I have taken heed of the Minister's assurances given on Second Reading and I am sure that he will tell Column Number: 58 us today that there is a strong probability that the Government will act in the way he described. The clause would act as a disincentive for whistleblowers, so I am interested in what he has to say now.Mr. Roger Williams: We, too, have great concerns about clause 54, and my hon. Friend the Member for Montgomeryshire has asked the Government for greater assurance that their amendments will protect whistleblowers. We are not yet convinced that their amendments will protect whistleblowers to the extent that we want. Mr. Touhig: I am conscious that clause 54 has been the most contentious part of the Bill since pre-legislative scrutiny and our giving of evidence to the Welsh Affairs Committee, when it was clause 50 in the draft Bill. Hon. Members will know that I do not want to be partisan in any way, and I take no personal issue with the hon. Member for Leominster, but I find it difficult to understand the Conservatives. When, as a Back Bencher, I introduced a Bill to protect whistleblowers, the hon. Gentleman's party and Government did everything they could to wreck it and succeeded, but now they are the whistleblower's friend. However, like St. Paul on the road to Damascus, a conversion will benefit us all, and we welcome the hon. Gentleman's conversion to protecting the interests of whistleblowers. Clause 54 restricts the disclosure of information obtained during a local government audit or study by an auditor or the Auditor General, albeit with widely cast exceptions. Clause 54 is an equivalent provision to section 49 of the Audit Commission Act. Hon. Members may remember that on Second Reading I referred to clause 54(2), which lists a number of exceptions to restrictions on disclosing information, and I have written to a number of right hon. and hon. Members on the matter in recent months. The exceptions in the Bill that permit disclosure cover matters relating to best value, fraud, the work of the ombudsman, the discharge of social service functions—an important issue that caused recent media interest—education, best value, social landlords and crime. The Welsh Affairs Committee, the National Assembly for Wales and the Auditor General recommended that the clause should be deleted, but the Audit Commission and the Welsh Local Government Association argued for it to be retained because it provides a safeguard against the inappropriate or premature release of information. As I said on Second Reading, I fully understand that there should be no impediment to the legitimate disclosure of information. The Freedom of Information Act is clear evidence of the Government's commitment to that cause. As we debated this morning, the Government consider that there should not be undue inconsistency between England and Wales in the criminal law on the inappropriate release of information. That would be the case if clause 54 Column Number: 59 were deleted and section 49 of the Audit Commission Act remained in force—a matter would not be an offence in Wales but would be in England.The Government have listened to the concerns expressed during pre-legislative scrutiny and by Opposition parties and others in the House and the other place during the Bill's passage, and we have made amendments to clause 54. They will enable the Bill to be amended further after enactment to reflect the outcome of a general review undertaken by the Department for Constitutional Affairs under the Freedom of Information Act of existing statutory bars to the disclosure of information.
3.30 pmThe Government have announced their intention to amend section 49 of the Audit Commission Act as a result of the review. I made a ministerial statement to that effect, which was laid before both Houses of Parliament on 24 March. The amendment will overturn the existing presumption in section 49 against disclosure, and change it to one in favour of disclosure, which we all wish to see and is wholly consistent with the spirit of the Freedom of Information Act. The amendment will be made by order before the end of the year. A comparable amendment should then be made to clause 54 once the Bill is enacted. It is not possible to link the two amendments in the order, but they will run parallel, and both seek the same objective. Freedom of information legislation is complex and it would be inappropriate for me to pre-empt the detailed drafting of the section 75 order that will carry into effect the pledge that I gave on Second Reading and am repeating today. That said, the practical effect of the proposals is that information obtained by the Audit Commission or an auditor during the course of an audit or study, and held by any public authority, could be disclosed by that public authority in the spirit of the Freedom of Information Act. Where the same information is held by any organisation not subject to the Act, it would also be entitled to disclose it subject to a limited number of exceptions. At present, such information is subject to an absolute exemption from disclosure under the Act. A person or body would be able to make a formal request to any public authority for information under the provisions of the Freedom of Information Act. The presumption in favour of permitting disclosure by a public authority or its staff would not be limited to formal requests for information under the Act. Section 75 orders allow for ancillary provisions and it is proposed that the amendment to section 49 would also cover the voluntary release of such information—proactive disclosure—not related to formal requests, provided it was not inappropriate. On Second Reading, I undertook to give right hon. and hon. Members any additional information I could on work being undertaken to amend the clause. I can now reveal to the Committee that the Government have agreed to drop the imprisonment sanction from section 49 of the Audit Commission Act. That also means that it can be deleted from clause 54 once the Column Number: 60 Bill is enacted. I cannot give firm details as to when that will be done because the Government need to give further consideration to the matter, but it will be at the earliest opportunity. We all feel that if we change the presumption of the clause from being against to in favour of disclosure, it would be inappropriate to have the same degree of sanction for any breach—perhaps a fine might be more appropriate.It is not entirely clear whether our intention can be accomplished through the section 75 order. However, I hope that that demonstrates the Government's determination to make clause 54 as open and proportionate as possible, but in a structured way. It has been said that much has been taken on trust in respect of future amendments to the clause. However, the record of our proceedings in this and previous debates will be there for all to see and I would not give undertakings if the Government were not committed to taking the matter forward, as I explained. Several points were made in our brief debate. The hon. Gentleman said that clause 54 is dangerous for whistleblowers; as I said on Second Reading, the Auditor General is a prescribed person for the purposes of the Public Interest Disclosure Act 1998, which was based on a Bill that I introduced, which was thwarted by the Conservatives when they were in office. Genuinely concerned whistleblowers can make information available to the Auditor General without breaching anything in clause 54, which promotes only the disclosure of information obtained by the Auditor General or an auditor. A local government whistleblower could disclose other information in his or her possession related to the finances of the authority without breaching the clause. The hon. Member for Leominster asked whether there was a precedent for a Bill being passed on the premise that it will be amended. I am not sure whether there is such a precedent; the Government are not afraid to seek innovative solutions to problems, and I believe that the solution that we propose will satisfy everyone if it can proceed as the Government have pledged that it will. I hope that the fears of hon. Members on both sides of the Committee will be assuaged with those few remarks. The Government are determined to make the appropriate amendments. The hon. Gentleman was concerned about the Bill being enacted, and the amendments to section 75 orders not being made. I remind him of a point that I made on Second Reading: clause 22 deals with immediate and other reports of a public interest. Clause 22(1) states:
(a) considered by the body, or (b) brought to the attention of the public.''
Column Number: 61
|
| |
| ©Parliamentary copyright 2004 | Prepared 29 June 2004 |
