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Lord Bassam of Brighton: Which party controls Southend council?
Lord Mackay of Ardbrecknish: I have not got a clue. The Minister seems to think that that is important, but I do not think that it is at all important. No doubt when my noble friend Lady Thatcher passed her Bill, many authorities were controlled by the Conservatives. No doubt both our parties are not always terribly good at local level. Maybe that is true of all three parties. The Liberal Democrats will always accept that they are holier than everybody else, but I will wager that they are not. All three parties do a lot of things in secret. I shall not refer to Glasgow.
Lord McNally: I do not think that the Liberal Democrats have yet been corrupted by controlling Liverpool, Sheffield and Stockport. The Minister
admitted that power also corrupted him to a certain extent. When people achieve positions of power, they find openness irksome. I am proud that where the Liberal Democrats have taken power, they have used that power first to open up local authorities. That is to our credit at the moment. However, I agree that this is not a party political point. Any party that is in power behaves better when it is open to scrutiny.
Lord Mackay of Ardbrecknish: I agree entirely. The Government's behaviour over freedom of information illustrates the point. They came to office saying that they would deliver an all-singing, all-dancing Freedom of Information Act. David Clark produced a White Paper setting out some all-singing, all-dancing proposals, but he quickly got the sack and the proposals were watered down to a little bit of singing and a little bit of dancing, but not nearly as much as were Labour's original intentions on winning the election. I understand that. Anyone with power is happy to keep things to themselves. They do not want too much information to be made known. That is why it is important that we scrutinise the Bill.
I hear the Minister's words, but I am not convinced that, as ever more local authorities have cabinet government and mayors, they will not find an excuse to close the avenues of information that are currently available to the press and the public.
The Minister did not seem to find anything wrong with my amendment. His principal argument was that it was unnecessary because all was well and there was no need for a belt and braces provision. I conclude that it would be good to add it to the Bill to underline the importance of freedom of information in local authorities. As I appear to have the support of the noble Lord, Lord McNally, I shall test the opinion of the Committee.
5.57 p.m.
On Question, Whether the said amendment (No. 111) shall be agreed to?
Their Lordships divided: Contents, 77; Not-Contents, 113.
Addington, L.
Anelay of St Johns, B.
Astor of Hever, L.
Attlee, E.
Barker, B.
Biffen, L.
Blatch, B.
Buscombe, B.
Campbell of Alloway, L.
Campbell of Croy, L.
Clark of Kempston, L.
Clement-Jones, L.
Cope of Berkeley, L.
Cox, B.
Crathorne, L.
Denham, L.
Dundee, E.
Elton, L.
Ezra, L.
Fookes, B.
Freeman, L.
Gardner of Parkes, B.
Glentoran, L.
Goodhart, L.
Goschen, V.
Gray of Contin, L.
Harris of Greenwich, L.
Harris of Peckham, L.
Haslam, L.
Henley, L. [Teller]
Hooper, B.
Howe, E.
Kimball, L.
Kingsland, L.
Liverpool, E.
Lucas, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Mackay of Ardbrecknish, L.
McNally, L.
Masham of Ilton, B.
Miller of Chilthorne Domer, B.
Murton of Lindisfarne, L.
Newby, L.
Noakes, B.
Northesk, E.
Norton of Louth, L.
Onslow, E.
Park of Monmouth, B.
Patten, L.
Rawlings, B.
Rees, L.
Renton, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Roper, L.
Russell, E.
Seccombe, B. [Teller]
Selkirk of Douglas, L.
Sharp of Guildford, B.
Sharples, B.
Shrewsbury, E.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Stewartby, L.
Strathclyde, L.
Swinfen, L.
Taylor of Warwick, L.
Thomas of Walliswood, B.
Tordoff, L.
Trefgarne, L.
Vivian, L.
Waddington, L.
Walmsley, B.
Weatherill, L.
Williamson of Horton, L.
Acton, L.
Ahmed, L.
Allenby of Megiddo, V.
Alli, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Armstrong of Ilminster, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Bragg, L.
Brennan, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Carter, L. [Teller]
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
Cohen of Pimlico, B.
Craig of Radley, L.
Crawley, B.
Currie of Marylebone, L.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Diamond, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Eatwell, L.
Evans of Parkside, L.
Evans of Watford, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Gladwin of Clee, L.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grabiner, L.
Graham of Edmonton, L.
Hardy of Wath, L.
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. (Lord Chancellor)
Jeger, B.
Jenkins of Putney, L.
Judd, L.
Kennedy of The Shaws, B.
Layard, L.
Lea of Crondall, L.
Levy, L.
Lipsey, L.
Longford, E.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
MacKenzie of Culkein, L.
Mallalieu, B.
Massey of Darwen, B.
Milner of Leeds, L.
Morgan, L.
Morris of Manchester, L.
Nicol, B.
Patel, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Randall of St. Budeaux, L.
Rea, L.
Rendell of Babergh, B.
Renwick of Clifton, L.
Richard, L.
Sawyer, L.
Shepherd, L.
Shore of Stepney, L.
Simon, V.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Strabolgi, L.
Taylor of Blackburn, L.
Tomlinson, L.
Turner of Camden, B.
Uddin, B.
Walker of Doncaster, L.
Warner, L.
Warwick of Undercliffe, B.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Williams of Mostyn, L.
Woolmer of Leeds, L.
Young of Dartington, L.
Young of Old Scone, B.
Resolved in the negative, and amendment disagreed to accordingly.
6.7 p.m.
[Amendments Nos. 112 to 115 not moved.]
Clause 18 [Model publication schemes]:
[Amendments Nos. 116 to 123 not moved.]
Lord Mackay of Ardbrecknish moved Amendment No. 124:
- After Clause 18, insert the following new clause--
.--(1) A public authority to which this section applies shall maintain a list identifying any manuals, instructions, precedents, guidelines or similar materials used by it in connection with the performance of such of its functions as affect, or are likely to affect, the rights, privileges or other benefits, or obligations, penalties or other detriments, to which persons are or may become entitled, eligible, liable or subject.
(2) A public authority to which this section applies shall ensure that the list referred to in subsection (1) and a copy of every item which has been included in the list--
(a) is available for inspection by any person at the offices of the public authority;
(b) is supplied on request to any person on payment of a fee which may not exceed the marginal cost of making a copy of the item and posting (or otherwise supplying) it to that person; and
(c) is available on the Internet.
(3) A public authority is not required by this section to make available any exempt information unless the public interest in disclosure of that information outweighs the public interest in maintaining the exemption.
(4) The public authorities to which this section applies are--
(a) any public authority in respect of which an investigation may be made by--
(i) the Parliamentary Commissioner for Administration;
(ii) the Welsh Administration Ombudsman;
(iii) the Assembly Ombudsman for Northern Ireland;
(iv) a local authority; and
(b) any other public authority which has been notified in writing by the Information Commissioner that it is subject to the provisions of this section.").
The noble Lord said: This amendment would insert into the Bill a new clause relating to manuals. Manuals are referred to in a provision in the current Code of Practice on Access to Government Information, which is sometimes called the "openness code". Yet, although it is a standard feature of overseas freedom of information laws, that provision in the code has not been translated into this Bill.
The openness code requires government departments and other bodies which are subject to the Parliamentary Ombudsman's jurisdiction,
The freedom of information White Paper proposed to continue those duties. It stated that,
As I said, the Bill omits those important aspects of the code of practice. The provisions on publication schemes could be used to restate that requirement but there is no reference to them in Clauses 17 or 18. The matter would be left entirely to the discretion of the information commissioner. She could decide to require the publication of internal manuals but if she did not, the existing requirement would be lost.
In case I am told that it is not necessary to have this provision on the face of the Bill, I should say to the Committee that the duty to publish guidelines appears
A similar, but not identical, amendment was debated in Committee in another place. That amendment proposed that all public authorities should be required to publish their internal guidelines. The Government opposed it on the grounds that a much wider range of public authorities are subject to the provisions of the Bill than were subject to the code, including smaller bodies with too-limited resources to comply with the requirements.
The present amendment takes account of that objection. It does not apply to all public authorities but primarily to those authorities which are currently subject to the code's existing requirements; that is, bodies subject to the remit of the parliamentary ombudsman and the Northern Ireland ombudsman who are subject to an equivalent duty. It applies also to bodies subject to the Welsh ombudsman.
It adds local authorities to the list. Currently, they are not subject to this requirement. But I believe that their size and the importance of their functions justifies bringing them within its scope. We underlined that point in the last series of amendments. Although the Government won that point, I hope that they will take on board that local authorities should be under the same obligation as those imposed by the code on bodies subject to the remit of the parliamentary ombudsman.
Other authorities will be covered only if the information commissioner notifies them in writing that they must comply. Therefore, this is a much more limited provision than appears in those overseas freedom of information laws where, in those countries, it applies to all authorities which are subject to the legislation.
The Government may argue that this amendment is unnecessary since any individual could obtain any manual by making a specific freedom of information request. However, a disclosure to an individual is not a disclosure to the public at large. Moreover, an individual may not know what kinds of manuals may be held and would not know what to ask for.
Finally, the amendment requires that those are made available in advance of any specific request. That means that if someone requires access--for example, to check whether he has been dealt with fairly--that information will be available at the time he needs it and the person does not have to await the outcome of yet another freedom of information request.
The amendment would ensure that those materials are systematically made public so that everyone knows the basis of decision-making affecting them. Potential deficiencies in those materials, such as arbitrary or unfair procedures or guidance which misrepresented its statutory requirements, would be much more likely to be detected by MPs, advice agencies and other interested parties, and could be corrected.
This is an important amendment. The Government must explain why this was in the Conservative government's code of openness and in their own White Paper but has disappeared from the Bill as we are now considering it. I beg to move.
"to publish or otherwise make available, as soon as practicable after the Code becomes operational, explanatory material on departments' dealings with the public (including such rules, procedures, internal guidance to officials, and similar administrative manuals as will assist better understanding of departmental action in dealing with the public) except where publication could prejudice any matter which should properly be kept confidential under Part II of the Code".
The Government's guidance on the code states:
"Departments should plan for the progressive release of all the guidelines and other material used in their dealings with the public. This need not mean publication where departments consider that the level of interest would not justify it, or where the guidelines in question are voluminous, but eventually the aim should be to make all guidelines available for purchase or inspection on request".
The annual reports under the code have described examples of the type of guidance released under the provision. The reports state:
"In 1994 the Inland Revenue set a target to publish their 45 main guidance manuals by the end of December 1995. Only 5 volumes failed to meet this deadline and these were published by the beginning of February 1996 ... The Health and Safety Executive's rolling programme for preparing existing internal guidance for release was completed on 31 March 1996. All internal guidance which can be released (some 3,500 - 4,000 documents) is now lodged with HSE's information centres and is available for free public inspection ... The Home Office's Immigration Service Enforcement Directorate received 95 requests for internal enforcement policy guidelines in 1996, all of which were met ... The Office for Standards in Education provided all nursery education providers with a copy of the Inspection Notebook used by its Inspectors in 1996 ... All main Child Support Agency guides and manuals are now publicly available".
I am not sure that that last point adds too much weight to my case, given the problems with the Child Support Agency but at least the guides and manuals are publicly available.
"the Act will impose duties upon public authorities to make certain information publicly available, as a matter of course. These requirements ... will be broadly along the lines of those in the Code of Practice, namely ... explanatory material on dealing with the public".
As with so much on this issue, as I have already mentioned, what the Government set out to achieve in the White Paper written by David Clark and what is actually in this Freedom of Information Bill are at least--I was going to say--miles apart but I had better say that they are a few kilometres apart, otherwise I might find that I am to be prosecuted.
6.15 p.m.
Lord Bassam of Brighton: I accept the point that the noble Lord made that these are important amendments. As I see it, they are concerned with what should go into the publication scheme. While I appreciate the intentions behind the noble Lord's amendments, we believe that, as set out, they would include a far too wide-ranging and prescriptive model. In any event, they would mean that the publication scheme would have to include, potentially, a vast range of information.
There is a question here of proportionality. If we were to go along the road suggested by the noble Lord, there would be a profound risk of committing certain bodies to extremely large expenditure in order to meet that requirement. That is why we must have a more proportional approach, the approach on which the Government have decided.
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