Select Committee on Delegated Powers and Deregulation Fourteenth Report



FOURTEENTH REPORT


3 MAY 2000


By the Select Committee appointed to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny; to report on documents laid before Parliament under section 3(3) of the Deregulation and Contracting Out Act 1994 and on draft orders laid under section 1(4) of that Act; and to perform, in respect of such documents and orders, the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments.

ORDERED TO REPORT

FREEDOM OF INFORMATION BILL

INTRODUCTION

1. The Committee reported on this bill last session at the pre-legislative scrutiny stage.[1] In that report we drew attention to the great significance of the proposed Freedom of Information legislation, and also to this Committee's limited terms of reference, which confine our remit to the powers proposed to be delegated by bills. All the recommendations made in our earlier report have been accepted by the Government and incorporated in the bill. The Home Office Memorandum draws attention to those changes and provides a commentary on all the powers. The majority of these were in the draft bill (these provisions are identified in the table below) and the Committee has therefore thought it necessary to comment in this report only on the new powers in the present bill.

POWERS CONSIDERED DURING PRE-LEGISLATIVE SCRUTINY

2. The relationship between the current bill and the pre-legislative scrutiny draft is set out in the following table:

Provision in current billCorresponding provision in pre-legislative scrutiny draft bill
Clause 3Clause 2(1)(a) (but see commentary below)
Clause 4Clause 2(1)(b)
Clause 6Clause 2 and 3 (but reformulated)
Clause 8(3)Clause 9(3) (Committee's recommendation accepted)
Clause 9(3)Clause 10(3) (Committee's recommendation accepted)
Clause 11Clause 12
Clause 14Clause 14 (Committee's recommendation accepted)
Clause 43Clause 36 (Committee's recommendation accepted)
Clause 44Clause 38
Clause 45Clause 39
Clause 68Clause 61
Clause 74Clause 65
Clause 78In clause 2

CLAUSE 43 - POWER TO CONFER ADDITIONAL EXEMPTIONS BY ORDER

3. In our report on the draft bill we commented on the controversial power (then in clause 36, now in clause 43) enabling the Secretary of State to confer additional exemptions from the disclosure requirements of the bill. We had concerns about the apparent width of this power, and recommended the amendment of the draft bill to include a test that disclosure of the information would prejudice the public interest.

4. Following the publication of our own report the House of Lords ad hoc Committee on the draft Bill chaired by Lord Archer of Sandwell in its pre-legislative scrutiny report commented on the clause in the following terms:

    "Clause 36 of the draft Bill provides for a power to create new and retrospective exemptions in response to applications for access to information. This provision appears out of the blue. It was not even mooted in the White Paper. It was described to us as 'a ministerial veto over any disclosure which is not exempt'. There a similar power in section 38 of the Data Protection Act 1998, which may be the source of this provision. According to Dr Herbert Burkert, there is no equivalent in any other national Freedom of Information legislation: the power was 'truly innovative in protecting administrative interests.' The power is to be exercised by affirmative resolution. We do not understand why, in a Bill with wide exemptions based on the class of information or of the harm which its disclosure might cause, there needs to be a reserve power for a Minister to create a new exemption to deal with an unwelcome request for information, or why the new exemption should have retrospective effect to justify a refusal. In our opinion, clause 36 should be deleted completely. If, despite this recommendation, the Government continues to believe that such a power is necessary, then it should be exercised in a specific situation only if the Information Commissioner agrees. At the very least the power should not be made retrospective."[2]

5. The House of Commons Public Administration Committee in its pre-legislative scrutiny report commented directly on our recommendation, and reached a similar conclusion to the Lords Committee:

    "Clause 36 of the Bill confers on the Secretary of State a power to create additional exemptions. Such an order may only be made if it appears to him that 'the public interest in conferring the additional exemption outweighs the public interest in allowing public access to the information'. The provision itself is derived from the Data Protection Act. Jack Straw defended the provision by saying that the Order would be subject to alternative[3] resolution in both Houses of Parliament. The House of Lords Committee on Delegated Powers and Deregulation thought that it was not appropriate to delegate power to create new categories of exempt information which would be protected in all circumstances, although they believed that it would be appropriate were any exemptions so created for them to be subject to a test that disclosure of the information would prejudice the public interest. We believe that it is altogether inappropriate to insert such a provision into a Freedom of Information Act. There is no such provision in any other Freedom of Information Act of which we are aware. We recommend that clause 36 is removed from the Bill."[4]

6. The Government responded to these recommendations as follows:

    "The Government has noted the recommendation in the report of the House of Lords Select Committee on Delegated Powers and Deregulation that the power to create new exemptions should be limited to those which contain a prejudice test. The Government accepts the recommendation of the Lords Committee and will amend the Bill accordingly. However, the Government considers that it is necessary to retain a mechanism for creating new exemptions in the Bill, albeit that it would expect to use this power only in exceptional circumstances."

7. Although the Government amended the draft bill in the light of our recommendations, nonetheless concerns about this clause clearly remain. The House will no doubt wish to consider this very wide power with particular care, taking the views of the two pre-legislative scrutiny Committees fully into account.

NEW POWERS

8. Clause 52(1) provides that a decision notice (clause 49(3)(b)) or enforcement notice (clause 51(1)) shall cease to have effect if the "accountable person" in relation to the authority certifies to the Commissioner that he has, on reasonable grounds, formed the opinion that the authority has not failed to comply with clause 13. "Accountable person" is defined in subsection (4) and paragraphs (h), (j) and (k) leave the person to be designated by order. Subsection (6) allows an order to provide for cases when the person designated under any paragraph of subsection (6) is unable to act by reason of illness or absence. Any order under the clause is subject to negative procedure, which the Committee considers appropriate.

9. Clause 73 is concerned with implementing the Aarhus Convention. Subsections (3) and (4) enable the Secretary of State to implement, by regulation (subject to negative procedure) the information provisions of that Convention. The Memorandum gives an account of this but, in essence, it is a power to make provisions about the disclosure of environmental information very much on the lines of the bill. Subsection (5) excludes from the scope of the clause the Scottish Parliament and other Scottish public authorities with mixed functions or no reserved functions. The House may wish to consider whether the implementation of the Aarhus Convention will raise issues of sufficient importance to make it preferable that affirmative procedure should apply.

10. Schedule 5 is new. It provides for the amendment of the Public Records Act 1958 (and the Northern Ireland equivalent). Paragraph 4 of the Schedule amends Schedule 1 (definitions of public records) to the 1958 Act by inserting a new paragraph 3A allowing the amendment by Order in Council of the table at the end of paragraph 3 of that Schedule. The Memorandum explains the need for this power. The Committee considers that the negative procedure applied by paragraph 3A(3) is appropriate even though the power is a Henry VIII power.

OTHER ISSUES

11. Clause 3 provides power to amend Schedule 1. This power was included in clause 2(1)(a) of the pre-legislative scrutiny draft bill. However, under that bill the power was subject to affirmative procedure and as there was a possibility that an order would be a hybrid instrument there was provision in clause 69(5) excluding the jurisdiction of the Hybrid Instruments Committee. The Committee considered this point at some length in its pre-legislative scrutiny Report and concluded that the exclusion was justified. The exclusion survives (as clause 80(5)) and applies to those powers which were originally in clause 2 and remain subject to affirmative procedure (i.e. clauses 4 and 6(7)). The Committee welcomes the inclusion of an additional entry in Schedule and sees no need to question the change in Parliamentary control over this power.

RECOMMENDATION

12. The Committee welcomes the changes which have been made to the bill in response to the Committee's comments during pre-legislative scrutiny. The re-writing of the early clauses in the bill has led to the distribution of powers originally in one clause (old clause 2) among a number of clauses and in the process the power to add to Schedule 1 has been made subject to negative procedure, which the Committee considers appropriate. The Committee has invited the House to consider most carefully the power to create new exemptions contained in clause 43 (old clause 36) and has suggested that the bill might be amended to provide that regulations under clause 73 implementing the Aarhus Convention should be subject to affirmative procedure.

13. The Committee considers that no other amendment is necessary either to the delegated powers in the bill or to the parliamentary control provided for these powers.[5]


1  21st report 1998-99, HL Paper 79. Back
2  Special Report from the Select Committee on the Freedom of Information Bill, HL Paper 97, session 1998-99, paragraph 33. Back
3  ie affirmative resolution. Back
4  House of Commons Public Administration Committee 3rd Report 1998-99 (HC 570-I), paragraph 112. That Committee also published the Government's response to its report (5th Special Report), and, in a separate report (5th Report, HC 925), published its own response to the Home Office reply. Back
5  This report is also published on the Internet at the House of Lords Select Committee Home Page (http://www.parliament.uk), where further information about the work of the Committee is also available. Back

 
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