Select Committee on Delegated Powers and Deregulation Fourteenth Report



ANNEX

FREEDOM OF INFORMATION BILL

Memorandum by the Home Office

1. This Memorandum identifies those provisions in the Freedom of Information Bill which confer powers to make delegated legislation. It explains in each case the purpose of the power, the reason why it is to be left to delegated legislation, and the nature and justification for any parliamentary procedures which apply.

Outline and Scope of the Bill

2. The Freedom of Information Bill confers access rights for those requesting information and sets out an enforcement regime. Under the terms of the Bill, members of the public will be able to apply for access to information held by a wide range of bodies across the public sector.

3. The main features of the Bill are:

  • a general right of access to information held by public authorities, subject to certain conditions and exemptions;
  • in relation to certain exempt information a further right of access where the public interest in disclosure outweighs the public interest in maintaining the exemption in question;
  • a new office of Information Commissioner, and a new Information Tribunal, with wide powers to enforce the rights created; and
  • a duty imposed on public authorities to adopt a scheme for the publication of information. The schemes, which must be approved by the Commissioner, will specify the classes of information the authority intends to publish, the manner of publication and whether the information is available to the public free of charge or on payment of a fee.

4. The Bill also ensures that the Data Protection Act 1998 will remain the key legislation for the regulation of personal information held by any authority or any other body. The Bill has the effect that the Data Protection Act 1998 rights of subject access and data accuracy are extended to a wider range of personal information held by public authorities.

Structure of the Bill

5. The Freedom of Information Bill is divided into eight Parts as follows (a more detailed commentary is given in the Explanatory Notes):

    (a) Part I of the Bill deals with the right of access and the conditions which need to be fulfilled before an authority is obliged to comply with a request. It also deals with the coverage of the Bill. It contains provisions relating to fees and to the time limits for complying with a request. It contains provisions dealing with the office of the Information Commissioner and Tribunal. Part I further requires public authorities to adopt and maintain a publication scheme and to publish information in accordance with it;

    (b) Part II sets out the exemptions from the right of access;

    (c) Part III sets out the general functions of the Secretary of State, the Lord Chancellor and the Information Commissioner;

    (d) Part IV sets out the powers of the Information Commissioner to enforce the rights given under the Bill;

    (e) Part V provides for appeals against decisions of the Information Commissioner;

    (f) Part VI makes provision for the disclosure of information contained in historical records and records held by the Public Record Office or Public Record Office of Northern Ireland;

    (g) Part VII extends the Data Protection Act 1998 provisions about subject access and data accuracy to all personal information (with some exceptions and modifications) held by public authorities;

    (h) Part VIII contains various miscellaneous and supplementary provisions, including a power to make regulations to govern access to environmental information.

6. The Bill applies throughout the United Kingdom. It does not apply to the Scottish bodies referred to in clause 78(2). In addition, the order-making powers to designate bodies as public authorities for the purposes of the Bill (clause 3(1) and (4)) and the order making power in respect of environmental information (clause 73(3)) do not apply to such bodies. The Bill applies to public authorities in Northern Ireland.

Pre-legislative scrutiny and previous consideration by the Select Committee on Delegated Powers and Deregulation

7. A draft Freedom of Information Bill was published on 24 May 1999 (Cm 4355) for public consultation and pre-legislative scrutiny. The draft Bill was considered by the Select Committee for Public Administration and an ad hoc House of Lords Select Committee, chaired by Lord Archer of Sandwell. The Select Committee on Delegated Powers and Deregulation also considered the powers in the draft Bill and made its recommendations in the Twenty-First Report on 30 June 1999 (copy attached at Annex A [not printed]). Lord Bassam of Brighton responded to the Committee's recommendations on 3 August 1999 (copy of letter to Lord Alexander of Weedon, Chair of Select Committee on Delegated Powers and Deregulation, attached at Annex B [not printed]).

8. In commenting on the draft Bill the Committee recommended:

    '…that the draft Bill be amended to provide Parliamentary control for clauses 9(3), 10(3) and 14(7), including the affirmative procedure for clause 10(3). We also recommend that the draft Bill should be amended to provide for a harm test for the use of the order-making power in clause 36.'   [paragraph 20]

9. Clauses 9(3) and 14(7) of the draft Bill provided powers to make regulations for fees to be charged to applicants for information. The Government accepted the recommendation of the Select Committee in relation to these powers which are now subject to a negative resolution procedure (clauses 8(3) and clause 14(1) of the Bill respectively).

10. The Committee recommended that clause 10(3) of the draft Bill, the power to make regulations to amend the 40 day limit, should be subject to the affirmative resolution procedure because of the possibility that the time limit could be extended. The Government has now amended this procedure so that the affirmative resolution procedure applies. In addition clause 9 of the Bill now provides for a far shorter time limit of 20 working days and for a maximum extension to 60 working days.

11. Finally, the Committee also recommended that the order making power in clause 36 should be restricted to exemptions which rely on a harm test. The Government accepted this and similar recommendations from the House of Commons Select Committee on Public Administration and the ad hoc House of Lords Committee on Freedom of Information. The equivalent powers in clause 43(1) & (2) therefore provide that further information may only be made exempt by order if its disclosure would, or would be likely to, have such effects adverse to the public interest as may be specified in the order (subsection (1)) or if the public interest in exempting specific information outweighs the public interest in allowing access to it (subsection (2)).

Codes of practice.

12. Clause 44 requires the Secretary of State to issue a code of practice providing guidance to public authorities as to good practice in discharging their obligations under the Bill. Clause 45 requires the Lord Chancellor to issue a code of practice on the keeping, management and destruction of the records of public authorities and the practice governing the review and transfer of records to the Public Record Office for bodies covered by the Pubic Records Act 1958. These codes of practice will be subject to consultation and will be laid before each House of Parliament. The codes of practice are not regarded as delegated legislation. The Select Committee previously considered the codes of practice in relation to the draft Bill and concluded that the provision for Parliamentary control was appropriate.

The powers in the Bill.

13. This memorandum identifies 17 distinct provisions which delegate legislative power in the manner and for the reasons set out below.

CLAUSE 3(1): POWER TO AMEND SCHEDULE 1

Power conferred on:  The Secretary of State

Power exercisable by:Statutory Instrument

Parliamentary procedure:    Negative resolution

Other relevant provisions:    Clause 3(2)- (8), clause 78, clause 80(3), Schedule 1

14. Subsection (1) of clause 3 provides that the Secretary of State may by order add to Schedule 1 a reference to any body or the holder of any office which is not listed and which fulfils certain conditions.

15. Those conditions are set out in subsections (2) and (3). They are that:

  • any body or office to be listed is established by virtue of Her Majesty's prerogative or by an enactment or by subordinate legislation or in any other way by a Minister of the Crown in his capacity as Minister or by a government department; and
  • in the case of a body, that it is wholly or partly constituted by appointment made by the Crown, a Minister or a government department; or
  • in the case of an office, that appointments are made by the Crown or a Minister or a government department.

16. The power at clause 3(1) is necessary to enable the Secretary of State to maintain an accurate and up-to-date list in Schedule 1 of public authorities to be covered by the Bill. The exercise of the power is limited by the specified conditions. By virtue of clause 78, the power is not capable of being exercised in relation to the designation of the Scottish Parliament, any part of the Scottish Administration, the Scottish Parliamentary Corporate Body, or any Scottish public authority with mixed functions or no reserved functions (within the meaning of the Scotland Act 1998).

17. In many instances when a new body or office meeting the conditions is established this will be done by primary legislation, in which case any necessary amendment to Schedule 1 can be done by that legislation. However, this will not invariably be the case. It is vital that a power to amend the Schedule is taken in order to ensure that the coverage of the Bill reflects the current position. Given the strict limitations on the use of the power, an order under clause 3(1) cannot affect the principles underlying coverage of the Bill and can only extend coverage to further bodies meeting the specified conditions. In those circumstances, the negative resolution procedure seems to provide adequate Parliamentary safeguards.

CLAUSE 3(5): POWER TO REMOVE ENTRIES FROM PARTS VI AND VII OF SCHEDULE 1

Power conferred on:  The Secretary of State

Power exercisable by:Statutory Instrument

Parliamentary procedure:    Laid before Parliament after being made

Other relevant provisions:   Clause 3(2)-(4), clause 80(4), Parts VI and VII of Schedule 1

18. Subsection (5) of clause 3 provides a power for the Secretary of State by order to amend Parts VI and VII of Schedule 1 to remove an entry relating to a body or office which has ceased to exist or which ceases to meet the conditions in subsections (2) and (3). An order must be laid before Parliament after being made, by virtue of clause 80(4).

19. This power is necessary to enable the Secretary of State to ensure that the list of public authorities in Part VI (Other public bodies and offices: General) and Part VII (Other public bodies and offices: Northern Ireland) of Schedule 1 continues to be accurate and up-to-date. By virtue of clause 3(4) bodies or offices are no longer public authorities for the purposes of the Bill by virtue of the entry in Schedule 1 if they cease to meet either of the conditions in clause 3(2) and (3). The power at clause 3(5) is consequential on this and allows such a body or office to be removed from Schedule 1. In addition, the power can be exercised in relation to a body which has ceased to exist and which therefore cannot be subject to any further obligations. The purpose of the order making power at clause 3(5) is therefore to allow the Secretary of State to remove an otiose entry from the list of public authorities.

20. Given that an order under this subsection has no substantive effect, it seems appropriate for such an order to be laid before Parliament after being made.

CLAUSE 4: POWER TO DESIGNATE PUBLIC AUTHORITIES

Power conferred on:  The Secretary of State

Power exercisable by:Statutory Instrument

Parliamentary procedure:    Draft affirmative resolution

Other relevant provisions:    Clause 3(1), clause 6(4) and (5), clause 78, clause 80(2) and (5)

21. Subsection (1) of clause 4 provides that the Secretary of State may by order designate any person as a public authority. The power may only be exercised when the person is not described in Schedule 1 nor capable of being added to that Schedule by an order made under clause 3(1) but:

    (a) appears to the Secretary of State to exercise functions of a public nature, or

    (b) is providing contractual services to a public authority where the provision of that service is one of the functions of the authority.

22. By virtue of subsection (4) the exercise of the power at clause 4(1) is subject to clause 78 as described in relation to the order making power under clause 3(1).

23. The Secretary of State must consult any person in respect of whom he proposes to make such an order (subsection (3)).

24. Subsection (4) of clause 6 requires that an order made under clause 4(1)(a) must specify the functions with respect to which it has effect. Nothing in Parts I to V of the Bill applies to information held by an authority designated by order under clause 4(1)(a) which does not relate to the specified functions.

25. Subsection (5) of clause 6 requires an order made under clause 4(1)(b) to specify the services provided under contract to which the designation is to apply. Nothing in Parts I to V of the Bill applies to information held by a contractor designated in such an order which does not relate to the provision of the specified services.

26. The power in clause 4 is necessary to enable the Secretary of State to bring within the coverage of the Bill persons who are carrying out public functions and would not otherwise be covered. Examples might include the British Board of Film Classification in relation to video certification and Group 4 in relation to management of prisons. The exercise of the power is limited by the specified conditions and before making such a designation, the Secretary of State is required to consult any person in respect of whom he proposes to make an order. Nevertheless, the effect of designating a person a public authority by order under clause 4(1) would be to subject that person to the obligations under the Bill. It is therefore right that such an order should be subject to the affirmative resolution procedure. Clause 80(5) excludes the application of the procedure applicable to hybrid instruments.

27. A preliminary list of such bodies which the Government intends to consult with under this clause is at Annex C [not printed].

CLAUSE 6(3): POWER TO AMEND SCHEDULE 1 BY LIMITING THE ENTRY OF ANY PUBLIC AUTHORITY TO INFORMATION OF A SPECIFIED DESCRIPTION

Power conferred on:  The Secretary of State

Power exercisable by:Statutory Instrument

Parliamentary procedure:    Draft affirmative resolution

Other relevant provisions:    Clause 3, clause 6(1), clause 80(2), Schedule 1

28. Subsection (3) of clause 6 enables the Secretary of State by order to amend Schedule 1 by limiting to information of a specified description the entry relating to any public authority or by removing or amending any limitation which is for the time being contained in any entry. By virtue of subsection (1), where a body is listed in Schedule 1 only in relation to certain specified information, nothing in Parts I to V of the Bill applies to any other information held by the authority.

29. While in most cases it is right that a public authority should be subject to the provisions in Parts I to V of the Bill in respect of all information which it holds, this will not be appropriate for every description of information held by every public authority. Schedule I already makes provision in a small number of cases for the entry relating to a public authority to apply only in respect of information of a specified description. By virtue of clause 6(2) an order under clause 3(1) to add an entry to the list in Schedule 1 may provide that an order may limit the application of the Bill to certain specified information and there are comparable provisions in the order making powers at clause 4(1) and 6(7).

30. The power at subsection (3) of clause 6 is necessary to enable the Secretary of State to ensure that coverage of the Bill remains up to date. It will enable the Secretary of State by order to amend an existing entry to limit the effect of the public authority's obligations under the Bill in respect of specified descriptions of information where a change in the circumstances of that public authority means that it is no longer appropriate for that description of information to be covered by the Bill or where a previous limitation need no longer apply.

31. The Government accepts that, although this is not the intention, this power could, be used to reduce significantly the scope of the Bill. The affirmative resolution procedure is therefore appropriate for an order under clause 6(3).

CLAUSE 6(7): POWER TO EXCLUDE INFORMATION

Power conferred on:The Secretary of State

Power exercisable by:    Statutory Instrument

Parliamentary procedure:  Draft affirmative resolution

Other relevant provisions:  Clause 2, clause 5, clause 6(6), clause 80(2) and (5)

32. Subsection (7) of clause 6 provides that the Secretary of State may by order specify a description of information held by a publicly-owned company as excluded information. Subsection (6) provides that nothing in Parts I to V of the Bill applies to information held by a publicly-owned company which is excluded information in relation to that company.

33. The power in clause 6(7) is necessary to enable the Secretary of State to exercise discretion in excluding information relating to a publicly-owned company which it would not be appropriate to bring within coverage of the Bill, having regard to the legitimate interests of that company competing in a commercial environment. Publicly-owned companies are public authorities by virtue of clause 2(1)(b). The definition of a publicly owned company for the purposes of the Bill is at clause 5.

34. The Government accepts, although this is not the intention, this power could be used to reduce significantly the scope of the Bill in relation to publicly-owned companies. The affirmative resolution procedure is therefore appropriate for an order under clause 6(7). Clause 80(5) excludes the hybrid instruments procedure.

CLAUSE 8: POWER TO MAKE REGULATIONS IN RELATION TO FEES

Power conferred onThe Secretary of State

Power exercisable by:     Statutory Instrument

Parliamentary procedure:  Negative resolution

Other relevant provisions:  Clause 80(3)

35. Subsection (1) provides that a public authority may request a fee from an applicant before complying with a request for information under clause 1(1) of the Bill. Subsection (3) enables the Secretary of State to make regulations in relation to such fees. Subject to subsection (5), if the Secretary of State has exercised the power to make Regulations in relation to fees any fee requested by a public authority pursuant to subsection (1) must be determined in accordance with them. Subsection (5) provides that subsection (3) does not apply if provision is made by or under any enactment for a fee to be charged by the public authority for the disclosure of information.

36. Subsection (4) provides that the regulations may prescribe circumstances where no fee is payable by the applicant, the maximum fee which the authority may charge and the method by which the fee may be calculated.

37. Clause 80(3) provides that Regulations made under subsection (3) are subject to the negative resolution procedure.

38. The power in subsection (3) is necessary to allow the Secretary of State to prescribe the fees which may be charged by public authorities for complying with their obligations under clause 1. It seems appropriate for such a power to be subject to the negative procedure. Subsection (5) ensures that where Parliament has provided for a particular charging regime to apply in respect of a public authority this will continue. Where a particular regime has been established it seems right that it should prevail over the general regime to be established under subsection (3).

39. A working draft of regulations is attached at Annex D [not printed]. These regulations also contain matters provided for under clauses 9, 11, and 14.

CLAUSE 9: POWER TO MAKE REGULATIONS IN RELATION TO TIME FOR COMPLIANCE

Power conferred on:  The Secretary of State

Power exercisable by:Statutory Instrument

Parliamentary procedure:    Draft affirmative resolution

Other relevant provisions:    Clause 80(2)

40. Subsection (1) provides that a public authority must comply with clause 1(1) promptly and in any event not later than 20 working days from the date of receipt of the request. Subsection (3) enables the Secretary of State to make regulations in relation to the time for compliance with a request. The regulations may set another period for compliance with requests, but the ability to increase this period is limited to a maximum of 60 working days. Under subsection (4), the regulations may also prescribe different periods in relation to different cases, and may confer a discretion on the Commissioner.

41. Clause 80(2) provides that Regulations made under subsection (3) are subject to the draft affirmative resolution procedure.

42. The power in subsection (3) is necessary to allow the Secretary of State to vary the time for compliance with a request, in the event that twenty days does not prove an effective time limit. It is also necessary to allow the Secretary of State to prescribe a different time limit for specific cases where there is a genuine case for doing so and to confer discretion on the Commissioner to extend the time for compliance in given circumstances. Given the impact a variation of the time for compliance could have on the effectiveness on the right of access conferred by the Bill, it seems appropriate for the regulations to be subject to the draft affirmative procedure.

CLAUSE 11: POWER TO MAKE REGULATIONS IN RELATION TO THE APPROPRIATE LIMIT

Power conferred on:The Secretary of State

Power exercisable by:    Statutory Instrument

Parliamentary procedure:  Negative resolution

Other relevant provisions:  Clause 68 (2) (section 9A, (6) of the Data Protection Act 1998) clause 80(3) and clause 81

43. Clause 11 exempts a public authority from the obligation to comply with clause 1(1) if the authority estimates that the cost of complying with the request would exceed the appropriate limit. Subsection (3) provides that the appropriate limit is such amount as may be prescribed and that different amounts may be prescribed for different cases. By virtue of clause 82, "prescribed" means prescribed by regulations made by the Secretary of State.

44. Subsection (4) enables the Secretary of State to provide for the circumstances in which the cost for complying with requests by one person or by different persons who appear to be acting in concert or as part of a campaign may be aggregated. Subsection (5) enables the Secretary of State to make provision as to the costs which may be estimated and the manner in which they may be estimated for the purposes of this clause.

45. Clause 80(3) provides that the regulations are subject to the negative resolution procedure.

46. The power in subsection (3) is necessary to allow the Secretary of State to set an appropriate limit, beyond which a public authority is not obliged to comply with a request for information. It is also necessary that the Secretary of State be able to prescribe different amounts for different circumstances due to the wide range of public authorities covered by the Bill. The power in subsection (4) is necessary to enable the Secretary of State to prescribe the circumstances where costs may be aggregated. The power in subsection (5) is necessary to allow the Secretary of State to make provision about the costs which may be estimated, and the manner in which they may be estimated, for the purposes of this clause. These powers are necessary to ensure that the Bill does not lead to a huge diversion of resources within authorities in order to comply with the requirements of the Bill. The details of the regulations will have to be responsive to the needs of many different authorities.

47. The powers in this clause are necessary to ensure the Bill operates effectively. They do not affect the Bill's central principles. Thus, the scrutiny afforded by the negative resolution procedure seems adequate.

CLAUSE 14: POWER TO MAKE REGULATIONS IN RELATION TO FEES FOR PUBLIC INTEREST DISCLOSURES.

Power conferred on:The Secretary of State

Power exercisable by:    Statutory Instrument

Parliamentary procedure:  Negative Resolution

Other relevant provisions:  Clauses 13 & 80(3)

48. Subsection (1) enables the Secretary of State to make regulations in relation to fees for disclosures under clause 13 of the Bill. Subsection (2) provides that the regulations may, in particular, prescribe circumstances where no fee is payable by the applicant, the maximum fee which the authority may charge and the method by which the fee may be calculated.

49. Clause 80(3) provides that Regulations made under subsection (1) are subject to the negative resolution procedure.

50. The power in subsection (1) is necessary to allow the Secretary of State to prescribe the fees which may be charged by public authorities for complying with their obligations under clause 13. It seems appropriate for such a power to be subject to the negative procedure. Subsection (3) ensures that where Parliament has provided for a particular charging regime to apply in respect of a public authority this will continue. Where a particular regime has been established it seems right that it should prevail over the regime to be established under subsection (1).

CLAUSE 43: POWER TO CONFER ADDITIONAL EXEMPTIONS

Power conferred on:The Secretary of State

Power exercisable by:    Statutory Instrument

Parliamentary procedure:  Draft affirmative resolution

Other relevant provisions:  Clause 80(2)

51. Subsection (1) enables the Secretary of State to create by order an additional exemption relating to information whose disclosure would, or would be likely to, have such effects adverse to the public interest as are specified in the order. Subsection (2) enables the Secretary of State to exempt existing specified information if the public interest in exempting it outweighs the public interest in allowing access to it. Subsection (6) requires the Secretary of State to consult the Commissioner before making such an order and to publish representations (unless that would disclose information which is or is to be made exempt) before laying a draft of the order before Parliament.

52. Clause 80(2) provides that orders made under subsection (1) or subsection (2) are subject to the affirmative resolution procedure.

53. The powers in subsections (1) and (2) allow the Secretary of State to create new exemptions. This is a necessary measure to ensure that where information whose disclosure would be prejudicial to the public interest, such disclosure is not required under the Bill due to the lack of an appropriate exemption. Should such a lacuna become apparent the power could be used to create an additional exemption. However the effect of such an order is clearly potentially far reaching. For this reason we believe it is right that the power to make such an order be limited and subject to an obligation to consult the Commissioner and publish any written representations. Furthermore, despite these safeguards, it is right that this power be subject to the affirmative procedure.

CLAUSE 68(2): PROVISION IN RELATION TO "APPROPRIATE LIMIT" FOR REQUESTS FOR UNSTRUCTURED PERSONAL DATA UNDER SECTION 7(1) OF THE DATA PROTECTION ACT 1998

Power conferred on:  The Secretary of State

Power exercisable by:Statutory Instrument

Parliamentary procedure:    Negative resolution

Other relevant provisions:  Clause 11 and section 67(5) of the Data Protection Act 1998

54. Subsection (2) of clause 68 inserts new section 9A into the Data Protection Act 1998. New section 9A concerns rights of access to unstructured personal data held by public authorities. The meaning of "data" as set out in the 1998 Act is extended by virtue of clause 67 to include all recorded personal data held by a public authority.

55. Subsection (3) of section 9A provides that a public authority need not comply with a request for unstructured personal data if it estimates that the cost of complying with the request would exceed the "appropriate limit". Subsection (5) provides that the appropriate limit is such amount as the Secretary of State prescribes by regulations. It is anticipated that comparable provision to that made in the draft regulations at Annex D in relation to the 'appropriate limit' will be made in the regulations under section 9A(5) of the Data Protection Act 1998. Subsection (6) provides that the appropriate limit must be estimated in accordance with regulations made under clause 11(5).

56. This provision is necessary in order to limit the financial burden to be borne by public authorities as a result of the new rights of access to unstructured personal data.

57. Section 67(5) of the Data Protection Act 1998, as amended by clause 68(3) provides that regulations made under new section 9A(5) of that Act are subject to the negative resolution procedure. The application of the negative resolution procedure reflects a comparable provision in respect of the setting of cost limits in regard to requests for disclosure of information other than personal information at clause 11.

CLAUSE 52, SUBSECTION (4): POWER TO SPECIFY "ACCOUNTABLE PERSONS" BY ORDER

Power conferred on:  The Secretary of State

Power exercisable by:Statutory Instrument

Parliamentary procedure:    Negative resolution.

Other relevant provisions:    clause 13, clause 80(3)

58. Subsection (1) of clause 52 provides that a public authority does not have to comply with a decision notice or an enforcement notice issued by the Information Commissioner relating to a failure to comply with clause 13 if the "accountable person" for that authority certifies, within 20 working days, that he has, on reasonable grounds, formed the opinion that the authority did not fail to comply with clause 13 in relation to the request in question. The "accountable person" is defined at subsection (4).

59. Subsection (4) specifies who is to be the accountable person in most instances. In 3 instances it provides that the Secretary of State may by order designate the "accountable person". Those instances are:

by virtue of subsection (4)(h) in relation to a local authority or, in Northern Ireland, a district council within the meaning of the Local Government Act (Northern Ireland) 1972. The order may designate a member, committee or sub-committee of that authority;

by virtue of subsection (4)(j) in relation to any public authority specified in Part II of Schedule 1 which is not a local authority (but whose members include members of local authorities). The order may designate a committee or a sub-committee of the public authority, or a member of a local authority who is also a member of the public authority in question; and

by virtue of subsection (4)(k) in relation to any public authority not otherwise covered by subsections (4)(a) to (j), the order may designate a Minister of the Crown.

60. Subsection (5) provides that the order designating the "accountable person" may designate a specified person or a person falling within a specified description; that different "accountable persons" may be designated for the same authority in relation to different cases; and that conditions may be specified for any designation.

61. The Government believes that it is right that where the certification procedure applies, the relevant "accountable person" should be a Minister or an elected person of body comprised of such persons The only exceptions are those for the two Houses of Parliament and the National Audit Office, where the constitutional position of these bodies requires that different criteria should be applied.

62. Where the appropriate person or persons for a public authority or class of public authorities is clear, it has been specified on the face of the Bill. For some public authorities however further detailed provision is required and the order making powers at subsections (4)(h), (j) and (k) are necessary to enable an "accountable person" to be designated for such public authorities.

63. Subsections 4(h) and (j) are concerned with public authorities which are local authorities, or district councils in Northern Ireland, or whose members include a member of a local authority. The accountable person designated in respect of bodies under these provisions must be a member of the relevant local authority or a committee or subcommittee of the public authority.

64. In the case of any other public authority the Secretary of State may by virtue of subsection 4(k) only designate as the accountable person a Minister of the Crown.

65. The order making powers to designate "accountable persons" are limited in application and extent. The negative resolution procedure seems to provide adequate Parliamentary safeguards.

CLAUSE 52, SUBSECTION (6): POWER TO PROVIDE DEPUTIES FOR "ACCOUNTABLE PERSONS" BY ORDER.

Power conferred on:  The Secretary of State

Power exercisable by:Statutory Instrument

Parliamentary procedure:    Negative resolution.

Other relevant provisions:    Clause 13, clause 80(3)

66. Subsection (6) of clause 52 provides that the Secretary of State may by order provide for a person other than the "accountable person" (whether designated in subsection (4) or by order under that subsection) to exercise the responsibilities of the accountable person in certain limited circumstances. These circumstances are: any vacancy in the office held by the accountable person or in the event of illness or absence of the accountable person.

67. The role of the accountable person is set out in subsections (1) to (3) of clause 52. The accountable person may certify that the public authority did not fail to comply with clause 13. If such a certificate is given any decision notice or enforcement notice served on the authority cease to have effect. However such a certificate must be received by the Commissioner within 20 working days of the date of receipt by the authority of that notice. If the accountable person were to be unavailable during all or a substantial part of this period, such a certificate could not be given in time to have the effect provided for in relation to the decision notice or enforcement notice.

68. Thus the order making power to provide for the accountable person's functions to be carried out in the absence of that person in the limited circumstances described is necessary to ensure the proper functioning of the clause. The negative resolution procedure seems to provide adequate Parliamentary safeguards.

CLAUSE 73  POWER TO MAKE PROVISION RELATING TO ENVIRONMENTAL INFORMATION.

Power conferred on:The Secretary of State.

Power exercisable by:    Statutory instrument.

Parliamentary procedure:  Negative resolution.

Other relevant provisions:  Clauses 37, 78 and 80(3)

69. Subsection (3) enables the Secretary of State to make regulations to implement the information provisions of the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the 'Aarhus Convention'). The 'information provisions' of the Aarhus Convention are those provisions in the Convention which relate to access to environmental information.

70. Clause 78 provides that the power conferred by clause 73(3) does not include power to make provision in relation to information held by certain specified Scottish bodies dealing with reserved matters (referred to in relation to the order making power under clause 3). This reflects the devolution settlement in the Scotland Act 1998.

71. Clause 80(3) provides that the regulations under subsection (3) are subject to the negative resolution procedure.

72. Clause 37 provides that information made available under the regulations to be made under clause 73, or which would be made available but for an exemption in those regulations, is exempt information for the purposes of the Bill.

73. The purpose of these regulations is to enable the United Kingdom to implement the information provisions of the Aarhus Convention. This in turn will enable the United Kingdom to ratify the Aarhus Convention in due course. No power to implement the Aarhus Convention exists at present.

74. The Aarhus Convention builds upon the existing regime on access to environmental information which implements EC Directive 90/313 on the freedom of access to information on the environment. The regime is set out for Great Britain in the Environmental Information Regulations 1992 (S.I. 1992/3240, as amended by S.I. 1998/1447) and for Northern Ireland in the Environmental Information Regulations (Northern Ireland) 1993 (S.R. 1993/45, as amended by S.R. 1998/238). It is envisaged that the regulations under clause 73(3) implementing the Aarhus Convention will also implement the EC Directive. The existing regulations would then be revoked.

75. It is appropriate to leave provision for the implementation of the UK's international commitments in this area to subordinate legislation because the policy and much of the content of the legislation have already been agreed in detail at international level. It is considered that the negative resolution procedure provides sufficient Parliamentary scrutiny.

76. Copies of the EC Directive 90/313, the Environmental Information Regulations 1992 (S.I. 1992/3240, as amended by S.I. 1998/1447), Guidance on the Implementation of the Environmental Information Regulations 1992 in Great Britain, issued by the Department of the Environment and the Aarhus Convention are attached at Annex E [not printed].

CLAUSE 74: POWER TO AMEND OR REPEAL ENACTMENTS PROHIBITING THE DISCLOSURE OF INFORMATION.

Power conferred on:The Secretary of State

Power exercisable by:    Statutory Instrument

Parliamentary procedure:  Draft affirmative resolution

Other relevant provisions:  Clause 42, clause 80(2)

77. Clause 74 provides that the Secretary of State may for the purpose of removing or relaxing a prohibition by order repeal or amend any enactment which it appears to him is capable of preventing the disclosure of information under the Bill.

78. This power is necessary because clause 42 provides that information is exempt information where disclosure is prohibited by or under any enactment. There are some 400 provisions in statute which prevent the disclosure of information. They vary in detail according to subject matter, legislative context and, to some extent, the date at which they were passed. Many are necessary to implement EC obligations, others provide necessary protection to those who supply information to government for limited purposes. It is therefore not possible to repeal all such measures in the Bill itself.

79. However, clause 74 provides a power for the Secretary of State to repeal or amend statutory bars having reviewed each on a case by case basis. The bars on disclosure which would be the subject of any order may include bars set out in primary legislation and it is therefore appropriate that any order should only be made with the approval of both Houses of Parliament.

80. A list of statutory bars the repeal of which is being considered is at Annex F [not printed].

CLAUSE 84(3): POWER TO MAKE ORDERS TO APPOINT DAYS FOR COMMENCEMENT OF THE BILL.

Power conferred on:The Secretary of State

Power exercisable by:    Statutory Instrument

Parliamentary procedure:  No Parliamentary procedure

Other relevant provisions:  Clause 84(1), (2), (4) and (5)

81. Subsection (3) of clause 84 provides that, except as otherwise provided by the clause, the Secretary of State may by order appoint a day or days on which the provisions of the Bill shall come into force. It further provides that all the provisions of the Bill must come into force within five years unless previously commenced. Subsection (4) allows an order to contain such savings and transitional provisions as the Secretary of State considers appropriate Subsection (5) requires the Secretary of State to lay annual reports before Parliament on his proposals for commencement of those parts of the Bill not yet fully in force, until such time as the Bill is fully implemented.

82. The specific provisions for commencement other than by order are set out at subsections (1) and (2).

83. The power enabling the Secretary of State to commence provisions of the Bill at different times by order is necessary to ensure that the relevant parts of the Bill do not come into effect until public authorities have completed the necessary preparations to be able to meet their obligations under the legislation. Public authorities will have to undertake considerable preparatory work in assessing what changes will be required to existing practice to enable them to deliver those obligations, including preparation of publication schemes, setting up systems for considering applications, establish complaints procedures and training their staff.

84. Given the wide ranging scope of the public sector brought within coverage of the Bill, the Government believes that it may be sensible to stage the implementation of the full provisions of the Act to take account of those preparatory needs. The power to commence the bringing into effect of parts of the Bill is necessary to ensure that this can be carried out in a flexible way. The requirement at subsection (3) that the Bill should come into effect in full no later than 5 years from the date of Royal Assent provides a safeguard against any failure to bring the provisions into effect by order. The provisions at subsection (5) requiring the Secretary of State to report annually on his proposals for bringing the Act into effect and to lay a copy of the report before each House of Parliament will ensure that there is Parliamentary scrutiny of the operation of the order making power. No further parliamentary procedure would appear to be necessary.

SCHEDULE 5, PARAGRAPH 4  INSERTS A NEW PARAGRAPH 3A INTO SCHEDULE 1 OF THE PUBLIC RECORDS ACT 1958 TO GIVE POWER TO EXTEND THE MEANING OF 'PUBLIC RECORDS'.

Power conferred on:Her Majesty in Council.

Power exercisable by:    Order in Council.

Parliamentary procedure:  Negative resolution.

Other relevant provisions:  Schedule 1 of the Public Records Act 1958, Parliamentary Commissioner Act 1967, section 4 and Schedule 2.

85. Paragraph 4 of Schedule 5 inserts a new paragraph 3A in Schedule 1 of the Public Records Act 1958. This enables further bodies to be added to the Table in paragraph 3 of that Schedule, and thereby to be covered by the Act. Any new entry must relate to a body which is specified in Schedule 2 to the Parliamentary Commissioner Act 1967 or could be added to that Schedule under section 4 of that Act.

86. Subparagraph (3) provides that any entries under new paragraph 3A will be made by an Order in Council subject to the negative resolution procedure.

87. Orders under the existing power in paragraph 7 of the 1958 Act are subject to an affirmative resolution procedure, which has resulted in Schedule 1 not being updated as regularly and quickly as is appropriate. This has meant that bodies which should be subject to the 1958 Act are not covered by it, with a consequent loss of access to their historical records.

88. It seems right to introduce this new power to allow bodies from the limited class specified to be added to the Table with less difficulty by the more appropriate negative resolution procedure.

Home Office


ANNEXES

    (a) The Twenty-First Report of the Select Committee on Delegated Powers and Deregulation on the draft Freedom of Information Bill, 30 June 1999.

    (b) Letter of Lord Bassam of Brighton to Lord Alexander of Weedon, Chair of Select Committee on Delegated Powers and Deregulation on the Committee's recommendations, 3 August 1999.

    (c) A preliminary list of bodies which the Government intends to consult in relation to the order making power contained in clause 4.

    (d) A working draft of the regulations relating to Fees made in relation to the powers contained in clauses 8, 9, 11 and 14.

    (e) Copies of background papers relevant to the regulations to be made in relation to environmental information under clause 73: The EC Directive 90/313, the Environmental Information Regulations 1992 (S.I. 1992/3240, as amended by S.I. 1998/1447), and the Aarhus Convention.

    (f) A list of statutory bars the repeal of which is being considered in relation to the power contained in clause 74.



 
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