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.
FREEDOM OF INFORMATION BILL
1. The Committee reported on this bill last session
at the pre-legislative scrutiny stage.
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.
2. The relationship between the current bill and
the pre-legislative scrutiny draft is set out in the following
|Provision in current bill||Corresponding provision in pre-legislative scrutiny draft bill|
|Clause 3||Clause 2(1)(a) (but see commentary below)|
|Clause 4||Clause 2(1)(b)|
|Clause 6||Clause 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 11||Clause 12|
|Clause 14||Clause 14 (Committee's recommendation accepted)|
|Clause 43||Clause 36 (Committee's recommendation accepted)|
|Clause 44||Clause 38|
|Clause 45||Clause 39|
|Clause 68||Clause 61|
|Clause 74||Clause 65|
|Clause 78||In clause 2|
CLAUSE 43 - POWER
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."
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
"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
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."
6. The Government responded to these recommendations
"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.
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.
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
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.
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