Health and Social Care Bill

Lord Pannick Excerpts

Wednesday 7th December 2011 Lords Chamber

[Baroness Williams of Crosby]

My Lords, it is important to spend a moment or two explaining the purpose of a risk register. One of the difficulties that has arisen over recent years is that risk registers have been used in the planning of long-term substantial projects by both the last Labour Government and the present coalition Government. When a risk register is produced, the effort is to consider all the contingencies—some of them highly unlikely—which might arise in relation to that project. There will certainly be some information in that category that would enable the discussion of any Bill of sufficient significance passing through Parliament to be treated with better knowledge than might otherwise be the case. It is also true that under the terms of the relevant legislation, particularly under Section 35(1)(a), there is an exemption category which allows those registers that directly affect policy formulation to claim an exemption from the output and effect of information legislation.

What we now know happened in this case is that when the Information Commissioner considered the point put to him by the original seeker after information, he had to weigh up on the one side the exemption argument and on the other side the argument of the public interest. He himself indicated in his original findings in early November this year that it was a very narrow balance, but that he believed, as the noble Baroness has said, that the issue was sufficiently in the public interest for him to overrule the exemption. There is a legislative right to appeal, of course, and that right to appeal was taken up by the Department of Health on the grounds that this is to do with policy formulation and therefore falls within the exemption. It asked the commissioner to overrule the application. The commissioner decided to uphold the application on the balance of considerations both ways, and the Department of Health then decided to use its right to appeal and it is that appeal which is now about to come before the tribunal. My understanding is that both sides in this argument, the complainant and the defendant, have asked for more time in order to prepare their cases. Only after that will the tribunal be able to make a ruling.

Along with the noble Baroness, I am of the view that it would be helpful to the Report stage of this Bill to have as much information as can possibly be made available. However, the proper way to do that is to allow the tribunal to reach a judgment. My understanding is that if both parties to the tribunal were to request a decision to be made as quickly as possible after the cases have been prepared, the tribunal might be agreeable to a rapid decision. That is very important because nothing can happen before such a decision and it would be unfortunate for the House if the result was not known well before the Bill reaches Report.

I ask the Minister whether he could consider such a joint approach to the tribunal, recognising fully that the two sides must be able to prepare their cases, to see whether it could not act much more quickly than is its usual practice in order to allow the House to have the information if, indeed, the tribunal decides not to uphold the appeal. If it does uphold the appeal, it will then of course be a different case and there will not be any further argument about it. I put that to the Minister because I believe it is very important to settle this issue quickly. I fear that it may hang like a dark shadow over the whole of the Report stage. It must be decided one way or another either before or very soon after the Report stage begins when the House resumes in the new year.

[Lord Pannick]

My Lords, I understand the wish of the Government to appeal against the decision of the commissioner because of the general issues of importance raised under the freedom of information legislation, but the issue raised today by the amendment does not depend on the proper answer to the question that was before the commissioner and which will be before the tribunal. That is because the issue before the commissioner and the tribunal was the proper balance of interests—a very difficult balance of interests, as the noble Baroness, Lady Williams, has said—between the public interest in having this information and the very real need to ensure that risk registers in general are not disclosed. But the issue before the House is different. It is the issue of whether the Members of this House should be given information that the commissioner in his judgment, having seen that information, has said will be of considerable importance in enabling the Members of this House to perform our scrutiny function in relation to this vital Bill.

I cannot share the opinion of the noble Baroness, Lady Williams, that this is the same issue as will be before the commissioner. It is a matter for the judgment of this House how best we perform our scrutiny function. Whatever the balance may be, in general, between the public interest in disclosure and the very real interest in not disclosing confidential information that is on a risk register, the balance is surely very different in principle when we have before the House a Bill that we are scrutinising and considering. It would, I think, require an overwhelmingly strong argument to justify non-disclosure to this House of information that is relevant to our scrutiny function. I therefore hope that the Minister will be able to say today that he is prepared to disclose to this House at least the substance of the information that is contained in the risk register, so that we may fully perform our scrutiny function in relation to this vital Bill.

[Lord Clement-Jones]

My Lords, I am very interested in the argument of the noble Lord, Lord Pannick. He seemed to be setting a rather different standard, well above that imposed by the Freedom of Information Act 2000. I have no doubt that the Minister will deal with that argument when he comes to it. However, I believe that the question for the House today is whether we support the Department of Health’s right to appeal against the Information Commissioner’s decision. This has been a much more finely balanced decision than I believe the noble Baroness, Lady Thornton, is prepared to credit, which I find somewhat surprising given her recent role in government. In this kind of situation, with a qualified exemption under the Freedom of Information Act, it is all about whether the balance of public interest is served by disclosure or non-disclosure. The arguments put forward to the commissioner were in relation to two essential aspects. First, there is the “safe space” argument: the importance of government having the freedom to debate policy and make decisions,

“without being hindered by external comment”.

Secondly, there is the “chilling effect” that disclosing information relating to a particular policy, while that policy is still being formulated or developed, could have on,

“the frankness and candour with which relevant parties make future contributions to that particular policy debate”.

These are perfectly respectable arguments and that is why the commissioner found that the factors are finely balanced, as my noble friend Lady Williams said. In the light of the particularly strongly held views of the department—and I believe that these are genuinely held—it seems that it is entirely valid for the department to appeal to the First-tier Tribunal.

However, I agree very strongly with my noble friend that time is of the essence in this case. There is little point on a decision on appeal not being made until March or April; because, as my noble friend has pointed out, the Bill will probably have passed through this House entirely by then. To mitigate the possibility of that kind of delay, my noble friend’s suggestion is entirely right and sensible. The Department of Health and the complainants should apply to the First-tier Tribunal for an expedited hearing. This is well within the tribunal’s case-management powers under paragraph 5 of the procedural rules, which were last set out in 2009. Of course, this is a discretionary power, but I believe that any tribunal would recognise the need to resolve these matters quickly, particularly in the light of the debates we have had in this House. I believe it would be extremely helpful in the circumstances if the Minister indicated the department’s willingness to proceed along these lines. I hope that my noble friend can give a positive response today, even if further time is needed to prepare the case on both sides.

--- Later in debate ---

[Lord Mackay of Clashfern]

My Lords, the decision of the commissioner is certainly well argued, but under the existing system it is subject to appeal to the tribunal and the Department of Health intends to exercise the right to appeal. In that situation, in my submission, the Minister is entitled to give this House the best information he has. There is no question of failure to release this report in any way leading to the noble Earl, Lord Howe, misleading this House. I do not believe that is at all likely.

The noble Lord, Lord Pannick, developed a cogent argument, but the question he raises in relation to what is to happen here today is a different question from that which arises on the appeal. Unfortunately, although it is a different question, it is very closely related because, if the document is to be released now, the question of an appeal to the tribunal is evacuated because the document will already have become public, which is the issue in the appeal. Therefore, I believe that my noble friend Lady Williams of Crosby has suggested the best way out of this business: the Government and the other parties to the appeal should do what they can to have the appeal expedited. I do not believe that the tribunal is in any worse position than a court of law in getting on with the job quickly and that is the best course because if the tribunal endorsed the commissioner’s decision then that solves the matter.

[Lord Pannick]

Would the noble and learned Lord agree that if the tribunal dismisses the appeal it would then be open to the Government to take the matter to the Court of Appeal?

[Lord Mackay of Clashfern]

Certainly. The Court of Appeal has a very great record in dealing with matters quickly.

Public Bodies Bill [HL]

Lord Pannick Excerpts

Monday 9th May 2011 Lords Chamber

[Lord Pannick]

My Lords, I have added my name to Amendment 1. As the noble Lord, Lord Hunt of Kings Heath, said, at Report your Lordships rejected an amendment in the name of the noble Lord which would have required public consultation in all cases covered by Clause 10. Your Lordships rejected the amendment because the Minister argued that it cannot be appropriate and proportionate for a full public consultation to be undertaken on the implementation of all exercises of power under the Bill, however limited they may be. However, he also said:

“The Government support the principle behind this amendment, which is to ensure that the public are given an opportunity to make their views heard on the reform of public bodies.—[Official Report, 4/4/11; col. 1555.]

Amendment 1 would achieve that objective. It would ensure that the public were able to inform themselves of all proposals for change and were able to contribute to the debate if they wished. The amendment would therefore promote accountability, and it would do so at no cost or inconvenience to the Government.

The Minister may say that the amendment is unnecessary as this is so obviously sensible as a practice that the Government would do it in any event. However, a ministerial assurance given, I accept, in good faith cannot bind Ministers in this or any future Government. Even after the very welcome amendments that have been made to the legislation in this House, the Bill will still confer very extensive powers on Ministers over public bodies, and it is therefore important to make clear in the Bill the essential obligation contained in this amendment.

[Lord Taylor of Holbeach]

My Lords, I thank the noble Lords, Lord Hunt of Kings Heath and Lord Pannick, for bringing back these issues because it gives me the opportunity to clarify the Government’s position. As they say, Amendments 1 and 6 revisit the issue of consultation and so I shall respond to them together.

Amendment 1, to which the noble Lords, Lord Hunt of Kings Heath and Lord Pannick, have spoken, would require Ministers to publish the proposed reform on their department’s website or to otherwise make it publicly available in the event that a full public consultation was not to be undertaken. This is a helpful amendment and one that speaks to an important principle, so I thank noble Lords for bringing it back at Third Reading.

I said on Report that I thought that this was something that the Government could consider, and I can assure your Lordships’ House that we have done so. Supportive as we are of the objective behind this amendment, on balance, we do not believe that such a requirement is appropriate on the face of the Bill. We are debating ostensibly an issue of guidance and best practice, not imposing a legal requirement. For that reason I am able to support the purpose of the amendment but not its inclusion in the Bill. Given that I believe that this is an issue of guidance, I am happy to give a very specific assurance that the guidance for use by officials on making orders under the Public Bodies Bill, to be published by the Cabinet Office, will include a specific reference that departments ought to consider the most appropriate way of making a proposal publicly available.

The Government are committed to increasing transparency and accountability across the public sector. I do not believe that I can honestly stand here and say that I oppose the purpose of the amendment and still be true to that overall objective. I fear that our only point of divergence is on how to ensure that this purpose is reflected in the best way possible when Ministers are developing proposals and drafting orders. It is the Government’s clear judgment that a more practical and proportionate way of achieving the noble Lord’s objective is to capture this issue in the guidance which will be used by departments when bringing forward orders. On Report, the noble Lord, Lord Hunt, described my pledge to take this back to my colleagues in government as “handsome”. I hope that he will not now consider this an ugly conclusion by the Government. I can assure him that the principle of making proposals publicly available is one on which all sides of the House agree.

I should like to make one further observation on the noble Lord’s amendment. I agree that, in 2011, a website represents a very sensible vehicle for making proposals publicly available; indeed, I should expect departments seriously to consider whether website publication is not appropriate for publicising their proposals. However, my crystal ball will not tell me whether this will be the case for ever. Technology moves on. The statutory framework for consultation on this legislation is set out in Clause 10, and it is intended to be a stable and firm statutory requirement for reforms long into the future. It is guidance, not the statue book, that can be readily updated to reflect whatever is most appropriate at given times. That provides further weight to the argument that, however sensible this amendment might seem, it is not an appropriate addition to the Bill.

I am disappointed that I cannot be more supportive of the noble Lord’s amendment. I know that it is a sincere attempt to improve the Bill and to help the Government deliver a comprehensive and watertight piece of legislation. However, the vote on Report made it clear that consultation must not always be full public consultation and that a Minister must ultimately be responsible and indeed accountable to Parliament for deciding how to undertake proportionate and meaningful consultation. It is therefore not appropriate to seek to alter this legal framework through the noble Lord’s amendment.

I shall now turn to Amendment 6 in the name of the noble Baroness, Lady Royall, and the noble Lord, Lord Hunt of Kings Heath. This proposed amendment to Schedule 1 in practice concerns the issues of consultation and subsequent procedure, set out in Clauses 10 and 11, and how they might apply to the closure of the regional development agencies. I shall start by once again taking the opportunity to pay tribute to the work of the RDAs. I also acknowledge that the noble Lords have a strong regard for the work that the RDAs did and would prefer them to continue.

We have had very thorough debates in the House, in Committee and on Report, on the RDAs. The noble Lord, Lord Hunt, referred to these debates. I have explained that the Government's strong preference is to abolish the RDAs, and I have set out the reasons behind this, including why the current arrangements are no longer sustainable. The coalition agreement, the June 2010 Budget Statement and the local growth White Paper are equally clear about the Government's proposal to abolish the RDAs. The Government continue actively to engage with RDAs and interested parties on how closure is to be achieved. Individual RDAs have been in touch with their stakeholders, for example about their asset plans. The consultation and engagement are taking place irrespective of the requirements in the Bill.

I have listened to the arguments for the reform of public bodies to be an open process. Clauses 10 and 11 underline the Government’s desire for this to be the case. Clause 10 requires a Minister to consult on a proposal to which an order made using the Bill would give effect. The amendment proposes that in the case of RDAs, the explanatory document that accompanies an order should include, first, the question that was asked about the principle of abolishing RDAs and, secondly, a summary of the representations received on that question.

The requirements of Clause 10 on a Minister to consult when making an order covered by the Bill are clear. The requirements applied to the RDAs would oblige the Government to ask about the principle of abolition. Similarly, Clause 11(2)(d) requires that any explanatory document should include a summary of representations received in consultation. Therefore, I do not believe that the amendments in this group would provide any additional information for Parliament. Instead, they would unnecessarily complicate the drafting of the Bill. I hope that, in the light of the clarification that I have given with regard to the existing requirements—