Committee (9th Day)

Part of Coroners and Justice Bill – in the House of Lords at 3:00 pm on 21 July 2009.

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Photo of Lord Dubs Lord Dubs Labour 3:00, 21 July 2009

This amendment sets out to put right what I think has been a mistake in the way in which various pieces of legislation have been drafted. I shall seek to persuade the Government that it is a mistake in order that they can use my amendment as an opportunity to put things right. This amendment does not come from the Joint Committee on Human Rights. It comes with the help of the freedom of information campaign. Under Section 77 of the Freedom of Information Act, it is an offence for a public authority or an official to deliberately destroy or alter a record which has been requested if the intention in doing so is to prevent the release of information to which the requester is entitled. That is fairly clear.

The offence also applies to the deliberate destruction of a record requested under the Data Protection Act, which gives individuals the right to obtain personal information about themselves. The offence is committed only where the act is deliberate; that is, where the record is deliberately destroyed and amended after being requested with the intention of frustrating the applicant's legal right of access. An official who accidentally destroys the record or who does so in accordance with the authority's established record destruction policy commits no offence. So there are safeguards.

The offence can be tried only in a magistrates' court where the maximum fine is level 5 on the standard scale, £5,000. There is no provision for this offence to be tried on indictment. Your Lordships will think, "So far, so good. Why do we need the amendment?". I shall explain. Section 127(1) of the Magistrates' Courts Act 1980 prohibits a prosecution from being brought more than six months after the offence has been committed. This provision would make it virtually impossible to bring a successful prosecution for the Section 77 offence under the Freedom of Information Act. Therefore, with a very tight time limit, I contend that it is virtually impossible to bring a successful prosecution.

The deliberate destruction of requested records is likely to be detected only during an investigation by the Information Commissioner, which will rarely even have started within six months of the offence. There are three reasons why there might be a delay which would take up the whole of the six months within which a prosecution has to be brought for it to be successful.

For example, there may be a delay in responding to a freedom of information request. Although the Act requires an authority to respond to a request within 20 working days, it permits an unspecified reasonable extension where the authority has to consider the disclosure of exempt information under the Act's public interest test. The commissioner recommended that the extension should normally be limited to an additional 20 working days and should never exceed 40 working days. In practice, it sometimes runs to many months. The commissioner has described how the National Offender Manager Service responded to one request by taking 12 consecutive extensions, each of 20 working days, so that the request was answered one year after it was made. That is the first cause of delay which can make it difficult to bring forward a prosecution within six months.

The second example is where the requester is dissatisfied with the authority's response to a request. He or she cannot complain directly to the Information Commissioner, but must first ask the authority to reconsider the matter under its own internal complaints procedure, and there is no statutory time limit for this process. The commissioner said that it should normally be completed within 20 working days, with the outside being 40 working days. In practice, the process sometimes takes substantially longer. On one occasion, DBERR—I find the names of government departments difficult at times; they do not trip off the tongue at all, and it was easier in the old days—took 21 months to complete an internal review, only doing so after the commissioner's intervention. And that is a government department.

The third example is that the Information Commissioner's office has itself a substantial backlog of complaints, and on average does not even begin an investigation until more than six months after receipt of a complaint. Some investigations are not completed until more than three years after the complaint has been made. It is therefore virtually impossible to bring a successful prosecution.

The effect of this amendment would be to allow a prosecution to be brought within six months of sufficient evidence of the offence coming to the prosecutor's knowledge rather than within six months of the offence being committed. However, a prosecution could not be brought more than three years after it has been committed. The argument is a strong one. The date on which sufficient evidence comes to the prosecutor's knowledge would be established by a certificate signed by the prosecutor. For the purposes of this offence, the prosecutor would be the Information Commissioner, the Director of Public Prosecutions or the Director of Public Prosecutions for Northern Ireland.

This problem has arisen under other legislation. I will not bore the Committee with too many examples, but similar action has had to be taken to enable a prosecution to be achieved because the six-month time period was too short. For example, prosecutions under Section 31 of the Animal Welfare Act 2006, Section 64A of the Public Health (Control of Disease) Act 1973, Section 12(4A) of the Theft Act and Section 129 of the Fair Trading Act 1973 have been brought. More recently, the building regulations were amended because of an offence that was often detected only long after the six-month period for bringing a prosecution had elapsed.

I think that the case is fairly clear and I urge the Government to consider it seriously. I understand that the Information Commissioner has said informally that he agrees with the principle of the amendment, although in fairness to my noble friend on the Front Bench, I do not think that that is on the public record; it is simply something that has been said informally. Nevertheless, the argument for the amendment is strong and I beg to move.