Freedom of Information (Designation as Public Authority and Amendment) Order 2018 - Motion to Approve

– in the House of Lords at 11:38 am on 6th November 2018.

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Moved by Baroness Manzoor:

That the draft Order laid before the House on 12 July be approved. Special attention drawn to the instrument by the Joint Committee on Statutory Instruments, 33rd Report.

Photo of Baroness Manzoor Baroness Manzoor Conservative

My Lords, the purpose of this draft order is to bring the public functions of the National Police Chiefs’ Council within the scope of the Freedom of Information Act. This is to make sure that there is continuity in the scope of the Act by extending it to the NPCC, in the same way as was done for its predecessor, the Association of Chief Police Officers.

Section 5(1)(a) of the Freedom of Information Act enables the Secretary of State to designate any person as a public authority if they appear to the Secretary of State to exercise functions of a public nature. Where a body is designated as a public authority under this limb, it is also necessary under Section 7(5) of the order to specify each of the body’s functions that appear to the Secretary of State to be of a public nature. Only those functions specified in the schedule to the order will be subject to the Act. As with ACPO, it appears to the Secretary of State that the NPCC exercises functions of a public nature in relation to all of its functions. The NPCC provides national police co-ordination and leadership by bringing together police forces across the UK as well as in the Armed Forces and the Crown dependencies. Some of the NPCC’s co-ordination and leadership functions are delivered in conjunction with the College of Policing, the professional body that provides the policing skills and knowledge necessary to prevent crime and protect the public. The functions set out in the order reflect those set out in clause 7 of the collaboration agreement that established the NPCC.

In addition to designating the NPCC, this instrument removes the designation of ACPO; this is a question of legislative tidying up. ACPO has been liquidated and no longer exists and the amendment updates the statute book to reflect that. The liquidators of ACPO were consulted as required and are content. As mentioned, there has been a statutory consultation with the NPCC to make sure that all the necessary functions were covered by this order as appropriate. The NPCC has made sure that there has been no retraction of transparency in the transition period when it took over the functions of ACPO. It publishes large amounts of information proactively and has responded to information requests on a voluntary basis in the short period when it was not formally covered by the Freedom of Information Act. This is highly commendable.

The order will enable the provision of a legally enforceable right to request information under the Freedom of Information Act. I commend it to the House and I beg to move.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, I am grateful to the Minister for outlining the details of this order. I have a few questions to put to her. According to the Explanatory Memorandum accompanying the order, the National Police Chiefs’ Council started its operations on 1 April 2015, presumably when it took over responsibility from the Association of Chief Police Officers. The noble Baroness said that ACPO is no longer in existence and that it had been liquidated, but the Explanatory Memorandum states that ACPO “is in liquidation”. Is there a difference between the two? I am not legally qualified to know whether there is.

My concern is that if ACPO was still operating up until 31 March 2015, only three and a half years ago, limitations on civil proceedings which could in theory be taken against the association can normally be brought for up to seven years. I wonder whether removing ACPO from its freedom of information obligations is premature. The order also refers to the collaboration between the National Police Chiefs’ Council and the College of Policing in connection with the implementation of standards and policies that are set by the College of Policing, the development in collaboration with the college of joint national approaches to criminal justice, value for money, service transformation, information management, performance management and technology, along with the development of joint national approaches to staff and human resource issues, including misconduct and discipline. Can the noble Baroness tell us whether the College of Policing is a designated public authority for the purposes of the Freedom of Information Act and if not, why not?

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport)

I too thank the noble Baroness for explaining the content and purpose of the draft statutory instrument. It is straightforward in its objective of designating the National Police Chiefs’ Council as a public authority for the purposes of the Freedom of Information Act 2000. I have a few questions but if necessary, I am happy to accept a written response; we do support the draft order.

Article 2 of the draft SI sets out the functions of the NPCC for which it is designated a public authority under the 2000 Act. Do the functions include the NPCC’s finances and administration, and correspondence between the NPCC and the Government, as being covered by the provisions of the Act? What functions of the NPCC, if any, are not covered under this draft order by the Act? Is the relevant body for police and crime commissioners also designated a public authority under the Act? If so, in respect of what functions? In a way, that follows on from the question asked by the noble Lord, Lord Paddick, about the College of Policing.

Paragraph 7.5 of the Explanatory Memorandum says that,

“it appears to the Secretary of State that the NPCC exercises functions of a public nature in relation to all its functions”.

That is subject to the provisions of the Freedom of Information Act 2000. Does being subject to those provisions apply in relation to the NPCC, or indeed any other designated public authority, in respect of designated functions that it then outsources to an outside private firm or organisation? Is outsourcing part of its function—a means for anybody designated a public authority under the 2000 Act to get around or reduce the extent of the provisions of the Act being applied?

Paragraph 7.6 of the Explanatory Memorandum refers to the current revision of the agreement of 1 April 2015 that established the NPCC. What is the purpose of that revision? How extensive will it be? When will it be completed?

Paragraph 10.2 of the Explanatory Memorandum says that,

“the average cost … of handling a request for information … for public authorities in the wider public sector”,

is £164. It goes on to say:

“There is no obligation for public authorities to comply with vexatious requests or those that exceed the costs threshold … Costs for disbursements can be recovered”.

What is the costs threshold and how regularly is it increased? Do increases in the threshold reflect increases in either the cost of living or pay? What is included in the “costs for disbursements” that can be recovered?

Finally, when this draft instrument was discussed in the Commons, the Minister for Policing in the Commons stated:

“There is no statutory obligation to publish statistics”.—[Official Report, Commons, First Delegated Legislation Committee, 30/10/18; col. 6.]

However, he said that he would check whether there had been any “specific requests” from the Home Office to the NPCC in that regard. What was the outcome of that?

Photo of Baroness Manzoor Baroness Manzoor Conservative

My Lords, I thank the noble Lords, Lord Paddick and Lord Rosser, for their supportive comments and questions. I will endeavour to write to them to give clarity on their specific questions. In relation to the question asked by the noble Lord, Lord Paddick, I should say that ACPO was liquidated when the order was laid on 13 July. He also asked whether any obligations that ACPO had will be covered by the NPCC. My understanding is that that is the case. Any FoI request will relate to any information held. I will have to write to the noble Lords, Lord Paddick and Lord Rosser, on their particular issue relating to the College of Policing, crime commissioners and civil liberties.

The noble Lord, Lord Rosser, asked whether the order includes all ACPO’s functions. Police and crime commissioners are covered by the FoI Act. He also noted that the NPCC’s agreement is being amended and asked how that would affect the order. He is quite right: the NPCC’s agreement is indeed undergoing revision and will shortly be superseded. However, the revised agreement list of the NPCC’s functions is materially identical to the existing agreement. We have deliberately drafted the order so that its designation of the NPCC is future-proofed against the coming revision to the agreement.

Noble Lords also asked why the NPCC’s functions in the order were not identical to those in its collaboration agreement. As I said, the NPCC’s functions designated in the order reflect those set out in its collaboration agreement. However, they have been subject to minor adjustments. This reflects the different drafting requirements that apply to legislation compared with agreements. We are content that the drafting captures all the NPCC’s functions. The NPCC is also content with the adjustments made.

The noble Lord, Lord Rosser, asked about extending this to contractors. The Government wholeheartedly accept that more public services are being contracted out to the private sector. It is important that they are delivered transparently to ensure accountability to the user and the taxpayer. We have previously considered how best to balance transparency in the use of public funds and reduce the burden of regulation on business. We believe that, for now, the most effective way is through model clauses in contracts. Also, central government contracts of more than £10,000 have been published on Contracts Finder since 2011.

The noble Lord, Lord Rosser, also asked about budgets and what information might be available. I am afraid that I do not have the answer on cost. Once again, I will put answers in writing to noble Lords to any questions that I have not answered and place a copy in the Library. Any information held by ACPO or currently held by the NPCC is subject to the FoI Act.

I think those were the questions asked but, if I missed anything, forgive me—I will write. The order is important. It will boost confidence in the NPCC’s FoI compliance as it will bring it within the oversight of the Information Commissioner’s Office. In doing so, the public and civil liberty organisations can be a further assured that when exemptions are used they will be done so appropriately. I commend the order to the House.

Motion agreed.