Protection of Freedoms Bill: Legislative Consent

Executive Committee Business – in the Northern Ireland Assembly at 3:30 pm on 26th September 2011.

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Photo of Jonathan Bell Jonathan Bell DUP 3:30 pm, 26th September 2011

I beg to move

That this Assembly endorses the principle of the extension to Northern Ireland of the provisions dealing with freedom of information contained in Part 6 of the Protection of Freedoms Bill as amended in Committee in the House of Commons.

The Protection of Freedoms Bill was introduced to the House of Commons on 11 February 2011 and contains two chief provisions in Part 6 that require a legislative consent motion if they are to extend to Northern Ireland. The first builds on the requirement for public authorities to maintain publication schemes under the Freedom of Information Act 2000 by introducing a right to request data sets. The second extends amendments made to the Freedom of Information Act by the Constitutional Reform and Governance Act 2010 regarding the reduction of the 30-year rule to 20 years. Greater transparency is at the heart of both provisions, which commit the Executive to open themselves up to greater scrutiny and allow the public to hold public authorities to account.

There are other incentives. Freedom of information legislation is being expanded to ensure that public authorities publish data sets for reuse and do so in a reusable format, whether in response to a request or through their publication schemes. That will help to deliver better value for money in public spending and bring economic benefits by enabling businesses and individuals to exploit government data sets for commercial and social purposes. The key principle at the heart of the right to data provision is that the taxpayer has paid for the collection of the data and should not have to pay again. Therefore, public authorities are expected to make the information freely available or at minimal cost in a reusable format, where reasonably practicable.

Moreover, authorities are encouraged to publish regularly requested data sets proactively via publication schemes in order to reduce the administrative costs associated with processing requests. That said, public authorities, which are required to operate in a commercial manner in order to cover their costs, may continue to use existing statutory powers to charge, and, to accommodate future needs and circumstances, a power to make new regulations to enable charging is provided for in the Bill.

The availability of official information is to be extended through another route. Most official records are made available to the public by the time they are 30 years old. That has been the case in Northern Ireland since 1976 when the rule was introduced here by the then Secretary of State Merlyn Rees. However, in recent years, there has been much discussion and consultation about whether historical records can be made available for public inspection substantially sooner. The need to look again at current arrangements has been driven by the irony that information available on requests relating to current events and current decisions is still withheld as a matter of course for similar events and similar occasions that happened decades ago.

The Constitutional Reform and Governance Act 2010 instituted the amendments to facilitate the reduction of what is commonly known as the 30-year rule to 20 years. However, the amendments applied only to England and Wales as there was not sufficient time to obtain a legislative consent motion before the general election of 2010. The Protection of Freedoms Bill, which is being managed by the Home Office, presents a legislative opportunity for the provisions reducing the point at which official records are released publicly to extend to Northern Ireland, as they have yet to be commenced. If extended to Northern Ireland, the provisions would reduce the lifespan of a number of exemptions in the Freedom of Information Act 2000 from 30 to 20 years. For example, records concerning investigations conducted by public authorities or those concerning the formulation of government policy would be released after 20 years instead of 30.

One exception is being made to the rule so as to afford a greater measure of protection for official records that contain information that is particularly sensitive. That is information that would impact negatively on the continuing political process here if disclosed. Therefore, if information is deemed to be of the type that, if released, would prejudice the effective conduct of public affairs in Northern Ireland or the work of the Executive, the bar on release would remain at 30 years. Under section 36 of the Freedom of Information Act 2000, that judgement is made by the qualified person, who is the Minister in charge of the Department that holds the information in question or, in the case of a Whitehall Department of State, any Minister of the Crown.

The reduction of the time span within which information and historical records can be exempt from release to 20 years would not require any complementary amendment to the Public Records Act (Northern Ireland) 1923, as that legislation already provides for the transfer of official records to the Public Record Office of Northern Ireland at the 20-year point.

There will be some resource implications for the Public Record Office of Northern Ireland and the Departments. To offset them, the freedom of information provisions in the Constitutional Reform and Governance Act 2010 provide for the phased introduction of the 20-year rule over a 10-year period commencing in 2013. In practice, that will mean that two years’ worth of records are brought forward each year for sensitivity review until the 20-year rule is implemented fully by 2023. Additional costs that arise will form part of the Executive’s budget and will be absorbed. Careful management, including the introduction of new procedures governing official records, will ensure that standards are maintained while greater volumes of information are processed in a cost-effective manner.

A legislative consent motion is required in relation to clauses 98, 99, 100, 101(5), 103(3) and 103(4) in Part 6 of the Protection of Freedoms Bill.

Clause 98 enables the release and publication of datasets. Clause 100 repeals those parts of the Constitutional Reform and Governance Act 2010 that exclude Northern Ireland public authorities from the freedom of information provisions relating to the disclosure of historical records and communications with the Royal Family.

There are other, less substantial freedom of information provisions in the Bill that require a legislative consent motion. Clause 99 amends the definition of “publicly-owned company” in section 6 of the Freedom of Information Act 2000 so that it extends to companies wholly owned by more than one public authority.

Clause 101(5) repeals spent provisions in the Freedom of Information Act about the period of office of the Data Collection Commissioner as the first Information Commissioner.

Finally, clause 103(3) and (4) amend section 47 of the Freedom of Information Act, which concerns the general functions of the Information Commissioner.

United Kingdom Government Ministers have consulted fully with the First Minister and the deputy First Minister about the proposed amendments to the Freedom of Information Act, and, as the provisions are of cross-departmental interest, the First Minister and the deputy First Minister consulted all Executive Ministers before the summer recess and received their endorsement. The support of the Committee for the Office of the First Minister and deputy First Minister (OFMDFM) was also sought and received.

In conclusion, I hope that I have outlined sufficiently the nature and scope of the provisions that require the consent of the Assembly, and I now commend the legislative consent motion to the House.

Photo of Tom Elliott Tom Elliott UUP

I will be brief. At its meeting on Wednesday 29 June, the Committee of the Office of the First Minister and deputy First Minister received a briefing from departmental officials on the legislative consent motion. Members were content for the legislative consent motion to proceed, and, as no issues were raised, there was no obvious need for the creation of a Committee report on the matter. Therefore, the Committee supported the legislative consent motion.

Photo of Colum Eastwood Colum Eastwood Social Democratic and Labour Party

I, too, will speak briefly in support of the motion. However, the Bill raises one glaring difficulty that we have in information-sharing between our two police forces on this island. There is no legislative framework to allow for so-called soft intelligence to be passed between an Garda Síochána and the PSNI. Therefore, the potential exists for a serious criminal from, for example, Lifford to live in Strabane, yet no information could be passed from the gardaí to the PSNI. I ask the Minister to bring that matter to his Executive colleagues to do something about it. There are talks in the South about that issue, but no timescale is involved. I encourage the Minister to bring —

Photo of Tom Elliott Tom Elliott UUP

I thank the Member for giving way. Does he accept that it does not take legislation to do that? Quite often, the PSNI and the gardaí co-operate between their two jurisdictions in a practical manner, and that is probably more beneficial than simply having legislative proposals.

Photo of Colum Eastwood Colum Eastwood Social Democratic and Labour Party

I accept that, but it is important to have that enshrined in legislation. We know that there are serious difficulties. It is a small country. People can cross the border easily. I think that it is important that, for example, known paedophiles, if they operate across the border, be known to the police in Northern Ireland. I just encourage the Minister to work with his Executive and Dáil Éireann colleagues to ensure that that gap is plugged.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

The one area of concern that I have is with why Northern Ireland is a special exception from the 30-/20-year rule, because that will not apply elsewhere. Therefore, whose blushes are we trying to spare over the coming years over how these institutions were established and operate? Are they the blushes of Sinn Féin over its past? Or are they the blushes of the DUP over, for example, the bogus suggestion that there was a plan B, when anyone with any wit knows that there was no plan B? Is that what we are trying to protect from getting into the public domain until some of the players responsible for that deception are long off the political scene?

There is scant or no justification for the special exception on political grounds for Northern Ireland to maintain the 30-year rule when it becomes a 20-year rule everywhere else.

Photo of Jonathan Bell Jonathan Bell DUP 3:45 pm, 26th September 2011

I will endeavour to deal with those points in turn. As Executive Ministers, our thanks go to the OFMDFM Committee for its prompt consideration of the issue and for its co-operation in helping us to get a piece of good law. It was said earlier that there are those who can scent poison in everything; however, this is a piece of good news. It allows for government to be more open and transparent, and it allows information to be passed out directly in reusable formats that will benefit the public and wider society in their interactions with government, and that is what I want. I thank the members of the OFMDFM Committee for considering the matter and giving us the prompt response that has allowed us to bring the work together and to bring the legislative consent motion here today.

Valid points were raised by Mr Eastwood. While addressing the SDLP Benches, the sympathy and prayers of many on the DUP Benches and of us all go to Mr Durkan and his family at this time. Mr Eastwood raised points on co-operation. I am not sure whether they are specific to this legislation, but they are valid points that can be taken up by colleagues on the Policing Board. I congratulate the Garda Síochána and the Police Service of Northern Ireland for co-operating fully on the work that I saw being done for a considerable period last year. As a result, that proactive work has put a stop to bombs and weaponry that could have led to the death or injury of our people. Anything that can be done between the police force here and the guards should be done, and I will endeavour to have that raised directly with the Minister of Justice and the Policing Board. From my experience on the Policing Board, co-operation between the guards and the police has been at a significantly high level, and that was verified by the Chief Constable. I am confident that that will continue for the protection of us all.

Mr Allister made a number of points, some which might even have been relevant. However, that will be for the Ministers and the public authorities in England and Wales to determine.

In conclusion, the freedom of information provisions in the Protection of Freedoms Bill seek to promote greater transparency and economic and social gains through the release of official data and through the reduction from 30 to 20 years when complete records are released into the public domain. The aim is to strike a better balance between openness, affordability and the protection of information. With Members’ support, a consistent approach across the United Kingdom to the release of information and the equality of information rights to its citizens is achievable. Therefore, I commend the motion to the Assembly.

Question put and agreed to.


That this Assembly endorses the principle of the extension to Northern Ireland of the provisions dealing with freedom of information contained in Part 6 of the Protection of Freedoms Bill as amended in Committee in the House of Commons.