Power to request information

I beg to move Amendment 121, in Clause 14, page 10, line 25, leave out

‘provide information in connection with’ and insert

‘such information as is reasonably necessary to perform’.

With this it will be convenient to discuss the following: Amendment 100, in Clause 14, page 10, line 25, at end insert ‘reasonable’.

Make sure requests are not onerous to individuals or company.

Amendment 122, in clause 14, page 10, line 34, after ‘request’, insert

‘or such other form or manner as may be sufficient to convey the information’.

I shall talk first about amendments 121 and 100, which are in a similar vein, before moving on to Amendment 122.

Some parts of the Bill are criticised for being rather woolly, with responsibilities not clearly defined and so on, but some of the powers hidden in its depths are pretty draconian. We come across one such power in Clause 14, relating to the provision of information. That sounds harmless, but it puts a possible obligation on persons—presumably it is generally envisaged that they will be landowners, but they could well be ordinary householders who happen to be riparian owners, or something like that—to provide any information in any form for any period specified by the flood risk management authority. That power is without qualification, and if it is not complied with in exactly the terms dictated by the flood risk management authority, the poor householder could be landed with a £1,000 fine.

According to rumour, some local government officials are at times inclined to gold-plate things and have a slight tendency towards officiousness. Obviously that never happens in Gloucestershire, and I have never come across it myself, but it is not impossible to imagine that a local official who was drawing up and responsible for issuing guidance on the local flood risk management strategy might be tempted to go completely over the top and demand information that would make his particular flood risk management strategy that much better than everyone else’s. It could be quite a burdensome imposition on local landowners or householders to have to provide detailed information. The Bill seems to include no brakes on such requests for information. The brake that we suggest in amendment 121—and in amendment 100, which is in a similar vein—is pretty gentle, and I hope that the Government are minded to accept it.

Amendment 122 addresses the same issue in a slightly different way. It refers to the process by which the information is supplied to the flood risk management authority by an individual, adding a level of reasonableness to the process. The clause says that information requested

“must be...in the form or manner specified in the request”.

Surely what matters is the information. The form in which it is provided does not really matter. The clause is ridiculously over-prescriptive.

Through amendment 122, we are seeking to say that what matters is the information. If it can be provided in a different manner, but in a way that is equally effective—such as by e-mail, rather than on a particular form provided by the flood risk management authority—that should be perfectly acceptable, and the law should not make someone liable to a £1,000 fine just for providing the right information in the wrong way. That is reasonable, and I commend the amendments to the Committee.

I rise simply to support the amendments, which we have signed up to in our own right. It is important to reflect a level of proportionality, so we endorse the amendments and hope that they will obtain support from the Committee and the Minister.

I have a lot of sympathy for the points that have been raised, but I hope that I can give some reassurance. We do not intend the measures to be unduly burdensome, and do not intend sanctions to be brought, especially against individuals, because of an unduly onerous request for information. We agree that it is important that authorities do not make requests that are unreasonable, either in terms of what an authority requires, or in terms of the information that a person is expected to hold.

However, it is important that authorities have sufficient powers to acquire information from those who could be expected to have it so that they can, in the light of what we are trying to do in the Bill, effectively manage what are often complex and interrelated drainage problems. It is important that, where possible, such information is collected in a consistent way so that costs are managed centrally. The provision might also encourage data providers to co-operate fully in cases where it is known that they have data in a suitable format but are not inclined to provide it in the most appropriate manner.

I am grateful to the Minister for giving way; he is being very generous with his time. I agree that such information should be uniform—perhaps a collective bargaining tool—but it is not right that disproportionate costs should be incurred by smallholders and tenant farmers who do not have the resources to compile the information being asked of them. Could he be more prescriptive in his description of the kind of responsibility that such people have? What sort of effort should they make? How much time and what kind of resources are they expected to spend on the task?

That is a good point, and one which is in sympathy with other points that have been made. I quite understand what my hon. Friend says.

Let me turn to the issue of the individual who does not have an endless computer system with all of the records in easily e-mailable format. Such a person might have a map that could be of assistance in finding out what the assets are on his or her property. There is no way on earth that the EA or a lead local authority could request the same sort of information from them that they might anticipate another public authority holding. We must bear in mind that the authorities talk to each other. Given that collaborative approach, they should have a reasonable understanding, on a public authority level, of what each other holds and what can reasonably be asked for.

The point about the individual is important. The authority would be acting unreasonably if it required individuals to provide information at great cost to themselves. The Bill does not provide for the recovery of expenses. In general, the person from whom information is required would be expected to bear reasonable costs. That does not mean that the authority could say to a tenant farmer or individual landowner that it expected them to log electronically all the assets on their farm or  smallholding in exactly the same way that it expected public agencies to log their assets. That would be completely unreasonable. I will show why that would not work.

It is important to note that we anticipate there being discussion before any enforcement notice is served. Those notices will not come out of the blue, and I hope that the authorities will be clear about that. Authorities will agree reasonable time periods in which any relevant person should comply. A smallholder might say, “I’m not interested in working with you. I will not even give you the map.” I would expect the authority to say, “We understand that there is difficulty in pulling this together. We’ll work with you and help you to compile the information.”

If the person providing the information is unable to comply with the request, they can make representations under Clause 15(2)(c) in respect of any enforcement notice. There is a right of appeal against any penalties that are imposed. My hon. Friend the Member for Copeland is right that the request needs to be reasonable. It needs to reflect who is being worked with and what sort of information they can reasonably be expected to hold.

Does the Minister agree that the fundamental reason we need the information requests to be accessible and possible to comply with is that if they are not, we will be undermining the co-operation that we seek?

That is absolutely right. It is a matter of getting the balance right. People see the Bill coming and soon, hopefully, it will become an Act. The obligations are clear and the idea different authorities collaborating, so that everyone knows what is expected of them in risk management should over time reach the point when we are synchronising some information. I suspect that there has been acknowledgment already among many authorities that they have information that can be synchronised. We do not want to generate unnecessary costs so, over time, we should be trying to move to a situation where information among public authorities is easily accessible.

The importance of reasonableness is a fair point. It is implicit in all legislation that public authorities should behave reasonably, so the addition of such wording is unnecessary. In addition, there is provision under Clause 7(6) for the Environment Agency to provide guidance to authorities on good practice for the exchange of information. I expect the authorities to make clear the issue of reasonableness and how the matter would affect different people and organisations, from the tenant farmer to the major public authority. What seems like a reasonable request is not necessary and, on that basis, I ask the hon. Members for Cheltenham and for Brecon and Radnorshire to consider withdrawing the Amendment.

In a sense, I am reassured by what the Minister said. I accept that he wants the requests for information to be reasonable and believes that they should not involve, for example, forcing small tenant farmers to maintain asset registers in an electronic format in the same way that a major risk management authority might do, or impose undue costs and time penalties on farmers who are running a small business and who really cannot afford such an imposition.

The hon. Gentleman said that it is implicit in the law, in general, that there is a right of appeal but, of course, that will not be of much help to small farmers faced with impossible onerous requests for information because they will not know that an appeal process is implicit under the law. They will not want to go through even more time and effort to deal with the right of appeal, which will be even more onerous than the original request for information. So, in practical terms, we need strong guidance in the Bill.

I might be able to elaborate on matters and give further assurance. First, the only information we are talking about is that needed in connection with flood risk management functions. Secondly, the Secretary of State will be issuing guidance on using the power and may, as I said before, direct the Environment Agency under section 19A of the Environment Act 1995. Finally, all requesters, as defined, are public authorities and they have legal duties to act reasonably in making such a request. In fact, any unreasonable request can be judicially reviewed, so I am convinced that the hon. Gentleman and others will be hotfooting it to the Secretary of State’s office to ask what the heck is going on if unreasonable requests are being made. I must say that my faith in the Environment Agency to carry out matters properly has increased as the years have gone by.

I have had to take so much on faith during the passage of the Bill that it is almost becoming a religious experience. However, perhaps the Minister is an inspiring role model and we should accept his word on this occasion. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

I beg to move Amendment 14, in Clause 14, page 10, line 35, at end insert—

‘(c) subject to any reasonable confidentiality restrictions.’.

I wish to explain why the amendment is necessary. I also want to say a few words in the clause stand part debate, so I shall restrain myself at this stage. While we are keen, for reasons that I have given previously, to encourage the sharing of information on particular matters, we are mindful of the fact that we must not breach confidentiality. Water companies are worried that, while committed to the multi-agency approach in addressing flooding issues and being active participants in partnerships, the power in the Bill is wide-ranging regarding the right, in particular, of local authorities to demand information. It will be interesting to know what limits the Minister intends to put on the request for information, and whether he is minded to accept our amendment.

In the transition period prior to the Bill coming forward, the authorities will hold different standards, formats and purposes for information. Their main concern is the sensitivity and security of some of the information that they may be required to share. Obviously, the Environment Agency is quite reluctant to share some of its information, but there will be calls on some insurance companies and water companies, which have done some of these modulations. The Minister’s regard for confidentiality may be implicit in the clause but we would request that it be made explicit.

I am glad to have the opportunity to flesh out our thinking on this matter, although I am a little worried that I may be a reincarnation of some sort of prophet of flood risk management leading us to the promised land. The hon. Member for Vale of York has tabled a good Amendment that seeks to subject any information provided under Clause 14 to reasonable confidentiality restrictions, and I can see the logic in what she proposes. The way in which this amendment is drafted could be understood to put an obligation on the person who is providing the information. That is unlikely to be appropriate if an individual is providing the information, and unnecessary if the intention is to limit what the authority does with the data, since that will be governed by existing protection, including the Data Protection Act 1998 and the Freedom of Information Act 2000. There does not seem to be a strong case for treating flood risk management information any differently from other information that the authorities hold in respect of their duties on data protection and freedom of information.

The hon. Lady rightly raises the issue of personal and commercial confidentiality. In respect of information related to companies or to other businesses that are not protected by the Data Protection Act, the intention is for the Environment Agency, pursuant of clause 7(6), to provide guidance to protect commercial confidentiality. That will ensure that lead local authorities and the EA are able to obtain information that is needed for effective flood management and to share that data while also giving sufficient protection to commercially confidential information.

Additionally, most authorities will already have policies in place to protect the commercial or sensitive information that they hold. The Freedom of Information Act and the Environmental Information Regulations 2004 have provisions to prevent authorities from being required to release commercially sensitive information. Therefore, a raft of protections are already in place.

The Minister might find that the Freedom of Information Act protects such information when it is the authority’s own commercially sensitive information but not when it is that of a third party. This is a small but significant Amendment because it should extend protection to commercially sensitive information, which is not covered by the Data Protection Act, and I am not sure whether the Minister has addressed that.

I hate to contradict the hon. Gentleman, but I have just described a raft of safeguards. One of the ones that I covered was the Environment Agency’s development, pursuant of Clause 7(6), to provide guidance that will include protecting commercial confidentiality in carrying out its role as a flood risk authority. So the issue is covered there if it is not covered in the Freedom of Information Act and the Environmental Information Regulations 2004.

Much of the information might relate to assets that would appear on the register maintained by the local authority under clause 21, which also gives both the Secretary of State and Welsh Ministers the power to make regulations about excluding data from the public register or the record. There are tiers of existing legislation and regulations, plus additional guidance from the EA, plus powers of Welsh Ministers and Secretaries of State, if need be, to ensure further regulations.

Although I have great sympathy with the points being raised, because we need to protect sensitive information, we also need to ensure that we have the information that is relevant to carrying out the flood risk management functions. On that basis, I invite the hon. Member for Vale of York to consider asking leave to withdraw the Amendment.

The Minister has access to parliamentary counsel that we do not have. Is he saying that he is minded to address this issue and come back at a later stage? The Bill is currently defective because it omits any reference to this matter in the terms that the hon. Member for Cheltenham and I have set out. It is worthy of some reference. I would be the first to admit that the Amendment’s drafting is probably far from perfect, but it goes to the heart of Clause 14. Individuals, and certainly organisations—particularly where there is a commercial aspect to information—will be reluctant to provide it unless confidentiality is observed. Is the Minister minded to come back with such an amendment later?

I would honestly love to say yes, but it is not necessary to do so. A series of existing measures, and the enhanced measures in the Bill, allow the complete protection, both of commercial confidentiality and third party sensitive-nature information, including, as I have already explained, not only the existing aspects of the Data Protection Act and the Freedom of Information Act and the Environmental Information Regulations, but the current duties on public authorities. The Environment Agency is bringing forward guidance on this matter that is specifically related to the information that they would request on flood risk management and on how to protect commercial and sensitive information in carrying out that function. In addition to that, whoever is in this seat as a Minister, or in the Welsh Assembly Government in the corresponding position as a Minister, has the ability to introduce regulations under the Bill excluding data from the public register or the record.

There are strong safeguards here, both in existing provisions and in the new ones that we have introduced, so the Amendment is not necessary. But I can write to the hon. Lady clarifying all those things if it is helpful.

I would like to take the Minister up on that offer. We will not press the Amendment further at this stage, but we will keep an open mind and possibly revert. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

As I indicated, I should like to make some brief comments and press the Minister on this matter. He knows that we are fervently in favour of the sharing of data, especially maps, between the relevant partners and interested parties. That is vital and goes to the heart of flood risk management and it will also help to prevent institutional chaos, as seen in the past, and ensure that there is a more integrated and informed strategy.

Will the Minister clarify that under Clause 14 the role of the Secretary of State is enhanced in terms of stepping in to restructure responsibilities and give approval to the Environment Agency’s national strategy? The fear is  that that could lead to local strategies again being interfered with by the Secretary of State. For the record, we have stated that we would like local strategies to be as autonomous as possible. We would regret any move to see a weakening of the local strategies in that regard.

The Select Committee expressed some concerns—they relate more to a later clause—and it was not particularly strong in encouraging the data sharing. The Select Committee went so far as to say that the Department should offer guidance on effective data sharing as well as safeguards possibly through secondary legislation. I would like to put on the record that we would prefer that guidance to be issued as soon as possible while the Bill is proceeding through its parliamentary stages in this place and the other place. We would like to think that we have some interesting things to say about the guidance, so that would be helpful.

I understand that the Environment Agency supports improved data sharing and co-operation between all flood and coastal risk management authorities. I hope the agency will be keen to share the content of some of its information as well. We also want to stipulate as far as possible that, within what the Minister has said, the work in liaising with local authorities and undertaking the data sharing will have a cost element to it. Has the Department costed it and if increased funds are needed, will they be provided? Basically, what will the guidance say on the accepted principles, standards and conditions that will apply to the sharing of the information?

In clause 14(1) the Bill states:

“an authority listed in subsection (2) may request a person”.

Will the Minister comment on who that person might be? Is it someone from a water company, a landowner or another individual?

I will try to respond to those points promptly. I will return to the issue of a person as a legal entity because a person in terms of legislation can be several people as well as an individual. On whether the measure extends interference in the local strategies—the flexibility we were talking about in the local strategies—Clause 14 does not affect that. We do not want to see that happen. We expect local strategies to be made locally without interference but, as we have said previously, that should be in line with the national strategy setting the overall parameters.

In respect of guidance, I can confirm, as I mentioned, that the EA will provide guidance and I share the hon. Lady’s aspiration to see that as soon as possible. I do not know the time scale on that off the top of my head, but in my subsequent write around to Committee members, I will try to highlight what we know about that. Finally, in terms of the cost of data sharing, that will be part of the guidance that comes forward, which makes it even more important to try to get that as soon as possible.

In terms of who is a legal person, it is a legal entity—as I mentioned—and it could be any legal person. That includes everything from an individual—we talked about the individual tenant farmer before—through a company, a partnership and so on. A legal entity is a legally defined term, rather than simply one individual.

Question put and agreed to.

Clause 14 accordingly ordered to stand part of the Bill.

On a point of order, Mr. Martlew. Not being completely up to date with Committee proceedings, I wish to ask when we will vote on new clauses 14 and 15.

When we reach the appropriate point in our proceedings, which will not be today, I am sure.