Clause 20 - Freedom of information: exemption for research

Intellectual Property Bill [Lords] – in a Public Bill Committee at 12:30 pm on 30th January 2014.

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Photo of Iain Wright Iain Wright Shadow Minister (Business, Innovation and Skills) 12:30 pm, 30th January 2014

I beg to move amendment 33, in clause 20, page 18, line 15, leave out ‘obtained in the’ and insert

‘created or obtained in the planning of’.

Clause 20 amends the Freedom of Information Act 2000 to provide an exemption for information contained in the course of or derived from a programme of research. That is a welcome step, which helps to safeguard the reputation of research institutions in the UK. It helps to ensure that bits of research are not published through freedom of information legislation without going through a proper and rigorous process of evaluation and peer review, which could lead to a piece of work leading to the wrong conclusions and undermining the reputation of the researcher and his or her institution. There is little virtue in that. Clause 20 is therefore a good clause that helps the comparative advantage of UK universities and research institutions across the world.

However, amendment 33 is designed to clarify the precise point at which the exemption can apply. The amendment proposes to add words to proposed new section 22A of the 2000 Act so that it reads:

“Information created or obtained in the planning of, course of, or derived from, a programme of research is exempt information if”.

I am grateful to the Wellcome Trust and to others for flagging up this matter. The amendment would ensure that the exemption from freedom of information legislation would include the planning stages from initial ideas; designing a specific programme; obtaining funding; preparation of experimental phase; execution of experiments; analysis of results; and preparation for publication. The additional words in amendment 33 would clarify that the pre-experiment stages of research would also be covered by the Bill. I believe that is the intention of the Government, and I hope that our proposal is seen as being helpful and constructive. I therefore hope the Minister will look favourably on amendment 33.

I have received this morning—as might other members of the Committee—a letter signed by the Royal Society of Chemistry, the Campaign for Science and Engineering, the Institute of Physics, and the Society of Biology. It states:

The UK has a highly productive research and development sector and activity in universities and publicly-funded institutions is a key driver of this success. The UK is rightly considered a powerhouse of innovative ideas and insights that generate research opportunities and lead to new knowledge, understanding and products.”

With regard to amendment 33, the letter continues:

“Should this degree of clarification not be possible, we request that it be confirmed by the Committee that the wording of Clause 20 is already intended, and would be implemented, to cover information created during the planning phase of a research programme.”

I hope the Minister will be able to clarify and confirm that.

I do not know whether you plan to have a clause stand part debate, Mr Havard, but I would like to add one further thing, so that we can progress quickly. I am aware that some stakeholders have stated that the clause is equivalent to section 27 of the Freedom of Information (Scotland) Act 2002 and so provides a degree of consistency. However, while I was swotting up last night on Apple v. Samsung—I want to mention that to my hon. Friend the Member for Cardiff South and Penarth—I checked the wording of the 2002 Act. Section 27(2)(b) states that

“disclosure of the information before the date of publication would, or would be likely to, prejudice substantially”.

It therefore has the additional word “substantially”, in a way that proposed new section 22A of the Freedom of Information Act 2000 does not. Can the Minister explain why that word is omitted in clause 20? Will he also pledge to provide consistency in freedom of information legislation by tabling an amendment on Report to include the word “substantially”? I am interested to hear why there is a differing approach.

Photo of David Willetts David Willetts Minister of State (Universities and Science)

I should explain that what we are doing in clause 20 is responding to a request from the Select Committee on Justice, and a request I received from the research and scientific community, that the Freedom of Information Act 2000 be amended to provide additional protection for pre-publication research by giving the same specific protection as exists in Scotland—the so-called Scottish exemption. This clause is therefore about repeating the provision that already exists for Scotland.

On the final question raised by the hon. Member for Hartlepool, there are a couple of minor drafting issues. One concerns the need to show prejudice, rather than substantial prejudice. The Scottish Act requires public authorities to show that release of the requested information would, or would be likely to, cause prejudice and thus release of the information would not be in the public interest. This terminology is inconsistent with the drafting of the Freedom of Information Act 2000 which we have in the rest of the UK, which we are amending with clause 20.

We are trying to stick within the framework of the FOI legislation that we have but, with that one minor drafting point, deliver what is called the Scottish exemption. The substance of this clause therefore creates parity with Scottish organisations already protected by section 27(2) of the Freedom of Information (Scotland) Act 2002. We believe that that is a welcome measure—it is what was urged by the research community and was debated widely in the other place.

Photo of Duncan Hames Duncan Hames Liberal Democrat, Chippenham 12:45 pm, 30th January 2014

One of the “others” referred to by the hon. Member for Hartlepool was my hon. Friend the Member for Cambridge (Dr Huppert) on Second Reading. I am glad that this is the view that he has come to. Is there any evidence supporting that analysis that might give some confidence to the rest of the Committee?

Photo of David Willetts David Willetts Minister of State (Universities and Science)

Let me turn to that, because we have two problems with the proposal from the Opposition, which we have considered carefully. I have received the letter from the learned societies—I see a distinguished representative of the Royal Society of Chemistry in the  Public Gallery—and I would say that there are two objections. Our first concern is that there is no evidence from Scotland of any cases or problems in the Freedom of Information Act 2000 with the Scottish exemption as it currently stands. I am not aware—and neither is the research community—of a single case where a scientist or researcher has found that his or her lab notes, which were being prepared, were successfully secured under a FOI request because of the supposed defect in the legislation that the amendment tries to tackle. As yet, this is not a problem that has occurred in the real world. The Scottish exemption is deliberately constructed so as to try to provide the protection that researchers seek.

I undertake to the hon. Member for Hartlepool, the House, the Committee and the learned societies that if at any point we find that there is a genuine problem in the real world and that academics’ lab notes are being obtained under FOI—despite the range of protections that exist in FOI legislation at the moment—that would be something that we would review and consider. At this stage, we are responding to a request from a Select Committee of this House to introduce the so-called Scottish exemption. That is our first objection: that there is no evidence whatever that this is actually a problem.

The second objection is that we think that there is a good argument for a UK-wide regime and that if we try to make subtle differences between FOI legislation affecting researchers in Scotland and those in the rest of the UK, it might cast doubt on Scottish legislation, which we think meets the purpose. We think that having one framework of FOI legislation works well, which is why, for us, moving towards the Scottish exemption makes sense. Having a subtle difference in drafting between our regime and the Scottish regime, because of a supposed weakness in the Scottish regime, would open up a can of worms in the implementation of FOI legislation. We therefore do not believe that this is necessary.

This issue has arisen at quite a late stage, and I recall the intervention by my hon. Friend the Member for Cambridge (Dr Huppert) on Second Reading. The best I can do is to say that we really will keep an eye on it, to see whether it ever becomes a problem in the research community. So far, all the evidence we have had from Scotland is that the Scottish exemption is working well. On that basis, we believe that applying that into English law, as requested by the Justice Committee, is the right way forward.

Photo of Dai Havard Dai Havard Labour, Merthyr Tydfil and Rhymney

It is not normal practice to refer to those in the Public Gallery. However, I will say that this Bill has not had substantial pre-legislative scrutiny—but then again, it has had lots of pre-legislative scrutiny, because the discussion has been around for years, it seems to me. The introduction of people’s opinions from outside in the published evidence and quotations from learned societies help us in our debates. They also help the public to do the proper thing in understanding the purpose and intention of what we do in the legislative process. From that point of view, I am quite pleased to refer to those things.

Photo of Iain Wright Iain Wright Shadow Minister (Business, Innovation and Skills)

The Minister’s response was somewhat curious. I expected a more positive approach, based on what the learned societies have been saying. He seems to  be suggesting one or two things, the first of which is: “If it becomes a problem, let’s legislate.” However, we are here now; we can pre-empt anything and put it in the Bill for the avoidance of any doubt. I would have thought that the Minister would be more amenable to that, to help to protect the integrity and reputation of UK universities and other institutions that carry out fantastic, world-class research. The Minister has not convinced me about the Scottish legislation. I will seek to withdraw the amendment, but we will need to look at this issue again, perhaps on Report, to see what can be done. The problem could be solved quite easily, to provide certainty and consistency.

Photo of David Willetts David Willetts Minister of State (Universities and Science)

Before the hon. Gentleman sits down, perhaps I can help in one further respect. There are already protections in the Freedom of Information Act 2000 which we believe would cover the research community. I am about to refer to terms that are not legally defined, but section 43 of the 2000 Act protects trade secrets. It protects the commercial interests of any person. We believe that those protections would be available to researchers, in the unlikely event that they faced such a challenge. I hope that gives the hon. Gentleman some extra comfort.

Photo of Iain Wright Iain Wright Shadow Minister (Business, Innovation and Skills)

I want to reflect on both the clarification that amendment 33 would have provided and the example of the Scottish FOI exemption. We will come back to this issue on Report, but in order to make progress this morning, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 ordered to stand part of the Bill.