FOI amendments pressed during Localism Bill

The Campaign for Freedom of Information has been working on amendments to the Localism Bill tabled by Lord Wills, the former Labour FOI minister. The amendments sought to:

1) Require local authority executives and their committees to meet in public, unless regulations specify otherwise. The Localism Bill amends the arrangements for local authority governance, allowing councils to return to the committee system should they choose to do so. For authorities which operate executive arrangements, the Bill allows for new regulations to be made governing the circumstances in which meetings and documents must be open to the public (Clause 11 of the Localism Bill gives effect to Schedule 2 which inserts a new Part 1A into the Local Government Act 2000, and the proposed section 9GA(4) of that new part provides for these regulations to be made). But if the regulations are not made before the new arrangements come into force, the Bill would leave it to executives themselves to decide which of their meetings will be open to the public and which will be held in private (Sections 9G(1) and (2) of the new part 1A). They would be free to hold all their meetings in private, should they choose to do so. The amendment sought to reverse this position, so that in the absence of regulations, all meetings of the executive or its committees would have to be in public.

2) Ensure that future contracts entered into by local authorities would include a ‘freedom of information’ provision. This would stipulate that all information about the performance of the contract which is held by the contractor would be deemed to be held 'on behalf of' the authority for the purpose of the Freedom of Information Act or Environmental Information Regulations. The ‘Community Right to Challenge’ in Chapter 3 of the Localism Bill envisages that a growing proportion of local authorities’ functions will be carried out for it by other bodies. The intention of the amendment is that the public’s rights to information should be the same, whether a particular task is carried out in-house or contracted out.

3) Bring companies that are 50% or more owned by local authorities within the scope of the FOI Act. At present the FOI Act applies to companies that are wholly owned by a single public authority. The Protection of Freedoms Bill would extend that definition to cover a company which is wholly owned by more than one public authority. However, a company which jointly owned by a public authority and some other body, perhaps a private company, is not subject to the FOI Act at all, even where the public authority is the dominant shareholder. The amendment would bring such companies within the Act’s scope.

4) Require local authorities to publish annual statistics on their compliance with the FOI Act.

5) Bring the Housing Ombudsman within the scope of the FOI Act. At present, complaints about social housing matters are dealt with by two different ombudsmen. Complaints about housing associations go to the Housing Ombudsman; complaints about local authority housing go to the Local Government Ombudsman. The Localism Bill proposes that in future a unified complaints system should apply, with both types of complaint going to the Housing Ombudsman.

This transfer of functions, may be accompanied by a strengthening of the Housing Ombudsman’s enforcement powers. The Bill allows the Secretary of State by Order to give the Housing Ombudsman the power to make determinations which have the force of a court order (New paragraph 7C, which would be added to Schedule 2 of the Housing Act 1996 by clause 158 of the Localism Bill). Surprisingly, the Housing Ombudsman is not subject to the Freedom of Information Act. The Localism Bill contains no provision to bring the Ombudsman under the Act, despite the fact that the Housing Ombudsman is to take over important responsibilities from the Local Government Ombudsman, who is subject to the FOI Act. The amendment would redress this anomaly.

The amendments were debated during the second day of the Bill’s committee stage on Thursday 23 June 2011. Responding to the debate, the minister Baroness Hanham gave a reassurance that the Government would make it clear there is a presumption of openess regarding meetings of local authority executives. But she did not support any of the other amendments.

I cannot say anything more than that we are very much in favour of open access to meetings of local authorities, but we recognise that there are occasions when confidential information has to be discussed – for example, information on contracts and members of staff. Meetings have to be closed sometimes, but we will make it clear that there has to be a presumption in favour of openness… 

We do not believe that it is necessary to extend the Freedom of Information Act to those bodies at present with information about contracts with public authorities, which can be requested from them. A local authority can be quizzed about any contract that it has and we are proactively publishing contractual information online.

Amendment 133C would introduce a statutory requirement for the publication of an annual report by every local authority, including the smallest parish councils receiving very low volumes of freedom of information requests. We do not think that this is a burden that should be borne...

Finally, on extending the Freedom of Information Act to cover the Housing Ombudsman, it is worth noting that we are planning to extend the Act to a considerable number of new bodies through legislation and we intend to keep those under review. While I do not say “in”, I do not say “out” at the present time.

In reply, Lord Wills pressed the minister to consider the amendments again in more detail.

I am grateful to the Minister for the spirit in which she engaged with these amendments. However, her response was not quite as welcoming instinctively as I would have hoped, so I ask her to scrutinise the amendments in more detail and perhaps to consult the noble Lord, Lord McNally. I do not say that because I discount any possible burdens put on local authorities or contractors or businesses. As someone who ran a small business in the past, I am deeply conscious of the need to avoid putting burdens on small businesses. These amendments were framed not to place a disproportionate burden on anyone. Perhaps on closer scrutiny that will become apparent.

I am willing to accept any suggestions for amendments and I am sure that the Government would be able to improve the drafting. The key point that I ask the Minister to take away is that, if the Government do not engage with the issues behind these amendments…that will mean, potentially, over time, a significant diminution of transparency in the operation of local authorities and those whom they contract to provide services for them. That is very serious for those who believe in freedom of information. It is in breach of a fundamental tenet of the coalition agreement, which is why I hope that this Government will take it seriously.

Read the full debate on the amendments here (begins Col 1433).

See also:
Localism Bill Explanatory Notes [HL Bill 71] ) (pdf)
Second Marshalled List of Amendments as at 21 June. Lord Wills' amendments were 52A, 133A, 133B, 133C and 181A.