Legislation Watch

Over the weekend I thought I’d take a little time to leaf through the upcoming Private Members’ Bills to see what the backbenches are up to, and turned up a few interesting snippets of possible legislation which need to watched closely.

First, and most important of all, we have this two clause bill, introduced by Conservative MP David MacLean, which attempts to give MPs and Peers a blanket exemption from the Freedom of Information Act…

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present

Parliament assembled, and by the authority of the same, as follows:—

1 Exemption of House of Commons and House of Lords

(1) The Freedom of Information Act 2000 (c. 36) is amended as follows.

(2) In Schedule 1, Part 1 (Public Authorities), delete paragraphs 2 and 3.

(3) After section 37 insert—

“37A Correspondence between Members of Parliament and public authorities

(1) Information is exempt information if it consists of correspondence between a Member of Parliament and a public authority, as listed in Schedule 1 of this Act.

(2) The duty to confirm or deny does not arise in relation to information which is exempt information by virtue of subsection (1).”

2 Short title, commencement and extent

(1) This Act may be cited as the Freedom of Information (Amendment) Act 2007.

(2) This Act comes into force at the end of a period of two months beginning with the day on which it is passed.

(3) This Act extends to Northern Ireland.

MacLean’s stated ‘concern’ is that FOIA could be used to obtain MPs correspondence relating to casework undertaken on behalf of constituents as noted here by the Guardian, the only newspaper thus far to have noticed the Bill.

David Maclean, the former Tory chief whip, introduced the measure in a private member’s bill. Mr Maclean said yesterday the main reason for his bill was to prevent MPs’ letters on behalf of constituents being released to the press and public.

Well yes, one can see where such correspondence might merit a degree of privilege, particularly in casework matters where the privacy of an MP’s constituents is an issue, but then…

He acknowledged the effect of the bill would be to exempt parliament from the act at a time when the parliamentary authorities have lost a case at an information tribunal after trying to block more detailed disclosure of MPs’ expenses.

Ahhhh… Now that’s a rather different matter altogether, which is why such a blanket exemption is such a bad idea, especially when we find that MacLean is making full use of his understanding of the ‘quirks’ of Parliamentary procedure in order to try get this bill through Parliament as quickly as possible and while drawing as little attention to it and its implications as possible:

When it was put to him that he had chosen the very end of a busy parliamentary day to get a second reading, he said: “I am showing some of the younger hands how you can get a bill through parliament after long experience as a whip in both getting and blocking bills through parliament.”

He added: “This bill will now go to a committee where all the issues can be debated.” But because the measure is in a private member’s bill, Mr Maclean is able to choose who sits on the committee.

So far this bill has already passed through its first and second reading without debate, and without even Mr MacLean speaking on its introduction, and will now be debated in a obscure committee by MPs chosen by Mr MacLean – how every open and transparent of him. And yet, there’s even more to come…

Mr Maclean, who is also a member of the House of Commons commission, the body responsible for the running of parliament, said his main reason for introducing the legislation was the complicated guidance about to be issued to more than 100,000 public authorities on whether they should release MPs’ letters. He said the guidance would make it clear that these letters should be kept confidential in all circumstances, as opposed to the present situation where some were released and others withheld.

So, even before the Information Commissioner has properly issued guidance on access to MPs correspondence, David MacLean wants to the settle the issue once and for all by removing all right of access to such correspondence to the extent that it will not even be possible to confirm whether or not such correspondence even exists.

Oh no, the right to a reasonable degree of privilege in communications with constituents is one thing, a blanket exemption of all information is quite another, and that why this morning, I’ve submitted this inquiry to the Information Commissioner:

Having noted that a private members’ bill (the Freedom of Information (Amendment) Bill) has been introduced by David MacLean MP, (Con: Penrith and The Border), and that this bill seeks to provide Members of Parliament with a blanket exemption from the Freedom of Information Act 2000; I would ask you to provide the following information, pursuant to S1 of the aforementioned Freedom of Information Act 2000.

1. What representations, if any, has David MacLean MP made to the Information Commissioner in regards to this proposed legislation, prior to its introduction to the House of Commons?

2. Has Mr MacLean, or another other Member of Parliament, consulted with or sought the advice of the Information Commissioner in the matter of the application of the Freedom of Information Act to MPs correspondence with Public Authorities and, if so, what guidance has been issued to them by the Information Commissioner, particularly in regard to applicability of existing exemptions in the Act to MP’s correspondence?

Please enclose copies of any/all relevant correspondence relating to this inquiry.

A reasonable set of questions, I’m sure you’ll agree, and one’s designed to find out whether there is any real basis to Mr MacLean’s ‘concerns’ and, by inference, whether there is any justification for this bill – The Index of Censorship think its all way over the top, and frankly I’m inclined to agree with them, so this is one where we (bloggers, I mean) need to be making a bit of a fuss.

Next on the agenda is an as yet unpublished bill from a former Chair of the Joint House Committee on Human Rights, Andrew Dismore, that aims to ‘clarify’ the meaning of ‘Public Authority‘ in the Human Rights Act 1998.

Dismore’s ‘beef’ seems fair enough; HRA 1998 defines the nature of a Public Authority in very broad terms (anything that undertakes functions of a public nature) in such as way that it was intended to encompass private sector companies and charities that deliver public services under contract to central and local government.

The precise definition of what is or isn’t an applicable public function was left to the courts and after a number of cases, include a couple involving care homes, it seems that the Joint Committee concluded that the ‘test’ being applied by the courts of whether something was a public authority was somewhat at odds with Parliament’s original intentions for the Act.

On the face of it, Dismore’s operating from good intentions, but until the Bill is published and we see how those intentions are manifested in print, its difficult to assess whether this bill will come in as a positive or a negative. Dismore notes, easrly in his speech, that HRA 1998, unlike the Freedom of Information Act, does not include a specific list of public authorities, which means that even with the uncertainties of relying on the courts for such definitions, the scope of HRA 1998 is considerably wider than than of FOIA 2000. If Dismore’s intent is to introduce an FOIA-style list then that could be a double-edged sword – such a list might just as easily be used to create back door exemptions to HRA 1998 by leaving things off the list as it can be used to close the loopholes about which Dismore expresses concern.

Unlike MacLean’s Bill, Dismore introduced his bill by speaking on it, and found himself facing opposition from the Tories, specifically, John Redwood, who’s opinion is that Dismore’s suggested amendments are unnecessary, because they could be dealt with in a much more straightforward fashion…

I want to make a simple point. The hon. Member for Hendon is attacking the actions of several elected councils—quite a few of them are probably Labour councils. He claims that they do not stand up for the most vulnerable in their community. Surely we, in the senior representative democratic forum in the country, should believe in the democratic system and in putting right such problems in provision by democratic challenge in the council chamber and through the intervention of councillors over their officers and over the supervision of contracts. If too many councillors have consented to too many bad contracts and vulnerable people are being damaged, that is a disgrace and it should be sorted out in the normal democratic way. If the councillors responsible cannot sort it out, I hope that their electors will take the necessary action at the ensuing council elections to change the management.

And, yes, Redwood does have a point here. In an ideal world, local democracy would be the optimum solution, but then that presupposes that local democracy works effectively, which it often doesn’t… all courtesy of three decades of near constant interference in local democracy by central government, interference that has seriously limited the scope of elected councillors to take the kind of action that Redwood suggests.

The real problem here, however, that this isn’t an either/or scenario. We need Redwood’s democratic accountability, of course, but such accountability does not afford the individual a means of personal redress if their human rights are violated, so we also need Dismore’s proposed clarification, provided its worded correctly and doesn’t create further loopholes.

This bill, when published, should go down as being one to watch.

Also on the watch list, but for very different reasons, should go the Intergovernmental Contracts (Provision of Information) Bill, which has been introduced by a Lib Dem, Dr John Pugh.

This is a no hoper of a Bill for pretty obvious reasons, as should be apparent from Pugh’s introductory speech:

The Bill is designed to deal with an absurdity and a scandal, and its genesis is easy to explain. A short while ago, as a member of the Public Accounts Committee, I was prompted to ask why the National Audit Office report on the al-Yamamah arms deal had not been published—a simple enough inquiry, not especially original and not without wider interest. The Committee convened in special session to answer the question. It met in camera, and I am not, frankly, allowed to tell the House what was said or who was there, although I will say that some eminent people were there—people who do not usually attend that Committee.

I can also say what the outcome, the conclusion, was: we discovered that no one on the Committee—none of the customarily fierce interrogators on the committee, nor the Chairman, nor a single living Member—has a right to see the document, even though it is about a Government contract, even though we can see every other NAO report ever written and even though it was written by a man who is technically a servant of the House.

The only Member who was ever gifted the privilege of reading was the former Member for Ashton-under-Lyne, Lord Sheldon [Labour, former Financial Secretary to the Treasury in the Wilson/Callaghan governments 1974-79]. Once the reading had been delegated to him, it seemed that no living soul could clap eyes on it again. My Bill seeks to rectify that absurdity. It would not ensure the publication of the NAO report. It would not undo the past. It seeks simply to provide a mechanism whereby Parliament’s right at least to scrutinise the doings of Government can be preserved.

What will make this one worth watching is precisely how and by whom and in what circumstances the Bill is killed off, and what this might then tell us about how government is operating.

Finally we have the as yet unpublished House of Commons (Participation) Bill by Robert Walter, which is supported by Derek Conway, John Redwood, Bill Etherington, Angela Browning, Mr. Christopher Fraser, Nigel Evans, David Taylor, Christopher Chope, Derek Wyatt, James Clappison and Peter Luff and will:

provide for the Speaker of the House of Commons to have power to determine the eligibility of members of the House of Commons to participate in certain legislative and other proceedings of the House:

Yes, this is the Tory’s EVOEM (English Votes on English Matters) Bill, which is due for its second reading on Friday 9 March, 2007 [getting the date right this time], which I would expect means that it’ll quietly sneak through to the committee stage without too much attention, much after the fashion of MacLean’s FOIA Bill, unless the Tories are planning a big media splash to go with it in the hope of procuring a bit of electoral advantage.

I’m not sure if this is the ‘done thing’ on Private Member’s legislation, but with the Tory’s planning to heavily push EVOEM – which is a constitutional shambles – as a way of obtaining an electoral advantage and attacking Gordon Brown, it might be worth finding a way to kill this off straight away, as no doubt, the ‘battleplan’ on the Tory side will be for this bill to re-emerge for its thrid reading just in time for the this year’s elections.
Okay, so that four bill to watch and bring to wider public attention, of which David MacLean’s FOIA opt-out bill for MPs in by far the most important to be tracking and flagging up.

So let’s all get to it…

3 thoughts on “Legislation Watch

  1. Thanks for mentioning the Index of Censorship – I’d never come across it before but it seems a really useful site…

    Also, that Tory Bill is due to read on 9th March 2007, not 2005! Don’t think they’ve discovered time-travel yet! 😉

  2. Pingback: Ministry of Truth

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