Constitutional Reform and Governance Bill

New Clause 22-23,

New Schedule 1 and

Govt 47

Constitutional Reform and Governance Bill

HOUSE OF COMMONS REPORT STAGE

NOTES ON AMENDMENTS

GOVERNMENT AMENDMENT

Secretary of State for Justice

Transfer of records to Public Record Office

Secretary Jack Straw

NC22

To move the following Clause:—

‘(1) In section 3 of the Public Records Act 1958 (selection and preservation of public records)—

(a) in subsection (4) (transfer to Public Record Office or to other appointed place of deposit of public records selected for permanent preservation), for “thirty years” substitute “20 years”, and

(b) after that subsection insert—

“(4A) Until the end of the period of 10 years beginning with the commencement of section [Transfer of records to Public Record Office] of the Constitutional Reform and Governance Act 2010, subsection (4) has effect subject to any order made under subsection (2) of that section.”

(2) The Lord Chancellor may by order make transitional, transitory or saving provision in connection with the coming into force of subsection (1)(a).

(3) An order under subsection (2) may in particular—

(a) provide for the time within which any records are to be transferred to the Public Record Office or other place of deposit referred to in section 3(4) of the Public Records Act 1958, and

(b) make different provision in relation to records of different descriptions.

(4) An order under this section is to be made by statutory instrument.

(5) A statutory instrument containing an order under this section is subject to annulment in pursuance of a resolution of either House of Parliament.’.

Freedom of information

Secretary Jack Straw

NC23

To move the following Clause:—

‘Schedule [Amendments of Freedom of Information Act 2000] (which makes amendments of the Freedom of Information Act 2000) has effect.’.

Secretary Jack Straw

NS1

To move the following Schedule:—

‘Amendments of Freedom of Information Act 2000

1 The Freedom of Information Act 2000 is amended as follows.

2 In section 2(3) (exemptions not subject to public interest test) after paragraph (e) insert—

“(ea) in section 37, paragraphs (a) to (ab) of subsection (1), and subsection (2) so far as relating to those paragraphs,”.

3 In section 37(1) (communications with Her Majesty, etc.), for paragraph (a) substitute—

“(a) communications with the Sovereign,

(aa) communications with the heir to, or the person who is for the time being second in line of succession to, the Throne,

(ab) communications with a person who has subsequently acceded to the Throne or become heir to, or second in line to, the Throne,

(ac) communications with other members of the Royal Family (other than communications which fall within any of paragraphs (a) to (ab) because they are made or received on behalf of a person falling within any of those paragraphs), and

(ad) communications with the Royal Household (other than communications which fall within any of paragraphs (a) to (ac) because they are made or received on behalf of a person falling within any of those paragraphs), or”.

4 In section 62(1) (meaning of “historical record”), for “thirty years” substitute “twenty years”.

5(1) Section 63 (removal of exemptions: historical records generally) is amended as follows.

(2) In subsection (1)—

(a) omit “28,”, and

(b) for “36, 37(1)(a), 42 or 43” substitute “or 42”.

(3) In subsection (2)—

(a) omit “28(3),” and

(b) for “36(3), 42(2) or 43(3)” substitute “or 42(2)”.

(4) After subsection (2) insert—

“(2A) Information contained in a historical record cannot be exempt information by virtue of section 36 except—

(a) in a case falling within subsection (2)(a)(ii) of that section, or

(b) in a case falling within subsection (2)(c) of that section where the prejudice or likely prejudice relates to the effective conduct of public affairs in Northern Ireland.

(2B) Compliance with section 1(1)(a) in relation to a historical record is not to be taken to have any of the effects referred to in subsection (3) of section 36, except where the effect—

(a) falls within subsection (2)(a)(ii) of that section, or

(b) falls within subsection (2)(c) of that section and relates to the effective conduct of public affairs in Northern Ireland.

(2C) Information cannot be exempt information—

(a) by virtue of section 28 or 43, or

(b) by virtue of section 36 in the excepted cases mentioned in subsection (2A),

after the end of the period of thirty years beginning with the year following that in which the record containing the information was created.

(2D) Compliance with section 1(1)(a) in relation to any record is not to be taken, at any time after the end of the period of thirty years beginning with the year following that in which the record was created, to be capable—

(a) of prejudicing any of the matters referred to in section 28(1) or 43(2), or

(b) of having any of the effects referred to in section 36(3) in the excepted cases mentioned in subsection (2B).

(2E) Information cannot be exempt information by virtue of any of paragraphs (a) to (ad) of section 37(1) after whichever is the later of—

(a) the end of the period of five years beginning with the date of the relevant death, and

(b) the end of the period of twenty years beginning with the date on which the record containing the information was created.

(2F) In subsection (2E)(a) “the relevant death” means—

(a) for the purposes of any of paragraphs (a) to (ac) of section 37(1), the death of the person referred to in the paragraph concerned, or

(b) for the purposes of section 37(1)(ad), the death of the Sovereign reigning when the record containing the information was created.”

6 After section 80 insert—

“80A Information held by Northern Ireland bodies

(1) This section applies to information held by—

(a) the Northern Ireland Assembly,

(b) a Northern Ireland department, or

(2) In their application to information to which this section applies, the provisions of this Act have effect subject to the following modifications.

(3) Section 2(3) (exemptions not subject to public interest test) is to be read as if paragraph (ea) were omitted.

(4) Section 37(1) (communications with Her Majesty, etc) is to be read as if for paragraphs (a) to (ad) there were substituted—

“(a) communications with the Sovereign, with other members of the Royal Family or with the Royal Household, or”.

(5) Section 62(1) (meaning of “historical record”) is to be read as if the reference to twenty years were a reference to thirty years.

(6) Section 63 (removal of exemptions: historical records generally) is to be read as if—

(a) in subsection (1), for the words from “section” to the end there were substituted “section 28, 30(1), 32, 33, 35, 36, 37(1)(a), 42 or 43”,

(b) in subsection (2), for the words from “section” to the end there were substituted “section 28(3), 33(3), 36(3), 42(2) or 43(3)”, and

Secretary of State for Justice

Secretary Jack Straw

Title, line 22, at end insert ‘; to amend the Public Records Act 1958 and the Freedom of Information Act 2000’.

Purpose and effect

The purpose of these amendments is to reduce the point at which public records must be transferred to The National Archives or other Places of Deposit from 30 years to 20 years, to reduce the time at which certain exemptions apply under the Freedom of Information Act 2000 to 20 years and to provide enhanced protection under the Freedom of Information Act for information relating to communications with the Royal Family and Royal Household in order to protect constitutional conventions surrounding the Monarchy. It is not intended that the changes to the Freedom of Information Act 2000 should apply to Northern Ireland bodies.

New clause 22 would amend the Public Records Act 1958 such that public records are transferred to The National Archives or other Places of Deposit not later than 20 years after their creation - 10 years earlier than at present. It also provides an order making power for transitional provisions in connection with the reduction from 30 years to 20 years.

New clause 23 would amend the Freedom of Information Act 2000 in accordance with new schedule 1.

New schedule 1 would amend the Freedom of Information Act 2000, except in relation to Northern Ireland bodies. The amendments would change the time at which a record becomes an historical record from 30 to 20 years. This in turn would reduce the length of time that a number of exemptions under the Act can be applied from 30 to 20 years. The exemptions relating to section 43 (prejudice to commercial interests) and 28 (prejudice to relations within the UK) would remain at 30 years. It would also amend section 36 of the Freedom of Information Act such that the exemption falls away at 20 years except for section 36(2)(a)(ii) (prejudice to the work of the Executive Committee of the Northern Ireland Assembly) and section 36(2)(c) (prejudice to the effective conduct of public affairs) but in the case of the latter only where that prejudice would be to the effective conduct of public affairs in Northern Ireland.

The changes at new schedule 1 would also provide additional protection for information relating to communications with Members of the Royal Family and Royal Household; namely:
an absolute exemption for information relating to communications with the Sovereign, the Heir to the Throne and the second in line to the Throne or those acting on their behalf for twenty years or their lifetime plus five years, whichever is longer
a qualified exemption for information relating to communications with the rest of the Royal Family or those acting on their behalf for twenty years or their lifetime plus five years, whichever is longer
a qualified exemption for information relating to communications with members of the Royal Household not included in a or b above for twenty years or for the lifetime plus 5 years of the Sovereign at the time the record containing the information was created, whichever is longer.
Should a member of the Royal Family who is not currently Monarch, Heir or Second in line to the Throne become Monarch, Heir or Second in Line to the Throne, information relating to communications with them will be absolutely exempt from the date of change, and the absolute exemption will apply to all relevant information created before that date.

6. Govt amendment 47 makes the necessary changes to the long title of the Bill.

Speaking note

[You will be opening the debate. Stand when called by the (Deputy) Speaker.]

In October 2007, my Right. Honourable friend, the Prime Minister, announced an independent review into the 30-year rule - which concerns the time at which public records are transferred to The National Archives and other Places of Deposit.

The review team, led by Paul Dacre, published its findings in January 2009 and made a number of recommendations. The Government would like to again thank its members: Chairman Paul Dacre, Professor Sir David Cannadine and Sir Joseph Pilling.

The Government has carefully considered the Review’s recommendations. On 10 June 2009, My Right Honourable Friend, the Prime Minister, announced to this House the Government’s intention to move to a 20-year rule. On 27 February the Government published its full response to Review.

The key proposals of that response are: to reduce the 30- year rule to a 20-year rule, to amend the Freedom of Information Act 2000 to reduce the timeframe within which certain exemptions can apply to 20 years, and to enhance the protection available for information relating to communications with the Royal Family and Royal Household, in order to safeguard important constitutional conventions surrounding the Monarchy.

New Clause 22 will implement those proposals. The changes it makes to the Public Records Act 1958 will reduce the time within which public records are transferred to The National Archives or other Places of Deposit to 20 years.

This would provide earlier access to a wide range of material and is the next step towards greater transparency further to the introduction of the Freedom of Information Act by this Government.

Of course, such a move would involve careful preparation – it is estimated that central government alone holds approximately 2 million paper files between 20 and 30 years old which would need to be reviewed as part of this process.

New Clause 22 therefore includes a power for transitional arrangements. Government will work with all those affected by the change to ensure that those provisions enable an effective and efficient move to the new rule.

To accompany the move to a 20-year rule, a number of exemptions under the Freedom of Information Act 2000 would be amended to fall away after 20 years and these are set new schedule 1.

This would result in more information of interest to the public being made available sooner – for example most Cabinet papers would become available after 20 years under the proposed changes.

Of course, we need to strike the right balance between increased transparency and protecting sensitive information. To this end new schedule 1 will maintain the time limit for certain exemptions at 30 years.

The first is the exemption protecting commercial interests. Some contracts, particularly those relating to large scale infrastructure projects and procurement can run for more than 20 years and may contain commercially sensitive information beyond that point.

Second, information affecting relations between the UK government and devolved administrations may also remain sensitive for a longer period of time and it is right that this should remain protected beyond the 20 year point, where it is in the public interest to do so.

Third we want to continue to protect information which would be prejudicial to the work of the Executive Committee of the Northern Ireland Assembly or which would otherwise prejudice the effective conduct of public affairs in Northern Ireland.

The Government has also carefully considered the protection provided by the Freedom of Information Act to important and long-standing constitutional conventions relating to the Monarchy and its records.

Of particular importance are the political impartiality of the Monarchy, the Sovereign’s right and duty to counsel, to encourage and to warn her Government, as well as the right of the Heir to the Throne to be instructed in the business of Government in preparation for the time when he will be King. These all rely on well-established conventions of confidentiality.

It was never intended for Freedom of Information Act to supersede these conventions. However, it has become clear that the Act does not acknowledge the fundamental public interest in maintaining the confidentiality surrounding these conventions and does not apply to historical records, despite the fact that the Sovereign remains in office for life.

Having taken all of these factors into account the Government has concluded that it is right to provide enhanced protection for information relating to communications with the Sovereign and those line to the Throne.

To that end new schedule 1 will provide an absolute exemption for the information relating to communications with the Sovereign, the Heir to the Throne and the second in line to the Throne and those acting on their behalf for twenty years or their lifetime plus five years, whichever is longer.

Should another Member of the Royal Family who was not Heir to the Throne or second in line to the Throne become Monarch, Heir to the Throne or second in line to the Throne, the absolute exemption would apply to all relevant information from the date of change, as well as information created before that date.

In recognition that the constitutional position of other Members of the Royal family will vary, it is right that information relating to them or those acting on their behalf should remain subject to a qualified exemption and decisions on whether it should be released taken after consideration of the public interest test.

This exemption would no longer expire at 30 years but instead would expire at 20 years or 5 years after the lifetime of the relevant Member of the Royal Family, whichever is later.
Information relating to communications with the Royal Household would also remain subject to a qualified exemption, for 20 years or for the lifetime plus 5 years of the Monarch on the Throne on the date that it was created, whichever is later.

The changes proposed by these amendments constitute a significant step towards an even more open, transparent and accountable system of Government in this country, whilst providing necessary protection for important constitutional conventions.

Finally, amendment 47 makes the changes to the long title necessary to reflect this new part of the Bill.

I urge the House to support these amendments.

ROYAL INFORMATION

TOP LINES

It is right that we should protect the important constitutional conventions surrounding the Monarchy.

It was never intended for Freedom of Information Act to supersede these conventions. However, it has become clear that the Act does not acknowledge the fundamental public interest in maintaining the confidentiality surrounding these conventions and does not apply to historical records, despite the fact that the Sovereign remains in office for life.

Of particular importance are the political impartiality of the Monarchy, the Sovereign’s right and duty to counsel, to encourage and to warn her Government, as well as the right of the Heir to the Throne to be instructed in the business of Government in preparation for the time when he will be King. These all rely on well-established conventions of confidentiality.
The second in line to the Throne will also perform constitutional duties, for example Prince William’s State visit to New Zealand. The current situation demonstrates that the second in line also merits enhanced protection.

What was the original intention of FOIA in relation to Royal records?

In its response to the Public Administration Select Committee’s report, the Government indicated that the treatment of Royal records under FOIA was intended to replicate the arrangements that existed beforehand, which were set out in guidance published to follow the 1993 White Paper on Open Government.

For example, guidance published in December 2004 by the Information Commissioner’s Office stated that,

“it has been suggested by those with experience of Royal matters that in practice very little additional information will become available under FOI – it will be a case of codifying and establishing more formal guidelines for the existing arrangements public authorities already have in place for dealing with information relating to Royal communications.”

However, it subsequently became clear that this was not the case in practice.

What's wrong with the regime as it operates now?

The fundamental public interest in maintaining the confidentiality surrounding the conventions that underpin the UK system of constitutional Monarchy is not recognised in the Act

The relevant exemption is both subject to the public interest test and does not apply to historical records, despite the fact that the Sovereign remains in office for life.

The response talks about protecting the ‘political impartiality of the Monarchy’ The Prince of Wales is however no longer politically impartial – as has made public statements on political issues e.g. his comments on architecture, GM issues, etc