/ Jane Sigley
Head of Freedom of Information Policy
102 Petty France
London
SW1H 9AJ
T020 3334 3555
F020 3334 3745
E
www.justice.gov.uk
March 2011
Dear
The Freedom of Information Act 2000 (‘the Act’): Designating further public authorities under section 5

I am writing to you further to Belinda Lewis’ letter of 6th of January 2011 in which she explained you would be consulted over your possible inclusion in a section 5 order. The purpose of this letter is to gather information for use in the decision making process. I would be grateful if you could respond to the list of questions attached as fully as possible, as well as outlining any matters you think should be taken into consideration by the Secretary of State before reaching a final view over whether the Carbon Trust should be included in, or excluded from, the proposed section 5 order.

Section 5 of the Act enables the Secretary of State to designate persons or organisations as public authorities which:

  • appear to the Secretary of State to exercise functions of a public nature, or
  • are providing, under a contract made with a public authority, any service whose provision is a function of that authority.

The Government is currently considering designation under the first part of section 5; that being whether certain bodies or persons appear to exercise functions of a public nature.

The Act does not contain a definition of functions of a public nature, however, there is a body of case-law concerning the meaning of the term “public authority” and/or “public functions”. Having analysed this case-law we have produced the attached list of factual questions to help us reach our decision. In order to either rule your body out of consideration or to ascertain that your body should be considered further, we would be grateful if you could answer the questions as fully and frankly as possible.

Sections 7(5) and (6) of the FOIA provide that a section 5 order must specify the functions of the public authority designated with respect to which the designation is to have effect. Consequently we need to ascertain the functions that the XX exercises in order to make an informed decision about whether some, all or none of them are functions of a public nature. If you consider that some of your functions are not functions of a public nature, it would be helpful if you could make the case for excluding those functions or services from the scope of the order in your response.

It is important to note that no single factor is decisive, and that the list of questions is not an exhaustive account of all the information that may be relevant to a decision to include or exclude the XX from a section 5 order.

In reaching a final view over whether the XX should be included in a section 5 order, it would also be helpful if you could note any circumstances where information likely to fall within the scope of the FOIA would also be held by a body already designated as a public authority under the Act.

I would also welcome any comments you might have on the estimated impact of compliance set out in the draft Impact Assessment enclosed (includingassumptions on the volume of requests and the costs of responding to requests). This impact assessment is not finalised and represents only an initial assessment of the impacts of compliance with the Act. A revised impact assessment will be published following your comments and once a decision on whether the XX should be included within the Act, and if so for which functions, has been made.

As part of your response, you may also want to express a view on the length of time your organisation would need between the making of any section 5 order and its commencement, for example,to establish a publication schemes and train staff. A commencement date of April or October 2012 is likely should a section 5 order be made, but I would welcome your views on this.

I would be grateful for any comments you might have byFriday 1 April 2011. We will send further correspondence to you once we have received and considered your comments setting out an initial view on your possible inclusion.You will have further opportunity to comment at this stage.

In line with our obligations under relevant access to information regimes,most notably theFOIA, information provided in response to this consultation may be published or disclosed by MoJ.If you would prefer information you provide to us to be treated in confidence, please explain why you considerthe information to be confidential. If we receive a request for disclosure of that information, we will take full account of your representations, along with the requirements of the FOIA when considering whether it should be released.

If you have any additional questions, please do not hesitate to contact me or Catherine Bennion.

Yours sincerely,

Jane Sigley

JANE SIGLEY

Questions for section 5 consultation letter

Nature:

  1. How are you legally constituted?

Are you a private company? Are you a charity? Do you exist purely as a matter of contract? Are you wholly or partially created by statute?

For example, are you a private company limited by guarantee and do you have charitable status?

  1. Do you have a statutory basis of any kind?

For example, are your activities underpinned by statute or are your functions recognised by or provided for in legislation?

  1. As a body are you exclusively or predominantly motivated by the clear commercial objective of profit? Or alternatively are you, in any way, obliged to conduct your business in a manner that must in some way take account of the public interest or in a manner that seeks to achieve some collective benefit for the public?

For example, information about how any profit is or is required to be reinvested should be provided, whether dividends are paid to shareholders and information about your aims and objectives.

  1. How are you funded? Do you receive any public funding?

Please provide details of all your funding sources

(Though in relation to individual contributors who are natural persons the only information we need is the total amount you body receives from all such individual personal contributions. Please do not send information identifying the natural person contributors concerned)

  1. Do you have special powers or immunities that are different from what you would expect other bodies to have and that distinguish you from private bodies generally?

For example, do others have to submit to your jurisdiction if they wish to take part in certain activities, in practice and/or in reality? Are your powers coercive or regulatory?

Control:

  1. Are you accountable to members or shareholders? Do you have some formal accountability to Parliament?

Please provide information about the ways in which you are accountable for your functions

  1. Is there any governmental control (central or local government) over you? If so, to what extent and what form does this take?
  1. Is your body’s Director (or other posts) appointed subject to Government or public authority influence?

For example, does a Minister have to approve any of your appointments?

Functions:

  1. What are your functions?
  1. Could some or all of the functions you perform be considered to be governmental or quasi-governmental in nature?

For example, functions such as the provision of State education, the punishment of offenders, and the determination of legal rights and obligationsare all indicators that a body may be exercising functions of a public nature

  1. If your body did not carry out your particular functions and role, and no similar body did so either as an alternative or as a replacement, would it be likely that the Government would directly or indirectly undertake some or all of those functions?

For example the General Dental Council (a body subject to FOIA) has various functions including: the provision of a system of registration of qualified dental professionals, the setting and enforcement of standards of practice and conduct, the handling of complaints from the public concerning dental professionals, and lastly the audit and quality assurance of both qualifications and education. Each of those listed functions would, if the General Dental Council suddenly ceased to exist, have to be taken on and carried out by the Government or some other public body as they could not be left to simply lapse.

Another example is the “Gas Safe” Register (formerly known as CORGI). This is managed by a private body which runs this accredited certification scheme for private gas installation businesses. If the body running the register (and all other similar bodies) ceased to operate, then for reasons of public safety and public interest amongst other things, the Government would be very likely to undertake the function of operating the register.

  1. Do central or local government bodies carry out functions that are the same or similar to your functions?
  1. In carrying out your functions are you in any way exercising statutory powers or carrying out statutory duties?
  1. Do you perform a regulatory function? Do some or all of your functions form a part (or whole) of a statutory scheme of regulation?
  1. Do all or some of your functions provide a public service or serve the public interest in any way? For example, do you participate in the social affairs of the nation? Examples of the sorts of activity we are interested in here are things like the provision of services relating to the education or care of members of society as well as activities relating to the regulation of professional standards.