Lord Lemos (Lab)

My Lords, the question addressed by these amendments is important and—as the noble Lord, Lord Alton, said—one that I have been very bothered about. The importance of record-keeping and the treatment of information is at the heart of the duty of candour and many other provisions. Let me try to address the underlying concerns as well as what the provisions of the Bill are. I will try to reassure noble Lords that some of their concerns are dealt with in the Bill. I will take them one at a time. First, Amendment 29, tabled by my noble friend Lord Wills, would require the head of an authority to ensure the proper recording and keeping of information on matters that may be the subject of an inquiry or investigation, including a process to ensure that officials provide information not already held by the authority. This is the amendment to which the noble and learned Lord, Lord Keen, referred. There is already statutory guidance, setting out what and how information should be retained, in the Section 46 code of practice on information and records management, published in compliance with the Freedom of Information Act. Paragraph 1.2.4 states: “Authorities should manage their information so as to create and maintain a record of their activities which, in turn, provides evidence of their activities”. Authorities should also keep information for as long as it has value—for example, if there is a public inquiry, a police investigation or legal action. Other legislation is also relevant in considering these matters, such as the Data Protection Act 2000 and the Public Records Act, which my noble friend Lord Wills referred to. Some authorities will have their own codes of practice that apply to the type of information they hold, in line with their own legislative framework, regulatory requirements and other requirements, such as health authorities and the police. Organisations are very disparate in this sense. Amendment 10 would enable the chair of a statutory inquiry to require a person to list information not provided to the inquiry, with reasons why the information was not provided, in a document which is available to the chair. The Bill already provides for this, in that under Clause 2(4)(e), an authority or official can be required to provide further information or clarification as required by the inquiry or investigation, so far as is reasonably practicable. An inquiry or investigation could therefore direct an authority or official to provide clarification as to why they have or have not supplied particular information. That responds to some of the concerns of my noble friend Lord Wills. I thank the noble Baroness, Lady Brinton, for her Amendments 38 and 5, which seek to ensure that relevant records be disclosed to an inquiry or investigation—including, crucially, digital messages—and that the code of ethical conduct requirement includes the expectation for public officials and authorities to retain and disclose digital records where necessary. We are confident that the Bill already ensures that documents are accessible and protects against the destruction of documents. As mentioned previously in my response to my noble friend Lord Wills’ amendments, Clause 2(4)(a) requires authorities and officials to provide information likely to be relevant to an inquiry or investigation if requested. This applies irrespective of the format or communication channels in which relevant information is held and may therefore include digital communications—the specific concern of the noble Baroness. The Government recognise that the increasing use of digital communications raises wider questions about how information should be managed and retained. These issues obviously extend beyond the specific duties created by the Bill and, in relation to government, are currently being considered by the independent review of non-corporate communication channels, led by Sir Anthony Finkelstein. The Government do not think it would be advisable to prescribe detailed requirements for the retention of particular forms of digital communication while that review is under way. The Government will consider the review’s findings, including any implications for relevant law, policy, guidance and codes, when the review reports. The individual in charge of an authority must take reasonable steps to secure the authority’s compliance with the duty, including ensuring documents are accessible. In addition—and we will return to this matter in debates on other groups in Committee—in appropriate circumstances, where the other elements of the offence are met, a failure to disclose digital messages could also be caught by the new “seriously improper acts” limb of the misconduct in public office offence. Under this, a public officeholder commits an offence if they use their position with the intent of obtaining a benefit or causing another to suffer a detriment and, when doing so, know or ought to know that their action is seriously improper. A benefit could include seeking to protect themselves or their organisation from reputational harm. In some circumstances, other offences, such as contempt of court or perverting the course of justice, could also apply where someone is required to provide information to court or during an investigation. I hope I have reassured your Lordships that the Government take very seriously the underlying issues that the noble Baroness and my noble friend Lord Wills raised. I hope the reassurance I have given in relation to the Bill and other provisions will meet the approval of my noble friend and the noble Baroness. I therefore ask the noble Baroness to withdraw her amendment.