After some embarrassing shilly-shallying a few weeks ago in response to questions from Chippenham MP Duncan Hames, the Waterways Minister Richard Benyon has confirmed that the statutory functions of the BW charity will continue to be subject to the Freedom of Information Act. Mr Benyon’s statement is part of the DEFRA’s conclusions following the supplementary consultation in September and October on the transfer of BW to charity status. He said: “In addition, the Government intends, also subject to parliamentary approval, to apply the Freedom of Information Act (FOIA) to the CRT, in respect of all those statutory functions that the CRT will inherit from BW through the proposed Transfer Order. This limited application of the FOIA will have the effect of excluding from the provisions of the Act those broader charitable functions carried out by the CRT. It will also exclude bodies that merge with the CRT, unless the FOIA already applies or is made to apply to them at the point of merger.
Recognising that, as concerns administrative burdens, this will initially put CRT in a potentially disadvantageous position with regard to other statutory navigation authorities, the Government will, within two years, launch a procedure, under s.5 of the FOIA, to consider extending the provisions of the Act to other statutory navigation authorities, with the intention of creating a level playing field.
In these circumstances, the Environmental Information Regulations (EIRs) may be considered to apply to the CRT to the extent that the CRT is carrying out ‘functions of public administration’. Ultimately, this will be a question for the courts to decide. In the meantime, I have asked the CRT Trustees to make a public commitment to adopt a transparency policy that closely follows the provisions of the EIRs; we are seeking to capture this commitment in the funding agreement being negotiated between Defra and the CRT Trustees.”
As we understand it, this means that because BW was established by and is regulated by Acts of Parliament, its existing functions will continue to be subject to the Freedom of Information Act. The Environmental Information Regulations will apply to public administration functions carried out by the Canal and River Trust, but whether a function is a public administration function may have to be decided by a court. Given BW’s track record in responding to requests for information, we can expect court cases as the CRT is likely to refuse many information requests made under this provision.
The Data Protection Act applies to all organisations that hold people’s personal details, so there is no change on that score. Individuals will continue to be able to request copies of all information which the Canal and River Trust holds about them, such as internal memos and correspondence; records of sightings of your boat; records of payments you have made, etc.
DEFRA’s conclusions following the consultation are set out in full below.
WMS 123
WRITTEN MINISTERIAL STATEMENT
DEPARTMENT FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS
Canal & River Trust – Government Response to supplementary consultation on a Transfer Order
20 December 2011
Parliamentary Under-Secretary for Natural Environment and Fisheries (Richard Benyon)
On 12 September 2011, I launched a supplementary consultation on the detail of the Order to transfer the functions of British Waterways (BW) in England and Wales to a new waterways charity, the Canal & River Trust (CRT). The consultation closed on 24 October 2011.
Today, I am announcing the publication of the Government’s Response to this consultation, which is available at http://www.defra.gov.uk/consult/closed/
The consultation asked for views on the detail of certain aspects of the Transfer Order. The majority of responses to the consultation supported the overall direction of the Government’s proposals, and, subject to obtaining parliamentary approval in due course, the Government intends to proceed as follows:
We will remove the Ministerial power to direct disposal of property under the Local Government, Planning and Land Act 1980, since it will not be needed by the CRT;
We will not extend the provisions in the Transport Acts 1962 and 1968 on Employment to the CRT, on the basis that they have largely been replaced by more recent employment legislation;
We will amend sections 104 and 105 of the Transport Act 1968 to give the CRT an enhanced ‘statutory proposer’ role in relation to ministerial orders on classification and maintenance of its waterways;
We will amend section 27 of the Transport Act 1962 to restrict the power of direction to circumstances in the interests of national defence;
We will not apply the House of Commons Disqualification Act 1975; Scottish Parliament (Disqualification) Order 2010; National Assembly for Wales (Disqualification) Order 2010 or the Northern Ireland Assembly Disqualification Act 1975 to the Trustees of the CRT, because this would not be appropriate for Trustees of a charitable body.
In addition, the Government intends, also subject to parliamentary approval, to apply the Freedom of Information Act (FOIA) to the CRT, in respect of all those statutory functions that the CRT will inherit from BW through the proposed Transfer Order. This limited application of the FOIA will have the effect of excluding from the provisions of the Act those broader charitable functions carried out by the CRT. It will also exclude bodies that merge with the CRT, unless the FOIA already applies or is made to apply to them at the point of merger.
Recognising that, as concerns administrative burdens, this will initially put CRT in a potentially disadvantageous position with regard to other statutory navigation authorities, the Government will, within two years, launch a procedure, under s.5 of the FOIA, to consider extending the provisions of the Act to other statutory navigation authorities, with the intention of creating a level playing field.
In these circumstances, the Environmental Information Regulations (EIRs) may be considered to apply to the CRT to the extent that the CRT is carrying out ‘functions of public administration’. Ultimately, this will be a question for the courts to decide. In the meantime, I have asked the CRT Trustees to make a public commitment to adopt a transparency policy that closely follows the provisions of the EIRs; we are seeking to capture this commitment in the funding agreement being negotiated between Defra and the CRT Trustees.
The Government’s response also includes, by agreement, the Scottish Government’s response to the Scottish issues raised in the consultation.