Freedom of Information Bill

– in the House of Lords at 8:19 pm on 17 October 2000.

Alert me about debates like this

House again in Committee on Clause 3.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office 8:31, 17 October 2000

moved Amendment No. 57:

Page 2, line 35, leave out ("or by a government department") and insert ("by a government department or by the National Assembly for Wales").

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office

This is a substantial group of amendments concerning the operation of freedom of information in the devolved administrations in Wales and Northern Ireland. The amendments which the Government now table--I shall deal with the points raised by the noble Lord, Lord Roberts--involve no new policy but are necessary to ensure that freedom of information is applied on a consistent basis across the United Kingdom and the devolved administrations in Wales and Northern Ireland.

I take the amendments in groups. I turn first to government Amendments Nos. 57 to 59, 61, 62, and 68, and Amendment No. 63 tabled by the noble Lord, Lord Roberts of Conwy. The First Secretary of the National Assembly for Wales has asked that the National Assembly be treated as a distinct body in Clause 3 and elsewhere and not subsumed within the definition of government department. This necessitates a number of amendments to the Bill where we refer currently to the National Assembly. Paragraph 5 of Schedule 1, to which the noble Lord, Lord Roberts, referred earlier, already provides that the National Assembly is a public authority for the purposes of the Bill and nothing in these amendments affects that.

Amendment No. 62 deletes the provision which provides that the reference to a government department in Clause 3 includes reference to the National Assembly. That deals with one of the points raised.

Amendments Nos. 57 to 59 insert specific references to the National Assembly to ensure that bodies and offices established by it may be included by order in Schedule 1 as public authorities for FoI purposes. Amendments Nos. 61 and 68 have the effect that before making an order in relation to a Welsh or Northern Ireland public authority under Clause 3 (to add or delete an entry) or Clause 6 (to amend an existing entry) the Secretary of State must consult the devolved administration. These amendments recognise on the face of the Bill the roles of the National Assembly for Wales and the Northern Ireland Assembly in relation to the devolved administrations. I commend the amendments to the Committee.

Amendment No. 63--the amendment spoken to by the noble Lord, Lord Roberts of Conwy--asserts that the National Assembly for Wales is a public authority in its own right. I have said that paragraph 5 of Schedule 1 already makes that clear. The government amendments I have just described further clarify the position. In particular the deletion of the provision which provides the reference to a government department includes the reference to the National Assembly. That was one of the points the noble Lord raised. In the circumstances of our amendments I do not think that the amendment in the name of the noble Lord, Lord Roberts of Conwy, adds anything. I ask the noble Lord to consider withdrawing that amendment in due course.

I turn to the government amendments which deal with the scope of the exemptions at Clauses 33 and 34. In furtherance of the general policy in relation to the manner of reference to the National Assembly set out above, Amendment No. 168 in part deletes the provision which included the National Assembly within the reference to "government department" for the purposes of Clause 33. Amendment No. 168 compensates for this by inserting a specific reference to the National Assembly into Clause 33 to ensure that the clause continues to apply to information held by it. For the sake of clarity, Amendments Nos. 178 and 180 to 182 provide that the clause covers the policy of the devolved administrations and clarify the application of the clause to the executive committee of the National Assembly.

Amendment No. 179 has an effect in relation to both of the devolved administrations and to the UK Government. The listing of the "ministerial communications" defined in subsection (3) of Clause 33 makes it clear that the provision in relation to such communications applies to internal communications between parts of the same administration, for example Ministers of the Crown, but not communications between different administrations. It introduces an additional category of communications between assembly secretaries. This addition is required to ensure that the Assembly First Secretary and other assembly secretaries are dealt with in a manner comparable to Ministers of the Crown and Northern Ireland. I commend the amendments to the Committee.

I turn to the amendment which relates to Clause 34 and the "qualified person". Amendment No. 183 includes within Clause 34 a specific reference to the National Assembly. Amendment No. 186 is consequential. Amendments Nos. 194 to 196 are concerned with the definition of "qualified person" for the purposes of Clause 34 in relation to Welsh and Northern Ireland public authorities.

Amendments Nos. 194 and 196 provide that the qualified person for Welsh public authorities, except the Auditor General for Wales and Northern Ireland public authorities, is an officer or employee of the authority authorised by the Assembly First Secretary or the First Minister and Deputy First Minister acting jointly or, if not, then the authority itself. In relation to the Auditor General for Wales, Amendment No. 195 provides that the holder of that office is to be the qualified person.

A number of definitions are introduced. Amendment No. 355 introduces a definition of "Welsh public authority". Subsection (3) of the new clause would have the effect of requiring that the Secretary of State must consult the National Assembly for Wales before making any order. Given the limited nature of the order-making power, and the requirement of consultation, the Government do not believe that there is any need for a parliamentary procedure in respect of such orders.

Amendment No. 365 relates to the definition of a Welsh public authority and is consequential on Amendment No. 355.

Amendment No. 360 provides that Northern Ireland public authority means any public authority other than the Northern Ireland Assembly or a Northern Ireland department whose functions are excercisable only or mainly in or as regards Northern Ireland and relate only or mainly to transferred matters.

Amendment No. 359 defines "executive committee" in relation to the National Assembly. Amendment No. 351 deletes the provision which includes the National Assembly for Wales within the definition of "government department" for the purposes of this clause. Amendment No. 350 also makes another modification. It clarifies that Clause 39 cannot be relied upon by one UK government department in relation to confidence owed to another UK government department or by one Northern Ireland department in relation to confidence owed to another Northern Ireland department. I commend these amendments to the Committee.

Amendments Nos. 235, 331 and 356 are concerned with the duty to consult with the relevant authority in Northern Ireland on issues relating to public records. Amendment No. 235 replaces a reference to the Northern Ireland Minister responsible for public records in Northern Ireland with a reference to the appropriate Northern Ireland Minister as the person the Lord Chancellor shall consult before issuing or revising his code of practice.

Amendment No. 331 replaces a reference to the Northern Ireland Minister responsible for public records in Northern Ireland with a reference to the appropriate Northern Ireland Minister as the person the public authority shall consult before refusing a request for any information contained in a historical record.

Amendment No. 332 makes it clear that Clauses 64 and 65 do not both apply to the same information. Were this to be the case it would be a nonsense. Clause 64 is concerned with cases where a public authority holds information in an historical record. It provides that a decision not to disclose in the public interest should not be taken without consulting the Lord Chancellor.

Clause 65 applies to information that is held by the Public Record Office. It deals with historical records more fully--we shall presently consider relevant amendments. The consultation requirement in Clause 64 is reflected in those amendments. It would therefore be highly inappropriate for Clauses 64 and 65 to apply to information that was held by the Public Record Office.

Amendment No. 356 defines the appropriate Northern Ireland Minister as the Northern Ireland Minister in charge of the Department of Culture, Arts and Leisure in Northern Ireland.

That was a long and rather technical list of amendments which are necessary to ensure that the system works in Northern Ireland and Wales. They introduce no change in policy. In that context, the Bill has always made provision for consultation between the Lord Chancellor, the Northern Ireland administration and the Northern Ireland public authorities. The amendments introduce technical changes to ensure that the policy has effect.

Before the supper break, the noble Lord, Lord Roberts of Conwy asked why Assembly subsidiaries should be dropped from Schedule 1. Assembly subsidiaries will still be covered in two ways: first, by Clause 5, which relates to wholly owned companies, and, secondly, by any orders that are made under Clauses 3 or 4 as appropriate. It was felt that it was inappropriate to treat Assembly subsidiaries in a blanket way--they were in effect previously being treated in that way. The noble Lord also asked whether there was confusion about coverage of the Assembly. The answer is no. The definition of government departments now excludes the Assembly--that is covered in Schedule 1--and we believe that that is right. We referred to the Assembly in some clauses--for example, Clause 33--by including it in the definition of government departments. We now agree that it is better simply to refer to the Assembly in its own right throughout the Bill. That is what this long and slightly dry group of amendments has done. I beg to move.

Photo of Lord Roberts of Conwy Lord Roberts of Conwy Conservative

I am grateful to the Minister for the tidying-up operation that has clearly taken place. His description of the amendments makes it clear that the provisions relating to the National Assembly for Wales have been considerably improved. However, that begs the question about the consultations that occurred with the National Assembly before the Government tabled their amendments.

The Minister should take on board the fact that consultation between central government and the National Assembly for Wales is not as refined, polished and advanced as it should be. However, he paid a clear tribute to the First Secretary, Mr Rhodri Morgan, who has obviously taken the matter in hand. As a result, the Bill's provisions relating to Wales are better. We shall of course study the amendments once the Bill has completed its Committee stage and before we reach Report.

Who will supervise the Bill's implementation in Wales? Apart from the National Assembly, a host of bodies is contained in Schedule 1. Those bodies, which include the Ancient Monuments Board for Wales and the Arts Council for Wales, are responsible to the National Assembly. I accept that under the Bill's provisions, the National Assembly is a public authority that is accountable; so, too, are what I might call the subsidiary authorities that are responsible to the National Assembly. For example, how will the information commissioner work in Wales? Will he or she have a specific relationship with the National Assembly, or will he or she deal directly with the bodies that are subsidiary to the Assembly?

I am glad that the noble Lord took on board the point that was made about consultation. The arrangement by which the Secretary of State will consult the National Assembly is ably dealt with in Amendments Nos. 61 and 68. I dare say that there is further provision for consultation before making additions to or subtractions from the list in Schedule 1.

The position of the National Assembly for Wales is in marked contrast to that of the Scottish Parliament, which is, so far as I can make out, excluded from the Bill. That is not the case with the Northern Ireland Assembly. Before the introduction of the amendments to which the Minister has spoken, the provisions relating to the Northern Ireland Assembly were rather better than those relating to the National Assembly for Wales.

I note the Minister's comments on the Welsh Assembly's subsidiaries, which will still be covered. However, some bodies are not mentioned in Schedule 1, namely the Cabinet of the National Assembly and the associated committees. I assume that the Bill will cover them through the title of the National Assembly for Wales. A further problem involves local authorities, especially in view of the provisions in the Local Government Bill for cabinet-style government.

I conclude with a question. Are the Government sure that under the proposed new cabinet system for local government, local authorities will still be subject to the Bill's provisions?

Photo of Lord Lucas Lord Lucas Conservative

I take this chance of riding on our general discussion about Wales to ask the Minister to clarify the position of the Welsh language under the Bill's provisions. Am I right in thinking that an application under Clause 7 could be made in Welsh? The provisions of Clause 10(1)(a) suggest that a request that the reply be received in Welsh would have to be acted on. Under Clause 19(1), would information provided in English be deemed to be not reasonably accessible to someone who was a Welsh speaker? To pursue the matter further, what is the position of someone who does not speak English or Welsh and who is a relatively recent immigrant or a member of a minority community? Would the Bill entitle such a person to ask for, and expect to receive, information in the language that he happens to speak?

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

My preliminary advice is that the amendments improve the Bill no end with regard to Wales. We support them. One can only wonder how a provision as odd as defining a government department as including the National Assembly for Wales was ever included, particularly when other clauses specifically contradict that. The National Assembly should never be regarded as a government department. It is clearly a public body.

Scotland is excluded under Clause 78 because it is within the authority of the Scottish Parliament to carry forward any equivalent legislation. The United Kingdom Government are covered in so far as their powers extend to Scotland, but not the departments affected by devolution. My information is also that the amendments clarify the position for Northern Ireland.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office

To respond to the noble Lord, Lord Roberts of Conwy, we are alive to the need for consultation, particularly on the Bill. There is regular consultation between Home Office officials and the National Assembly for Wales about the terms and implementation of the Bill. The noble Lord was right to identify that many of the changes were brought forward at the request of the First Secretary.

I was asked who will supervise the implementation of the Bill in Wales. Every public authority is required to produce a publication scheme. That has to be approved by the information commissioner, who is responsible for the day-to-day implementation of the Act.

For the purposes of the Bill, the public authority is the National Assembly for Wales. The Cabinet and its committees will be subsumed in that. Equally, executive or cabinet-style local authority committees are covered by reference to the local authority.

The noble Lord, Lord Lucas, asked about a question put in Welsh. Welsh language requests will be dealt with in accordance with the Welsh language scheme that will apply in relation to the relevant authority.

I think that that deals with all the questions that have been asked. I commend the amendments to the Committee.

On Question, amendment agreed to.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office

moved Amendments Nos. 58 and 59:

Page 2, line 38, leave out ("or by a government department") and insert ("by a government department or by the National Assembly for Wales").

Page 2, line 41, leave out ("or by a government department") and insert ("by a government department or by the National Assembly for Wales").

On Question, amendments agreed to.

[Amendment No. 60 not moved.]

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office

moved Amendments Nos. 61 and 62:

Page 3, line 9, at end insert--

("( ) Before making an order under subsection (1), the Secretary of State shall--

(a) if the order adds to Part II, III, IV or VI of Schedule 1 a reference to--

(i) a body whose functions are exercisable only or mainly in or as regards Wales, or

(ii) the holder of an office whose functions are exercisable only or mainly in or as regards Wales, consult the National Assembly for Wales, and

(b) if the order relates to a body which, or the holder of any office who, if the order were made, would be a Northern Ireland public authority, consult the First Minister and deputy First Minister in Northern Ireland.").

Page 3, leave out line 12.

On Question, amendments agreed to.

[Amendment No. 63 not moved.]

Clause 3, as amended, agreed to.

Clause 4 [Further power to designate public authorities]:

[Amendments Nos. 64 and 65 not moved.]

Clause 4 agreed to.

Clause 5 agreed to.

Clause 6 [Public authorities to which Act has limited application]:

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

moved Amendment No. 66:

Page 4, line 16, leave out paragraph (a).

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

I shall speak also to Amendment No. 67. Clause 6(3) allows the Secretary of State to limit by order the right of access to specified information that is held by a public authority. The provisions were described in another place as "housekeeping measures"--a phrase that was used a little earlier. They allow the Government to amend the Bill to take account of changing functions. We support the idea behind the provision but the question is how it should be worded.

The Bill says that the Secretary of State may by order amend Schedule 1,

"by limiting to information of a specified description the entry relating to any public authority".

Amendment No. 66 would require the Secretary of State to specify the functions of the public authority that were to fall within or without the Bill, rather than particular information. That is more desirable.

Amendment No. 67 would limit the Secretary of State's power by removing the ability to amend any limitation. He could still remove a limitation if he wished to do so. I beg to move.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

The amendments would deny the Secretary of State the power to make an order to limit to information of a specified description the entry in Schedule 1 relating to any public authority and would remove the power to amend any such limitation.

When the amendments were debated in another place, my honourable friend the Parliamentary Under-Secretary of State, Home Office, acknowledged the potential mischief at which they were aimed, but we still believe that they are unhelpful--I do not often use that word--and unnecessary in dealing with the perceived mischief.

Members of another place were clearly concerned that the limited order-making power in Clause 6(3) could be abused by Ministers intent on removing whole areas of information from the provisions of the Bill.

The Government have listened to those concerns and responded. Our proposals do not allow the Secretary of State to use his powers arbitrarily. Any order made under Clause 6(3) would be subject to the affirmative resolution procedure by virtue of Clause 80(2)(a). That means that any proposal to vary or limit the scope of an existing entry in Schedule 1 could be given effect to only after the careful consideration and approval by Parliament of a draft order. We believe that that is a sufficient safeguard.

Amendments Nos. 66 and 67 go further than is reasonable. They would remove much-needed flexibility in the approach to coverage under the Bill. It currently applies to tens of thousands of public authorities, many of which pursue functions that are conferred on them otherwise than by primary legislation. It is right that the Bill should have a mechanism for excluding information relating to functions that public authorities have acquired by other means when it is not appropriate for such information to be subject to the rights in the Bill.

We do not want to get carried away with the Bill's proposals. Very few entries contain such limitations and we do not intend to increase that number dramatically by use of the order-making power in Clause 6(3). However, it is a necessary power. I hope that I have encouraged the noble Lord to withdraw the amendment.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative 9:00, 17 October 2000

I believe that it would greatly assist the Committee if the noble Lord could provide examples of the kind of limitation which he believes Ministers should be allowed to make regarding documents or information relating to a specific description. I can well understand that he is putting forward a general argument but it is in relation to a specific power. If the Minister could provide examples of the kind of power which he proposes should rightly be exercised under this extension, I believe that that would enable us to understand why that is so necessary.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

I am not sure that, as of this moment, I can answer the noble Lord. However, if the noble Lord, Lord Cope, is happy to withdraw the amendment, I can assure the Committee that I understand the point that is being made and shall be happy to expand on it on Report.That may be the more appropriate way in which to deal with the matter.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

Perhaps the Minister would send us a letter, as he has done on other such occasions. In the past, he has frequently been very kind when dealing with other Bills to write on matters of this type. I believe that the Minister was quite right to stress the fact that there is an affirmative resolution procedure. I understand that that was inserted by a government amendment in another place. It covers these provisions and that does help. However, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 67 not moved.]

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office

moved Amendment No. 68:

Page 4, line 20, at end insert--

("( ) Before making an order under subsection (3), the Secretary of State shall--

(a) if the order relates to the National Assembly for Wales or a Welsh public authority, consult the National Assembly for Wales,

(b) if the order relates to the Northern Ireland Assembly, consult the Presiding Officer of that Assembly, and

(c) if the order relates to a Northern Ireland department or a Northern Ireland public authority, consult the First Minister and deputy First Minister in Northern Ireland.").

On Question, amendment agreed to.

Clause 6, as amended, agreed to.

Clause 7 [Request for information]:

Photo of Lord Archer of Sandwell Lord Archer of Sandwell Labour

moved Amendment No. 69:

Page 4, line 40, at end insert ("and expressed to be made pursuant to this Act").

Photo of Lord Archer of Sandwell Lord Archer of Sandwell Labour

This amendment deals with a matter which has been adverted to in earlier debates. I am not even sure that it has not been overtaken by those debates. However, it is a point for which I am indebted to the Clifford Chance partnership.

As the Bill is currently drafted, any request for information which is in writing, states the name and address of the applicant and describes the information requested is within Clause 7 of the Bill. If that information is not provided, the whole machinery of the Bill is triggered: the charging of fees, the consideration of public interest and the right of appeal.

Not everyone who writes to a local authority asking a question intends or wishes to spark off all that machinery. Therefore, I ask my noble and learned friend whether we should limit such action to cases where a person wishes to invoke those rights under the Bill. Thus, I tabled the amendment, but in a spirit of being helpful. Some Members of the Committee seem to find it surprising that I should ever be in a spirit of being helpful. However, I sought to limit the operation of the Bill where it does not seem appropriate to apply it.

Since I tabled the amendment, it has been pointed out to me that I may be being too helpful. Many people--perhaps most--will not know of their rights under the Act; they will not even know of the Act. As I ventured to say earlier, not every pub and every mothers' union in the country are making this their major topic of conversation. Therefore, I was asked whether it would be too easy for a public authority which does not wish to disclose information to say, "Well, the request does not mention the Act; let's ignore it".

If the two arguments are to sit together--and I believe that there is force in both--and if the information requested is available to the public authority, surely it should answer the question or justify its refusal to answer under the Act. From what my noble friend Lord Bassam said in answer to an earlier debate, I understand that that is the Government's intention, although it will not be a legal requirement under the Act.

Therefore, the person who asks the question will be alerted to the existence of the Act and the rights which it accords him. He can then decide whether he wishes to invoke his rights under the Act. If he decides that he wishes to activate the whole process, he will then be aware of the option and can make his choice.

Having put the two sides of the argument and the process by which I arrived at this dilemma, I confess that I am not sure whether I support my own amendment. However, I believe that it may be worth a discussion and I should be most grateful to hear my noble and learned friend's reactions.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

Before the noble and learned Lord sits down, I should be grateful if he could tell me in whose interest Clifford Chance advanced the amendment.

Photo of Lord Archer of Sandwell Lord Archer of Sandwell Labour

Like many others who have written to us, I believe that they did so genuinely in the interests of getting the Bill right.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

Like the noble and learned Lord, Lord Archer of Sandwell, we, too, are uncertain as to whether the amendment is helpful. I believe that probably it is not. Whether through a code of practice or otherwise, if local authorities are asked the kind of simple, routine questions that they tend to be asked and answer for nothing now, such as, "What is the date of the next council meeting?", I hope that they would simply provide an answer without requiring the applicant to go through the rigmarole of making it an application under the Act.

However, where a request for information is made, I believe that it is right that it should be treated as being made under the Act. Therefore, as the noble and learned Lord, Lord Archer, said, if a fee is to be charged, the applicant for the information will be told that and will then decide whether or not to proceed. That seems to me to be preferable to being told that the question does not qualify as a request for information under the Act and that therefore it will not be dealt with.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative

Perhaps I may intervene. I believe that the amendment provides the opportunity to reflect for a moment on the need to make the procedure simple so that people can gain access to information and documentation simply by writing in to ask for it.

When I had responsibility for this area I was keen to ensure that any request under the code did not trigger into action a great bureaucratic machine. The noble Lord, Lord Phillips, asked a penetrating question as to why the largest law firm in the United Kingdom should consider this matter. I believe that it did so in the right spirit, which was to try to ensure that a request for information can be answered promptly, swiftly and without triggering a great bureaucratic consequence. This is a welcome opportunity to remind ourselves that we must keep it simple, so that people can gain access to that information to which they are entitled.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

The noble and learned Lord, Lord Archer, said that the first half of his speech was intended to be helpful, but I actually agree with the second half! One noble Lord who considered this matter--I would not dream of looking around the Committee and agreeing with him--suggested that this provision was a "lawyers' ramp" in that it ensures that lawyers need to be involved in making the application because only lawyers, as opposed to ordinary individuals, are likely to know of all the different powers under the Act. For that reason I agree with my noble friend Lord Hunt that we should keep it as simple as possible. Therefore, I do not support the first half of what the noble and learned Lord, Lord Archer, said, but I support the second half.

I believe that requests should be submitted in writing. I am not sure whether the words "in writing" cover an e-mail request, which would be electronically written rather than physically written on a piece of paper. We could explore that on another occasion. It does not arise directly out of this amendment, but it arises out of the clause. We are told that the Government are an Internet-friendly government, so presumably that is intended to be covered by the words "in writing". No doubt, if a request comes in that form, a reply may be in writing. My noble friend Lord Lucas has had difficulty acquiring information from government departments in electronic form, but perhaps in future it will become much easier.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

I am grateful to the noble and learned Lord, Lord Archer, for telling the Committee that he does not fully support his own amendment! That has made my job a lot easier. As currently drafted, the Bill applies to all requests for information. Therefore, whether the applicant mentions the Act or not, the Bill applies to any request for information as long as it is made in writing. For the benefit of the noble Lord, Lord Cope, e-mail requests are covered by the term "in writing". I believe the reference is Clause 7(2). In making the request in writing the name of the applicant and an address for correspondence will need to be covered as well. Of course, that would cover e-mails.

Lest anyone runs away with the idea that the approach that we have taken in the Bill is novel, I should remind the Committee that under the Code of Practice on Access to Government Information, there is no requirement on the applicant to cite the code in any request for information. The same is true for requests under the Data Protection Act 1998 and the Environmental Information Regulations. That is an approach that is standard in access regimes. In any event, there are sound reasons of principle behind that policy.

I do not want us to lose sight of the purpose of the Bill. It creates new rights for all citizens and, as such, the rights exist without the need to rehearse them. It is enough that the citizen requests information; in the main, he or she should have to do no more. It will be his or her right to receive that information, subject to exemptions. There are also practical considerations that speak against the amendment. The same rules should govern the release of all information by public authorities. I am sure that the Committee will agree that there should be no scope for two similar requests to be dealt with differently, not least where they are made in the same form.

Moreover, I believe that the amendment could reduce the effectiveness of the Bill to act as a catalyst to open up the public sector. For the Bill to be such a catalyst, the onus for applying the rules of freedom of information should be on authorities, who should take responsibility for the duties that the Act will impose on them. By requiring applicants to quote the Act when making their request, the amendment places the onus on applicants to trigger the rights that the Freedom of Information Bill confers, with the result that authorities could lose that sense of responsibility for applying the legislation. I hope that the noble Lord will feel able to withdraw his amendment.

Photo of Lord Archer of Sandwell Lord Archer of Sandwell Labour

I am grateful to all Members of the Committee who have participated in this short debate and to my noble friend for outlining the Government's thinking. One matter that clearly emerges is that there is no substitute for good faith on the one hand and common sense on the other. If someone visits the town hall to inquire the time because he has lost his watch we do not expect him to be referred to the machinery of the Bill. However, all that we now seek to do will collapse if public authorities do not have good intentions in this respect. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative 9:15, 17 October 2000

moved Amendment No. 70:

After Clause 7, insert the following new clause--

:TITLE3:THIRD PARTY COMMERCIAL INTERESTS: REQUEST FOR INFORMATION

(" .--(1) When a request for information is received by a public authority and that information relates to a third party's commercial interests the public authority shall--

(a) without delay notify the third party of the request for information and the extent and nature of the information relating to the request and give the third party a reasonable opportunity to make representations regarding whether the information requested falls under an exemption as listed in Part II; and

(b) have due regard to any such representations before discharging the duty to confirm or deny and before communicating the information or giving a notice under section 15.

(2) For the purposes of subsection (1)--

(a) "third party" means anyone other than the person making the request of any public authority; and

(b) information shall be taken as relating to a third party's commercial interests if that person provided the information to the public authority, is identified in the information and is reasonably likely to be affected (at any time) by disclosure of the information or its existence.

(3) Where, after due regard has been given to any representation made in accordance with subsection (1), a public authority is to any extent not relying on a claim that information is exempt information in reaching its decision, the public authority must, without delay, give the third party a notice which--

(a) states that fact;

(b) specifies the exemption in question; and,

(c) states why the exemption does not apply.").

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

This amendment raises another point of considerable importance; namely, third party commercial interests. Under the Bill as it stands a third party, for example a company which contracts with the public authority concerned, may be affected by the disclosure of information concerning that business. The company has no right even to be notified of any application for disclosure. The intention of the new clause is to provide such a right and to give the company an opportunity to say to the public authority that it believes that the request falls under one of the exemptions provided in the legislation. The amendment does not give the commercial organisation concerned any veto over the matter; all it does is allow the company to make representations within the general terms of the Bill. I believe that that is the least such an organisation can expect.

At the moment there is great concern about the onerous regulation of business. The Institute of Chartered Accountants in England and Wales, to which I belong, has just reported the results of its latest survey into the regulation of business. They reveal that the burden of new regulation on business has doubled in the past 12 months since the previous survey. Without going into the details, that is some of the background. That burden potentially places more difficulties on those who do business with the Government, and it is important that organisations have this safeguard within the Bill.

The other amendments in the group are of the same character. Amendment No. 78 ensures that the relevant third party commercial interest cannot delay unduly in deciding what to do about it. It is given 10 days within which it must respond, should it wish to do so. That is not a long period, but it provides the organisation with an opportunity to make its point. It is important to ensure that the Bill does not make it more difficult for third parties to contract with the Government and add to their costs and problems one way or another. The amendment also ensures that they are protected from incorrect or damaging information, although not entirely since the responsibility remains that of the public authority. However, we all know that public authorities do not always understand the concerns of business or the delicate nature of its operations. This amendment provides a small tripwire to try to protect those who do business with government. I beg to move.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

It is obviously correct that third parties whose rights and interests are likely to be affected if information is disclosed should have the right to be heard before any order is made for disclosure. The question is whether this particular amendment is the right way to do it. I understand that the Government intend to do this in the code of conduct by means of the provisions of Clause 44. I have had an opportunity to look at the code of conduct. At a rapid glance--I have not been able to consider it in detail--it appears fairly satisfactory.

There are also cases where it may not be necessary to consult the third party, in particular where the public authority in question is clearly of the opinion that the information should not be disclosed and, therefore, the third party will not be affected by it anyway. If a more tightly defined amendment could be produced which said, for example, that the rights of a third party should not be affected by disclosure of commercial information without that party having been informed of the proposal, I think our reaction might be somewhat different. As the amendment stands, we do not feel we can support it, although we respect the principle behind it.

Photo of Lord Brennan Lord Brennan Labour

I have a concern about the structure of the Bill in relation to the effect on third parties of applications for information which might involve confidential data. If I understand the Bill correctly, Clause 7 is the trigger for the request for information; and Clause 41 identifies certain commercial information as being "exempt", as it is defined. But on the face of the Bill there is no provision for the third party to take steps to protect his own interests. Could the Bill as it is now drafted be used in a way that a government department or civil servants could rely on Clause 41 by saying, "This is confidential information", without any reference to the party whose interests might be affected?

Perhaps I may give an example which is entirely hypothetical but based on fact. In the Access to Justice Bill last year there was considerable debate as to whether the withdrawal of legal aid for personal injury would be adequately counteracted by the provision of a conditional fee system supported by insurance against the defendant's costs, should the plaintiff lose. On many occasions during the debates that I listened to, when questions were asked about what the insurers were going to provide it was said that it was confidential, commercially sensitive information. That meant that there was no means of determining whether what the insurers were saying provided an adequate balance against the withdrawal of personal injury. Perhaps it did. It does not really matter. I am using the fact as an hypothesis. In that example, a government so inclined, through a department, could say,

"The commercial interests are being affected. We are not going to give the information", without any reference to the third party at all.

I have a second concern. What is the position where there is a disagreement between the Government and a third party? It may arise in one of two ways. The Government may wish to reveal but the third party may not and vice-versa. How is the problem then to be resolved? This is an extremely important part of the Bill. Many of the public concerns that may arise will affect things like the provision of health services, the safety of drugs and railway safety systems, all of which involve third party commercial interests. I invite the Government to clarify these matters either now or later.

Photo of Lord Lucas Lord Lucas Conservative

Perhaps I may add a personal anecdote. A government department has refused to provide me with information, on the grounds of confidentiality, which it knows the third party would be very happy to have released. But it refuses to ask the third party so that it does not have to provide the information to me.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

The Government have not done themselves any favours by not making more of the draft code. I did not know that it was in the Library until it was indicated earlier. Like my noble friend Lord Goodhart, I have now had a look at it. I wonder whether it will help if I read in a relevant passage which deals with the problems that the noble Lord, Lord Brennan, particularly raised. It seems to me that the way the code deals with the matter perfectly balances the competing rights and interests. Therefore, it may be for the convenience of the Committee to have it not as a separate document in the Library but actually in the report of the debate. It is not too long. Part IV, Consultation with Third Parties, states:

"In some cases the disclosure of information pursuant to a request would affect the existing legal rights of a third party such as the right to have certain information treated in confidence or the right to personal privacy. Where the consent of the third party would enable a disclosure to be made an authority should consult that party prior to reaching a decision, unless it is clear to the authority that the consent would not be forthcoming.

Where the interests of the third party which may be affected by disclosure do not give rise to legal rights, the public authority should consider whether it should consult the third party. Consultation may be unnecessary where: the public authority does not intend to disclose the information relying on some other legitimate ground; the views of the third party can have no effect on the decision of the authority, due to other legislation preventing the disclosure of this information, for instance; or the cost of consulting with third parties would be disproportionate.

Consultation should take place where: the views of the third party may assist the authority to determine whether information is exempt from disclosure under the Act; or the views of the third party may assist the authority to determine whether to exercise its discretion to disclose information in the public interest under section 13 of the Act.

Where the interests of many parties may be affected by disclosure (but not their legal rights) and those parties have a representative organisation which can express views on behalf of those parties, the authority may, if it considers consultation appropriate, consider that it would be sufficient to consult a representative organisation or a representative sample of the third parties in question.

An authority cannot fail to comply with its duty to disclose information under the Act, or its duty to reply within the time specified in the Act, on the grounds that the third party has not responded to consultation".

Finally, there is an important further section which deals with a point to which the noble Lord, Lord Cope, referred. Part V, Freedom of Information and Public Sector Contracts, states that public authorities should not enter into contracts with unnecessary restraints vis-a-vis third parties on the provision of information.

I apologise for quoting at length but it seems to me that it gives flesh to the bare skeleton of the Bill and indicates a proper practical way of dealing with these important issues.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative

The noble Lord, Lord Brennan, was right to draw our attention to what could be a difficult situation. Perhaps I may refer back to the code. Under exemption 13 there is a clear statement. On third parties' commercial confidences it refers to:

"Information, including commercial confidences, trade secrets or intellectual property, whose unwarranted disclosure would harm the competitive position of a third party".

That was clear and simple. Following the juxtaposition of the legacy of exemption 13 with Clause 41 and the quotation from the code which the noble Lord, Lord Lester, has just read out, I saw immediately that there could be some gaps where there would be uncertainty, particularly if it were left very much to the public authority to decide whether to consult the third party. That causes me concern. I could hear that concern reflected in the words read out by the noble Lord, Lord Lester. So it would not be a right of a third party to be notified automatically as soon as a request was made about information which could well be commercially confidential. We know of many occasions in government when that arises and in the past the procedure has been very simple and easy to follow.

What does cause me concern is that, as is always the case when one tries to set out a detailed position in legislation, it is usually incapable of that detailed application without introducing the sort of complexity which one heard from the noble Lord, Lord Lester, in reading out what should have been a very simple statement but which has been qualified to such an extent that it is now completely ambiguous, in my mind, as to whether or not the third party has that automatic right--

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

I do not know whether the noble Lord appreciated, from my rather gabbled reading, that where there is a legal right because the information is covered by contract--and of course there has to be consultation as a matter of binding contract--there is no ambiguity about that. Indeed the code makes that clear.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative

I appreciate that. I was talking about the other instances where there is no automatic right. That was causing me some concern, particularly, as the noble Lord will see when he refers back to what he read out, there are a whole series of instances where the third party is not automatically consulted. That does cause me some concern and it leads us back to Amendment No. 70, put forward by my noble friend Lord Cope. It does seem to suggest that this is one way in which the gap could be filled. I am not too sure that my noble friend has confidence that he has finally achieved the exact wording required but certainly this is a move in the right direction, which would do much to underpin that right of the third party. When the noble and learned Lord the Minister responds, it would be very helpful indeed if he could relate this particular amendment to Clause 41, to the original code and to the code which the noble Lord Lester read out in full--which was most helpful--just to make sure it is in the record. If the noble and learned Lord the Minister could bring all those aspects together I think it would be a great help and of great assistance to the Committee.

Photo of Lord McNally Lord McNally Liberal Democrat

Just before the Minister replies, I should like to intervene with some trepidation. I do not know the polite collective term for a group of lawyers, but I am in the midst of them--

Photo of Lord McNally Lord McNally Liberal Democrat

Thank you. Perhaps I could approach this in another way. I think the noble Lord is right: this is a key part of the Bill. The point was made earlier that successive governments have moved more and more what were thought of as public sector responsibilities to the private sector. Successive governments have encouraged public/private partnerships which bring public authorities and the private sector into very close co-operation. I served on your Lordships' Select Committee that looked at changes that had taken place in the public service in the 'eighties and 'nineties. It was a dramatic if not a noisy revolution, which I do not think people fully appreciate, on which this Bill will impact.

My concerns are twofold. The brief we received from the CBI sets out very clearly the risk of disclosure of trade secrets and of commercial information, prejudicing commercial interests. This means that business will be more reluctant to provide information in the first place and perhaps more reluctant to get into bed with the public sector on joint projects which both sides of the Committee want to encourage.

How do we get round this? It is clear--perhaps it is something that the CBI and the private sector will have to take on board--that doing business with the public sector, which for many companies is very profitable indeed and very attractive, carries with it certain freedom of information responsibilities.

The kind of culture we are trying to encourage in the public sector as regards the citizen's right to know will spill over into the private sector as well. At the beginning of this debate it was said that one of the intentions behind the Bill was to bring about a cultural change and a shift in the balance of power.

The relationship between the private and public sectors and how the Bill will interface between them will form extremely important parts of the legislation. From the way the lawyers have been jousting this evening in their efforts to get it exactly right, one can see that that is going to take some considerable skill. That is one reason why I look with such confidence to the noble and learned Lord, Lord Falconer.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office

This is an important amendment which requires careful consideration. It would add to the Bill a provision specifying that, where a request relates to the commercial interests of a third party, the authority must notify the person whose commercial interests would be affected of the request, tell the third party what information it holds, and give him the opportunity to comment on whether the information is exempt. We are dealing here with a case where the commercial interests of a third party--namely, not the applicant--can be affected by the disclosure.

There are two possible situations to consider here. The first is where the third party has a legal right to ensure that the information is not disclosed--for example, an enforceable right in contract--in confidence or because it is a trade secret. The Government believe that the right way to deal with this is that such a person should be consulted before any disclosure is made. If, on examination either through the consultation or separately, it emerges that he has a legal right which would prevent disclosure, then no disclosure should be made.

The Government feel that the best way to ensure that that is put in place in practice is not by reference to detailed provisions in the Act but by a code of practice which sets out a process requiring the relevant public authorities to consult and contact someone, and not to disclose where such a legal right exists. That forms the extract from the code quoted by the noble Lord, Lord Lester of Herne Hill. I am most grateful to him for doing so. For the record, it is the code of practice, paragraphs 19 to 23. Where there is a doubt about it, the code specifically states that consultation should take place where the views of the third party may assist the authority to determine whether information is exempt from disclosure under the Act. Thus, where there is a genuine question about it, the public authority should get in touch with the third party.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative

I apologise for intervening. Will the Minister reflect on the fact that presumably it would be for the public authority to decide? That would therefore be an arbitrary decision taken by the public authority which could compromise the rights of the commercial interests of another party. The third party would not be involved in that decision. It would be a unilateral decision taken by the public authority. Is that not another area which may cause some concern?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office

So far as concerns the public authority, it is obvious that it must act sensibly and reasonably under the provisions of the code. What is the alternative? The alternative would be that, wherever the authority thought conceivably that the commercial interests of a third party might be affected by disclosure, it would have to consult that third party.

Perhaps I may cite an example. Suppose that information was sought to be disclosed which would prejudice the interests of a whole range of people in a particular industrial or agricultural field. Is it sensible for the public authority to be put under an obligation to have to consult every single business that runs a particular kind of process against the remote possibility--an extremely remote one--that one of them might have a legal interest? Does every pig farmer have to be consulted before something relevant to the farming of pigs is disclosed? The noble Lord, Lord Carter, makes a noise in relation to that. As the Government Chief Whip knows, that would make this part of the Bill effectively unworkable, and it would do so in a way that would provide very little protection in relation to legal rights.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

If the public authority acted in breach of contract, trust, confidence, trade secrets and so on, it would be legally liable. Therefore there is no question of it being an arbitrary decision. The public authority is bound by law to comply with these obligations in any event. Or am I mistaken?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office

The noble Lord is absolutely right. I assumed that the noble Lord, Lord Hunt, was thinking that perhaps public authorities might make a mistake from time to time. They might--but, assuming that they are addressing the matter in good faith, it will not be difficult to identify whether or not there is an arguable trade secret, confidence or contractual claim. The alternative of obliging them to consult everyone--which is the effect of the added clause proposed by the amendment--is not sensible.

I should make it clear--as the noble Lord, Lord Lester, did by his reading--that the consultation goes wider than simply cases where there is either a legal interest or the possibility of a legal interest. It also includes cases where the public authority thinks that the third party may have something to say that could be relevant to the question of disclosure, even where there is no legal interest.

That is a sensible process. It sets out what we believe to be good practice; it is practicable. I have no doubt that it is much more sensible to deal with this issue by way of a code of practice on the face of the Bill. It provides the degree of flexibility which is necessary in such a situation. I hope that in the light of my explanation the noble Lord will withdraw the amendment.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

It has been an interesting debate. However, this remains an important point to which we must clearly give further thought. We shall of course consider some of the points made by the noble Lord, Lord Brennan, in regard to dealing with trade secrets and so on, when we come to the amendments to Clause 41.

However, coming back to Amendment No. 70, as my noble friend Lord Hunt indicated in his usual polite manner, the drafting of the amendment is not something on which I am relying absolutely. Several points were made in the course of the discussion which indicated ways in which the drafting may be improved.

The nub of the question is whether it is correct that this matter--on which we are largely agreed--should be in a code of practice or in the Bill, drafted of course in an excellent manner. As we have discussed, there is a wide range of public authorities; there are several pages of bodies, some of which one does not normally think of as being part of government. These public authorities will not be legally bound to follow the code. They are supposed to follow the code of practice, but they are certainly not legally bound to. They might of course be bound by a contract they entered into with the third party concerned, but not all of them will be.

Not unexpectedly, it has emerged from the debate that the Government believe, as we do, that third parties who are directly affected should be consulted--particularly if there is a question of trade secrets, and so on--but they are prepared to put that provision only in the code of practice and not in the Bill. We shall reflect on the arguments that have been made--

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

I am grateful to the noble Lord. When the noble Lord reflects, will he take into account the fact that the code creates a legitimate expectation that it will be followed. If it were not followed by a public authority, there would be judicial review. So in that indirect way it becomes legally binding upon all public authorities.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

That is an additional point for us to consider. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Fees]:

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative 9:45, 17 October 2000

moved Amendment No. 71:

Page 5, line 18, leave out ("may") and insert ("shall").

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

This amendment stands in the name of my noble friend Lord Mackay of Ardbrecknish. Various amendments are grouped with it for discussion. They all concern fees. Amendment No. 71 is not the most important amendment in the group, but it attempts to ensure that the Secretary of State will definitely make regulations regarding fees. I am in no great doubt that the Secretary of State will wish to make such regulations; however, we believe that it should be his legal duty to do so. Most of the amendments concern the detail of how the fees will work.

Amendment No. 72 attempts to create a presumption that there will not be a fee in most cases and allows for a fee to be charged only in prescribed cases so as to narrow the circumstances in which any fee is payable.

Amendment No. 73 seeks to place a limit of 10 per cent of the cost of complying with the request on the fee. That percentage is not plucked out of the air. It comes from no less a person than the Home Secretary, who suggested during the course of debate on the Bill in another place that a charge of up to 10 per cent of the cost of supplying the information might be appropriate.

Amendment No. 74 suggests that fees should be set at a sufficiently low level so as to facilitate access by the public. What we do not want--I am sure that there is no disagreement in this place about this--is public authorities trying to put people off using the Bill by charging large fees. This is another amendment where it would not be right to rely too much on the precise drafting of the matter, although I fancy that I shall have the support of most Members of the Committee in terms of the thought that lies behind it.

The other amendments standing in the name of my noble friend, Amendments Nos. 101 to 103, suggest that a fee may be charged only in prescribed cases; otherwise no fee is to be payable. All the amendments go to the same general point.

Amendment No. 85 relates to the refusal of requests. Requests can be refused if the cost of meeting them exceeds the appropriate limit. Ministers have set this at £500. We are all conscious of the answer to parliamentary Questions, that this would be beyond what is reasonable. We have all received answers of that character--and some of us have given such answers from time to time, just as Ministers do at present. So it is not a question of not appreciating what lies behind all this. Of course, it is entirely possible, indeed likely, that some people will ask for information which appears to be legally necessary but which will be impossibly expensive to provide. There may be a good deal of agreement around the Chamber on this point.

The question of fees is of great importance because we do not want public authorities, and the sort of bodies that will be covered by this legislation, to be burdened with huge costs on account of this so that it becomes quite out of proportion to the value. However, we do not want individuals to be put off using the powers that we are attempting to give them under this legislation by the fact that very large, disproportionate fees are being charged. In one way or another, all these amendments seek to achieve that aim. I beg to move.

Photo of Lord Lucas Lord Lucas Conservative

I have two amendments in this group. The first is Amendment No. 84. However, as I rather prefer my noble friends' amendment, Amendment No. 85, I shall not cover it in what I have to say. Amendment No. 87 addresses a separate point; namely, the question of periodic requests. Let us suppose that I were to make a habit of asking the Department of Health every month to provide statistics of people who have died from variant CJD. It is, of course, something that the department already provides, but let us imagine that that was not the case. None the less, it would, to my mind, be a perfectly reasonable request to make.

There are pieces of information with which one wants to build up a periodic pattern as that information changes, and where it is necessary to make such a request. If we are to be faced under this legislation with the cost of complying with such a periodic request being aggregated to the point where it is no longer necessary for the local authority to provide the information because the appropriate limit has been exceeded, I believe that we would be looking in the wrong direction. There is provision in the Bill, as written, for this area to be governed by regulations. I should be content if the Minister could promise me what will be in those regulations to allow reasonable periodic requests for information, such as I have described, to be made.

Photo of Lord McNally Lord McNally Liberal Democrat

A number of words have been used over the past few hours to indicate how this Bill will be made to work--for example, "simplicity, good faith and common sense". What we are discussing now is another element; namely, cost. As the noble Lord, Lord Cope, said, if the means of gaining access to information were in any way to be a deterrent--if freedom of information was like the freedom to dine at the Ritz; in other words, you could get information if you could afford it--that would be against the spirit of what I hope we all intend to be a revolutionary Bill.

In their different ways, all these amendments seek reassurance on that point. There is no particular merit in picking them out separately, other than to mention the one that suggests that the actual cost of finding information should not be a final barrier in all cases. Indeed, there are occasions when the costs would justify acquiring the information, even if that process was expensive.

It has been suggested to us that in other freedom of information Acts there are forms of words that are not so open to using "costs" as an excuse for not providing such information. I take the point made by the noble Lord, Lord Cope. We have all noticed that certain Members in another place table so many Questions obsessively--thank God none of them ever sits on the Liberal Democrat Benches. Indeed, I cannot think of any who do.

Public authorities have to be protected against such practices. However, we must also ensure that neither initial access nor the response of prohibitive cost is used too easily or too lightly. I rose to speak to this group of amendments in order to hear the Minister's response to the whole approach of making sure that cost is not a deterrent to citizens seeking to use the Bill and to ensure that public authorities do not use it in too cavalier a manner so as not to co-operate with the Bill.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative

I bear a number of scars in relation to charging because when I had responsibility for the code I recall being mercilessly bludgeoned for the photocopying charges of the National Rivers Authority. I can still re-live those moments when I suddenly discovered that an official somewhere had assessed that photocopying charges should be between £50 and £100 per page. I shall never forget it, nor will my officials when I was questioning them afterwards. I had not been fully briefed on the subject.

I believe my noble friend Lord Cope has raised some very important points here. I follow the noble Lord, Lord McNally, in reflecting on what happens elsewhere. I bear in mind that the cost calculated by officials normally means the marginal cost of locating and retrieving the information, calculated often in quite an antiquated way at rates that do not bear much relationship to today's costings. A number of Freedom of Information Acts require the authorities not to show that the cost has risen above a certain limit, but the onus is on the authority to show that compliance would cause substantial and unreasonable disruption to its work, which in other jurisdictions is found to be a more sensible approach than just the calculation of a simple figure.

As I understand it, Ministers have already calculated that the appropriate limit will be set at £500. It would be of great assistance to us in responding to these amendments if the Minister were to give examples of how the £500 will be calculated and instances in which he believes a wider range of information might not be justified but a smaller amount might well be authorised at a cost that would be below the limit. Officials who are unwilling to disclose the information might use the £500 limit as an excuse because the request was phrased too widely. I recall from Parliamentary Questions that, on the receiving end, I could often see the way that the Question should have been phrased but fortunately was not. I would not want a member of the public to fall foulof a system in that way. Although I was quite willing for Members on the Liberal Benches in the other place to fall foul of the system in that way, I would not want members of the public to be denied their right to information either under the code as it existed or under this new legislation. I hope that the Minister may be able to respond to that point.

Photo of Lord Brennan Lord Brennan Labour

I invite the Minister to clarify the approach that is likely to be taken in these regulations. It seems that they ought to be constructed with great sensitivity for the following reasons. The first is a practical one. In every field of litigation and contact between citizen and state there is a small number of people who find such contact therapeutic. They are called vexatious litigants in the supreme court. I cannot imagine that this Act will not produce a well drilled cohort of such correspondents with government departments. I do not suggest that the regulations should deter them by fee alone, but I think that they should encompass some method of identifying vexatious requests; otherwise, such requests would undermine the proper purpose of the Bill.

Secondly, Clause 8(4)(a) states that regulations may prescribe,

"that no fee is to be payable" in certain cases. I assume that that will include cases where the applicant for the information cannot afford to pay the fee. I refer to people on income support, people who qualify for legal aid because of their income requirements and so on.

The third area that causes me more concern is the following. If the limit is to be set at £500--which I applaud--that may well be a gross under estimate of the actual cost of making the appropriate inquiries to meet the request. Perhaps the regulations ought to allow special provision to be made in certain cases. For example, I refer to people who wanted to find out what was actually going on during the BSE saga. The documentation on that issue is enormous and the cost of providing it may well be huge. I am concerned that we should approach such practical considerations now and not be faced with problems later. However, consideration of such expense may engender specious correspondence between government and applicant which is designed to provoke not one request for information but seven or eight in order to increase the individual cost and cover the actual cost, which may well be beyond £500. I concentrate on that point because we must not lose public confidence in the legislation at stage one. For every applicant, stage one will involve asking himself about cost.

The fourth and last consideration is one on which I may have to invite my noble friend the Minister to write to me; namely, the consequences of the Aarhus Convention which the Government signed two years ago. It deals with access to information on environmental matters and is extremely wide-ranging. It requires government to guarantee such access at reasonable cost and with expedition. One or other of my learned friends may have that convention at their fingertips. I have it at my fingertips only because of the debate that took place the other day. It is an important matter. Which two areas will cause the most concern? I suggest that they are health and safety, which usually involve many documents, and the environment. The regulations must meet that challenge.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office 10:00, 17 October 2000

I suppose that my opening line ought to be that costs should not be a determinant with regard to access to information. Then I should add a series of caveats. I have a feeling that my speaking notes will take us in that general direction. It is perhaps worth making the point--parliamentarians will be familiar with this--that cost is a determinant, even in this Chamber and in the other place. However, having said that, I am always impressed by the wide range of information that Members of this Chamber and of the other place can elicit through parliamentary Questions. I note that only yesterday the noble Lord, Lord Lucas, obtained much information on CJD in a Written Answer provided by my noble friend Lord Hunt of Kings Heath. No doubt cost considerations came into the provision of that information, but the public interest of providing that information was more important than cost considerations in that case.

I turn to government Amendment No. 90. I state my intention to oppose the Question that Clause 14 should stand part of the Bill. The proposed new clause after Clause 11 is consequential on the restructuring of the Bill. It brings together those clauses concerned with access to information which would otherwise be exempt by virtue of the cost of compliance exceeding the appropriate limit.

This new clause effectively replaces Clause 14 of the Bill as drafted. This makes provision for the charging of fees for public interest disclosures. The Bill provides for a clear duty on public authorities to disclose information in the public interest. There is no need to make specific provision for the charging of a fee for the disclosure of such information. The fee provisions are the same as for the disclosure of non-exempt information. Clause 14 is now redundant. I shall commend that the Committee opposes the Question that Clause 14 shall stand part of the Bill.

Amendment No. 84, tabled by the noble Lord, Lord Lucas, would require the public authority to inform the applicant whether it held information of the description specified in the request in accordance with Clause 1(1)(a) even if to do so would exceed the cost limit set out in regulations if the applicant were prepared to pay the excess cost. That would give the applicant the right to determine the work priorities of the authority. We take the view that this could be disruptive and detrimental to the work of that authority. That would be the case in particular with respect to a smaller public authority. I gave an example earlier of GPs whose resources would be unlikely to be sufficiently large or flexible enough to adapt to such demands even where the full costs of the additional work were to be recovered.

I understand the well-intentioned thoughts underlying the amendment. It is designed to prevent the Government and public authorities from limiting the scope of information that should be disclosed by manipulating the fee regulations However, it would create a regime in which authorities could be exposed to unreasonable demands on their resources and the Government would be left with insufficient flexibility to respond quickly and effectively to changing demands or circumstances.

The parliamentary procedures will ensure that the fees regulations are subject to appropriate scrutiny. For those reasons I hope that the noble Lord will not press the amendment.

Amendment No. 87 which stands in the name of the noble Lord, Lord Lucas, concerns the Secretary of State's power to make regulations about the appropriate limit on the cost of providing information when two or more requests are made either by one person or by different persons who appear to be acting together. If accepted, the amendment would limit this power to make regulations to situations where requests are closely related and made within a month. We consider that it is more appropriate to deal with this kind of matter in secondary legislation which gives greater flexibility. We believe that the amendment is unnecessary. Again, I invite the noble Lord not to press the amendment.

Photo of Lord Lucas Lord Lucas Conservative

I agree with the noble Lord that it is better to deal with it in secondary legislation. But can the Minister confirm that the matter will be dealt with in secondary legislation and that the periodic request--I hope that I convinced him that it was entirely reasonable--will not be caught by the regulations?

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

I can confirm that. It will be dealt with in secondary legislation.

Amendment No. 85, in the name of the noble Lord, Lord Mackay, has three parts. The first part also requires the public authority to confirm or deny whether it held information regardless of the cost of so doing. The second part enables an applicant to appeal to the commissioner where the authority failed to comply with the request under this exemption and would authorise the commissioner to consider such an appeal at his discretion. The third part provides that the commissioner direct that the authority disclose whether it held the requested information and would prohibit any appeal by the authority against that direction.

New subsection (a) would effectively give the applicant the right to determine the work priorities of the authority and potentially skew the priorities of that authority. I hope that the noble Lord will reflect on that point and not press the amendment.

New subsection (b) would require the authority to balance the public interest benefit in complying with the request against the cost of compliance where to do so exceeds the appropriate limit. I suggest that the amendment is not necessary. Nothing in the Bill precludes the release of such information. Where a public authority has the power to disclose the information it would be required to consider doing so under administrative law. In considering this, it would have to balance the cost of disclosing with the public interest in doing so. Given that consideration, I hope that the noble Lord will not press the amendment.

The second and third paragraphs in Amendment No. 85 would provide applicants with a right of appeal to the commissioner when Clause 11 was not complied with. Such rights of appeal would of course be necessary if the substantive effect of the amendment were agreed to. However, the Bill already provides applicants with a right of appeal if a public authority relies on Clause 11 as a reason for non-compliance.

Amendment No. 85 would also empower the commissioner to direct an authority to comply with a request without giving the authority a right of appeal to the tribunal. Placing such an unchecked power in the hands of the commissioner would be out of line with other provisions in the Bill, which would be untenable. Again, I invite the noble Lord not to move the amendment.

Amendment No. 86 would place in the Bill a statutory minimum appropriate limit of £500. That is the maximum that the Government proposed, but we believe that it is more appropriate to deal with such matters in secondary legislation rather than in the Bill. As I said previously, secondary legislation provides greater flexibility. We should be able to adjust the limits in the light of experience. In view of the fact that we have already proposed a maximum appropriate limit of £500 for inclusion in such secondary legislation, I hope that the amendment will not be moved.

Amendment No. 88 would require the Secretary of State to make regulations in relation to costs and the way in which they might be calculated. The structure of the clause effectively imposes that requirement on the Secretary of State, if he wants to take appropriate authorising action. That gets round the need for the amendment, which is unnecessary and should be withdrawn.

Amendment No. 89 states the types of costs about which regulation may make provision for the purposes of Clause 11. The amendment requires regulations to be

"based on the marginal cost of locating the information and of related disbursements".

That is overly prescriptive, and we have advanced comparable proposals. As with the overall cost limit, the matter is more appropriately dealt with in secondary legislation.

Amendments Nos. 71 to 74, which were tabled by the noble Lord, Lord Mackay, would specify and limit the circumstances under which a fee may be charged. Amendment No. 71 would impose on the Secretary of State a statutory duty to include in the regulations the matters that are described in paragraphs (a) to (c) of Clause 8(4). Amendments Nos. 73 and 74 would require the Secretary of State to include in the regulation the matters that are referred to in those amendments. The first such provision would set a statutory limit of 10 per cent on the cost of compliance, which may be charged for complying. However, no separate provision is made in respect of actual disbursements, which would include, for example, photocopying and postage. Again, we believe that that matter is best dealt with in secondary legislation.

Proposed new paragraph (e), which would be created by Amendment No. 74, would introduce a statutory duty to set fees at a sufficiently low level to facilitate access to information by applicants. We are not persuaded that that is necessary. We have maintained throughout that public authorities will bear the bulk of the cost of providing information, and we can reasonably trust them to do so. Our preferred formula is contained in the consultation paper and reflects the provisions of Amendment No. 74. However, the negative resolution procedure would ensure that regulations in relation to fees were not prohibitive. I hope that those amendments will not be moved.

Amendment No. 72, which would amend Clause 8(4)(a), would require the Secretary of State to prescribe in the regulations the circumstances under which a fee might be charged. We are not convinced that that amendment takes sufficient account of the scope of the legislation. If it were agreed to, it would require the Secretary of State to identify all types of information and the circumstances under which any one of the 50,000 authorities that will fall under the scope of the Bill may charge. We believe that that would be an impossible task. The regulations would be complex, confusing and difficult to interpret. Drawing up such regulations could place unfair financial burdens on the many small authorities that will be covered by the Bill. We want a fair and proportionate system for charging, not one that is over-complex or prescriptive. If not, there is a real risk that authorities will concentrate too much of their efforts on deciding fees and not enough on providing the information requested.

That brings me to Amendments Nos. 101 to 103. Amendments Nos. 101 and 102 would be similar in effect to Amendments Nos. 72 and 74, but in relation to fees for disclosure in the public interest. We do not want to make over-complex regulations that could undermine the object of the Bill, which is to achieve greater openness. For that reason, we do not think that the amendments should be pressed.

Amendment No. 103 would add the words "which shall be" in Clause 14(3). I am not convinced that that would add anything to the Bill.

Amendment No. 90 is a government amendment providing that a public authority may charge for the communication of any information not required under Clause 1(1) because the cost of compliance exceeds the appropriate limit and is not required by law. It sets out that fees may be determined by the public authority in accordance with the regulation. The amendment will enable public authorities to charge for large amounts of information that might otherwise not be disclosed due to economic considerations. It thus ensures greater openness.

I shall try to deal with the questions that have been asked. The noble Lord, Lord Lucas asked whether periodic requests would be aggregated for the purpose of Clause 11. The short answer is no. The regulations currently in draft will make that clear. We shall place the draft fees regulations in the Library as soon as possible--certainly before Report.

The noble Lord, Lord Hunt of Wirral, asked how costs would be calculated. That will be set out in the regulations. He also asked whether officials might abuse the £500 limit. Two factors militate against that. First, information that can be released up to £500 must be released. Secondly, the commissioner can assess whether the clause is being properly relied on.

The noble Lord, Lord Brennan, asked some important questions. I do not particularly want to deal with vexatious litigants and the green ink brigade, but they exist and we are sensitive to their concerns. We are also sensitive to the real concerns of people who are not best placed to seek information using the legislation because of cost considerations. I shall reflect further on the point about the Aarhus Convention.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative 10:15, 17 October 2000

Once again we have been given considerable food for thought on fees. I shall not respond in detail to the Minister. We shall reflect on the issues in the coming days. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 72 to 74 not moved.]

Clause 8 agreed to.

Clause 9 [Time for compliance with request]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office

moved Amendment No. 75:

Page 5, line 27, leave out ("subsection (2)") and insert ("subsections (2) and (2A)").

On Question, amendment agreed to.

[Amendment No. 76 not moved.]

Photo of Lord McNally Lord McNally Liberal Democrat

moved Amendment No. 77:

Page 5, line 28, leave out ("section 1(1)") and insert ("sections 1(1) and 13").

Photo of Lord McNally Lord McNally Liberal Democrat

I have the pleasure of moving this amendment on behalf of my noble friends Lord Goodhart and Lord Lester. It would replace the unlimited period for disclosing information in the public interest with a 20-day limit. We strongly believe in the amendment. The legislation will work best with good will and common sense, but it is incumbent on us not to leave too many temptations in the way of Ministers or officials. We believe that the Bill as drafted, with a two-stage process over two different timescales, leaves such a temptation. A 20-working day limit is provided for complying with requests in general and an unspecified period, which needs only to be "reasonable in the circumstances", for disclosing exempt information in the public interest.

We believe that whether or not to disclose should be a single decision and that that decision should not be allowed to trickle out over a prolonged period with no clear end-point. Applicants will be told that information is exempt. That will be followed by a further open-ended wait to discover whether the authority is prepared to release the information on public interest grounds. The provision could be exploited by obstructive authorities and encourage others to relax their standards, resulting in almost unlimited delays and undermining confidence in the legislation.

There is no reason to believe that consideration of the public interest should be a cause for long, time-consuming delay. If difficulties are encountered in complying with the 20-day period, authorities or Ministers can be open about that. It is possible that a formal request, perhaps from the commissioner, for a further time limit could be drafted into the legislation. I believe that this is where the common-sense provisions should come in.

However, no overseas freedom of information Act provides extra time for public interest decisions; nor does the UK code, which also contains a public interest test. Home Office figures indicate that currently 92 per cent of code requests are dealt with within the code's 20-day limit, or the tighter limits which departments themselves set. Therefore, we do not believe that this rather loose, open-ended clause should be left in the Bill. It would be a reassuring declaration of intent if Ministers could accept a 20 working day limit.

Photo of Lord Lucas Lord Lucas Conservative

I thoroughly support the amendment. It seems to me crucially important that we should not have in the middle of the Bill an unlimited timescale which can be exploited by a department going backwards and forwards, trying to find ways in which not to disclose information, or simply taking its time when someone is waiting for information and has every reason to expect that it should be delivered promptly.

It is not at all clear to me who effectively will adjudicate the wording in Amendment No. 79:

"until such time as is reasonable in the circumstances".

We are talking about information which should be produced within a few days. It seems to me that, if things were being done unreasonably, that type of clause could involve delays of weeks or months in deciding whether the matter which was taking a long time was being reasonably delayed. I do not believe that there is any protection for the citizen. At the very least, a time limit should be set down--not "unreasonably delayed" but possibly "not usually more than" or some such words--to provide a yardstick against which performance could be judged.

I also agree with the noble Lord, Lord McNally, when he says that there should be only one time limit. There is no reason why the two questions cannot be parallel-processed. If the Government are considering whether a particular piece of information is exempt, they can also consider the question of what would happen if it were exempt. Would there be an obvious public interest in disclosure? One does not have to wait for a decision on whether or not it is exempt in order to decide the second question. The two should be decided together.

The noble Lord produced the killing piece of information. Even under our present-day, reasonably relaxed arrangements, very few civil servants are properly trained in the use of the code. I believe that only 170-odd have attended the course on how to operate the code. There has not exactly been a major training scheme, but even civil servants operating on their native wit and knowledge have provided 96 per cent of answers to requests for information within the 20-day limit. When we have a fully trained, up-to-the-minute, computerised Civil Service, as the noble and learned Lord, Lord Falconer, promises us, I am certain that we shall be able to do better than that and that there will be no reason why the 20-day time limit should not cover both processes rather than just the one.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

I have much sympathy with these amendments. Amendment No. 80 in the name of my noble friend Lord Mackay, which leaves out subsection (3), is a provision that allows the Secretary of State to extend the 20 working days to 60 working days; that is to say, to extend it from four weeks to up to 12 weeks in particular cases.

We all know that public departments can take a long time to reply to letters. Professor C Northcote Parkinson, in his excellent advice which contained a great deal of truth among a great deal of humour, suggested that the proper way to deal with income tax inspectors was to send them a few queries, carefully targeted, so as to calculate how long it took them to reply. The size of the in-tray was measured in days. If one discovered that it took 30 days for a reply to be sent, one should write every 29 days to ensure that one's income tax file went to the bottom of the heap continually and never reached the top! That was one way of pointing out that public officials can take a great deal of time to reply. In a case like that they should not be given too much leeway.

The lengths of time are expressed in working days and the provision includes bank holidays in any part of the United Kingdom. It appears that in relation to this Bill, St Patrick's Day and other bank holidays that are observed in one part of the kingdom or another all count as non-working days throughout the public service. However, I support some of the thoughts behind these amendments.

Photo of Lord Bach Lord Bach Government Whip 10:30, 17 October 2000

I shall deal with Amendment No. 80 first, as it was the last one spoken to by the noble Lord, Lord Cope. I am afraid that the poor old Government cannot win. The Bill as drafted in Clause 9(3), which Amendment No. 80 seeks to delete, mentions a period,

"not later than the sixtieth working day".

That is taken straight from an amendment that was moved in another place, which asked that the time be,

"not later than the sixtieth working day following the date of receipt".

That amendment was moved by the honourable Member, Mr John Greenway, Front Bench Conservative spokesman on the Freedom of Information Bill. We followed, perhaps stupidly, his amendment and so the words "the sixtieth working day" appeared in the Bill when it came to this House and now the party opposite suggests that those words should go. The Government cannot win.

There has been plenty of consultation in relation to this Bill, as referred to earlier by the noble Lord, Lord Mackay of Ardbrecknish, but I wonder whether any consultation has taken place between the Conservative Front Bench in another place and the Conservative Front Bench in this place. It is a gentle point, but I believe it is a fair one to make in the circumstances.

The provision was amended in another place so as to limit the Secretary of State's power to extend the statutory time limit for compliance with a request. As now drafted, it provides that there should be an upper limit on the Secretary of State's powers to set a different time limit for compliance with an application. The provision in the Bill now reflects concerns expressed in another place that there should be a cap on the time limit which might be set by regulation under this provision. The Government have recognised and addressed those concerns.

We have no intention to extend the statutory time limit under the regulations, which will be made only in exceptional circumstances. Recognising other concerns expressed during Committee stage that the regulation-making power itself should be subject to close parliamentary scrutiny, regulations under subsection (3) are subject to affirmative resolution. We believe it is necessary for the Bill to retain the power for the Secretary of State to provide for circumstances under which time for compliance may be extended beyond the statutory period of 20 days set out in the legislation.

The Bill will apply to some 50,000 public authorities. The Government cannot say at this stage with any certainty that those authorities can, in all circumstances, realistically be expected to comply with all requests within the statutory time limit. If it should become apparent that there is a need to extend the time limit for compliance with requests the Government will be required to justify any proposals at the time. Any regulations laid before Parliament in relation to time for compliance will be subject to full scrutiny by both Houses of Parliament under the affirmative resolution procedure. For that reason, we cannot accept Amendment No. 80.

We believe that the more serious amendments are Amendment No. 77 and the consequential Amendment No. 100 tabled by the noble Lord, Lord McNally. Amendment No. 77 would bring public interest disclosures within the 20 working day period for compliance. At the moment that period applies only to the initial determination as to whether the authority is obliged to confirm or deny that information is held and to disclose non-exempt information. The Bill provides that public interest disclosure must be made within such time as is reasonable. As Amendment No. 100 is consequential I do not need to describe what it does.

Under Clause 9(1) an authority has up to 20 working days to comply with Clause 1(1). Where the information requested is in an exempt category, the new clause will require the authority to determine whether the public interest in disclosure outweighs the public interest in maintaining the exemption taking into account all the circumstances of the case. The new clause replaces most of the provisions of Clause 13, and the Government have signalled their intention to oppose that Clause 13 stand part of the Bill when the time comes.

There are two steps involved in determining whether otherwise exempt information should be disclosed in the public interest. In making such a decision an authority must already have determined that the information is exempt. While this decision must be made promptly, it is conceivable that such a decision can take the full 20 days allowed by Clause 9(1). I offer one possible example. Let us assume that a public authority receives a request for the disclosure of information that it holds which has come from a third party. That third party may have a legal interest in the decision on disclosure, perhaps because of the operation of the common law duty of confidentiality. Under the Bill it is for the public authority to decide whether to disclose all or some of the information, provided that there is an exemption on which it can rely and no overriding public interest.

The authority may think it right to consult the third party, or those to whom the information relates, or those likely to be affected by the disclosure. The Secretary of State's code of practice under Clause 44 will advise authorities to carry out such consultations. But the relevant interested parties may themselves be unavailable, or the consultation may raise an issue of public interest which the authority must weigh. The amendment would, however, impose a 20 working day limit on such consideration which could leave no time for proper consideration of the public interest and any work that might be necessary if it decided that disclosure was appropriate.

Moreover, disclosure in the public interest requires an authority to take all the circumstances of the case into account in balancing that interest. Such a decision may be more complex than the original decision as to whether the information is exempt and involve consultation within the authority as well as further consultation along the lines above with those who would be affected by any disclosure. Therefore, we have come to the conclusion that it is impossible to specify any time limit on the taking of such decisions because much will depend on the circumstances of each case. It is necessary, therefore, for the Bill to provide for a "reasonable" period.

The Government's amendments tabled for Clause 9 will introduce the "reasonable" period provision into that clause by virtue of new subsection (2). This is currently the effect of Clause 13, but, as the Committee knows well, the Government have tabled amendments to restructure the early part of the Bill which will have the effects of deleting Clause 13. New subsection (2A) of Clause 9 reinstates the necessary timing provisions for disclosure in the public interest.

The Government understand that if time is short, authorities may be more likely to withhold information than disclose it on the basis that where a matter is not properly considered, it is better to be safe than sorry. On the other hand, authorities may decide not to consult those affected by disclosure on the basis that that would take too long. We think we have the matter about right in that the Bill provides for a reasonable limit in order to ensure that decisions are taken soundly. To impose an unreasonable and even impractical time limit would inhibit the culture change that the Government are trying to achieve with the Bill.

We believe that the amendments, although well meant, would have the effect not only of disadvantaging authorities by imposing an impractical time limit on them but might also disadvantage applicants and others affected by disclosure by causing decisions on the public interest to be taken hastily.

"Oh", say those who are in favour of these amendments, "that is all very well, but this gives a green light to public authorities not responding". There is a sting in the tail. In order to prevent authorities from stalling, the commissioner has power to issue an enforcement notice under Clause 51(2) or, where she has received a complaint, a decision notice under Clause 49(4), requiring the authority to disclose information in the public interest within a time set out in the notice. That is a safeguard in the Bill against abuse of the lack of a specified deadline on public interest disclosures and should be put in the balance when the Committee decides whether our stance is sensible or not.

We fear that the amendments would result in ill-considered decisions by authorities and might work against the culture of openness that the Government are attempting to achieve with this legislation. I hope that the noble Lord, Lord McNally, who moved Amendment No. 77, may think that there is something in what I have said and will withdraw his amendment.

R

Legislators brought the Freedom of Information Act in leaving the Information Commissioner to determine what is a reasonable period for conducting a public interest test. The commissioner's view is expressed in the Information Commissioner's Office's "Good Practice Guide 4" which states that only in exceptionally complex cases should the public interest test take more than 20 days and in no case should the total time for a substantive response exceed 40 working days.

http://www.ico.gov.uk/upload/documents/library/freedom_of_in...

One thing the Government Whip and those debating the legislation were not able to take account of was the very slow pace at which the commissioner would work in practice. Currently many cases wait over a year to get a decision from the commissioner:

http://www.bbc.co.uk/blogs/opensecrets/2009/07/the_new_commi...

I would like to see the FOI act amended to give the force of law to the ICO's position that in no case should the total time for a substantive response exceed 40 working days.

--

Richard Taylor

Cambridge

http://www.rtaylor.co.uk

Submitted by Richard Taylor

Photo of Lord Lucas Lord Lucas Conservative

I feel that the Government must offer more on this issue. We cannot have this unrestricted time limit without any mention in Amendment No. 79, which is where we find this wording, of any need to get a move on. Such a period as "reasonable in the circumstances" has a very relaxed feeling to it. There is no "as quickly as is reasonably possible"; there is no illustrative time limit.

The noble Lord, Lord McNally, mentioned the current rate of performance. In those circumstances, it would be quite reasonable to say that it should usually be done within the 20-day time limit allocated to deciding whether or not a decision is exempt, but can be stretched beyond that period. I understand the noble Lord's arguments but they apply to extreme cases. Yes, provision has to be made for extreme cases, but it must be quite clear that it is for extreme cases. There needs to be a yardstick in front of everyone, an expectation that things will be done quickly.

There is no indication of the point at which one might reasonably start to complain. There is no indication of whether--as I would hope--most things should happen within the original 20 days; whether we should expect an additional 20 days where this is concerned; or whether it should be an additional three months. We must have more clarity. It must be more easily operable by members of the public. Everyone must know what the expectations are. Yes, if we have to allow for exceptions, it must be made clear that those are exceptions and not allowed to become the rule.

Photo of Lord Bach Lord Bach Government Whip

Before the noble Lord, Lord McNally, decides what to do with the amendment, perhaps I may say that there is a good deal in what the noble Lord, Lord Lucas, says with which we agree. In many cases we agree and trust that the two decisions will be made within the 20 working days. But we cannot accept that that will happen on every occasion; and it will not happen sometimes for good reason. In an earlier intervention the noble Lord asked who will adjudicate on "reasonable" time. The answer in the first instance is the commissioner. She will have the power to assess it, whether from a complaint or not from a complaint. Under Clause 49 she can require decisions to be made if she thinks that an authority is taking too long.

When the amendment was moved and noble Lords spoke in favour of it no mention was made of the commissioner's powers in this instance. She has a real power to make sure that public authorities do not abuse their position. Of course there is no specific time, but to say within a "reasonable" time is not as loose as the noble Lord indicates.

Photo of Lord McNally Lord McNally Liberal Democrat

I take on board what the Minister said about the commissioner's powers. They are to a certain extent stable-door-slamming powers and will become active only when abuses become apparent. We are trying to make sure that abuses do not occur in the first place. There is a problem with reasonableness. The noble Lord will have heard of the visitor in the west of Ireland who asked a local whether there was anything in Gaelic equivalent to manana. He replied, "Nothing with that sense of urgency". Reasonableness quickly equates with manana unless there is a spur to action.

At this stage we are willing to withdraw the amendment, but we shall certainly come back to the issue at a later stage. Whatever the Minister may say about other parts of the Bill, we feel that a "reasonable" period is open-ended and open to abuse. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 78 not moved.]

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office

moved Amendment No. 79:

Page 5, line 35, at end insert--

("(2A) If, and to the extent that--

(a) section 1(1)(a) would not apply but for paragraphs (a) and (b) of section (Effect of exemptions)(1), or

(b) section 1(1)(b) would not apply but for paragraphs (a) and (b) of section (Effect of exemptions)(2), the public authority need not comply with section 1(1)(a) or (b) until such time as is reasonable in the circumstances; but this subsection does not affect the time by which any notice under section 15(1) must be given.").

Photo of Lord Lucas Lord Lucas Conservative

In view of what was said in reply to the immediately preceding group of amendments, I really urge the Government not to proceed with this amendment. The idea that we should allow this bottomless pit to be inserted into the time limits in the Bill is inappropriate. I hope that the Government will take the amendment away and think again.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office

We have already dealt with this point, both in what I said earlier and in what my noble friend Lord Bach has just said. I do not think that it would be at all sensible for us to go over the ground again. It is quite late at night as well--a quarter to eleven--to go through the same arguments. We all know where we stand in relation to the point. Of course we bear in mind what has been said, but the Government's position has been put.

On Question, Whether the said amendment (No. 79) shall be agreed to?

Their Lordships divided: Contents, 48; Not-Contents, 12.

Division number 1

See full list of votes (From The Public Whip)

Resolved in the affirmative, and amendment agreed to accordingly.

[Amendment No. 80 not moved.]

Clause 9, as amended, agreed to.

[Amendment No. 81 not moved.]

Clause 10 [Means by which communication to be made]:

Photo of Lord Lucas Lord Lucas Conservative 10:50, 17 October 2000

moved Amendment No. 82:

Page 6, line 15, leave out from beginning to ("the") and insert ("a form specified by").

Photo of Lord Lucas Lord Lucas Conservative

In moving Amendment No. 82 I shall speak at the same time to Amendment No. 91, which has been moved from a previous grouping, and Amendments Nos. 104 and 125.

The amendments concern our Internet future and the way in which the Bill will operate. It will come into force at about the same time as our 2005 Internet government and it seems to me that we should draft the Bill with the requirements of that kind of medium and culture in mind.

Amendment No. 82 relates to the wording of Clause 10. At the moment, an applicant has a right to express a preference for a copy of the information in permanent form or in another form acceptable to him. I do not consider that wording to be clear enough. The amendment substitutes the words "a form specified by" the applicant.

If I wanted information in electronic form, as I would do, I should--we all should--be able to expect electronic information under an Internet government. I do not want to be fobbed off with a paper copy that I can make no good use of. It is quite reasonable to ask for the information in electronic form.

The public authority has to comply with such a request only "so far as reasonably practicable". If I ask for information in a form which is not practicable for the public authority, it does not have to comply with my request. But I should have a reasonable expectation that the information will be provided in the form specified by me if that is reasonably practicable. The amendment seeks to insert a better formulation of the duty which a public authority should be under.

Amendment No. 91 addresses the question of copyright, as do Amendments Nos. 104 and 125. If you acquire information in electronic form under the Freedom of Information Act, you will want to communicate that information. You will want to put it on your website and pass it on to other people. As currently practised by the Government, copyright is a considerable obstacle to that. It has been decaying slowly over the past few years, and this year we have at last the relinquishment of copyright in the schools performance tables by all four parts of the United Kingdom. It has been a long time in coming, but people are now free to reproduce, analyse and make use of that information on the Internet and to provide it in the way that they want to people interested in UK schools.

But this is a much more general problem. There is a great deal of information out there which is subject to Crown copyright merely because it is in a publication in some form or another. To try and impose that copyright in a web-based world is not sensible or feasible. Indeed, to tell someone, "Yes, you can have this information under the Freedom of Information Act but you cannot publish it"--which, in Internet terms, means you cannot tell anyone else about it because almost all Internet communication amounts to publishing--is a negation of what the Freedom of Information Act should be about.

The effect of Amendment No. 91 would allow public authorities to charge a fee where copyright is involved; Amendment No. 104 seeks to give the applicant the right to publish, subject to fees; and Amendment No. 125 concerns the effects of these various matters on Clause 19. It states that information is not reasonably available if it is not available in electronic form; and that information is not reasonably available if it is not free to be published on the Internet.

There may well be better ways of achieving these aims. It may be that this is an area which is still a matter of controversy within the Government. I hope that the Minister will be able to bring us up to date on the Government's thinking and perhaps give a reassurance that these are problems that the Government intend to address in the course of developing full electronic government by 2005. If that is the case, I hope that he will also be able to show us how these matters are dealt with in the wording of the Bill as drafted, so that when decisions are taken on this matter we shall not need to return to primary legislation but can deal with it in secondary legislation--if indeed any legislation is necessary. I beg to move.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative 11:00, 17 October 2000

I have sympathy with my noble friend's amendment, and also with the points that he makes about copyright. However, I rise to draw attention to Amendment No. 83, which specifies that Braille and large print can be used in responding to an applicant.

It is important that the Government should make clear their attitude to this. The amendment is not an absolute insistence on all information being available in Braille; it is governed by the later provision about being "reasonable in the circumstances". Nevertheless, the amendment draws attention to the needs of those who require information in Braille or large print. The amendment was tabled in order to draw out the Government's intentions.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office

The intention of Amendment No. 82 is to ensure that an applicant should always be able to require that information is supplied to him or her only in his or her preferred format, to include electronic format--which I believe is what the noble Lord, Lord Lucas, has particularly in mind. The major way of seeking to achieve that is to delete the words "in permanent form". But that makes no difference to the construction of the provision. If those words are deleted, the right of the applicant is to have the material provided to him in a form that is acceptable to him so far as is "reasonably practicable". Getting rid of the words "in permanent form" would not change that at all; even if they remained in the provision, the right would be the same. So there is no real difference between the Government and the noble Lord, Lord Lucas, in that respect.

That applies equally to Amendment No. 83. Again, the applicant is entitled to receive information in a form that is acceptable to him or her so far as is "reasonably practicable". If it is reasonably practicable to provide the information in Braille or large print, it will be so provided if that is what the applicant requests. It would be wrong to make special provision for that sort of format because there may be other formats of a similar sort and there is no need simply to provide for one. Again, the requirements of the noble Lord, Lord Lucas, are met.

Amendment No. 104 would have the effect that an applicant would be able to publish any information received by him as a result of a disclosure under the Bill, subject to the payment of any fee specified under regulations made under Clause 14 or Clause 19 as amended. The entitlement to publish such information would include publication in print, on the Internet, or by any other means.

The noble Lord made clear that his Amendment No. 104 is intended to ensure that disclosure of information by virtue of Clause 1 of the Bill incorporates a waiver in respect of the applicant of intellectual property or copyright rights in the information, subject, of course, as the noble Lord acknowledges, to the payment of a fee. It was never the Government's intention that FoI legislation should result in a transfer or other weakening of existing intellectual property or copyright protections. The Government recognise the importance that modern technology now places on the effective exploitation of publicly held and available information. That applies not just to FoI information but to all government published information. They are considering separately how publicly held information may be most effectively made available for commercial or other exploitation without putting at risk the question of copyright and the status and effectiveness of those public bodies such as the Ordnance Survey which operate under a trading fund regime.

The noble Lord asked what the developments are on the issue. As noble Lords know, most central government information is subject to Crown copyright. The regulation and licensing of Crown copyright rests with the Controller of HMSO. The management of Crown copyright has been the subject of a wide-ranging review process. Following consultation with private and public sector interests, a simplified and streamlined system for licensing Crown copyright was announced by the Government on 6th September. An on-line click-use pay class licence will provide a mechanism covering the re-use of a wide range of government information which is quick and simple. Charging will be based on a marginal cost model, which will in cases where information is published officially mean a nil cost to the user. Other principal benefits address the demand for a one-stop shop approach to the licensing of government information, so avoiding the need to negotiate separately across government with individual departments and agencies. Therefore, we are addressing these issues in a much wider way than simply in relation to freedom of information.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

Can the Minister say whether similar liberalisation will occur in relation to parliamentary copyright, or does this apply only to Crown copyright? Perhaps the noble and learned Lord would like to consider the matter at a later stage. It is very important because of the fact that the property with which we are concerned--the parliamentary copyright--ought to be public property and not the property of these Houses.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office

I do not know the answer. Off the top of my head, I suspect that Crown copyright is a matter for the executive, whereas parliamentary copyright will be matter for the parliamentary authorities. I do not know if that is the right answer. I shall therefore check on the position and write to the noble Lord in that respect.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

I raised the matter because in Australia and the United States there are special exemptions to deal with the situation. It is a very important issue. I realise that it may not be within the scope of Government's power, but I should be grateful if the matter were clarified at some point.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office

The Clerk at the Table nodded when I said what I said. Therefore, the noble Lord can take that as an indication that I may be in the right area.

Amendment No. 125 would introduce two new subsections to Clause 19. The first of these would have the effect that a public authority would not be able to claim an exemption from disclosure of requested information on the grounds that the information was exempt because it was already "reasonably accessible" if access to that information was not in an electronic format "reasonably" requested by the applicant. The second subsection of the amendment would provide that information is not considered to be reasonably accessible if the applicant were not free to publish that information, subject to the payment of a fee.

As to the first of these proposed new subsections--namely, that it should not be treated as "reasonably accessible" if it is not available in electronic format--this is presumably intended to ensure that a public authority would not be able to avoid providing information in the applicant's preferred electronic format simply because that information may have been previously published in another format and be reasonably accessible in that format. No similar provisions are proposed in respect of requests for information already reasonably accessible but which an applicant may wish to receive in a different but non-electronic format.

Therefore, the noble Lord is suggesting a special regime to apply where it is reasonably accessible but not in electronic form. Nevertheless, Clause 19 would not apply. It would result in public authorities being required to carry out considerable additional work in respect of information that they had already made available in the public domain and could give either an applicant or a pressure group the power potentially to disrupt the work of an authority by making excessive and unreasonable demands for information to be converted into a preferred data format. So at present we are not attracted to the proposal in the first part of this amendment.

Again, as regards the second subsection, in which an applicant would be free to publish such information subject to the payment of a fee, I believe that I have already dealt with that in my remarks. That deals with all the amendments tabled by the noble Lord for this evening, except Amendment No. 91 which seeks to make provision in the Bill for a public authority to charge an applicant where that applicant is seeking to publish information disclosed to him under the Bill where copyright of that information is held by the authority. The effect of the amendment would be to impose a charge for the transmission of the information. That is already provided for in Amendment No. 90. Therefore no further amendment is required. I would like to make it clear that in so far as his amendment supposes a right to get through copyright on the payment of a fee, that would not be permissible. In those circumstances I invite the noble Lord to withdraw his amendments.

Photo of Lord Lucas Lord Lucas Conservative

I am grateful for those replies. The Minister has given comfort in respect of at least half of that for which I was looking. I should be grateful if his officials would send me a copy of that September document because it is pretty vital to the consideration of the noble and learned Lord's replies that I understand what the Government are proposing in this area.

So far as my first amendment to Clause 19 is concerned, I am disturbed by the implication that if, as apparently happens, government agencies which have published their 1998 annual reports in text and have electronic copies will still be able to refuse to provide applicants with an electronic version because the paper version has been published. I do not find that a satisfactory situation. I accept that, as the noble and learned Lord says, my wording is not perfect, and I will read what he has said. I hope that he does not mean that he regards that situation as satisfactory, certainly not come the year 2005 and electronic government. In respect of particular formats that may be fine. I can see the difficulty that it must not be possible for people to refuse to provide information on the grounds that something inherently unsatisfactory is out there in the public domain. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

had given notice of his intention to move Amendment No. 83:

Page 6, line 15, at end insert ("including Braille and large print").

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

It is extremely tempting to press this amendment in order to celebrate the paralympics, but I shall not move it.

[Amendment No. 83 not moved.]

Clause 10 agreed to.

Clause 11 [Exemption where cost of compliance exceeds appropriate limit]:

[Amendments Nos. 84 to 89 not moved.]

Clause 11 agreed to.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office

moved Amendment No. 90:

After Clause 11, insert the following new clause--

:TITLE3:FEES FOR DISCLOSURE WHERE COST OF COMPLIANCE EXCEEDS APPROPRIATE LIMIT

(" .--(1) A public authority may charge for the communication of any information whose communication--

(a) is not required by section 1(1) because the cost of complying with the request for information exceeds the amount which is the appropriate limit for the purposes of section 11(1) and (2), and

(b) is not otherwise required by law, such fee as may be determined by the public authority in accordance with regulations made by the Secretary of State.

(2) Regulations under this section may, in particular, provide--

(a) that any fee is not to exceed such maximum as may be specified in, or determined in accordance with, the regulations, and

(b) that any fee is to be calculated in such manner as may be prescribed by the regulations.

(3) Subsection (1) does not apply where provision is made by or under any enactment as to the fee that may be charged by the public authority for the disclosure of the information.").

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office

I have already spoken to this amendment. I beg to move.

[Amendment No. 91, as an amendment to Amendment No. 90, not moved.]

On Question, Amendment No 90 agreed to.

Clause 12 [Vexatious or repeated requests]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office

moved Amendment No. 92:

Page 7, line 8, leave out from beginning to ("to") and insert ("Section 1(1) does not oblige a public authority").

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office

I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

moved Amendment No. 93:

Page 7, line 9, at end insert--

("( ) It shall be lawful for a public authority to apply to the Information Tribunal for an order that an applicant who habitually and persistently requests information without any reasonable grounds for such a request is a vexatious applicant.").

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

We come to the question of vexatious applicants. Those of us who have served in another place know exactly the sort of people we have in mind, who can become very difficult. I do not think that any of us would want to take out a provision of this character. But the question is how a vexatious applicant should be defined and identified. The proposal in the Bill is that it is someone who makes a repeated request. There are some people who deliberately and quite legitimately make repeated requests. Journalists following up a story will sometimes come back with another question a month or two later and may pursue it for some months if a situation is developing. The same is true of other people.

Therefore, we have suggested in Amendment No. 94 that the current test should be deleted and in Amendment No. 93 that a public authority should be able to apply to the information tribunal to seek that a particular individual should be regarded as vexatious for this purpose. This matter is worthy of consideration. I beg to move.

Photo of Lord Bach Lord Bach Government Whip 11:15, 17 October 2000

I do not know whether the noble Lord wishes to speak also to Amendment No. 94.

Noble Lords:

He mentioned it.

Photo of Lord Bach Lord Bach Government Whip

In that case I shall reply to it briefly.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

Amendment No. 94 seeks to delete the current test. Amendment No. 93 seeks to insert a new test.

Photo of Lord Bach Lord Bach Government Whip

Amendment No. 94 would delete Clause 12(2) which allows authorities to refuse a request if the same applicant had recently been supplied with the same or substantially similar information. The removal of this subsection could allow unreasonable burdens to be placed on authorities by requiring them to respond to repeated requests from the same applicant for the same information in all circumstances.

Such a provision runs the danger of hampering the carrying out of the functions of the authority concerned, particularly in the case of a small authority. This is not the aim of the Freedom of Information Bill, and would be damaging to the cultural change which we aim to encourage in the public sector. The clause is drafted so that whether an authority has to comply with a repeated request will depend upon what is reasonable in the circumstances.

By way of illustration, if the authority is small or if the cost of providing the information is large, then it may be very burdensome indeed to require an authority to provide the same information to the same applicant once it has already done so. However, in other circumstances, say for relatively simple information provided by a large organisation, the information ought to be provided. Furthermore--the noble Lord, Lord Cope, may consider that this is important--if the information is of a sort which could be expected to change rapidly, a "reasonable interval" could be a matter of weeks, or even days. This would cover the situation, for example, of a journalist making requests say, to a local authority. Therefore, the provision provides a safeguard for authorities, but also takes account of the rights of applicants by turning on what is reasonable in the circumstances. It should be noted that the commissioner will, of course, be able to arbitrate on what is reasonable and what is not, and I am positive that she will ensure this provision is not abused. I therefore ask the noble Lord to withdraw his amendment.

As the noble Lord said, Amendment No. 93 seeks to insert a new test. The effect of this amendment would be to allow authorities to apply to the Information Tribunal for an order stating that an applicant who habitually and persistently requests information without any reasonable grounds for such a request is a vexatious applicant. This would be an additional basis on which an application need not be complied with, over and above that contained in subsection (1) of this clause.

This amendment raises two issues. In the first place it removes the obligation from authorities to comply not only with vexatious requests, but vexatious applicants. This is a significant shift. The notion of a "vexatious request" in subsection (1) of Clause 12 is intended to capture such things as supplementary requests from the same individual for further and further clarification of an original request beyond the point where any further information could reasonably be provided. In this case, the request can be said to be vexatious because no further information can be supplied.

The notion of a vexatious applicant--which the amendment seeks to add--on the other hand requires the authority to come to a conclusion as to the motives of the applicant: in the words of the amendment, whether the applicant has "reasonable grounds" for making the request. But what would constitute reasonable grounds--that the applicant had an interest, or needed to know the information?

This Bill will give to people for the first time a statutory right to information. The idea that people have to establish an interest or need to know the information before they have the right to request the information undermines the reasoning behind a general right of access. The Bill is intended to end the "need to know" culture. The amendment would introduce it again by the back door. The Government's proposals will create a right of access which we hope will be "applicant blind". The Bill does not empower authorities to scrutinise an applicant's reasons for making a request. We believe that the amendment would fatally undermine this important principle.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

I am grateful to the Minister for giving way. I think that it follows from what he said but I want to draw attention to the report of the Select Committee on the European Union on public access to EU documents, published on 25th July. In paragraph 139 it dealt with this very problem. I served as a member of that committee. I want to clarify whether there is agreement between the committee and what the Government now say. We were there dealing with the same problem of vexatiousness and so on. The report states that a distinction can be drawn between repeat requests and requests for large documents for genuine and legitimate reasons and applications which are vexatious. If the applicant is prepared to pay the costs, repetitive costs should not be automatically rejected.

Am I right that that is the position the Government take on this Bill?, Provided that the applicant is prepared to pay, the mere fact that there are repeated requests should not be regarded as vexatious in itself. Perhaps it is a matter that needs to be considered.

Photo of Lord Bach Lord Bach Government Whip

The answer is, "not of itself". We are not precisely on all fours with the views of the Select Committee. I am grateful to the noble Lord for reminding me of them. It is some time since I read that paragraph; I do not recall it well at this hour of night. The Government's position is slightly different. It would be worth comparing what I have said and the view of the Select Committee.

It may be that an applicant will make requests to authorities which could be inconvenient or embarrassing. However, as long as the requests are properly formulated the authority should be obliged to comply with them, subject to the conditions and exemptions carefully set out in the Bill. These already pay sufficient regard to the practical and commonsense needs of authorities in relation to the form of the application, the fees they may charge--the noble Lord, Lord Lester, spoke about that--the means by which the information is to be communicated, the time limits for communicating information, and providing appropriate exemptions for sensitive information. We do not believe that there is any need for this further provision.

The amendment raises two issues. The second concerns the effect of any tribunal's order. What effect would such an order have? Would it mean that the authority could disregard all requests the individual made? The amendment does not make that clear. However, in any case an individual could conceivably make numerous requests which might properly be regarded as vexatious, but the authority should not be released from its duty to respond to requests of substance. That is an important principle. By branding an applicant "vexatious" the amendment would allow an authority to disqualify all requests an applicant made regardless of their individual formulation. That is why we believe that it is important that the "vexatious" applies to the requests and not to the person.

It may be that this power to apply to the tribunal is intended to prevent authorities abusing the provision. However, if that is so it is unnecessary. The Bill already allows applicants who have made requests that an authority regards as vexatious to complain to the information commissioner and, if still dissatisfied, appeal to the same tribunal. This will ensure that authorities do not wrongly apply the provision in Clause 12. I believe that in this instance we have got it right. I invite the noble Lord to withdraw the amendment.

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

This is an issue we must consider further with, in this case, the Law Society of Scotland which suggested the precise wording of Amendment No. 93. However, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 94 not moved.]

Clause 12, as amended, agreed to.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office

moved Amendment No. 95:

After Clause 12, insert the following new clause--

:TITLE3:SPECIAL PROVISIONS RELATING TO PUBLIC RECORDS TRANSFERRED TO PUBLIC RECORD OFFICE, ETC

(" .--(1) Where--

(a) the appropriate records authority receives a request for information which relates to information which is, or if it existed would be, contained in a transferred public record, and

(b) either of the conditions in subsection (2) is satisfied in relation to any of that information, that authority shall, within the period for complying with section 1(1), send a copy of the request to the responsible authority.

(2) The conditions referred to in subsection (1)(b) are--

(a) that the duty to confirm or deny is excluded only by a provision of Part II not specified in subsection (3) of section (Effect of exemptions), and

(b) that the information is exempt information only by virtue of a provision of Part II not specified in that subsection.

(3) On receiving the copy, the responsible authority shall, within such time as is reasonable in all the circumstances, inform the appropriate records authority of the determination required by virtue of subsection (3) or (4) of section (Decisions relating to certain transferred public records).

(4) In this Act "transferred public record" means a public record which has been transferred--

(a) to the Public Record Office,

(b) to another place of deposit appointed by the Lord Chancellor under the Public Records Act 1958, or

(c) to the Public Record Office of Northern Ireland.

(5) In this Act--

"appropriate records authority", in relation to a transferred public record, means--

(a) in a case falling within subsection (4)(a), the Public Record Office,

(b) in a case falling within subsection (4)(b), the Lord Chancellor, and

(c) in a case falling within subsection (4)(c), the Public Record Office of Northern Ireland;

"responsible authority", in relation to a transferred public record, means--

(a) in the case of a record transferred as mentioned in subsection (4)(a) or (b) from a government department in the charge of a Minister of the Crown, the Minister of the Crown who appears to the Lord Chancellor to be primarily concerned,

(b) in the case of a record transferred as mentioned in subsection (4)(a) or (b) from any other person, the person who appears to the Lord Chancellor to be primarily concerned,

(c) in the case of a record transferred to the Public Record Office of Northern Ireland from a government department in the charge of a Minister of the Crown, the Minister of the Crown who appears to the appropriate Northern Ireland Minister to be primarily concerned,

(d) in the case of a record transferred to the Public Record Office of Northern Ireland from a Northern Ireland department, the Northern Ireland Minister who appears to the appropriate Northern Ireland Minister to be primarily concerned, or

(e) in the case of a record transferred to the Public Record Office of Northern Ireland from any other person, the person who appears to the appropriate Northern Ireland Minister to be primarily concerned.").

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office

The amendments are intended to deal with the relationship between the Public Record Office and originating departments that handle requests under the Bill.

The Public Record Office and the Public Record Office of Northern Ireland are public authorities under the terms of the Bill, which therefore gives rights of access to all of the information that is held by those offices. It also recognises the 30-year rule by disapplying certain exemptions after 30 years. The amendments involve the relationship between the Public Record Office or the Public Record Office of Northern Ireland and the public authority from which the information that was placed in the relevant record office came. Clearly, departments and public authorities continue to have an interest in public records that they transfer to a record office, especially when the records have not been designated as open on transfer. The amendments are necessary to give the Bill maximum clarity in this context.

Amendment No. 95 deals with the situation in which the appropriate records authority, such as the Public Record Office, receives a request for information that is contained or, if it existed, would be contained, in a transferred public record. When a non-absolute exemption applies, the appropriate records authority shall send a copy of the request to the responsible authority--that is, the public authority from which the documents or information originated--within the period for complying with Clause 11. After that, the responsible authority shall apply to the appropriate records authority within a reasonable time giving its decision about the public interest test and confirming or denying the information as held. That should be done in relation to disclosure under the requirements of subsections (3) and (4).

Amendment No. 333 will apply to information that is contained in a transferred public record that has been designated as closed by the responsible authority. In that situation, the requirement is that before a decision is made about whether an exemption applies, the originating public authority must be consulted. If a non-absolute exemption applies, it is, as with Amendment No. 95, for the original public authority to decide whether the public interest requires disclosure.

Subsection (5) of the amendment will require that the responsible authority--that is, the authority that sent the matter to the record office in the first place--must consult the Lord Chancellor before determining that the public interest does not require disclosure. That provision reflects the Lord Chancellor's role in relation to public records and it works as a further guarantee of openness.

Amendment No. 105 clarifies the minutiae of the way in which the clause will work and seeks to ensure that it fits with other amendments concerning public records. It does not represent a change in policy.

Amendment No. 316 will allow responsible authorities that have decided that there should not have been disclosure but which have been overturned by the information commissioner to appeal against the conclusion of the information commissioner. That is because those bodies have an interest in resisting the conclusion of the information commissioner.

The amendments make redundant Clause 65, as it is currently drafted. I hereby formally give notice that I shall oppose the continuation of that provision in the Bill.

Amendments Nos. 357, 362, 363 and 364 provide definitions for the various authorities concerned, and Amendment No. 330 is consequential on the amendments that will restructure the right of access. I beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

I seek clarification on two matters. First, paragraph 6.7 of the White Paper stated:

"So far as criteria for withholding documents for longer than 30 years was concerned, the over-riding presumption would be that all records preserved for historical reasons would be made available to the public at 30 years".

It went on to explain that the 1993 White Paper on open government laid down the strictly defined criteria that must be met if information is to be withheld from the public for longer than 30 years. The Government continued:

"As part of our general approach to giving access rights a statutory basis, we propose to incorporate these criteria into statute so that they have the same status as the tests governing access to current information".

My first question is whether that is reflected in the Bill. I do not ask for an answer at this hour this evening, but I am concerned that the overriding presumption should be, as the White Paper promised, that nothing beyond the 30-year rule should normally apply and that the split criteria of the Bill will apply in this case.

My second point is about timing. The Lord Chancellor's draft code has helpfully been placed in the Library. On themanagement of records under freedom of information, paragraph 11.3 in part 2 says:

"In reviewing records for public release, authorities should ensure that public records become available to the public at the earliest possible time in accordance with the Freedom of Information Act 2000".

It does not say within a reasonable time in all the circumstances but at the earliest possible time. Again, I do not expect an answer this evening but we may have to return to the issue. We need to be satisfied that there will be a speedy requirement in this area, which mainly affects historians and others concerned with historical documents.

If the Minister does not have an immediate answer, I should be most grateful if he would reflect on those two issues: the strictness of the criteria and the timing.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State, Cabinet Office

I shall reflect on those issues. I can tell the noble Lord what I think the answer is, subject to checking. The amendments do not relate to the historical exemption, if that is the right word. That is dealt with in Clause 62, which removes a huge number of exemptions from non-disclosure as a result of the material concerned being a historical record that satisfies the 30-year rule. I do not know whether that satisfies the noble Lord. I shall certainly reflect on whether it complies with what the White Paper said, but I think that it does.

The noble Lord referred to paragraph 11.3 of the code of practice on the review and transfer of public records, which says:

"In reviewing records for public release, authorities should ensure that public records become available to the public at the earliest possible time in accordance with the Freedom of Information Act 2000".

That refers to the age of the records, encouraging release before the expiry of the 30 years. It does not deal with time limits within the freedom of information regime. I hope that that clarifies matters.

On Question, amendment agreed to.

Clause 13 [Disclosure in public interest]:

[Amendment No. 96 not moved.]

Photo of Lord Bach Lord Bach Government Whip

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at twenty-six minutes before midnight.