My Lords, the purpose of this amendment is to bring the status of information provided in confidence into line with the other exemptions in the Bill in relation to the public interest test.
At the moment, Clause 40, which deals with information provided in confidence, is exempt from the public interest test, either the old one or the new one as recently revised. That is put forward on the basis that the Government tell us that there is already a public interest test in the law of confidence but they have agreed that that is an extremely weak public interest test of very limited application and also, it is qualified by the wording in Clause 40(1)(b) where it says that,
"the disclosure of information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person".
In Committee the noble and learned Lord tried to give us some comfort that "actionable" meant that information was not exempt unless a case would be lost. But since then, a number of people have told me that that is not the case. Perhaps the noble and learned Lord would care to repeat his assurances. The information that I have since received is that that merely reflects the fact that there is an arguable case, rather than a case which would definitely be won were the action to be brought. That is obviously a crucial matter of understanding and I shall listen to what the noble and learned Lord says about it.
In any event, it seems to me to be an anomaly that we should be dealing, in this particular exemption, with a phrasing, a formulation, of the public interest test which is different from that applied to any other exemption.
It seems to me that if we make the amendment which I suggest here, we shall be in a position where the general public interest test in the Bill will apply to information provided in confidence.
Then, obviously, if an action might be brought and won for breach of confidence, that would be a very significant weight in the scales against the publication of that information. But it would find its proper place in the scales. It would be being weighed against the public interest in disclosure by the same test as should be applied to every other exemption and we should not be faced with a position where information provided in confidence, which is a large and crucial part of information held by government, was, in practice, extremely difficult to get at because one would have to go to the courts to have any hope of extracting it. It is extremely difficult to know how one would set about extracting it because one would have no rights under this Bill and no obvious rights to go to law to dig it out.
This really comes back to BSE. There is an awful lot of information which was provided to the Government in confidence, particularly about how effectively the BSE controls were being enforced. It was extremely difficult to get that information out of government before the proper and regular publication of that information was commenced because it had been provided to government in confidence and the Government therefore felt that they had to keep it in confidence.
There are many other occasions to do with the safety of medicine and the safety of veterinary practices and other areas where a lot of information is provided to the Government in confidence. It is crucial that that information should be subject to the same public interest tests as we have for information in the rest of the Bill.
Of course, as I said, if an action would be won for breach of confidence with the consequent damages being awarded against the Government, that would have to be weighed in the scales against the public benefit of the publication of information and it would have to be a fairly tremendous public benefit to outweigh it. But at least it would be public benefit defined in the same way for this exemption as for other exemptions and not by the very limited tests which are down there in common law for breach of confidence as it is at the moment.
This is a crucial part of making sure that we do our very best to avoid the mistakes which were made in the case of BSE. It is a crucial part too of giving the public confidence in the operation of this legislation; that there is not--by just writing "In confidence" at the top of a piece of paper and it being clear that information is being provided in confidence--the understanding that it can be hidden away for ever, subject only to the very limited tests in general law to which information in confidence is subject. We must have something which is consistent and rigorous. I beg to move.
My Lords, I rise briefly because I remember that in Committee, the noble and learned Lord indicated that the Government were considering giving further thought to amending the code of conduct under what is now Clause 45 to ensure that public authorities did not accept information on a confidential basis unless that was strictly necessary.
I appreciate that that does not require any amendment to the Bill but I should be grateful if the noble and learned Lord could give us some assurance in relation to that matter.
My Lords, I support the amendment moved by my noble friend Lord Lucas. In many cases, as my noble friend said, a legally binding obligation of confidence would arise merely because a third party and an authority agreed between themselves that a communication would be in confidence. That would make it remarkably easy for the two parties to ensure that their exchanges were exempt from any access, perhaps because they knew they would attract criticism or public interest, more than they would like to see.
So it seems to me that information subject to an obligation of confidentiality should be subject to a stronger public interest test than, as far as I understand it as a layman, would be the case under the common law of confidence. In Standing Committee in the other place, Mr Mike O'Brien, the Home Office Minister, on 1st February at col. 362, said:
"Case law [for breach of confidence] has produced a type of public interest test, though not of the level used in the Bill".
He went on to state:
"the common law of confidence contains a public interest test, but I do not claim that that interest test is of as high a standard as the one in the Bill".
I see no reason why it should not be subject to the same standard as that in the Bill.
My Lords, I have a few remarks to make at the outset. First, the word "actionable" does not mean arguable, as the friends of the noble Lord, Lord Lucas, appeared to have implied to him. It means something that would be upheld by the courts; for example, an action that is taken and won. Plainly, it would not be enough to say, "I have an arguable breach of confidence claim at common law and, therefore, that is enough to prevent disclosure". That is not the position. The word used in the Bill is "actionable" which means that one can take action and win.
Secondly, on the code of practice, I said what the noble Lord has said. We shall return with an amended code of practice aimed at dealing with the area of accepting information in confidence only if it is necessary to obtain that information and it is appropriate so to do.
Thirdly, on the point raised by the noble Lord, Lord Mackay of Ardbrecknish, over the years the courts have been acutely aware that simply describing something as "confidential" is not of itself sufficient to show that there is an actionable breach of confidence for the reason that the noble Lord pointed out. Simply to describe something as "confidential" as a means of keeping it from people may not mean that in truth it is confidential. The court would look at the reality rather than at the way in which the parties describe information.
Fourthly, the noble Lord, Lord Lucas, said in Committee and again today, supported by the noble Lord, Lord Mackay of Ardbrecknish, that the public interest test in the field is different from the public interest test applied by the courts in relation to breaches of confidence. That is absolutely correct. The point made by the noble Lord, Lord Lucas, is that there is a narrower public interest basis on which one overrides confidence at law than there would be under Clause 2. As the noble Lord said on the previous occasion--this is not the only test--words like "iniquity" are used to describe it.
Broadly, I believe that we agree on the basic parameters of this debate. Knowing all that, the Government take the view that public authorities should not be placed between a rock and a hard place. They should not have to choose between failing in their statutory duties under the legislation currently before your Lordships' House and leaving themselves open to an action at common law for a breach of confidence which they owe to a third party. That is what could happen as a result of the amendment of the noble Lord, Lord Lucas.
The amendment would mean that the public interest test would be extended to cover information, the disclosure of which would amount to a breach of confidence by the public authority. Hence, where the public interest in maintaining the exemption in Clause 40 was equal to, or outweighed by, the public interest in disclosing the information, no matter how slight the margin, the information would have to be disclosed, notwithstanding the fact that it was being held in confidence. That would be to amend by statute the common law of confidence, albeit in an indirect and uncertain way. We do not accept that that is an appropriate course.
The law of confidence already provides that where the public interest requires disclosure of information, albeit, as I accept, on a more narrow basis, no confidence can arise. The fact that it is more narrow is no relief when one is talking about information which has been provided in the correct belief--a simple belief is not enough--that a duty of confidence would apply.
The effect of the amendment would be to apply a wider public interest test to information which is properly regarded as being confidential by the common law. Inevitably, that would lead to third parties being less trusting of public authorities and less keen to provide them with information which they would want to be held in confidence. We believe that that could have an adverse effect on the ability of public authorities to carry out their functions satisfactorily.
Because of the point raised by the noble Lord, Lord Goodhart, in Committee, to which I explicitly accede in the remarks that I have made this evening, we recognise that the code of practice must be so constructed that information is genuinely obtained in confidence only when it is necessary to obtain the information and that that is appropriate.
On the BSE point, which seems to be at the heart of many of these discussions, the code of practice, to which the noble Lord, Lord Mackay of Ardbrecknish, attaches such significance, came into force in 1994. Before the Statement on the NHS, he said in response to my question that a matter of timing may have led to the code of practice not producing any information. Not one document in relation to the BSE crisis came out under the code of practice.
Plainly there is a clear public interest, as the noble Lord, Lord Lucas, has said, in knowing the facts about BSE. I do not believe for one moment that if this Bill had been in force in its present form, or maybe as amended later on Report, the Government would have been able to sustain an argument that the information should have been withheld.
Our intention and purpose, which has been made clear by my right honourable friend the Minister of Agriculture, Fisheries and Food in another place, is that the culture of secrecy which has led to the suppression of material in relation to the BSE crisis, despite the existence of the code of practice, should no longer apply. There should be no inhibition about, for example, publishing research carried out within government that may relate to the BSE crisis.
I believe that this Bill makes the difference in its specific terms and provides no proper basis for non-disclosure of those facts. I believe that the constant reference to the BSE crisis is correct and proper. This Bill marks the real difference between what went before and what will happen once the Bill takes effect.
That was a slight digression, but from a number of discussions that I have had with the noble Lord, Lord Lucas, both privately and publicly, on how the government of the day reacted to the BSE crisis, I know that that is a benchmark against which he measures this particular Bill. If one measures the Bill against that benchmark, I believe that it stands excellent examination.
I have set out our reasons for not accepting the amendment to delete paragraph (g) of Clause 2(3). I appreciate that the noble Lord may not agree with the reasoning, but the reasoning is clear. On the bigger issue of whether it will provide adequate disclosure in respect of BSE, I believe that the answer is "yes".
My Lords, the noble Lord, Lord Lucas, mentioned medicines and veterinary medicines. The Minister is aware of my interest in organophosphates. Can he tell me whether "commercial in confidence" information given to the licensing authority is covered by this clause? Occasionally chemicals are used that affect public health and, when questions are asked, often the answer is that the information cannot be given because it is "commercial in confidence".
My Lords, I can answer the noble Countess, Lady Mar. That is exactly the sort of information that is covered by this clause. It is also exactly the kind of problem that we ran into with BSE in relation to information about the enforcement of abattoir controls and how releasable that was because some of it had been obtained in confidence. The way in which the Government receive some of their information creates a real problem.
We understand the argument, but I do not believe that it is reasonable for the Government to take the view that civil servants should not to be asked to take decisions about such matters. Often in life we are faced with two rather uncomfortable alternatives and we have to make choices. It is important that there is a public interest test that is understood by everybody. It is not a matter of narrow balancing, exceeding one way or the other, and then landing ourselves with an enormous bill for breach of confidence.
As there is a possibility of action in relation to a breach of confidence, the public interest would have to be substantial in order to outweigh that. If my amendment were accepted, a point of minor public interest would not cause that kind of trouble. There would have to be substantial public interest to outweigh the possibility of damages being awarded in the courts against the agreed lower public interest test that would there be applied.
The Government are making a grave mistake in shying away from this amendment and I wish to test the opinion of the House.
My Lords, Schedule 1 lists "public authorities" for the purposes of the Bill. The purpose of these amendments is to ensure that the list is as up to date and accurate as possible.
Amendments Nos. 8 to 14 are technical amendments which maintain the accuracy of Schedule 1 to the Bill by ensuring that the schedule includes entries for bodies recently established. Provision is made in Clauses 4 and 7 for further necessary changes to the schedule to continue to be made once the Bill has been enacted. I beg to move.
moved Amendments Nos. 9 to 14:
Page 52, line 16, at end insert--
Page 53, line 33, at end insert--
Page 54, line 30, at end insert--
("The House of Lords Appointments Commission.").
Page 55, line 10, at end insert--
("A local probation board established under section 4 of the Criminal Justice and Court Services Act 2000.").
Page 55, leave out line 47.
Page 58, line 47, at end insert--
On Question, amendments agreed to.
Clause 7 [Public authorities to which Act has limited application]:
My Lords, Clause 7 gives the Secretary of State some order-making powers. Under the current subsection (3)(a) the Secretary of State has the power to place limitations on the information held by a public body which would be subject to disclosure in accordance with the Bill.
While I understand that some known arbitrary alternations of limitations might be desirable under certain circumstances, and given that the material abuse of Clause 7 would undermine the entire principle of the Bill, I would prefer to see the revision of existing limitations rather than the creation of new ones. In other words, I approve of subsection (3)(b), which would remove or amend existing limitations but I do not like subsection (3)(a) which gives the Secretary of State the power to create new ones. My amendment would do what I suggest.
The Government responded to our concerns expressed in another place by putting forward a proposal for an affirmative resolution and we welcome that. However, some important questions remain unanswered. For example, we would be grateful if the Minister would indicate the kind of information which might be exposed to limitation and whether the limitation would be applied on a departmental basis or by some other means.
It would be helpful if the Minister, the noble Lord, Lord Bassam, could tell the House what the Government mean by that, what their intentions are and give examples. Perhaps he will persuade me that this is not merely a piece of gold-plating for no apparent reason. As I understand the Bill, all information held by a public body would already be subject to the tests for exemption as laid out in the Bill. However, I am perplexed as to the need for what I consider to be a superfluous piece of legislation.
Despite all the warm words which the noble Lord, Lord Bassam, gave me in Committee, the existence, which I accept, of an affirmative resolution does not address the essential point; that is, the use to which the Secretary of State might put such a power. If the noble Lord believes that the power is so vital, can he give the House a scenario in which the Secretary of State might use the power. If he cannot, I do not believe that it should exist. I beg to move.
My Lords, I am grateful to the noble Lord for his question. The power to amend the entries in Schedule 1 so as to limit them to specific types of information is necessary in order to ensure that the bodies listed at Schedule 1 are covered by the Freedom of Information Act only in respect of those activities which should properly be the subject of the obligations in the Bill. It is not the Government's to apply the Bill to information held for purposes in respect of which it would be inappropriate and damaging to apply freedom of information principles. Journalistic information held by public sector broadcasters or private banking information held by the Bank of England are two current examples of such information.
Where we have identified information which needs to be protected in this way, we have amended the entry in Schedule 1 accordingly. However, we cannot be certain that any of the bodies listed may not change their functions in the future. For that reason, we need to make provision for a power to amend the entry if this should be deemed necessary. To that extent, Clause 7(3) is a just-in-case provision.
The noble Lord asked for an example, hypothetical or otherwise, and I am happy to try to provide one. The entry in Schedule 1 relating to the Bank of England is already limited to certain information. Should the Bank decide to add, say, an insurance provision to the services it provides to its private customers, that private activity which would relate to private customers would be brought within the scope of the Freedom of Information Act, unless an order was made to limit the entry in Schedule 1 specifically to exclude it.
That is why the power in Clause 7(3) is necessary. I hope that the noble Lord will accept the example I have given and feel able to withdraw his amendment.
My Lords, the noble Lord is always grateful for the question and in this case I am reasonably grateful for the answer. He set out a clear scenario and I hope that if the Secretary of State decides to go a good deal further a clever lawyer will be able to prevent him by using the courts and quoting what the noble Lord said and the example he gave. I am pleased to beg leave to withdraw my amendment.
My Lords, these are technical amendments. Amendment No. 16 clarifies the term "publicly-owned company" in Clause 7 so as to have the same definition as in Clause 6. Amendment No. 66 removes a reference to order-making powers which no longer apply. The powers referred to were previously contained in Clause 52 but amendments made in Committee mean that the reference is no longer necessary. I beg to move.
moved Amendment No. 17:
Page 6, line 6, at end insert--
("( ) For the purposes of subsection (1)(b)--
(a) the name of the applicant may be any name by which that applicant wishes to be known, and
(b) the address for correspondence may be an address suitable only for the receipt of electronic communications.").
Amendment No. 17 is also a genuinely technical amendment which rectifies an omission by the draftsman who has provided in subsection (2) of Clause 8 for the application of electronic conventions to subsection (1)(a), which says "is in writing", but has failed to provide for the application of electronic conventions to (1)(b), which requires a name and address for correspondence. There is no indication that that can be an electronic name, such as email@example.com or an electronic address, which is much the same thing. I hope that the noble Lord will say that the Internet age has dawned for both subsection (8)(b) and subsection (8)(a). I beg to move.
My Lords, the Internet age has dawned. The Freedom of Information Bill makes provision for an application to be purpose blind. It requires that an applicant must apply in writing, which includes any electronic application, and provide an address. These are commonsense provisions which are necessary to ensure that a public authority can carry out its statutory duty to communicate information to that applicant. The Bill assumes that an applicant will wish to give his real name, but nothing requires him or her to do so or to use any particular name. He can call himself Father Christmas, or even Ralph Lucas, if he desires. In any event, the name is not relevant, as long as the information provided is sufficient to identify the applicant for the purpose of communicating information. We believe, therefore, that the first amendment is unnecessary.
However, as drafted, paragraph (b) of the amendment appears to be intended to override the provisions of Clause 11 where an applicant provides only an electronic address to which information can be communicated. Clause 11 provides that an authority is under a duty to communicate information in the applicant's preferred format where it is reasonably practicable to do so. That is sensible and proportionate. A balance must be struck between public authorities being under an obligation to provide information to an applicant and the need to make sure that inappropriate amounts of both time and resources are not expended on each potential application.
We believe that, if passed, the noble Lord's amendment would mean that a public authority would be required to provide an applicant with information in electronic format regardless of the cost or other resource implications if the applicant declined to provide any alternative address for communicating that information. For example, it would mean that information contained in records which had always, or until relatively recently, been kept in written form--perhaps several hundred pages--would have to be converted if requested. The implications for public authorities such as GPs could be huge and, we believe, damaging if they had to divert time and resources from their main purpose in order to meet those demands. For those reasons, I invite the noble Lord to withdraw his amendment.
In moving Amendment No. 18 I speak also to Amendments Nos. 19 and 20. These amendments would require, instead of merely permit, the Secretary of State in his regulations under Clause 9(3) to specify the cases in which fees might or might not be charged, to set a maximum fee and to say how the fees should be calculated. Amendment No. 18 would confirm implementation of the subsections of Clause 4 which currently take the form of guidance rather than statutory requirements. It would then require fees regulations to reflect the provisions set out in the Bill and avoid circumstances in which the Secretary of State would have too much discretion, thereby allowing Parliament to be given a say in establishing the boundaries of the fee regulations. The amendment would prevent the imposition of unreasonable and restrictive fees on the public where access is potentially limited by the cost of fulfilling the request for information.
Amendment No. 19 creates a presumption that there will be no fee. To allow a fee to be charged in prescribed cases is likely to narrow the circumstances in which it is payable. We believe that it is more in keeping with the "Freedom" part of the Bill to prescribe those cases that involve fees and thus highlight that the information can automatically be restricted for some people. This amendment clearly defines when a fee can be levied.
Amendment No. 20 links the fees level to the main purpose of the Bill, which is to facilitate public access. Public authorities must bear in mind that the main purpose of the Bill is to allow members of the public to request information, and nothing must be done which excludes them from requesting that information because of the fee structure. The code of practice allows for information and is not subject to a charge, but under the Bill fees are to be charged on a basis set out in regulations issued by the Secretary of State. These amendments seek to prevent too high a level of fee being charged, which results in members of the public being unable to exercise their rights. The amendments seek to prevent a financial fissure being created between those who can afford access to information and those who cannot.
I wonder whether in this case I may tempt the Liberal Democrats to join me, despite the deal that they have made. Perhaps I may remind the noble Lord, Lord McNally, of his observations in Committee on 17th October. I was not present on that occasion; I was in Scotland on a rather sad occasion. The noble Lord said:
"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".--[Official Report, 17/10/00; col. 993.]
Having reminded the noble Lord of his words, I hope that I can look forward to his support.
My Lords, we have been round this circuit before, but on that occasion there was a different driver on each side. As the noble Lord said, for a sad reason he was unable to be present. At that time another of my noble friends answered the debate and that task falls to me today. Noble Lords opposite were not fully persuaded by the arguments employed last time, perhaps because the noble Lord, Lord Mackay of Ardbrecknish, was not present to advise them of the good sense of those arguments.
Amendment No. 18 would not have the effect of compelling the Secretary of State to make regulations but simply require that any regulations that might be made should include provisions to give effect to the matters listed in Clause 9(4). We believe that that is too prescriptive. It is quite sufficient to specify the particular matters which the Secretary of State may wish to consider, including in regulations, which is the effect of the clause as drafted. Regulations need to have a somewhat greater degree of flexibility than the primary legislation upon which they depend so as to enable them to adapt within the parameters set by subsection (4) to circumstances and practical experience. We believe that that is a reasonable and balanced way to proceed, rather than force the regulations needlessly to cover matters which practical experience and circumstances show that they do not need to cover.
Amendment No. 19 would force the Secretary of State to prescribe in the regulations the circumstances under which a fee might be charged. It was said in Committee that this did not take sufficient account of the scope of the legislation. This amendment, if passed, would require the Secretary of State to identify all types of information and the circumstances under which any one of the 50,000 authorities within the scope of the Bill might charge. Just to state it proves the impossibility of that task. But even if it could be achieved, the effect would be to produce regulations which would be complex, confusing and difficult to interpret. For the smallest public authority, any omission or failure properly to comprehend the implications could have a significant effect on its operational and financial viability, and that would be too high a price to pay. What we propose in comparison is sensible, comprehensible and, above all, deliverable and will ensure that the public are able to exercise their right of access to information without overcharging or obstruction through the fees structure.
Amendment No. 20 would introduce a statutory duty to set fees at a sufficiently low level to facilitate access to information by applicants. That is not necessary. The regulations will provide that the greater part of the costs of disclosing information under the Bill will be met by the public purse. The appropriate way to do that is through the detail of the regulations. A statement of a statutory duty to provide for a low level of fees to "facilitate" public access to information would be vague and unenforceable. What level would constitute "sufficiently low"? Should the fee be means tested to ensure that a wealthier person should pay a fee more commensurate with his level of income? Arguably, any fees would put people off to varying degrees, depending upon their means. No fees as such facilitate access to information. Looked at like that, the amendment could be seen even as unfair and counter-productive. The intention behind the amendment is clearly commendable, but we do not think that it will achieve the aim that it seeks.
The Government have published their draft fees regulations. The policy is that the maximum fee should be 10 per cent of the marginal costs of seeking and finding the information. We reckon that that is a fairly generous subsidy. I invite the noble Lord to withdraw his amendment.
My Lords, I am not overly surprised by the noble Lord's argument. I accept that my words,
"fees are set at a sufficiently low level", are a tinge on the vague side. But they have achieved what I meant them to achieve. I have on the record a fairly reasonable assurance of the Government's intentions. Although the noble Lord did not put it in as many words, he accepted that people must not be put off because of the fee structure confronting them if they ask for information. I am reasonably content with the noble Lord's answer. I do not know whether that means that the noble Lord made a better effort than his colleague in Committee. But I am prepared to accept that answer. I beg leave to withdraw the amendment.
My Lords, in moving Amendment No. 21, I shall speak also to Amendment No. 22. Under Clause 10, decisions on whether information is exempt must be taken within 20 working days. However, decisions on whether to disclose exempt information on public interest grounds are not subject to any time limit. Clause 10(3) allows these decisions to be taken within,
"such time as is reasonable in the circumstances".
That could allow decisions to drag on for indefinite periods, either because the authority was obstructive or merely because it had no formal target at which to aim. Because the public interest test is the sole basis for access to information covered by many of the class exemptions, all requests for such information would be subject to no real time limit at all.
Amendment No. 21 seeks to delete Clause 10(3). The effect of that would be to require decisions on public interest grounds to be taken within the same 20-day period as decisions on whether an exemption applies. That is in line with the existing code of practice, which has a 20 working-day period for all requests, regardless of whether or not the code's public interest test is involved. Home Office figures indicate that the 20-day target--or the shorter time limit set by some departments--is complied with in 92 per cent of cases. So it is not an impossible target.
The code's approach has been adopted in the Aarhus convention on access to environmental information, to which the Government are a signatory. The DETR in its consultation paper--Proposals for a Revised Public Access to Environmental Regimes published on 18th October 2000--said that it supports the convention's approach to time limits. The convention requires that information must be supplied as soon as possible and at the latest within one month of the request. All exemptions under the convention incorporate a public interest test. So this one month covers all decisions on which the public interest test has to be taken into account. We should put a time limit of 20 days in the Bill. That limit is used in other parts of the Bill. The code indicates that departments are able to meet that limit in the vast majority of cases. I beg to move.
My Lords, I rise to speak to Amendment No. 28 which is grouped with Amendments Nos. 21 and 22. I have a good deal of sympathy with the amendment that the noble Lord, Lord Mackay of Ardbrecknish, has just moved. But there is a problem. While, undoubtedly in the great majority of cases, it is and should be possible to take a decision within a 20-day period both on exemption and on the question of disclosure under Clause 2, there are nevertheless certain cases of particular sensitivity where consultation may be needed about the possible consequences of disclosure. Therefore, it is reasonable that a further period of time should be allowed. For that reason, we have tabled a considerably more modest amendment than the noble Lord's amendment. The amendment requires a public authority to give an estimate of the time it will take to reach a decision. That will set a bench-mark against which it can be tested.
The issue must be looked at against the background of Clause 10(3) which does not give a public authority an open-ended discretion as to the time it can take; it must comply within such time as is reasonable in the circumstances. We think that it will help if the public authority is not merely allowed to take a reasonable time, but must make and publish its own estimate of what a reasonable time is. I recognise that a public authority will give itself as much time as it thinks it may possibly use, but it is more likely to give a reasonable time for the estimate. That is likely, therefore, to have a beneficial effect in speeding up the time within which decisions are taken.
My Lords, I should have thought that the natural thing would be to say, "just a couple of weeks". Having waited a couple of weeks, one can usually persuade someone to wait a couple more weeks. If one is capable of reaching a decision within the first two weeks, that will give ample time to spin matters out. After a month it may be that the information has been rendered useless by other actions or other decisions that have been taken to deal with a problem which would have been brought to light earlier had the information been available more promptly.
In this and other areas where the timescales are undefined, what is lacking in the Bill is any sense of urgency. There is no imposition of urgency or promptness or mention of "as quickly as you can" or anything else. There is nothing to give the information commissioner some teeth to bite on authorities which do not so much delay unreasonably but generally dawdle and stretch timescales as much as they can.
I think that the Liberal Democrats have sold the pass very cheaply and that we could have achieved something a good deal better with their co-operation. It is clear that the point was understood by the Government in Committee. It is clear because the Government have agreed to the Liberal Democrat amendment. It is a great shame that the Liberal Democrats should have settled for such a little advance when, without any great difficulty, the Government could have conceded something much more useful.
My Lords, I was going to say, until I heard the noble Lord, Lord Lucas, that there was not a great deal between us on this issue. We debated the issue at an earlier stage. The Government explained the complexities which might lead to applications for information involving public interest disclosure decisions taking longer than 20 days to resolve. As the noble Lord, Lord Mackay, said, in 92 per cent of cases there is likely to be compliance with that deadline. We should all feel very pleased about that. It rather undermines the point made by the noble Lord, Lord Lucas.
The Government have a real concern that if time is short, authorities may be more likely to withhold information than disclose it, on the basis that where there is insufficient time to consider the matter properly 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 it would take too long. A properly considered decision that perhaps takes a little longer seems to me far better than an ill-considered one produced within a wholly unrealistic timescale. Thus the Bill provides for a reasonable limit in order to ensure that decisions are taken soundly.
Amendments Nos. 21 and 22 would have the effect not only of disadvantaging authorities by imposing an impractical time limit on them but might also disadvantage perversely applicants and others affected by disclosure, by causing decisions on the public interest to be taken hastily. The amendments would result in ill-considered decisions by authorities and work against the very culture of openness that the Government are seeking to achieve with this legislation. For those reasons, I invite the noble Lord, Lord Mackay, to withdraw the amendment.
Amendment No. 28, tabled by the noble Lord, Lord Goodhart, and others, concerns the timetable for making a decision where information which is requested is covered by an exemption, but not an absolute exemption; that is, where Clause 2 requires the public authority to determine where the public interest lies. The Government believe that it would be wrong to set an arbitrary time limit on decisions on disclosure in the public interest for all the reasons we have just been debating. However, we have listened to the strength of feeling on this issue. Having given further consideration to these matters, we accept that Amendment No. 28 is sensible, reasonable and practical in the circumstances, and that we can support the changes which the amendment would introduce.
Failure to provide an estimate of time would mean there was failure to comply with the requirements of Part I of the Bill. The commissioner would therefore be able to issue an enforcement notice under Clause 51(2), or a decision notice under Clause 49(4). In the light of the amendment, if accepted, the Government make a commitment to add a reference in the Secretary of State's code of practice under Clause 44 to the desirability of complying with estimates given. Failure to comply with the estimate would render the authority liable to a practice recommendation from the commissioner under Clause 47. So, to answer the point made by the noble Lord, Lord Lucas, there is a series of steps which give the provisions some teeth.
Finally, I should say that the Government remain of the view that wherever possible all information should be disclosed within a 20-day time period. That too--I give a commitment--will be reflected in the Secretary of State's code. For that reason, I commend Amendment No. 28 to the House.
My Lords, noble Lords should not be in the least surprised by the fact that the Government accept Amendment No. 28 as that was one of the four deals done by the Government with the Liberal Democrats. I am not entirely sure whether the Liberal Democrats think that that amendment is a great grain of comfort. I do not think it is very much. Frankly, I am not convinced. The idea that authorities might be more likely to withhold information if they are asked to provide it within 20 days would soon be ended when it became public knowledge that authorities were behaving like that. They would find themselves at the rough end of the courts, the commissioner or indeed Parliament.
I do not believe that four weeks represents hasty, although the time it takes to get letters out of some government departments suggests that four weeks is but a twinkling of an eye for them and that they do not think it matters. I think it is important that we have 20 working days. I am sorry that the Liberal Democrats are not with me. I am going to ask the opinion of the House.
moved Amendment No. 23:
Page 6, line 38, leave out paragraphs (a) and (b) and insert--
("(a) section 1(1)(a) would not apply if the condition in section 2(1)(b) were satisfied, or
(b) section 1(1)(b) would not apply if the condition in section 2(2)(b) were satisfied,").
On Question, amendment agreed to.
Clause 12 [Exemption where cost of compliance exceeds appropriate limit]:
"estimates that the cost of complying ... would exceed the appropriate limit".
That appropriate limit will be £500, although I understand that that figure has been worked out in consideration of the cost of searching for the information rather than the cost of giving it out, so to speak. However, the point is that the local authority has complete discretion to refuse. My amendment would put at the beginning of the subsection the words,
"Unless it is in the public interest to do so".
In other words, an authority would be obliged to comply with a request, regardless of the cost, where it is in the public interest.
What is interesting about this amendment is that I think that I am right to say that these words were included in the Bill when it started its progress through the House of Commons. Somehow, they were removed in the other place. I wonder whether this is another example of something which has been removed in error, as was the case with one of the earlier amendments. The Government removed a phrase in error and the Liberal Democrats considered it a great triumph to put it back. Could the same thing have happened here? Would the Government like to consider whether they have made a mistake and that they would now like to put this back into the Bill? In all seriousness, they were right initially to put in a test of public interest for a local authority to consider when deciding whether a request would lead to far too great an expenditure. I beg to move.
My Lords, I am sure that this amendment and the amendments with similar objectives which were debated in Committee are well intentioned. I shall endeavour to answer the question put to me by the noble Lord; namely, whether we have changed tack in error. I doubt whether that is the case, but I can understand why the noble Lord might wish to ensure that information which is in the public interest should be made public irrespective of cost. However, we do not believe that this is the right way to achieve that.
I shall try to explain why we feel that the amendment is not acceptable. Nothing in the Bill prevents a public authority from disclosing such information. That is a point that I made clear when we considered the matter in Committee. Where a public authority has the power to disclose information, it would be required to do so under administrative law; and when asked to disclose such information, in so doing to balance the costs of disclosure with the public interest. We feel that that is the sensible way in which to approach this issue, rather than the blanket disapplication of exemption provided for in Clause 12--regardless of the implications for the public authority. Indeed, those implications would be real and could from time to time be very substantial.
This Bill gives real rights of access to all information held, but--we have argued this point many times--this must be balanced against the administrative burden that it would place on public authorities. Clause 13 seeks to achieve that end. I can assure noble Lords that the Government intend to set the appropriate limit for the purposes of Clause 12 at £500. That should ensure that the clause does not unduly restrict the right of access.
The amendment could expose public authorities to disproportionate demands on their resources and jeopardise other important work. I believe this to be particularly the case with smaller public authorities. We advanced this argument at an earlier stage and we still believe it to be an important consideration, particularly when one considers how small are some public authorities. The point has been made on many occasions, but it is an important one. Although the noble Lord moved the amendment with his customary elegance, I do not think that he has particularly focused on that important matter. Many public authorities are unlikely to be large enough to be sufficiently flexible to adapt to such demands, even if they were able to recover the full financial costs.
In addition, the amendment would allow applicants with sufficient financial resources--for example, companies or wealthier individuals--to require the public authority to undertake time-consuming research on their behalf--again regardless of the size, scope and capacity of the organisation to undertake that research. That seems entirely unfair. For those reasons, I would ask the noble Lord to withdraw his amendment.
The noble Lord asked me a specific question. I said that I did not think this was an error. Apparently, it is not an error. The forerunner to Clause 2 was a direction to authorities to consider the public interest in disclosure when the Bill did not require it because the information was exempt. Clause 2 is now much stronger. For those reasons we feel that this is a sensible way of dealing with this issue.
My Lords, I am not wholly convinced but I am prepared to suspend judgment until we see what happens when the Bill comes into operation. If public authorities use the issue of costs excessively in order to decline information, I hope that whoever is in government at the time will be prepared to revisit the issue.
We believe that including the words,
"Unless it is in the public interest to do so", would have been a reasonable qualification. However, I have just tested the opinion of the House on one matter; I shall not do so again for the moment. I beg leave to withdraw the amendment.
moved Amendment No. 25:
After Clause 15, insert the following new clause--
(" .--(1) It shall be the duty of a public authority to provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to persons who propose to make, or have made, requests for information to it.
(2) Any public authority which in relation to the provision of advice or assistance in any case conforms with the code of practice under section 44 is to be taken to comply with the duty imposed by subsection (1) in relation to that case.").
My Lords, Amendment No. 25 is a relatively minor but useful improvement of the Bill as it now stands. Under the present Clause 44, the code of practice to be published by the Secretary of State must include, among other things, reference to the provision of advice by public authorities to persons who propose to make or have made requests for information. Public authorities should, of course, comply with that code, but it is not formally a statutory duty.
Amendment No. 25--which seeks to add a new clause after Clause 15--would achieve two things. First, it would add a duty to provide assistance to the duty to provide advice. Secondly, it would make the provision of such advice and assistance a statutory duty on a public authority, although it is provided in subsection (2) that the duty can be complied with by conforming with the code of practice.
The advantages are fairly self-evident. It seems a reasonable thing to require a public authority, subject to a test of reasonableness, to provide not only advice but also assistance to applicants for information, many of whom may be inexperienced in dealing with public authorities and need assistance in putting forward their application. It plainly strengthens the obligation to help with both advice and assistance to make it a statutory duty, as opposed to it being merely something which should be complied with because it is contained within a code of practice. I do not need to expand any further. I beg to move.
My Lords, while I was away and not attending at Committee stage, there came into my hands a document which I do not think has been referred to previously. We have had a number of references to comparative jurisprudence, but I do not think that anyone has referred to the Trinidad and Tobago Freedom of Information Act 1999. The transparency of that regime would, I think, shock and horrify the noble and learned Lord, Lord Falconer. However, I shall not impose anything else on him except to endorse the amendment.
I understand that the amendment will be accepted by the Government as part of the deal that they have made; it is highly desirable that it should be included in the Bill. I do, however, have one request. Having included the amendment in the Bill, and having made reference to the code of practice, I hope that the Government will not in any way truncate the passage in the present draft, to which the noble Lord, Lord Goodhart, referred. It deals with the detail of the steps that a public authority will need to take in order to carry out the duty imposed by the new clause and, if anything, it should be increased.
I hope that the Minister can assure the House that, even with the amendment incorporated in the Bill, there will be no diminution in the contents of the draft code of practice. I believe that the code of practice fills in many of the gaps in what is a necessarily very generalised statement of the duty to be imposed on public authorities in the amendment.
There appears above the heading of the draft code of practice, "Home Office--Building a Safe, Just and Tolerant Society". I wonder whether the Home Office will add the word "transparent" to the text. It would be a very good thing if it were to do so.
My Lords, although I suspect that many of us on this side of the House would today like to drop the Liberal Democrats into the Trinidad tar pits, it appears that they are seeking to camp on my Amendment No. 51, which is consequential on their Amendment No. 25. I am ever grateful for whatever small crumbs may fall second-hand from the Government's table.
If my understanding that the amendment is to be accepted is right, this would seem to be a sensible moment for the Government to say so. If not, I am still grateful for the Liberal Democrats' presence on the amendment because it will give us something to talk about together when we get to that moment.
My Lords, I am aware of the strength of feeling which was expressed in Committee about the arguments for placing a duty on public authorities to assist and advise applicants, and that that duty should be on the face of the Bill. I am grateful to the noble Lord, Lord Goodhart, for moving the amendment.
I have always made clear that it is the Government's intention that public authorities should do what is reasonable to help applicants to understand and exercise their rights under the Bill. In the past, I have expressed the Government's reservations about a duty to assist which is open-ended and impracticable to enforce because of its lack of clarity. However, the effect of this amendment is to impose a statutory duty upon public authorities to provide assistance to persons either who make or have made requests for information so far as it could be considered reasonable for the authority to do so.
Subsection (2) of the new clause helpfully clarifies that, where the authority has provided advice and assistance to the applicant in conformity with the guidance in the Secretary of State's code of practice, that authority shall be deemed to have complied with the statutory duty to assist. I can give the noble Viscount, Lord Colville of Culross, the assurance that he seeks. The existence of this statutory duty will not lead to a diminution in the substance of the code.
The amendment moved by the noble Lord, Lord Goodhart, would provide a clear message to public authorities about what they must do as a minimum to ensure that they have met the duty imposed by the amendment. Of course, it does not prevent them from going further if they able to do so. Because the duty that the amendment imposes is contained within Part I of the Bill, the duty to assist and advise will be enforceable by the information commissioner. If a public authority fails to comply with its statutory duty to assist, she will be able to issue an enforcement notice under Clause 51 or a decision notice under Clause 49.
The amendment will strengthen the requirement on public authorities under the Bill to assist applicants while ensuring that the duty is both clear and enforceable. I believe that it will make a difference to the culture, which is so important in relation to the effect of the Bill. I commend the amendment to the House.
So far as concerns the amendment referred to by the noble Lord, Lord Lucas, we shall accept it when we reach it, but it is separately grouped. So there is good news coming!
My Lords, will the clause refer to the kind of data about which many people are concerned following the floods? I refer to technical environmental information that it is difficult to obtain. Will public authorities be urged to provide the kind of information that people urgently need?
My Lords, perhaps the noble Lord, Lord Goodhart, should answer first, as this is his amendment; however, if he will permit me I am happy to respond. This is a duty imposed on local government to assist people in relation to the making of applications for information under the provisions of the Bill. The intention is that it should apply when, for example, someone wants to find out how an application should be framed. To take the example given by my noble friend Lord Hunt, if someone says that he or she seeks available information in relation to flooding, the public authority should assist the applicant in framing the application. If it is a matter of basic factual material relating to flooding, at the moment it is difficult to see what reason there could be for not providing it. The critical point about the amendment is that it focuses on helping people to make their applications. That is what it is designed to deal with.
moved Amendments Nos. 26 and 27:
Page 10, line 3, leave out from ("that") to second ("or") in line 4 and insert ("any provision of Part II relating to the duty to confirm or deny is relevant to the request").
Page 10, leave out lines 14 to 17 and insert--
("(i) that any provision of Part II which relates to the duty to confirm or deny and is not specified in section 2(3) is relevant to the request, or
(ii) that the information is exempt information only by virtue of a provision not specified in section 2(3), and").
My Lords, in moving this amendment, I shall speak also to Amendment No. 31B.
I raised the issue of the wording of subsection (4) in Committee in speaking to an amendment moved by my noble friend Lord Lucas. Under subsection (4),
"A public authority shall publish its publication scheme in such manner as it thinks fit".
It was not clear to me at Committee stage that publication of a publication scheme is caught by the provisions governing approval, by the commissioner, of the publication scheme. If it is not covered, then the provision offers the opportunity for an authority that is not well disposed towards disclosing information to devise a way of publishing details of its publication scheme in a restricted manner. The noble Lord, Lord Bach, assured me that it is covered and that publication will be a matter for the commissioner when she determines the set of rules that are to apply to publication schemes.
That assurance is helpful--it goes much of the way to meeting the concern that I expressed--but it still leads to a problem with the wording. If the commissioner has to approve the publication scheme, and that approval extends to the form in which the scheme is published, then I do not see how one can give a public authority the power to publish a publication scheme,
"in such manner as it thinks fit".
Subsection (4) seems to be negated by subsection (1)(a). The intention, as confirmed by the Minister, is not that a public authority shall publish its publication scheme in a manner in which it thinks fit, but rather in a manner in which the commissioner thinks fit.
Given that intention, the present wording of subsection (4) confuses rather than clarifies the situation. My Amendment No. 31A is designed to address the problem. It removes reference to the power of an authority to publish a scheme "as it thinks fit" and stipulates instead that the publication shall be in paper and electronic form. It thus removes a power that is broad and misleading and substitutes a clearer and, I believe, appropriate requirement. I appreciate that the stipulation that publication shall be in paper and electronic form could be embodied in the code of practice; however, I note that no such reference appears in the draft code. Putting the stipulation on the face of the Bill strikes me as sensible. It will then be open to the commissioner to give guidance as to the manner in which paper and electronic copies are made available. It would appear to me, therefore, to make the clause internally consistent.
My Amendment No. 31B makes it clear that copies of the publication scheme shall be made available free of charge. I presume that there is no intention that a charge shall be made; however, on my reading of Clause 20, it may be possible for an authority to make such a charge. I do not believe that a charge should be made and I think that, if my interpretation of Clause 20 is correct, that stipulation should appear on the face of the Bill. I beg to move.
My Lords, requiring public authorities to publish their publication schemes in both paper and electronic forms and to make them available to the public free of charge might seem at first sight--even at second sight--laudable attempts to promote maximum openness and the maximum public access to information. There are, however, some sound reasons to doubt whether these proposals would achieve what the noble Lord hopes that they will achieve.
First, we have to bear in mind that this legislation will apply to a vast range of authorities. What would involve a minimal cost to a large government department or even a medium-sized local authority might represent a sizeable additional expense for a school or a parish council. Requiring bodies such as these to publish in both paper and electronic form could involve considerable outlay on new IT equipment and possibly extra staff to operate it, making it even more difficult to justify telling them to provide the publication scheme to the public free of charge. I question whether the House wants to see this kind of cost imposed on a small business, without its being allowed to increase its revenue in some way.
No one wants public authorities to use charging as a way of defeating the new culture and the drive towards greater openness that the Bill genuinely seeks to achieve. The Government are confident that public authorities will not wish to embarrass themselves by making people pay unreasonably for copies of their publication schemes. We have made it clear all along that we expect public authorities to bear most of the additional cost of freedom of information and there is no reason to suppose that that will not apply in the area of the legislative framework.
Perhaps I may remind the House that all publication schemes will have to have the approval of the information commissioner. She is bound to question any unreasonable proposals with regard to charging. She will also be best placed to judge what is the most appropriate form for the publication of these schemes in individual cases. Therefore, we believe that the Bill as drafted achieves the right balance. It offers the best way of ensuring that public authorities will publish their schemes in the manner most appropriate in the circumstances and that they will make them available either free or at minimal cost.
The commissioner will not have the power to approve the manner of the publication of the scheme, but she can issue guidance as to how it is done. In any event, we believe that it is the interests of the authority--the public body--to make its scheme known widely, as the aim of such schemes is to minimise the burden on an authority from individual requests for information that it makes available generally. I invite the noble Lord to consider my response and to withdraw his amendments.
My Lords, what kind of mechanism does the Minister believe public authorities are using which enables them to produce a printed version of the publication scheme, without first going through an electronic version? Does he believe that a substantial number of them are still using John Bull printing sets? Anyone who is using anything that has been made in the past 15 years produces, first, an electronic version and then a printed version. How can the burden of producing both be an additional one when it has already been done?
My Lords, in the circles in which the noble Lord moves it is possible that electronic means have been used for many years. However, there are likely to be about 50,000 different types of authorities that will be covered by the Bill. Indeed, I believe that that figure has already been given. It is possible that a substantial minority of them may not yet be geared up to the same degree as other authorities in this respect. There is no certainty about that. Let us take general practitioners as an example of one of the 50,000 public authorities which may not yet be using computers; they could be using more basic word processing. It is even possible that some GPs may not even be on the web.
My Lords, I am grateful to the Minister to a large extent for that reply. I believe that he dealt with my second amendment in terms of cost. I hear what the noble Lord says in relation to Amendment No. 31A, and I understand his points about the wording that I wish to insert into the Bill. However, I find his response in terms of the existing wording to be somewhat worrying. The Minister's response today was slightly different from what he said in Committee. Indeed, it would leave the authorities with tremendous scope to decide in what form their publication scheme should be published. That concerns me.
While I accept that the wording I was seeking to put in its place may not be acceptable, I still believe that there is a case for looking at the subsection to see whether there should be some way in which authorities could be circumscribed in terms of the form in which the publication scheme is made available. I hope that the Minister will consider what I have said. I beg leave to withdraw the amendment.
My Lords, in moving this amendment I shall speak also to Amendment No. 33. Again, this amendment relates to the Internet age, which the Government are supposed to be ushering in for all of us--remarkably slowly and reluctantly in some respects. The rights that will be granted by Clause 11 seem to me to be enormously important. Where an applicant expresses a preference as to the form in which he wishes to receive information, subsection (1)(c) says that,
"the public authority shall so far as reasonably practicable give effect to that preference".
Many of the people who make requests under this Bill will be running their lives electronically. That is the way in which information is disseminated these days. People who seek information will generally be using the web and other electronic methods of communicating information. That provision enables someone to ask for the information in electronic form. Where it is practically possible--which covers the points made by the noble Lord, Lord Bach, in response to the previous amendment--that person may receive such information in electronic form.
However, that right does not exist in relation to items covered by Clause 20; namely, those that are already available to the applicant "by other means". Let us suppose, therefore, that we have a list of schools that have been awarded Ofted's gold stars for good performance over the past three years. As it happens, that information is not available to the public in electronic form. It is not on the Ofsted website, but a list of those schools can be found in its published report. As a result of Clause 20, if I wished to access that piece of information I would not be allowed to request it in electronic form. I would not be allowed to insist on my right under Clause 11 to receive it in electronic form. I would be forced to make do with a paper copy.
That is a relatively trivial example, but a great deal of public information that is available at present in printed form is not available publicly in electronic form. But Ofsted has electronic copies of all this information and could easily supply me with an electronic copy; it just refuses to do so. I do not see why the advent of the electronic age should be obstructed by the provisions of Clause 20 which say, "No, you have it in paper form. Because it is available to you in paper, you cannot have it in electronic form", even though it could easily be provided in electronic form. If we are to usher in the information age, we must, in the format set out in Clause 11, give people the right to receive such information in electronic form whenever it is reasonably possible for local authorities to do so. The purpose of my amendments is to make that possible. That duty has not been included in Clause 20. I believe that it should be. I beg to move.
My Lords, I did not intervene in the interesting debate on the amendments of my noble friend Lord Norton, and I had not intended to do so now. However, having listened to both my noble friends, one thought has occurred to me. I was led to this thinking by my noble friend's intervention during the discussion on the previous amendment. Many authorities will have the information in an electronic form, which they then transfer into paper form. If they can say to an applicant, "No, you can't have it in electronic form. But you can have it in paper form", even though it could be available in electronic form, I wonder whether it is really sensible to allow that to happen.
Noble Lords know that it is becoming increasingly easy to gain information in an electronic form. In fact, if authorities have the information in electronic form, it would surely be more economic for them to supply it to the applicant in that form. When he responds to my noble friend's amendment, perhaps the Minister could say what incentive, or power, there might be in the Bill to ensure that if such information is already in electronic form the local authority cannot refuse to provide it in that way.
My Lords, we have some sympathy with the clear desire of the noble Lord, Lord Lucas, to ensure, by way of these amendments, that applicants are able to receive information in a format that they choose rather than that which is convenient for the public authority. We recognise that there is some strength to that argument; indeed, Clause 11 provides that, where an applicant under this Bill states a preference, it must be complied with where "reasonably practicable" to do so.
There is nothing in the Bill that would prevent an authority from complying with the applicant's wishes in such circumstances. However, as the noble Lord acknowledged, Clause 11 recognises that the applicant's wishes, while important, are not the only consideration. The question of a public authority's resources and administrative capability is also relevant.
As the noble Lord said, his amendments are aimed at circumstances in which a public authority has made information available pursuant to an existing statutory duty. Their effect would be that the authority would no longer be able to rely on the exemption at Clause 20 in the circumstances described by Amendment No. 33 but would be required to provide the information in another format, if that was the applicant's preference and it would be reasonably practicable for the authority to do so.
I say with much flattery that the amendments have a commendable simplicity in the way they propose to amend all other statutory obligations on persons (public authorities and others) which require disclosure of information. However, sympathetic though we are, we do not believe that such an approach is possible or even sensible. Each regime has to be considered on its merits and the amendment proposed considered in its proper context. Furthermore, we are concerned that a statutory duty of this kind in relation to information which must be made available by other enactments would present significant problems for many authorities. The kernel of our arguments is that authorities will already have well established procedures to meet their existing statutory obligations in this respect. Changes of the kind now being suggested will carry additional and possibly significant resource implications, both financial and in terms of the authority's administrative flexibility.
We believe that the way round the problem that the noble Lord mentioned is perhaps better handled through the development of what can be described as "good practice". Public authorities should do what is practicable and what could reasonably be expected of them under the circumstances. It is the particular circumstances that are relevant to what could be reasonably expected. The commissioner has an important role in advising public authorities what she considers is good practice and in ensuring that public authorities are following good practice. We consider that that is the way forward rather than to place this additional statutory duty on public authorities. Having praised the noble Lord's amendments both for their simplicity and for the point that he makes in them, we think that our proposal is better. We invite him to withdraw the amendment.
My Lords, it is a great pity we are not in Committee because I then would have been able to chew in to that load of blather the noble Lord has been given to read. He referred to cost implications for public authorities but that is clearly covered in Clause 11 which gives them an exemption under those circumstances. He talked as if I sought to amend existing statutory obligations, which of course I am not. I merely seek to provide an additional statutory right, or rather not extinguish a statutory right which is about to be extinguished by Clause 20. I am talking about information which would be available in the form that people wanted it were it not for Clause 20 of the Bill. All I am doing is reducing to some extent the impact of Clause 20.
I do not consider that the Government's response to the amendment is in any way satisfactory. I also understand that there is little hope of my achieving any change in what the Government have said, not even any discussion with regard to putting something in the code of practice. It seems to me desirable that the Liberal Democrats, who have put so much effort in to getting their names on so many amendments, to their own glory, should also be asked to put their names on the Division List against improvements to the Bill and against the extension of the Internet age with regard to the Bill. I wish to test the opinion of the House.
My Lords, Clause 22(3) lists bodies dealing with security matters. Under subsections (1) and (2), information supplied to a public authority by or relating to these bodies is exempt.
Amendment No. 34 seeks to add the tribunal established under Section 65 of the Regulation of Investigatory Powers Act 2000 to that list. It is a technical amendment which maintains the completeness of the Bill. I beg to move.
My Lords, I do not feel that this is a technical amendment. The bodies already listed in this part of the Bill--the Security Service, the Secret Intelligence Service and the Government Communications Headquarters--are all part of the security services. But in some aspects this tribunal deals with security services. It deals with the police. The noble Lord, Lord Bassam, will remember what the tribunal deals with. It deals with complaints by ordinary members of the public or by companies about the ways in which the powers under the RIP Act are applied. Anything to do with the security services will be caught by the current wording of Clause 22. But a certain amount of business done by the tribunal under the RIP Act has nothing to do with the security services--putting it at its furthest, it is a police matter--but in the way in which the various organs of the Government and state are authorised to act under the RIP Act, it impinges considerably on the general freedom of ordinary citizens.
The amendment has no place whatsoever in the Bill. To the extent that the provision is necessary, it is already covered. To the extent that it is unnecessary, it is iniquitous. The Government should rethink what they seek to do.
My Lords, I have a great deal of sympathy with my noble friend Lord Lucas. The amendment appears to be another catch-all by the Government. The tribunal will hear complaints regarding decryption notices and the like, which lead us back to the RIP Act. Some people were concerned about the way in which the Act impinged on the freedom of the individual. The Minister has not explained why this provision is necessary given that many of the organisations listed in paragraphs (a) to (f) are already covered by the Bill. It seems surprising that the RIP legislation should be brought into this Bill.
There is doubt, although not perhaps in Ministers' minds, about the legality of the RIP Act in relation to European Commission rules. I understand that that matter is still being discussed. If something happened there--the Government will tell me that it will not happen because they are sure that the legislation is all right--would that cause problems with this Bill?
This seems a terrific blanket exemption given to the tribunal which exists, as I recall the RIP Act, to protect the individual against the kind of encroachment that the state can make on us by the use of the Internet. Many of us are uncomfortable about the snooping ability of many people. To discover that we cannot find out anything about it when the matter goes to a tribunal is an issue that has properly to be argued by Government and not slipped in before we go to dinner.
My Lords, that is a little unfair. First, the timing was agreed by the Front Bench. Secondly, the amendment in effect includes in the list the tribunal that will replace tribunals already referred to in the list in Clause 22(3). The purpose of the tribunal is to deal with all complaints against the intelligence agencies, complaints regarding the use of the powers in Section 17 of the RIP Act, exclusion of material from legal proceedings, and any other proceedings allocated to it by the Secretary of State. I am advised that those are the sorts of things dealt with already by the tribunals identified in Clause 22 which it will replace. So although it is perfectly legitimate to raise these issues, this is in effect a technical amendment because it identifies the name and status of the new tribunal dealing with the issues dealt with by the other tribunals.
My Lords, before the noble and learned Lord sits down, it is my understanding and my memory-- though I confess to not having refreshed it adequately, having only just noticed this amendment--that the RIP Act does not deal just with the security services and this tribunal does not deal just with the security services. It also has dealings with the police and with the Commissioners of the Customs and Excise. Indeed, any police force can be brought before this tribunal, and I hope that between now and Third Reading the noble and learned Lord will undertake to review what he has said to see whether he does not agree that, although he is right in saying that this tribunal will perform some of the functions of other tribunals which will cease to exist after the passage of the RIP rules, it will do additional things which have nothing to do with the security services and which do not deserve the sort of blanket exclusion which is offered by this clause and which indeed ought to be open to proper public scrutiny.
Would the noble and learned Lord not agree that it would be better if the general provisions of this clause were relied on to protect the national security rather than being extended to something which, as my noble friend Lord Mackay has said, is a sensitive and difficult part of the law when it comes to the protection of individual rights? I do not want to press for another Division now just to demonstrate concern over this. I will be content with a promise that the matter will be looked at again before Third Reading.
My Lords, I have noted what the noble Lord has said, but I repeat that the purpose of the tribunal referred to in the amendment is to replace the Interception of Communications Tribunal, the Security Services Tribunal and the Intelligence Services Tribunal.
My Lords, Clause 26(2) is presumably designed to protect diplomatic relations with foreign states. The amendment would prevent it being used to suppress information about the activities of the EU, including information relating to intra-EU political debate.
At the heart of the Bill is the proposition that information should be freely available unless disclosure could in general terms be said to harm the national interest or relationships with other states. When I spoke to the amendment in Committee, I argued that the European Union was in some ways akin to a government department, as many of its policies, particularly on agriculture, fishing, environmental issues and even some trade and industry issues, are deeply influential on all member states, including the UK, and are often broadly adopted by them.
I realise that such a parallel has its limitations, but it is sufficient to warrant the proposal that information from appropriate European sources should be made at least as freely available as the Bill's restrictions allow. All information from that quarter would naturally be subject to the usual harm tests, so no diplomatic or national security material would be included, because that is already safeguarded by the Bill.
The noble Lord, Lord Bassam, reminded me in Committee that the European Union was committed to increased openness by virtue of Article 255 of the Amsterdam treaty. Of course we are aware of that, but the simple fact is that the EU has suffered from a culture of secrecy and we would do well to encourage it in the right direction by our example. It may be a bit embarrassing to hold up this Bill as an example, but it is better than any of the European Union's freedom of information rules.
I think that I even had some friendly support on the issue from the Liberal Benches in Committee, although the general advice that I got from that quarter--I do not remember whether it was from the noble Lord, Lord Goodhart, or the noble Lord, Lord Lester--seemed to be that we should leave it to Europe and that if European regulations were more restrictive than ours we should accept the more restrictive regime. I am not sure that I agree.
My Lords, that would be consistent with the general policy of the noble Lord, Lord Lester, today, when he has been very much in favour of the Government. However, I think that he said that we should argue our case in international forums and that if Europe had a more restrictive regime, we would have to play by its rules rather than our own. I am not sure that I accept that, particularly because many of the issues relating to agriculture, fisheries and the environment are very important. We all agree that such information should be opened up in this country, so I can see no reason why similar European Union information should not also be opened up. I understand and appreciate the need to protect diplomatic information.
I am not keen to wait until the EU decides whether to adopt a Community-wide scheme before we open up the information that flows between this country and the European Union. I think that that was the argument put forward by the Government and the Liberal Democrats. Freedom of information provisions should be able to open the doors on many of the policy areas that I have mentioned.
How great an impact would the proposed EU scheme have on the United Kingdom? Might it restrict our access to information further than it will be restricted by the Bill? Could we adhere to our scheme for our government departments, rather than adopting a possibly narrower European scheme, even when some of the information concerned came from the European Union or was collected on behalf of the European Union? Those are important issues.
If we are to have more openness rather than less, it must include our dealings with the European Union. It is not a foreign state. We are part and parcel of it. A lot of the detailed information, advice and policies devised in Europe impinge hugely on us. At this time of year, for example, the entire British fishing industry is dependent on statistics and decisions that will be arrived at in Brussels. I am pleased that there has been increasing openness on statistics. However, if dealings between government departments and outside bodies are to be opened up within the United Kingdom, they should be opened up within the European Union. I may not have explained that terribly well, but I understand what I mean and I am sure that noble Lords do, too. This is not an anti-European Union point. I am simply saying that a great deal of government business now involves the European Union and I want the public to have the same access to that information as they would have if it was held entirely within the United Kingdom. I beg to move.
My Lords, I entirely understand that basis of the noble Lord's argument, but I do not think that it is correct. Clause 26(2) states:
"Information is also exempt information if it is confidential information obtained from a State other than the United Kingdom or from an international organisation or international court".
In effect, the noble Lord wants,
"the European Union, its member states, institutions, organisations or related bodies", to be treated differently from all other international organisations, states or international courts.
The confidentiality of diplomatic documents is universally recognised in international relations. There is no logic in treating confidential information from the European Union differently from information from other international organisations of which the United Kingdom may or may not be a member. Many international organisations may be more secretive than we should like. We shall try to increase the internal openness of any such organisation of which the United Kingdom is a member. In the EU, we shall seek to ensure the implementation of Article 255 of the Amsterdam treaty, which commits the European Union to increased openness. That will balance the scales in favour of openness. However, it is neither right nor sensible to treat the European Union differently from the other international organisations and countries with which we deal.
The noble Lord asked whether we would be bound by EU laws or whether we could deal with information under our legislation. We would be bound by any EU regulations in so far as they related to Community documents held by the UK Government. It would be contrary to our obligations to the European Union to enact laws which are contrary to EU rules.
Therefore, the correct forum in which to ensure openness in relation to EU matters is at the EU level. Clause 26(2) sets out our approach to documents which we receive in confidence from the EU. It draws no distinction between the EU on the one hand and other international organisations or member states on the other. I believe that that is the right approach. I invite the noble Lord to withdraw his amendment.
My Lords, I rather fear that the Minister has been both helpful and worrying. He has confirmed the point that I put to him: our openness laws, which we are discussing this evening, would not operate in any decision on whether to comply with a request for information about matters relating to the EU. They would take second place to the EU ones. If the EU ones were of a lesser order, then of course the doors to open government would be closed somewhat. I find that worrying.
I also find it worrying that the Minister seems to believe that our membership of the EU is of the same order as any other international organisation. I do not believe for a moment that it is. No other international organisation has so much control--I do not make that as a negative point--over what happens in this country. I take as examples the agricultural and fishing fields. In this country we can do little without the agreement of the European Union. For good or ill, we are very much bound to the decisions and style of government of the European Union. The relationship is quite different. Our relationship with the other member states is also quite different. They have rights in our country and we have rights in their countries which no one else outside the European Union has.
Therefore, I believe that, in our association with the Union itself and with the individual member states, our membership of the European Union is significantly different from our relationships on any other level; for example, with the United Nations, the Commonwealth, and so on. None is so closely involved with the detail of what we in this country would otherwise decide entirely on our own. That is what worries me.
The Minister has been very clear about the proposition but he has made me feel more concerned about it. I fear that many people in certain fields who believe that they will be able to use this Freedom of Information Bill, when it becomes an Act, in order to extract information which is collected on an EU level, including information collected in Britain, will find themselves up against a closed door. I am most concerned about that. It is very worrying.
I accept that my amendment may not be terribly well drafted. I shall withdraw it this evening. However, I may discuss it with people who understand these matters better than I do to see whether we can produce an amendment which is worded more tightly and which will address what I believe could be a worrying loophole in our freedom of information laws. I beg leave to withdraw the amendment.
moved Amendment No. 36:
Page 16, line 34, at end insert ("and its disclosure would, or would be likely to, prejudice any such investigation or proceedings.
( ) For the purpose of subsection (1), in considering whether a disclosure would, or would be likely to, prejudice any investigation or proceedings, a public authority shall in particular have regard to whether the disclosure would be likely to deter any witness from making a statement or giving evidence in connection with any such investigation or proceedings.").
My Lords, one of the exemptions from the right of the public to be given information relates to information held by a public authority if it is held or if it has been held at any time for the purpose of conducting an investigation to ascertain whether someone should be charged with an offence or whether someone is guilty of an offence or in connection with criminal proceedings or if it is obtained or recorded for the purpose of certain other investigations.
Therefore, the exemption relates to two categories of information. The first is information which may lead to decisions relating to criminal proceedings. The second concerns decisions about informing the public as to a wide spectrum of investigations. Reference is made to the long list of purposes set out in Clause 30(2). It is an interesting list. I take from it at random,
"the purpose of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise".
The letters "BSE" seem to rise before one's eyes at the very sight of those words. Or,
"ascertaining a person's fitness or competence in relation to the management of bodies corporate".
Therefore, an investigation into the conduct of a children's home or into the way in which a hospital is being managed seem to be included in the list. Or,
"the purpose of ascertaining the cause of an accident".
Therefore, railway accidents, accidents relating, for example, to the "Marchioness" or those relating to a nuclear installation are included. Or,
"the purpose of protecting charities against misconduct".
I do not propose to read out the whole list. However, it is substantial. Your Lordships will have noticed that many of these matters are precisely those on which the public wants and needs information because they most closely concern the public. They relate to inquiries into food contamination, the causes of railway accidents, the falsification of reports on nuclear quality control, the way in which Westminster City Council conducted its affairs, and the manner in which other inquiries have been conducted, such as the way that the police dealt, particularly in the initial stages, with the murder of Stephen Lawrence.
In Committee the noble Lord, Lord Lester, accepted that there may be a case for the exclusion in relation to criminal proceedings. However, linked with the list in Clause 30, it is, as the noble Lord expressed it rather moderately, unattractive. The argument at that time largely concerned the need to protect sources. The noble Lord, Lord Lester, pointed out that there may be occasions when the identity of the source is very much a matter of public interest; for example, did the information come from someone qualified to pronounce on the subject or from someone in a position to know the facts? As I recollect, the noble Lord tabled an amendment which sought to introduce a harm test.
It may be worth adding that a matter about which the public may be concerned is not simply the content of an investigation but the way in which it is conducted. The content of an investigation may depend to a great extent upon the way in which the investigation is carried out.
In reply, my noble and learned friend pointed to the need to protect confidentiality. As he explained, there are occasions when witnesses will come forward only if confidentiality can be guaranteed. I understand that. However, I should have thought that that would be dealt with as a separate matter in Clause 29(2)(b). It is not clear why that problem, which I accept is real, requires such an all-embracing soundproof wall.
The second point which my noble and learned friend raised in reply was that decisions about disclosing--
My Lords, I am most grateful to the noble and learned Lord for giving way. I am becoming a little puzzled by the direction of his argument. It is clear that in Clause 29(2) paragraphs (a) and (b) are cumulative; in other words, both conditions must be satisfied before information is exempt information. It seems to me that the gist of the noble and learned Lord's argument is that they are distinct heads under which exemption can be claimed.
My Lords, as I read Clause 29(2), paragraph (b) is cumulative in relation to sub-paragraph (iv). I do not think that it is cumulative in relation to the others. It may be that my noble and learned friend is able to assist because this is perhaps not the moment to read this and analyse it more carefully.
My Lords, in relation to Clause 29(2), information is exempt information only if it satisfies both paragraph (a) and paragraph (b) in subsection (2). I believe that was the point which the noble Lord, Lord Goodhart, was making but I do not know whether that is contrary to the understanding on which the remarks of the my noble and learned friend Lord Archer of Sandwell are being made.
My Lords, I have now grasped the point. I believe that I probably did misread it in the first instance because I thought that it went only with sub-paragraph (iv). But my noble and learned friend is probably right that it goes with the whole of paragraph (a). If we are dealing with the matters set out in paragraph (a), then I understand the point which the noble Lord makes.
I am grateful for that intervention. I was probably going down the wrong path at that point in the argument.
The second point which my noble and learned friend raised was that decisions about disclosure are subject to the public interest test in Clause 2. I might have been minded to accept that argument--I am not so convinced as the Government are of the need for belt and braces in these matters--but for one thing: the public interest test in Clause 2 is subject to the provisions of Clause 52. So the final judgment on where the public interest lies is not with the commissioner but with the accountable person. As Clause 52(7) impresses on us, an "accountable person" is a Cabinet Minister or a senior Member of the Government or of the Northern Ireland or Welsh Assembly--presumably, those who may have an interest, or at least may be suspected of having an interest, in evading responsibility for the problem which is the subject matter of the inquiry.
Many of us have regarded Clause 52 as a major flaw in the Bill. But since the Government's mind is clearly made up on that matter and rather beyond argument, we have not sought to amend the Bill in that respect. But it seriously dulls the edge of an argument to say that the absence of a harm test does not matter because a decision on disclosure will have to pass the public interest test when it will be a public interest test in relation to which the Minister will be judging his own cause:
"'I'll be judge, I'll be jury', said cunning old Fury;
'I'll try the whole cause, and condemn you to death'".
So my amendment is quite modest. It holds out a hand to the Government in the hope that it still may be possible to build a bridge.
If all this is to protect the confidentiality of witnesses and if the Government are not prepared to confine it to that purpose, would the Government be interested in having as a possible solution an interest in having regard to the problem which is the subject of the inquiry? I beg to move.
My Lords, I am not entirely sure that I quite followed that exchange between the noble and learned Lord, Lord Archer, the noble Lord, Lord Goodhart, and the intervention by the noble and learned Lord, Lord Falconer. It may be that this is water into which a non-lawyer should not dip a single toe. But I have done it before so I do not see why I should stop now.
Other organisations outside are equally worried. If they have misinterpreted the provisions of the clause, now is a good time to clear up that matter. For example, I have already quoted the letter that I received from Charter 88 chiding the Liberal Democrats for having sold out rather too cheaply. It highlights this amendment in particular as one which it feels should be addressed. Without this amendment, it considers the Bill to be seriously defective.
The letter states:
"This clause would protect prosecuting authorities where an investigation could have led to a decision to prosecute".
I am reminded that:
"The Health and Safety Executive's former director general, Jenny Bacon, has said that her agency did not require this exemption".
That was one of the organisations about which the noble and learned Lord, Lord Archer, is thinking.
In Committee, the noble and learned Lord, Lord Falconer, appeared to suggest that routine inspections by bodies like the railways inspectorate, the nuclear installations inspectorate, the CAA, the now-called Maritime and Coastguard Agency, environmental health officers and even MAFF were not caught by this exemption. I understand that the noble and learned Lord confirmed later that they are indeed caught. That seems to me to go slightly counter to what noble Lords were saying to the noble and learned Lord, Lord Archer. It may be that all that information is considered to have been received in confidence. If I understood the intervention correctly, that was the point. If the information had been obtained from confidential sources, then it could not be made available on request.
But I should have thought that routine inspections do not come into this category unless, in the course of a routine inspection, somebody has said, "Take it from me, you really want to have a look at that but don't, for goodness sake, quote my name". I suppose that that gets back to the problem that whistle blowers have when they report something to an authority and they do not want their name to be known in case their employer takes action against them. It is important that such people should be protected; I understand that. But I do not believe that protecting them should necessarily mean that we cast a great cloud of secrecy over all the works of those various safety bodies.
Therefore, it seems to me that the noble and learned Lord, Lord Archer, has proposed a fairly modest amendment which puts into the disclosure test whether it would be likely to prejudice investigations or proceedings. If investigations or proceedings are not to take place, then I believe that it should be easier for interested parties to get at the information held. I understand that if there are to be prosecutions, the information should not be divulged before the prosecution takes place. But I should have thought that, after a prosecution or if there is to be no prosecution, the information should be put into the public domain if somebody asked for it.
After all, it could be that one of the regulatory bodies had simply failed to act properly and it will be allowed to keep that covered up. I do not believe that the Minister can be comfortable with that. If we are going down this kind of track, then we need openness. I shall not mention the cases to which reference has been made throughout the evening but we can all think of examples where, if there had been a great deal more openness, then perhaps events would not have developed in the way that they did.
I believe that the noble and learned Lord, Lord Archer of Sandwell, has a very good point. I hope that, if the Minister does not feel able to accept the amendment, then he will perhaps return with his own version on Third Reading so that we are all absolutely certain that those important safety authorities, among others, cannot hide behind a veil of secrecy when they have information about which the public really should know.
My Lords, the interventions that I have made on this Bill in the past have been directed particularly at ensuring that the Bill provides freedom of information about health, safety and the environment. Those are matters in which the public are far more interested than the political aspects of the Bill which have taken up so much debate.
My noble and learned friend Lord Archer has indicated the fact that information in those three areas is held by regulatory authorities with the power to prosecute. My noble friend has enumerated many of them. The purpose of Clause 29(1) is to define exempt information. As I read the Bill, it is entirely separate from subsection (2). I invite the attention of the House to the fact that under Clause 29(1)(b) the exempt information will include material arising in "any investigation" conducted by an authority such as the noble and learned Lord, Lord Archer, described, which may lead to a decision to prosecute.
As we lawyers read this Bill, in those terms it means that information so acquired would be exempt even if there were no prosecution because it falls within those words. The explanation as to why such an approach was taken by the Government was a persuasive one: that the Serious Fraud Office and the Director of Public Prosecutions were intent on protecting witnesses, encouraging them to give evidence and ensuring that they would not suffer by so doing. That is entirely commendable.
However, in analysing this clause I can see no reason why health, safety and environmental considerations should be equated with the particular needs of combating serious crime. There is no cogent reason for such an equation. As I understand it, this amendment seeks to create a valid distinction between protecting the interests of combating serious crime and enabling greater disclosure of material in relation to health, safety and the environment.
On the third day of the Committee stage, my noble and learned friend the Minister had to correct himself in regard to his interpretation of this clause. That is perfectly understandable as it is not that easy to follow. He had assumed, as many would, that health, safety and the environment would be treated differently. It appears not, although they should be.
I shall give a simple example. Can one equate a Health and Safety Commission inspector, the owner of the property that he investigates and bystanders who have witnessed an accident as people who need to be protected or who may be deterred from giving evidence? Certainly not.
The amendment seeks to establish that the proper approach will be that those who hold the information will first test whether the disclosure of it would prejudice an investigation or prosecution. If it does, it stays confidential; if it does not there is no reason for not disclosing it. In fact, if it reassures the public, there is every reason for disclosing it. The second part of the amendment directs the attention of the authority to protecting witnesses, so it achieves a valid distinction between serious crime and health, safety and the environment.
To accept the amendment as some noble Lords on this side of the House would interpret it would mean that there would be symmetry in the Bill. When looking carefully at this matter, your Lordships may appreciate that defence, international relations, the economy and all those grand topics of state follow the prejudice route. The first prejudice is that if there is a public interest test, ultimately there will be a veto and if there is no prejudice there will be disclosure. Why should health, safety and the environment be considered to be more sensitive and less proper for public disclosure than those grand affairs of state?
When my noble and learned friend the Minister spoke in Committee about this clause, he was concerned to confirm that in his view if there was no criminal prosecution, the public interest would surely demand disclosure of that kind of information. On the third day of the Committee stage he said:
"I am satisfied that the Bill will provide the correct outcome in such cases. But, in the spirit of the debate on this clause, I shall reflect further on this point".--[Official Report, 24/10/00; col. 274.]
That point is important. As the noble Lord, Lord Mackay, has pointed out, this appears to be a lawyers' debate, but it is far from that. It is the use of words by lawyers to deal with a major public interest, to allow the public access to data on health, safety and the environment.
"Trust is at the heart of this matter", the matter being what the Government and public authorities know and what they should tell us--trust.
Legislative burdens in this House are many and sometimes they deaden our sensitivity to that which people want as against what we think they ought to have. They certainly want this information. I hope that this Bill will not be tainted with that lack of sensitivity. I hope that this amendment is treated by the Minister as entirely reasonable. It achieves a good public purpose. If we are wrong in believing that it is necessary I have no doubt that those on the Liberal Democrat Benches will be able to tell us why they believe it is adequate in its present state without amendment, as I am sure the Minister will.
The key point about the amendment is, after we have debated freedom of information, what will the answer be if any citizen should say to any noble Lord, "I want to know what this Bill has done for information on health, safety and the environment". Will the answer be, "Look at the exemptions" or "Look at the public interest test"? They do not want that. They want to know, and Amendment No. 36 is designed to allow them to know.
My Lords, I was going to intervene in my noble friend's speech because I had difficulty in ascertaining that the distinction which he suggested was entirely clear between serious criminal offences and matters relating to health, safety and the environment. I am not sure that I understood him. That distinction is not as clear to me as it obviously appeared to him. Some serious crimes do involve health and safety and, as is well known, the Government are seriously considering--they issued a consultation paper on the subject--extending the law and introducing something called "corporate manslaughter" to cover such serious crimes.
My noble friend Lord Brennan also indicated a distinction between subsections (1) and (2). To my mind, subsection (1), which is not at present subject to any prejudice test or to the limitation about information from confidential sources, nonetheless is limited because it is concerned with investigations conducted with a view to it being ascertained whether somebody should be charged with an offence or whether someone is guilty; whereas the exemption provided in subsection (2), which is concerned with those serious matters to which my noble and learned friend Lord Archer of Sandwell referred such as an inquiry into a railway accident, applies only, as I now more clearly understand because of the intervention of the noble Lord, Lord Goodhart, if the information is recorded and so forth for the purposes of an investigation and the reference to Clause 30(2), and it relates to the obtaining of information from confidential sources. So the exemption is much more limited than seemed to be suggested.
I admit that I may have misunderstood the entire purport of my noble friend's argument. But because of the distinction between the purposes of subsections (1) and (2), the exemption is not as broad and sweeping as has been suggested.
My Lords, I should like to put a point forward in response to the noble Lord, Lord Brennan. He argued the case for Amendment No. 36 extremely powerfully and cogently. But the question with which I am concerned--a point which perhaps the noble and learned Lord, Lord Falconer, may be reluctant to put but which I am not--is this. I do not believe that, particularly as a result of our amendment to Clause 2, there is now any significant difference between the public interest test under Clause 2 and the prejudice test which appears in this amendment and in a number of the other clauses in the Bill.
One must go back and look at the origins of the Bill to see why that is. If one looks at the draft Bill as first produced, which was in an extremely unsatisfactory form, there was a significant difference between the prejudice test and the interest test. If the prejudice test was not satisfied, there was clearly a right to disclosure. On the other hand, where there was no prejudice test but merely an interest test, disclosure was only made if the public authority took a decision that it should be disclosed and the information commissioner had jurisdiction only on a judicial review basis.
That is clearly no longer the case. Now we have a situation where the information commissioner can substitute her own discretion for that of the public authority if she disagrees with it in applying the public interest test and, as a result of the amendment accepted to Clause 2, the public interest test is satisfied unless at least some degree of prejudice is shown. If there is no prejudice, there is nothing to balance the public interest in disclosure. We feel therefore--this is why we did not press for an amendment to Clause 29--that the position for which the noble Lord, Lord Brennan, is pressing is already in being. Clause 29 is not subject to an absolute exemption and therefore the public interest test applies.
Clearly, there is a public interest test in not disclosing the identity of whistle-blowers or "grasses", but, equally, it seems that where there is no such argument the information must be disclosed. While the amendment proposed by the noble Lord, Lord Brennan, is in many ways admirable, we do not believe that it adds anything of real significance to what already exists.
My Lords, this is a very important area of debate and we also debated it in Committee. The noble Lord, Lord Mackay of Ardbrecknish, correctly implied that it is much more than a debate between lawyers; the debate is fundamental to the Bill.
We agree in principle with many of the points made by the noble Lord, Lord Brennan, and we believe that he has a scheme which delivers what he has outlined. Clause 29(1), first, provides an exemption in respect of material held by an authority which is investigating whether a criminal offence has occurred. Secondly, it provides an exemption in respect of an authority which is conducting an investigation that might lead to a criminal prosecution, even though the purpose of the investigation may be broader. Thirdly, it covers a public authority which is in the course of investigating existing criminal proceedings.
The purpose of the exemption, with which most people would agree, is that witnesses and people under investigation should not feel inhibited in relation to the material they provide. They should not feel that in addition to the risk of having to give evidence in court there may be an additional risk in relation to trial by press or whatever.
However, Clause 29(1) is subject to Clause 2, the public interest test. If an authority comes within any of the subsections of Clause 29, which is not to disclose under Clause 2, as I have said and as a result of amendments advanced by the Liberal Democrats, there must be a good reason for not disclosing. The noble Lord, Lord Brennan, rightly identified the health-and-safety-at-work-type situation where, for example, the body was not necessarily considering prosecution but might prosecute if it found something. It would therefore be covered by Clause 29 and would receive information about standards of care and safety in every case.
Jenny Bacon, balancing the public interest and disclosure in Clause 2 against any harm that may be done, is perfectly entitled under the provisions of the Bill as it is presently drafted to say that the public interest is plainly in favour of disclosure. But, as a result of the amendments tabled by the Liberal Democrats, it goes further than that. There must be a good reason for Jenny Bacon not to disclose the information. That good reason must be, for example, prejudicing an existing prosecution; deterring witnesses; or making it harder for them to obtain information subsequently in relation to investigations of important matters. But the Bill as drafted deals with the point made by the noble Lord, Lord Borrie, that--
My Lords, my noble and learned friend doing the best he could and looking this way, I was gratified to hear what he said. However, bearing in mind that we lawyers have been debating this arcane construction for the past 10 or 15 minutes, does he agree that it is most important for the Government, through the appropriate agencies, to ensure that in any code which is issued to bodies with which we are concerned the points he has raised are made abundantly clear?
I entirely agree with that, but I do not believe there is any doubt that that is what the Bill means. The question that arises is whether Clause 2, as amended in the way indicated by the noble Lord, Lord Goodhart, with the result that the burden is on the public authority to prove that there should not be disclosure, is materially adequate to achieve the end that my noble friend identified; namely, to ensure that in relation to health and safety and environmental matters the material emerges unless there is a good reason why it should not. We believe that that is the effect of the Bill as a result of the Liberal Democrats' amendments. I do not believe that my noble friend Lord Brennan and I are far apart, or that an amendment of the kind proposed by my noble and learned friend Lord Archer is now necessary.
The first part of the amendment tabled by my noble and learned friend Lord Archer introduces a prejudice test. I believe that the objectives are met in the structure that we have put forward. The second part of the amendment bites only if there is a prejudiced-based test in the clause. As I have outlined, I do not believe that that is either desirable or necessary.
I deal briefly with the point which arises on Clause 29(2); namely, the situation in which there is an informer. The subsection provides as much protection as possible for people who give information confidentially. The informer protection under Clause 29(2) goes wider than criminal matters and covers other forms of investigation. We believe that such protection is sensible where other kinds of investigation are being dealt with. It is very important to distinguish the Clause 29(1) situation dealt with by my noble friend Lord Brennan from the Clause 29(2) situation which focuses entirely on informers. I earnestly suggest to noble Lords that they consider what I have said. I am not sure that our basic objectives are all that different. I believe that as the Bill now stands, particularly having regard to the amendments tabled by the Liberal Democrats, broadly we have achieved the objectives.
My Lords, I have tried to follow the argument. Perhaps I may ask a layman's question. As to subsection (2), am I right in understanding that if the information was not obtained from confidential sources--perhaps in the course of a general inspection, or whatever--it would not be considered exempt, as long as it was not being used, or about to be used, for a prosecution?
My Lords, it would not be exempt under Clause 29(2). The subsection provides that the information required relates either to a prosecution or an investigation of the kind referred to in Clause 30, and the information that is desired describes how and from whom the information is obtained. Therefore, it is designed to protect the name of an informer, or something short of the name of the informer which may identify how the information has been obtained. The provision aims to provide an assurance that if people give information in confidence to help a criminal prosecution, or a wider investigation, they will have protection.
My Lords, I agree with all noble Lords who have said that this is much more than a debate among lawyers. I am not sure that between them the lawyers have clarified the matter. I am the first to accept that I have misread Clause 29. I do not believe that I am totally alone in having misread parts of the Bill. As my noble friend Lord Brennan reminded us, in Committee my noble and learned friend himself was somewhat surprised to discover that both criminal and non-criminal matters were part of Clause 29. My noble friend Lord Borrie cheerfully agreed that he too had not been as clear about the clause as perhaps some of us should have been. Clearly, we need to reflect further on this matter.
I remain slightly troubled by two matters. Paragraph (2)(b), which governs so much of this debate, exempts information if it relates to the obtaining of information from confidential sources. As my noble and learned friend said, that is much wider than the question of deterring witnesses from coming forward.
Earlier today we discussed what is information from confidential sources. Is it confidential if it arrives in an envelope marked "confidential"? We are in danger of going very wide with that requirement unless we look more closely at the meaning of information from confidential sources. I say no more about that at the moment. It is something on which I want to reflect. I hope that it is something on which my noble and learned friend may want to reflect.
I turn to the point made by the noble Lord, Lord Goodhart, that this matter is now dealt with because of the amendments to the public interest test. It may be that all this was comparatively late and we have not had as much time to absorb it as we should. I am not certain that he has persuaded me. That is something else on which I should like to reflect. For all those reasons, I do not propose to press the amendment further tonight. I beg leave to withdraw the amendment.
My Lords, on 19th October the noble and learned Lord, Lord Archer of Sandwell, moved an amendment which I tabled to what is now Clause 29, which we have just debated. I want to move away from the question of criminal prosecutions and to the obtaining of information from confidential sources. I can see that either in Clause 29 or in Clause 30, which must be linked, there will be a consideration under the new version of Clause 2, which will enable the information commissioner to hold, if the public authority has already done so, that there is an objection to disclosure.
I want noble Lords to look at Clause 30. I am concerned with the matters referred to in Clause 30(1)(g), (h) and (i) which on the face of it are not criminal matters. I appreciate that they may have to do with confidential information or information from confidential sources. That matter can be dealt with in the same way as it will be under Clause 29. The rest of the contents of paragraphs (g), (h) and (i), as expanded in Clause 30(2), cover a very wide field of regulatory, civil law and other investigatory purposes, including causes of accidents, health and safety--all the matters to which the noble Lord, Lord Brennan, referred just now.
It has been rightly said that the Bill is extremely difficult to understand. I do not want to make a legal point out of this, but the fact remains that it will have to be interpreted by lawyers and, in the end, it will be subjected to the ordinary tests of statutory interpretation. I do not know whether the information commissioner will initially be bound by strict rules, but the information tribunal will certainly have to abide by those rules. If there is a judicial review at any stage, then certainly the rules will be borne in mind. The question that I raise in this amendment--I do not think that it has really been answered--relates to timing on subjects like the BSE or rail safety inquiries or the many other purposes that are covered under Clause 30(2).
The scheme of the Bill, now that it has been amended by the Liberal Democrats, is that there should be a right to information, but that it should be subject under Clause 2 to, in this case, a public interest test with the burden being in favour of disclosure. What has not been said anywhere is when the disclosure will take place. That must be of some importance. One thinks of the inquiry of the noble and learned Lord, Lord Phillips, into BSE and its indictment of the long periods of time when the public were simply not informed--when Ministers and officials decided that the public would not be told and that it was better that they should not know. That adds up to a long period of secrecy during which a great deal of harm is done.
The whole flavour of the debate on these matters has been that that should not continue. If the noble and learned Lord, Lord Falconer, tells me that that is also the Government's intention, I shall accept that. But I want to know whether the Bill has been drafted in order to achieve it. In Clause 2, as amended by the Liberal Democrats through Amendment No. 4, we see the phrase,
"in all the circumstances of the case".
According to all the notions of interpretation that I have ever learnt as a lawyer,
"in all the circumstances of the case", would be absolutely comprehensive if it was not for Clause 10. Clause 10 deals with a timetable. The Bill makes particular reference to the way in which the timetable for disclosure is to be dealt with. At the end of subsection (3) we see the words,
"such time as is reasonable in the circumstances".
The circumstances in Clause 2 do not include time. It is a paramount rule of statutory interpretation that if a matter is dealt with somewhere else it will not be included under Clause 2 as amended earlier today.
What I am asking for in this amendment is that there should be a particular reference to the timetable when it comes to the matters set out in Clause 30(2). When will the public authority disclose the matters that relate to the purpose of ascertaining the cause of an accident? How long will the public authority sit on it? For how long will the information commissioner be debarred from taking account of that timetable in deciding whether the circumstances of the case, under Clause 2 as amended, enable her to judge as between the public interest and the right to information--it is now the right to information and the public interest, as that is the order of precedence?
The Bill as it is now drafted deprives the information commissioner of taking account of an inordinate length of time that has been taken in order to investigate something like BSE or rail safety or nuclear safety. She is not allowed to take account of that timetable when deciding under Clause 2 whether the circumstances are such that she should now rule in favour of disclosure. That is inherent in the drafting of the Bill. If Clause 10 deals with the timetable, I do not understand how the circumstances in Clause 2 can also include the timetable.
I am sure that the noble and learned Lord does not wish to allow that kind of situation to appear on the face of the Bill, but it is the inevitable construction that that is the result of what is now in the text. I hope that he can allay my fears. I beg to move.
My Lords, as I understand the amendment tabled by the noble Viscount, it proposes that, in considering the exercise of the public interest balancing act under Clause 2, the public authority should have regard to the period which has elapsed, in effect, between the exercise of the functions covered in paragraphs (g) to (i) and the application of a request for information. To take an extreme case, if one is looking for information concerning something which took place, say, 15 years ago, that is a factor which would militate in favour of disclosure--to put it no higher than that.
I can readily put the noble Viscount's mind at rest here. As he has rightly pointed out, provision is already made to take account of all the circumstances in the case. That would specifically include the matter referred to in the noble Viscount's amendment. The reference to timing in relation to Clause 10 is not a reference to the activities or exercise of the function in respect of which an application is made; rather it is the period between the time that the application for information is made and the public authority then dealing with it, which is a completely separate matter. It does not, therefore, as a matter of construction, exclude the public authority--in exercising its discretion under Clause 2--from taking into account the matters referred to in the amendment. I hope that that will put the noble Viscount's mind at rest.
My Lords, I do not think that my mind has been put at rest. If one refers to Clause 10(3), we may assume that someone is making an inquiry for information about one of the matters covered by Clause 30(2). The inquiry may be made at a time when the public authority does not wish to disclose the information. The authority can then rely on the provisions in Clause 10(3) to insist that it need not comply,
"until such time as is reasonable in the circumstances".
This is a completely circular argument because what the public authority might think is reasonable in the circumstances is the period of time during which it wishes to keep the matter secret. Having been set out in that form, it seems to me that it cannot be construed as part of the exercise under new Clause 2; namely, as being part of the general circumstances which the information commissioner would take into account. The timing has been selected as a separate issue and thus is "reasonable under the circumstances". I believe that thereby it has been taken out of the generality covered in Clause 2. That worries me very much because I believe that, judging by the way this was handled as regards the BSE issue, a great deal of tension and difficulty has been experienced in government as regards the decision as to when, if at all, such matters should be disclosed--and to whom. This will provide a method whereby a public authority, under the provisions of Clause 10, can say that disclosure is not "reasonably" necessary given the present circumstances.
My Lords, what the noble Viscount is saying reveals a fundamental misunderstanding here. Clause 10(3) deals with the time taken to reach a decision. The noble Viscount's amendment quite properly deals with the question: does the fact that a long period of time has elapsed since the event occurred on which information is now required affect the exercise of the public interest discretion under Clause 2? The reply to that is: of course the age of the information will be a relevant consideration when deciding where the public interest lies under the provisions of Clause 2. Plainly, that will be the case. However, that it is a relevant consideration is not excluded as a matter of construction, by reason of Clause 10, which imposes time limits on the period within which a public authority must reach a decision about whether to disclose. That, with respect, is where the confusion lies here.
My Lords, one of the difficulties is following the references in Clause 10 as it now stands to the new Clause 2, which interprets the provisions of Clause 1. It is extremely difficult--particularly for those of us who tried to draft amendments last week before we knew that Clause 2 was going to be changed--to know what is the effect of this.
The noble and learned Lord may be right that Clause 10(3) is entirely restricted to the time limit during which a public authority, having been requested, may reply. That may be so; he may be right. But at the present time it is far from clear to me that this carries through into Clause 2 and that the information commissioner may consider--as the noble and learned Lord said she certainly may--the whole question of the timetable. If there is any doubt about this, it must be put right and it must be made clear.
This is one of the difficulties about legislating on this kind of basis. We did not know what amendments were going to be accepted today and therefore they were not taken into account when drafting the amendments. I shall look at this again. I heard what the noble and learned Lord said, but I am still afraid that there will be opportunities for delay in disclosing information which may be of the most enormous interest--the noble Lord, Lord Brennan, referred to them earlier--and that there will be opportunities and methods under the legislation whereby the disclosure of information may be blocked.
I shall look at the matter again. I do not promise not to come back to it at a later stage, but in the meantime I beg leave to withdraw the amendment.
My Lords, in moving Amendment No. 39 I shall speak also to Amendments Nos. 40 and 41.
These amendments seek to make the exemptions in Clause 34(1)(a), (b) and (d) subject to a test of prejudice. The most significant of the exemptions is the one relating to policy formulation--we have discussed this on a number of occasions--but there are two other classes of exemptions worth noting. Clause 34(1)(b) exempts anything relating to ministerial communications. It covers not only exchanges between Ministers but what Minister's officials say to each other in connection with those exchanges afterwards. I can assure your Lordships that that happens extensively. Of course the exchanges may involve sensitive matters, but they may also involve mundane affairs of government such as the implementation of a joint circular issued by two departments, or discussing the date when a new regulation will come into force. A prejudice test would provide the basis for distinguishing between what is genuinely sensitive and what could easily be disclosed. This may well be to the advantage of those outside government who are trying to make sense of any new arrangements.
Clause 34(1)(d) exempts any reference to a Minister's private office. Presumably this is not intended to prevent the public from learning how many staff a Minister has--how many staff does the noble and learned Lord have, I wonder--although the clause as it stands would have that effect. The real significance of course is to protect the trail of documents--who knew what and when. When a crisis occurs, Ministers may earnestly assure us that it came out of the blue and could not have been foreseen. In fact there may have been documents circulating across Whitehall warning that this was an absolutely predictable consequence of a decision that Ministers were about to take. Who received the documents? The exemption means that there will be no answer to that.
The heart of the clause is the general exemption for all information about policy formulation found in paragraph (a). All information taken into account in considering any question of policy would be exempt, whether it is high level advice on the most sensitive issues of the day, or a research report or technical analysis, or perhaps just a description of the state of a problem. Ministers would not even have to confirm or deny whether such information exists.
The only exception to the class exemption would be statistics about a decision which had been taken. These could not be withheld, due to the provision in Clause 34(2). The value of this concession is questionable since in most cases--although the Liberal Democrat amendments set down earlier today may make a difference, and we may have to look at that--some of us still feel that a great deal of material could easily be withheld which ought to be in the public domain.
The only basis on which any information within the class could be disclosed is under the Bill's public interest test. If accepted, Amendment No. 43 would reinsert a provision similar to that which appeared in the Bill as it stood at Second Reading. So the public interest in disclosing facts would need to be taken into particular account.
However, any disclosure made on public interest grounds, under the balancing test in Clause 2, would be subject to a ministerial veto in Clause 52. Even if the commissioner's ruling was restricted to a disclosure of purely factual information, the veto could still be used.
Amendment No. 39 adopts a different approach, one which is not subject to the prospect of a ministerial veto. A request for information about policy would be assessed on whether the disclosure would "prejudice" the formulation or development of government policy. If the information consisted of sensitive advice, of a kind which, if made public, would prevent similar advice being given in future--that is an understandable fear of governments and government Ministers--then clearly there would be prejudice to policy formulation.
Releasing factual material is most unlikely to prejudice policy decisions. So facts would generally be available under Amendment No. 39. Scientific advice on health hazards, technical reports, assessments or exchanges of views on non-sensitive matters could all be disclosed if prejudice was not made out. In each case, it would be for the Government to demonstrate prejudice. That is important. It would also mean that if the commissioner decided that prejudice was not established, a notice requiring disclosure could not be vetoed. A department could still challenge such a notice by appeal to the tribunal under Clause 56; so there would be a safeguard available to government.
This approach is in essence similar to that under the open government code of practice. The code allows policy information, including internal opinion, advice and deliberations, to be withheld only if disclosure would harm the frankness and candour of internal discussions. Even when such harm is likely, the code requires departments to release information where there is an overriding public interest in that disclosure.
The final amendment makes it clear that the provision does not apply to law officers' advice--although sometimes I should earnestly love to know what the law officers' advice was. But I shall resist the temptation, and make sure that law officers' advice is separate. That is why I seek to move that provision from its present position to a separate subsection. It would sometimes be nice to know, not just what the law officers' advice was, but whether it had been given. I am well aware that this is a matter where governments are rightly fairly cagey. Certainly, law officers are very cagey and probably welcome the provision.
My Lords, was it that exemption in the code of practice to which the noble Lord has referred which prevented the disclosure of the BSE material between 1994 and 1997?
My Lords, I am relieved to say that, fortunately, I was nowhere near the BSE issues. So I am afraid that I do not know the answer to that question.
Referring to this clause in Committee--which was then Clause 33--the noble Lord, Lord Goodhart, said:
"Clause 33 as it now stands is one of the most objectionable provisions left in the Bill".
I think that the noble Lord recognises his words.
"It plainly requires a harm test to make it acceptable, as well as other changes that we shall be considering shortly. It seems to me that this represents a step backwards, both from the code and from the White Paper. Therefore, I very much hope that the Government will see their way to changing their view on the subject of these amendments".--[Official Report, 24/10/00; col. 278.]
I very much hope so too. I beg to move.
My Lords, as the noble Lord, Lord Mackay, said, this amendment is indeed relevant to Amendment No. 43. However, it is particularly relevant for the following reason. My understanding of the explanation of the noble Lord, Lord Lester, of Amendment No. 43 is that it would send a signal to the public, and to the public service, that there is a public interest in the disclosure of the factual information behind decision making. In effect, it is a purpose clause and one that implies a strong presumption of entitlement to the factual information concerned. If that is the case--it would be helpful if my noble and learned friend the Minister would also confirm this--there is less need for the amendments of the noble Lord, Lord Mackay of Ardbrecknish.
My Lords, in the absence of my noble friend Lord Lester, I am happy to respond to the invitation of the noble Baroness, Lady Whitaker. The noble Lord, Lord Mackay of Ardbrecknish, referred to a speech of mine made in Committee, during which I pointed out the importance of including a harm test in relation to the non-disclosure of background information relating to policy decisions.
I do not wish to repeat what I said in response to the speech of the noble Lord, Lord Brennan, on Amendment No. 36; nor do I wish to return to what I said earlier in the debate. However, as a result of amendments that have been accepted to Clause 2, and on the assumption that our Amendment No. 43 will be accepted, we now have a harm or prejudice test. It is true that, for better or worse, the Government refuse in so many words to spell out that fact. Following the Government's acceptance that the public do have a particular interest in the disclosure of factual information, together with their acceptance of the principle that disclosure has priority unless there is good reason for non-disclosure, it seems to me that what we now have is no more and no less than a harm test.
My Lords, the contributions of the noble Lord, Lord Lucas, on freedom of information have been based on the premise that the BSE material should be the bench-mark by which we measure this particular Bill. The noble Lord, Lord Mackay of Ardbrecknish, frequently says that the code of practice is better than the Freedom of Information Bill; indeed, he has said so repeatedly during both the Committee and Report stages. However, when confronted with the BSE test, he is unable to explain to us why the code of practice produced not one material document in relation to the BSE inquiry. Therefore, if we apply the bench-mark of the noble Lord, Lord Lucas, the code of practice does not look very convincing.
The amendment now before us is important because it raises the issue that was at the heart of this evening's earlier debate on Amendments Nos. 42 and 43. The Government have always said that there should be a class exemption under Clause 34 to provide the protection in respect of which policy decisions could be taken. However, that is subject to Clause 2, which, with the addition of the amendments tabled by the Liberal Democrats, now means that not just factual material but all material--whether it be advice or analysis--must be disclosed, unless there is a good reason for it not to be disclosed.
Moreover, if the factual material "steer" included in the amendment of the Liberal Democrats is accepted and inserted into the Bill, that will apply not only to factual material in relation to decisions that have already been made; it will apply also to factual material that is intended to be used in the future in relation to policy decisions. So, again, if we apply the bench-mark of the noble Lord, Lord Lucas, regarding BSE, there are not the inhibitions referred to in the code of practice. It provides a structure within which that material could and would have been disclosed. I do not necessarily accept the way that the noble Lord, Lord Goodhart, puts it, but his provision aims to achieve the same objectives that those promoting this amendment seek. Therefore, I respectfully suggest to the noble Lord, Lord Mackay of Ardbrecknish, that he considers not only the effects of the amendments that have been made, in particular to Clause 2, but also the effect of Amendment No. 43 to Clause 34--if it is accepted--before he presses the amendment.
My Lords, I thank the Minister for that answer which I think I followed. If the noble Viscount, Lord Colville of Culross, finds some of this difficult to understand, I assure him that some of us who are not lawyers find it almost impossible to understand. I shall rely on what some of the lawyers said who were critical of the measure.
When the Minister chides me with regard to the code of practice and BSE, I sometimes wonder whether the Government are imposing a lesser test than was imposed in the code of practice. If the code of practice did not allow for information on BSE to be disclosed, how does a lesser test allow for that? The Minister is indicating that it is not a lesser test. I shall seek to withdraw my amendment and give further consideration to the matter.
Like the noble Viscount, Lord Colville of Culross, I shall have to read the Bill when it is reprinted after this stage in order to ascertain exactly what the Government are getting at. It might have been better if there had been some freedom of information last week when we could have been given an explanation, perhaps even by letter, with regard to the amendments the Government and the Liberal Democrats had agreed to table. A little freedom of information in that regard might have been much more helpful to us than the kind of secrecy and press leaks on which we were forced to rely. However, I beg leave to withdraw the amendment.
moved Amendment No. 43:
Page 20, line 36, at end insert--
("( ) In making any determination required by section 2(1)(b) or (2)(b) in relation to information which is exempt information by virtue of subsection (1)(a), regard shall be had to the particular public interest in the disclosure of factual information which has been used, or is intended to be used, to provide an informed background to decision-taking.").
My Lords, in moving Amendment No. 44, I should like to speak also to Amendment No. 58. The class exemptions in Clause 34 are available only to a government department. Other public authorities which may seek to withhold information about policy formulation would have to rely on the exemptions in Clause 35(2)(b) and (c). The precise definition of "government department" is therefore of some interest. Clause 83 contains the definition which makes it clear that the term extends beyond ordinary ministerial departments to,
"any other body or authority exercising statutory functions on behalf of the Crown".
This means, I presume, that bodies such as the Health and Safety Executive and the Food Standards Agency which exercise functions on behalf of the Crown are government departments under the Bill. Other regulatory bodies may also fall into this category, but I believe that the two I have mentioned do.
There is also a list of public authorities in Schedule 1 but they do not include bodies such as Oftel, Ofwat, Ofgem--I hope that no one asks me to spell out what those letters stand for as we could be here all night--the Office of the Rail Regulator, the Financial Services Authority, the Crown Estate and so on. These may be automatically covered because they exercise functions on behalf of the Crown. Alternatively, some of them may be agencies of a parent government department, in which case my amendments would make no difference to their status. I shall be interested to hear what the Minister has to say.
The wide definition is helpful in that it automatically sweeps up bodies into the scope of the Bill by virtue of the first entry of Part I of Schedule 1, which provides that any government department is a public authority. But it also means that bodies which are government departments only because of the definition in Clause 83 also enjoy some of the wider protections for policy formulation offered by Clause 34--the very matters about which we spoke. This point has not been considered at any stage of the Bill. I am not sure whether the Government intend bodies like the HSE and the FSA to enjoy this wider protection; it may be an incidental effect of the drafting.
Amendment No. 44 provides that bodies which are government departments merely because they exercise statutory functions on behalf of the Crown are not entitled to invoke the policy formulation exemption. This will be restricted to ministerial government departments. The remaining government departments will be placed in the same category as other public authorities which would have to justify the withholding of internal policy documents under the relevant provisions of Clause 35.
Amendment No. 58 relates to a similar point arising in relation to Clause 52(1)(a). The ministerial veto can be exercised in relation to a government department or any other authority designated for this purpose by an order made by the Secretary of State. Until now it has been assumed that only ministerial government departments would fall into the former category, but it may be that a variety of other authorities are also government departments because of the breadth of the definition of the term in Clause 83. Again this might mean that the Health and Safety Executive and the Food Standards Agency and any other body exercising statutory functions on behalf of the Crown could ask Ministers to exercise a veto on their behalf. I believe that it is inappropriate that safety bodies of that kind should enjoy a veto in this way. My amendment would limit the veto to ministerial government departments only. I beg to move.
My Lords, the term "government department" is defined for the purposes of the Bill in Clause 83 so that it is clear to the public, the public authorities and the commissioner what is meant by that term.
Amendments Nos. 44 and 58 seek to alter this definition for the purposes of the application of the term in Clause 34--the formulation of government policy, and so on, and the exception certificate procedure in Clause 52.
I understand that by the amendments the noble Lord seeks to limit the scope of the protection provided to certain government bodies by the exemptions at Clause 34 and the certification procedure at Clause 52. We have debated at length in this House why it is necessary that the central functions of government should attract the exemptions provided by Clauses 34 and 52. The Government have listened to the arguments and have moved, I think considerably, to limit the scope of the exemptions. But the Government cannot accept that the distinction which the noble Lord now seeks to identify between ministerial and non-ministerial government departments is sensible. The noble Lord clearly does not accept or perhaps understand the reality of how governments are structured in a modern state. Government functions are no longer all performed solely by the central ministerial government departments. The provisions in the Bill which are specifically focused on government must reflect this and the current wording does exactly that.
The term "government department" has a generally accepted meaning which includes bodies other than the classic ministerial central government departments including government agencies and non-ministerial government departments.
My Lords, I think that the Minister is now answering my question: that the Health and Safety Executive and the Food Standards Agency are indeed government departments. That definition may have been all right for all the other purposes beforehand, but do we really think that it is right when it comes to freedom of information? That is the question the noble Lord has to answer. He does not need to give me a lecture on the fact that we have treated them as government departments. We are looking at an entirely new business. The question is whether Ministers should be able to use a veto for bodies other than ministerial government departments or should rely on other parts of the legislation and not the ministerial veto. I should be grateful if the Minister will turn his attention to that important issue. It is the central point of my amendment.
My Lords, we believe that it is right that they should be in that position. The effect of the definition as drafted is to ensure that there is no ambiguity about whether these bodies are included within the provisions of Clauses 34 and 52. They are clearly bodies exercising statutory functions on behalf of the Crown: that is the key point.
It is not clear to us that by amending the definition as proposed would in practice limit the definition in the way intended by the noble Lord, Lord Mackay. However, removing that part of the definition would remove the certainty we believe to be necessary if the public and the bodies themselves are to be clear exactly when and how the freedom of information will apply.
To put it simply, we believe that these amendments are wrong in principle and would prove ineffective in practice. The noble Lord may not like, or perhaps not even accept, our interpretation of this or the principles behind it, but that is how it is, and I invite him to withdraw the amendment.
My Lords, I do not know the answer to that question. I shall have to study the matter and will happily write to the noble Lord on that point.
My Lords, I am not entirely sure that I received a satisfactory defence of the position. I received an explanation, but it was hardly a defence of the decision that government Ministers would be able to use their veto when it comes to bodies like the Health and Safety Executive. As time rolls on, I actually think that people will find, if that is ever used, that it is a very puzzling proposition. I think that maybe the Government ought to have thought a bit harder about what to do about this matter. I am almost tempted, by the nature of the reply given by the noble Lord, Lord Bassam, to offer the opportunity to exercise our legs by going through the Division Lobbies, but I am also mindful of the hands of the clock and so I will beg leave to withdraw my amendment.
My Lords, the objections to Clause 35 have been well rehearsed at earlier stages of our discussions and I can refer to them very briefly. First, is the fact that the test to be applied is not an objective one. It is the reasonable opinion of a qualified person. In Committee, lawyers actually reached a consensus on one matter at least: we all agreed that no one can second-guess the opinion reached by a qualified person. Provided that he asked himself the proper questions and the conclusion was one which could have been reached by a reasonable person then his conclusion is unassailable.
In Committee, in moving an amendment to leave out those offensive words, the noble Lord, Lord Goodhart, pointed out that people making decisions naturally tend to prevent others examining the background to those decisions, because that would facilitate any criticisms which someone might wish to make. He asked what was wrong with leaving the decision to a commissioner--someone with wide experience in applying such tests and with no obvious axe to grind.
He also pointed out another difficulty: the harm test and the prejudice test here will be by different people. The noble Lord, Lord Goodhart, pointed out that, having considered the decision about disclosure and perhaps having decided that no prejudice would result from the disclosure of the information, the commissioner must say, "That is not the test I have to apply. If the qualified person has properly applied his mind to the question it is his opinion which must prevail, so I must deem that prejudice would result from disclosure."
Then, as my noble and learned friend so often points out, the question arises as to where the balance of public interest lies unless, in relation to this clause, it is in the possession of one of the Houses of Parliament. The commissioner may find himself weighing not the prejudice that he believes would arise from disclosure but that which he is required to assume would arise. By what convoluted mental process must he weigh in the balance a prejudice that he does not believe exists? The noble and learned Lord, Lord Goodhart, is kind enough to nod assent to my paraphrase of what he said.
Even if the decision on disclosure survives all that, just when it thinks that it is about to pass "Go" and collect £200, there is another trap lying in wait. The authority may say, "Even though it might not fall foul of any of the tests, it might prejudice the effective conduct of public affairs". I do not remember hearing any examples of a disclosure which would not prejudice the convention of collective decision-making, would not prejudice the work of the Assemblies in Northern Ireland or Wales, would not inhibit free and frank discussion, would not inhibit the free and frank exchange of views but would nevertheless prejudice the effective conduct of public affairs. In Committee, my noble and learned friend the Minister was frank enough to admit that the provision was a "catch-all".
My Lords, I think that the noble and learned Lord is referring to subsection (2)(c). Two examples were given in Committee. One related to the communication between a chief examiner and other examiners on the content of exam questions. The other was on proposals to list particular buildings. Having to make public proposed exam questions would clearly prejudice good government without in any way inhibiting advice given. Disclosing the fact that a building might be listed and giving the reasons for listing it before an announcement was made might affect the value. It is not correct to say that no examples were given.
My Lords, my recollection sometimes leaves something to be desired these days. I fully accept what my noble and learned friend says. But appropriate provision can be made in the Bill for such specific examples. Indeed, I am not sure that there is not already appropriate provision--that is, for information that is to be disclosed at a future date. There are a number of provisions that may already catch those examples. If they do not, it is not difficult to make appropriate provision. If one is trying to catch one particular hare, it is not appropriate to spread a fence across 40 miles of countryside and catch every animal in sight. That is what I understood my noble and learned friend to mean when he said that the provision was a "catch-all".
The provision has been condemned from the Conservative Front Bench, the Liberal Front Bench and the Conservative and Labour Back Benches. Repeating the arguments would make no great contribution to the debate. I have explained the purpose of the amendment, which I think is self-explanatory. I beg to move.
My Lords, I agreed with everything that the noble and learned Lord, Lord Archer of Sandwell--he is indeed learned, unlike me--said about the reasonable opinion of a qualified person, not least perhaps because he referred to some similar remarks that I made in Committee. I still hold the view that I expressed then.
In the deal which we arranged with the Government on this matter, we agreed not to press for the removal of the reference to the reasonable opinion of a qualified person. We did so because we do not believe that it makes a significant difference. That is because, as the noble and learned Lord, Lord Archer, pointed out, what matters here is not the initial decision that prejudice is shown--a decision taken by the qualified person--but the subsequent exercise by the information commissioner in carrying out her powers under Clause 2.
That being so, we regard the reference to the reasonable opinion of a qualified person as being effectively almost pointless rather than significantly damaging to the right to freedom of information. Although we would prefer those words to be deleted, we are willing not to press for their removal in view of the important amendments which the Government have already agreed to accept.
My Lords, I rise to support my noble and learned friend in this amendment. I am bemused by what the noble Lord, Lord Goodhart, said because I did not really understand it. However, I understand that he must say something and I believe that that is the explanation: he must say something under these circumstances and that is what he chose to say. Perhaps later he could explain to me what he said in relation to it not mattering. It seems to me that this part of the Bill matters enormously. I believe that the words,
"the reasonable opinion of a qualified person ... would be likely ... to prejudice, the effective conduct of public affairs", are most important.
The Bill appears to place no limit on the matters that can be caught by this exemption. Therefore, I understand that, by giving legal weight to a Minister's opinion, the decision is then protected from review by the commissioner. I hope that I am wrong in that and that someone will correct me.
My Lords, perhaps I may assure the noble Baroness that she is wrong on that point. A decision can be reviewed on grounds of unreasonableness. However, the only decision on which the information commissioner is prevented from substituting her own discretion is the decision that some prejudice exists. What matters is that, in applying the public interest test under Clause 2, she is the person who must then weigh up that prejudice against the public interest in disclosure. In that respect, she is in no way restricted in coming to her own independent decision.
My Lords, therefore, would it not be simpler not to have it at all? The exemption here is considerably worse, for example--again, I hope that the Minister will explain this to me--than the equivalent provisions in the open government code, of which the noble Lord opposite is so fond and, indeed, than other overseas freedom of information laws.
I hope that the Government will reconsider their position on this matter because I believe that it is important. I do not believe that a freedom of information Bill worth its weight should have this type of exemption in it.
My Lords, before the Minister replies, I should like to ask the noble Lord, Lord Goodhart, whether he can possibly be right in what he has just said about the powers of the commissioner. The difficulty in relation to this Bill is that the duty to confirm or deny is a term of art. It means "the right to know".
The provision in Clause 35(3) means that there is no right to know. Therefore, Clause 2 does not arise because Clause 2 depends upon Clause 1, which is the duty to confirm or deny, and there is no jurisdiction for the commissioner to do anything other than a judicial review exercise. The question of prejudice or merit does not come into it.
My Lords, we have probably breached the rules of the House there but I am not surprised because the noble Lord, Lord Goodhart, is acting in many ways as the shadow Minister, and I do not mean the opposition shadow but I mean the shadow Minister on this Bill and he is always very quick to give what I consider to be a ministerial speech. That must be a great relief to the noble and learned Lord, Lord Falconer; or perhaps it is not considered helpful at all.
My Lords, I do not think it does quite that. I believe it shows widespread support among the people with whom he has done a deal. Perhaps if he had done a deal with some of his noble friends or even with myself, he might be receiving widespread support.
I am totally puzzled as to exactly what the truth is. I have listened to the noble Lord, Lord Goodhart. I have here the letter from Charter 88 from which I have quoted before but I have not quoted this part and I feel, therefore, that I should do so. It talks about the Clause 35 prejudice to the effective conduct of public affairs. It states:
"This 'catch-all' protects any information whose disclosure 'would in the reasonable opinion of a qualified person be likely to prejudice the effective conduct of public affairs'. This qualified person would be a minister or official. By giving weight to a minister's opinion, the decision is protected from review by the Commissioner", which is exactly the point which the noble Baroness, Lady Thornton, was making.
Perhaps Charter 88 is wrong and the noble Lord, Lord Goodhart, is right; I do not know. It goes on to state:
"This is considerably weaker than the current Open Government Code".
It is not as though I am in love with the current open government code. I just think that if this Bill is to be an improvement, then it jolly well should be an improvement, and not be either the same or weaker. The letter goes on to state:
"Lord Archer has proposed amendments to remedy this provision".
"The Government consider that only a qualified person can have a full understanding of the issues involved in the decision-making processes of a public authority".
I must say that that is good government-speak. He has learnt to be a government Minister pretty quickly. He goes on to say that,
"we do not consider that it would be right for the prejudice caused by that sort of information to be determined by the Commissioner".
Therefore, I am left absolutely puzzled when the noble Lord, Lord Goodhart, tells me that the commissioner does have a role. The Home Office Minister did not seem to think so and Charter 88 does not seem to think so.
The freedom of information people say:
"We do not believe a self-respecting legislature would accept this objectionable principle on the face of a freedom of information Bill".
My Lords, are we a self-respecting legislature?
He will note that another member of the Bar has told us that the inclusion of the trigger of having,
"the reasonable opinion of a qualified person", is pointless. I wonder whether he agrees with that and,if he does not, why is it necessary?
Secondly, there is the critique of my noble and learned friend Lord Archer towards paragraph (c) in relation to the prejudice that might be caused to the effective conduct of public affairs. Can I prevail upon my noble and learned friend to give us a little more explanation about that? It is the sort of phrase which, if used before a judge, would probably receive the sobriquet that it was vacuous at best, meaningless at worst.
Those instructing my noble and learned friend, so to speak, have come with the examples of examiners' papers and information about proposed disposition of property. I cannot believe that the law of confidentiality as it exists does not protect both those items as being needed to be protected in the public interest.
If those examples are the limit of what has been given to him by way of how the paragraph will work, does he not agree that it appears to be a mighty piece of vacuous verbiage to cover what I may call unimportant examples in relation to a Bill of such significance? In dealing with those two points I hope that he will return to the level of intellectual distinction that we usually expect of him.
My Lords, there has been much discussion between legal experts, but I intervene briefly because earlier I said that in an earlier existence I believe that I would have been qualified as a "qualified person" for the purposes of the clause. The Minister will be glad to hear that I do not have strong views on this point. However, it is important to understand that including in the Bill the words,
"in the reasonable opinion of a qualified person", we are de facto, but perhaps not de jure, restricting the operation of the commissioner.
If a qualified person has already decided in accordance with statute that the disclosure of certain information would, or would be likely to, prejudice the maintenance of the collective responsibility of Ministers of the Crown, it would be extremely difficult for the information commissioner to put against that her opinion on the public interest. That is the reality. The reality is the reverse of what the noble Lord, Lord Goodhart, stated; it is, that the opinion of the qualified person will be the most important element in deciding on the disclosure of the information and, although the information commissioner may be able to operate in the public interest under Clause 2 of the Bill, her position will be extremely weak.
My Lords, it is quite clear that what the noble Lord, Lord Goodhart, said is entirely wrong. If the Government agreed with him that this was a set of proposals in the Bill that had no particular effect, they would have been delighted to give in to the noble Lord, Lord Goodhart, for a little extra concession such as him taking on the job of Minister for the Dome for a while.
However, there is a serious point to be dealt with. We are dealing with a catch-all; and when designing a catch-all in a Bill, generally one designs it so that it catches anything big that has been missed, but this is designed as a fine-tooth comb to go through the whole of the Bill and to trawl out anything little that may have been missed and subject it, not to the public interest test, but to something that is much more favourable to public authorities and officials.
My Lords, does the noble Lord, Lord Lucas, consider that the public examinations example should be covered by a non-disclosure provision, and, if so, by which one should it be covered?
My Lords, I was not objecting to the non-disclosure provision. I am objecting to the words,
"in the reasonable opinion of a qualified person".
That substitutes for the general public interest which is satisfactory in matters of enormous importance elsewhere in the Bill, but because this affects the intimacies of a public authority, it is to be protected by the reasonable opinion of a qualified official which is to be set up not only as establishing the existence, but the quantum, of damage that may be done to the Government.
It is quite extraordinary for the Government to argue that the commissioner can determine whether some large state secret is to be released on public interest grounds, but cannot determine whether or not it is right to disclose the details of some aspect of the public examination system. It is quite ridiculous that the public interest test, which is right, proper and reliable for all the major aspects of this Bill, should be so denatured when it comes to the little bits of public authorities because for most of us citizens it is those little bits that count. It is the denial of our proper access to that sort of information which will cause most of us most grief if this Bill is enacted the way it is.
My Lords, I rise to support these amendments. Their juxtaposition is particularly important because it is the juxtaposition of the phrase,
"in the reasonable opinion of a qualified person", with paragraph (c) that serves to undermine the whole purpose of the Bill by a sweeping-up provision and giving the decision to a qualified person to determine. So I agree completely with the points made on the phrase,
"in the reasonable opinion of a qualified person".
As has been mentioned, paragraph (c) is really a sweeping-up provision and the Minister would probably admit that on the basis of discussions in Committee. The problems I have with his justification for it are two-fold. One is that, when he is challenged to justify it, he does so by reference to example. That in itself is insufficient to justify the breadth of this type of provision. But I have a second problem with the actual examples he tends to give. One goes away and thinks about those examples and, on looking at the rest of the Bill, finds that the examples are covered by other provisions.
The noble and learned Lord put to my noble friend Lord Lucas the question of exams. In part that was answered by the noble Lord, Lord Brennan, in relation to confidentiality. It is also covered by Clause 21.
My Lords, Clause 35 is obviously an important provision which requires serious consideration. Its effect is to cover matters not covered by Clause 34. In particular, it covers information held by public authorities other than central government.
Once one accepts in relation to Clause 34 that in regard to the formulation of policy there should be some protection to enable open and frank conversations to take place between officials and Ministers or decision-makers, and that that applies to central government, it seems right that the same protection should be given to public authorities which are not part of central government. That is one important part of Clause 35.
The other important part of Clause 35 concerns the fact that the Government readily acknowledge that around 50,000 bodies will be covered by the Bill; they will be under an obligation to give people the right to know. But situations may arise which one cannot quite envisage and cannot quite cover by a specific exemption, but in relation to which one would assume, if one was a reasonable person, that some sort of exemption should be given. It seems sensible in that regard that there should be some test which provides protection. That is the purpose of Clause 35.
Although I gave examples, the main purpose of Clause 35 is to cover those 50,000 bodies in relation to situations where not every eventuality can be covered. Why does one refer to,
"the reasonable opinion of a qualified person"?
It is because if one is dealing with a situation that is not targeted in the way that the other exemptions are with that same degree of identification, it is right that, instead of it simply being a matter about which the anonymous public body should make up its mind, an individual of high standing and great responsibility in the organisation should personally make the decision as to whether or not Clause 35 should be invoked. That seems to me to be a sensible protection.
All of Clause 35 is subject, as the noble Lord, Lord Goodhart, rightly said, to Clause 2; namely, the balancing of the public interest. The noble Lord, Lord Goodhart, rightly said in relation to the phrase,
"in the reasonable opinion of a qualified person", that the information commissioner cannot interfere unless there has been some procedural irregularity in the exercise of the discretion or the judgment is so perverse that no reasonably qualified person could have come to it. However, when it comes to Clause 2, the information commissioner is entitled to substitute her view for that of the public authority as regards where the balance lies between the exemption on the one hand and the public interest and disclosure on the other. In the light of the amendments put into the Bill by the Liberal Democrats earlier tonight, the balance will start in favour of disclosure unless there is a good reason against disclosure.
It seems to me that there is a reasonable structure. A reference to,
"the reasonable opinion of a qualified person" provides sensible protection. It is sensible that there should be a clause such as Clause 35 to cover bodies other than central government and to deal with 50,000 public authorities which may have particular concerns in relation to it.
Finally, the noble Lord, Lord Norton, asked why Clause 21 does not deal with the issue. As an academic, he will know that the proposed examination questions may not ultimately be published because changes may be made to them or that different questions may be asked.
My Lords, I was making a number of points but I am saying that when Clause 35 is invoked it is very important that instead of the body being anonymous--for instance, the Meteorological Office--an individual of great seniority in the body concerned, as defined in subsection (5), must take the decision that there would be prejudice, for example, to the free and frank provision of advice, or the free and frank exchange of views, or the effective conduct of public affairs. An identified person of seniority must put his or her reputation or position--
My Lords, the Bill as drafted provides for
"the reasonable opinion of a qualified person", and then the qualified person is identified as a Minister, the Speaker of the House, the First Secretary of the National Assembly for Wales, the Mayor of London and so forth. They are all sufficiently identified.
My Lords, was I right in understanding the noble and learned Lord to say that the information commissioner, if she comes to review a decision under this clause, will be entirely unrestricted in how much weight she chooses to give to the prejudice? In other words, she could entirely discount the views of the qualified person as to the quantum of the prejudice.
My Lords, perhaps I may make a related point. The noble Lord, Lord Williamson, appeared to imply that the qualified person would be so awe-inspiring as to make the information commissioner almost powerless. Is that a fair assumption?
My Lords, not from what I know of the information commissioner. The point made by the noble Lord, Lord Lucas, relates to Clause 2 and not to Clause 35. Under Clause 35, the information commissioner could interfere with the reasonable opinion of the qualified person only if there were some procedural irregularity in the exercise of the discretion or if it were such a perverse conclusion that no reasonably qualified person could have reached that conclusion.
However, that would then be subject to the public interest balancing test and in relation to that the information commissioner would be entitled to substitute her own view for that of the public authority's in relation to the balancing act in Clause 2.
My Lords, unlike the position in relation to Clause 35, she is entitled to substitute her view of the balance for that of the public authority.
My Lords, before the noble and learned Lord sits down, my point in relation to Clause 21 remains valid. One devises exam questions only if there is a likelihood that they will be published, if not at the time of the next round, at some future date. Clause 21 is drawn in such a way that it covers that. Is the noble and learned Lord saying that he and his advisers have been so intellectually lazy, so to speak, that they have been unable to think of any examples that would be caught by paragraph (c) but would not be caught either by other specific clauses or by subparagraph (b)(ii)? I should have thought that, given the resources at the disposal of the Minister, he would have been able to come up with a few more examples.
My Lords, I am not sure that it is worth while to continue to debate the question of exams. The most obvious example is that all of the public authorities which are not central government are caught by Clause 35. I believe that the noble Lord must first deal with that great collection of public authorities. The noble Lord will agree that they are covered by Clause 35, not Clause 34. For example, as to full and frank exchanges of view, there is no other provision in relation to non-central government departments apart from Clause 35. The noble Lord nods.
My Lords, I am most grateful to all noble Lords who have participated in this debate. If I attempted at this hour to answer every contribution I would not go to the head of the popularity stakes. We make two criticisms of this clause. First, the judgment to be made is subjective, not objective, and depends on the opinion of a qualified person. We see no reason why the question should not be addressed directly by the commissioner, who can decide what she believes to be the case.
More and more in these debates those of us who move amendments find ourselves answering the noble Lord, Lord Goodhart, rather than the Minister on the Front Bench. The noble Lord said that one did not have to worry about it, because when one decided whether the matter fell within the clause, there remained outside the question of the public interest override which the commissioner would be free to address. I believe that the noble Lord answered that question in Committee. He poured out a great deal of sympathy for the unhappy commissioner who had to accept, first, the decision of the qualified person as to where the prejudice lay and then proceed to weigh the amount of prejudice which she did not believe existed. By the end of that process the commissioner will be a case for a psychiatrist.
This matter is still subject to Clause 52; no deal has whittled that problem away. My noble and learned friend produced a further argument. He asked one to think of the number of public authorities which would be concerned about this matter. Surely one needed to identify someone; namely, a qualified person. But we need a qualified person only because the Government have introduced this into the Bill as part of a subjective test. We do not need any person at all, identified or not, if the test is an objective one and the commissioner can simply look at it. In the course of debates on this Bill my noble and learned friend has augmented the respect in which we have always held his powers of advocacy, but I believe that the prediction of my noble friend Lord Brennan tonight has been fulfilled: this matter has extended even the powers of advocacy of my noble and learned friend.
The second criticism of the Bill is the catch-all about the conduct of public affairs. I believe that that has been answered by so many contributions that it is rather a pity to labour it. As my noble friend Lord Brennan said, it is caught by the general law of confidentiality. Anyone who has ever served on an examination board knows that confidentiality becomes almost an obsession. I recall that when I was part of an examination board I received envelopes marked "Strictly private and confidential". I opened the envelope. Inside was a further sealed envelope which said, "To be opened only by Mr Archer". When I opened it, I found a note which said, "Thank you for the letter you sent us yesterday". That is the degree of confidentiality with which we are dealing. I cannot believe that the courts would not be able to deal with that problem.
I shall not labour the matter. On this occasion my noble and learned friend has not been able to satisfy us. Late as the hour is, I am bound to seek the opinion of the House.
moved Amendment No. 49:
Page 24, line 21, at end insert--
("( ) Where information is exempt only by virtue of the fact that it is--
(a) information to which subsection (2) applies by virtue of the fact that the first condition referred to in that subsection is satisfied; and
(b) that condition would not be satisfied if the data subject consents to the disclosure, the authority shall, if it is reasonable in all the circumstances to do so, take reasonable steps to enquire whether the data subject consents to the disclosure.").
My Lords, in most cases, the exemption for personal information applies if disclosure would contravene one of the data protection principles set out in the Data Protection Act 1998. In many cases, there will be no contravention of the principles if the data subject--the person to whom the information relates--consents to the disclosure. This amendment would require the authority to take reasonable steps to ask whether the consent will be given, provided that it is reasonable so to do. Where the individual is, for example, a civil servant and the personal data involve information about what he has done in that capacity, the information may technically be personal data, and therefore exempt, but it would probably be reasonable for the department to ask for his consent. However, where someone is seeking information on the health of a neighbour, it is clear that that would not be reasonable.
The amendment states:
"the authority shall, if it is reasonable in all the circumstances to do so, take reasonable steps to enquire whether the data subject consents to the disclosure".
I believe that the amendment is quite unusual in that it means exactly what it says and is fairly easy to understand. Furthermore, it is not subject to some of the disagreements that we have had during most of our debates tonight as regards what exactly the Bill means.
One reason I have tabled the amendment is because the Campaign for Freedom of Information brought to my attention the fact that it had recently been refused information as regards the identity of private sector employees who were seconded to the DTI, on the grounds that identifying such staff would contravene data protection principles. I doubt whether the individuals concerned were even asked whether they wanted that kind of protection. The concern here was that a member of the public might contact the department to raise worries about a company, but it could be that they then found themselves dealing, not with a career civil servant, but with an employee of exactly the same company. For that reason, I believe that information of this kind ought not to be kept secret but should be made available to those who inquire.
The amendment seeks to ensure that the authority, whether it is one of the 50,000 bodies that have been referred to, takes reasonable steps to ask the subject whether he will consent to the disclosure. I beg to move.
My Lords, the noble Lord has raised an interesting example and I shall try to refer to the points he has raised as I move through my response. As drafted, the amendment would apply to information which is exempt by virtue of one of the conditions relating to Clause 39(2), but I believe that its application would be limited.
This amendment is likely to have relevance to information only where a Clause 38(2) exemption falls to be considered by virtue of the condition set out in subsections (3)(a)(i) or (3)(b). This condition relates to a request for a disclosure of personal information by a third party where such disclosure would contravene the data protection principles set out in the Data Protection Act.
I believe that we debated a similar amendment in Committee, tabled on that occasion by the noble Lord, Lord Lucas. I said then, and I repeat tonight, that I am not persuaded that the duty proposed in this amendment amounts to anything which would improve the Bill. The amendment proposes that there should be a duty to,
"take reasonable steps to enquire", of the data subject whether he consents to disclose relevant information,
"if it is reasonable in all the circumstances".
I have noted that this is not a duty to consult. I would not support such a duty, but I could at least understand how it might be enforced. But the duty which this amendment proposes is too vague to be effective or to be effectively enforceable.
The Government recognise that public authorities should, in appropriate circumstances, be encouraged to consider consulting a third party where to do so might result in the disclosure of information which would otherwise be exempt. But we do not believe that it is appropriate to place on authorities a statutory duty to do so. For that reason we have set out the requirement as a provision within the Secretary of State's code of practice, which will be made under Clause 44.
Of course the commissioner can look at the way in which an authority is complying with the code. If she is not satisfied that an authority is exercising its functions in conformity with that code she will, of course, as ever, be able to issue practice recommendations under Clause 47 and, if the authority is still not complying, "name and shame" that authority in a report to Parliament.
We think that that is a more appropriate way to deal with the issue.
My Lords, I shall have to take further advice on that point.
The point I was making is that we feel the "name and shame" route and the issuing of practice recommendations would be a more appropriate way of dealing with the issue raised by the noble Lord. I do not dispute that the noble Lord has raised a good issue.
As currently drafted, the draft code of practice contains good practice advice to public authorities on consultation with third parties. It proposes that where, for example, there is an issue of personal privacy and the consent of a third party would enable a disclosure to be made, a public authority should consult that party prior to reaching a decision unless it is clear to the authority that the consent would not be forthcoming.
I think that I have addressed the point made by the noble Lord. If not, I shall reflect further on his observations should he require further explanation.
My Lords, I am grateful to the Minister. I am puzzled how an authority would know that the consent would not be forthcoming unless it goes and asks the person. It seems rather a nice get out, "I did not ask them because I knew they would not consent". It is not very satisfactory. In any case, it seems amazing that the Government are happy to put something along these lines in a code of practice with that caveat, which I find difficult to understand, but are not prepared to put it on the face of the Bill.
However, I am getting to the desperate stage in regard to some of the Government's arguments on the Bill. I shall not pursue this matter further. I shall read what the noble Lord said and study the words of the code of practice. Perhaps the Minister and his officials will think about it. Will the code of practice be strong enough? As to naming and shaming after the event, there are 50,000 authorities. It will take a devil of a long time to name and shame all 50,000 as cases come up. There will not be that many cases like this; they will not all be flowing in during the first few weeks. Firm guidance should be given on this issue, and the firmest guidance can be given on the face of the Bill.
My Lords, I invite the noble Lord to study very carefully the code of practice. When he reads it he will see that the guidance is quite clear and unequivocal and that consultation with third parties is obviously there to be made. I think his interpretation of what I have said is somewhat misguided. I invite him to withdraw his amendment.
My Lords, if my interpretation is misguided it is because what I have heard has been confused. I was about to say that I will withdraw my amendment. I shall read very carefully the code of practice in order to be certain in my own mind that it is strong enough to ensure that public authorities do not use this as an excuse to hide information which ought to be made public. I beg leave to withdraw the amendment.
moved Amendment No. 50:
Page 25, line 21, after ("it)") insert ("except that, where the public interest in complying with the request for information exceeds the harm to the public interest that would arise from the authority releasing it, the information is not exempt").
My Lords, this amendment seeks to insert a public interest test into Clause 42(2), which exempts information that would prejudice commercial interests. Anyone who wished to appeal against the disclosure of information under this test and the ruling of the commissioner could do so by applying to the tribunal.
The amendment seeks to ensure that the public interest continues to be weighed against the commercial one, including the commercial undertakings of public authorities, when considering whether information should be disclosed or not. Without the amendment, it would be possible to exempt information under this clause with the weakest attachment to commercial activity and thereby avoid the more rigorous test of what would be in the wider public interest.
An example is information relating to the use of pesticides for commercial gain. I suppose that most pesticides are used for commercial gain, or else they are used to rid us of the demon midges--unfortunately, they are not very successful. If commercial gain could be prayed in aid, it could mean that information would not be revealed. The authorities would take the view that to give out such information would prejudice the commercial interests of either an individual or a public authority in terms of reputation or management and that it ought not to be revealed.
Trade secrets as a whole would remain unexposed to disclosure because the display of their content would not qualify as overwhelmingly in the public interest. However, it might well be in the public interest if some other pieces of commercial information were revealed. I should like to try to tease out from the Minister some of the thinking behind parts of the Bill that attempt to close the door on public information rather than keep it open. I beg to move.
My Lords, I support the noble Lord in this amendment. I have hit my head against a brick wall on many, many occasions--so much so that it is now beginning to feel quite numb. Many of us who believe that we have been poisoned by chemicals which are produced commercially have tried to find out the reasons why particular products have been affecting us. One of the major problems is that, while the active ingredients are owned up to, there are large numbers of so-called inert ingredients which are highly poisonous themselves. We have had enormous difficulty in finding out what the inert ingredients are. While we do not want to know the proportions of the mixes--which is understandably a commercial secret; it is like giving away the recipe for a cake--we should like to know what is in the product. The noble Lord's amendment would help us to find out.
My Lords, I think we have been subjected to a Damascene conversion on the part of the noble Lord, Lord Lucas.
Amendment No. 50 aims to introduce a public interest test. The amendment would affect the second limb of the exemption which relates to information the disclosure of which would prejudice the commercial interests of any person. However, the public interest test already applies to information exempt under Clause 42, by virtue of Clause 2, so that authorities must release such information where the public interest in disclosure outweighs the public interest in maintaining the exemption--the considerations of balance that were much discussed earlier. The amendment is unnecessary because the Bill already achieves what it appears to be aimed at.
The amendment also applies different wording to the public interest from that already used in the Bill. It uses the formula,
"except that, where the public interest in complying with the request for information exceeds the harm to the public interest that would arise from the authority releasing it, the information is not exempt".
The use of different formulas for the public interest test would cause confusion for practitioners and the courts when interpreting the Bill. For that reason, we believe that the wording of the test in Clause 2 is to be preferred. In our view, the amendment is in fact weaker than Clause 2, especially after the acceptance of the Liberal Democrat amendments that were moved earlier. For that reason, we think that that test should be preferred.
My Lords, if I understood the Minister's response, I believe he said that Clause 42--not Clause 41, which is what he referred to--is already covered by a public interest test. However, we shall have to study his answer to make sure of that. I have no doubt that the noble Countess, who has had a long-term interest in extracting information of this kind, will be studying it particularly carefully before we reach Third Reading. We shall ensure that what the Minister just said in relation to Clause 42 is in fact accurate and that it would meet the points that both I and my noble friend, together with the noble Countess, have raised. I beg leave to withdraw the amendment.
My Lords, this amendment picks up a point that we discussed earlier concerning time limits. One of the Liberal Democrat amendments has dealt with the question of time limits in one small part of the Bill; namely, the time taken to deal with questions of public interest. There are plenty of other undefined time limits in the Bill, especially in regard to appeals, dealing with approaches to tribunals and responding to the information commissioner. There ought to be a general encouragement to public authorities to deal promptly with all the matters for which they are responsible under this Bill. They should respond as promptly as they can and as is appropriate under the circumstances.
If such a duty is included in the Bill, it will give the commissioner a real lever to ensure that good practice occurs. If there is no duty to act promptly and no feeling of urgency as regards the value of time where information is concerned, I fear that we may find ourselves faced with practices that are relaxed from the point of view of the public authorities and extremely tedious from the point of view of anyone trying to obtain information. I beg to move.
My Lords, this amendment would make it a requirement for the code of practice to include guidance concerning the desirability of dealing promptly with all matters. The Government share the desire of the noble Lord to ensure that authorities do deal promptly with requests. I remind the House that Amendment No. 28, which was accepted and approved earlier, will impose a requirement on authorities to give an estimate to the applicant of how long they believe it will take to make a public interest decision. We recognise that that can usefully be supplemented by a reference in the code of practice to the desirability of complying with such estimates, as well as to making all decisions within the 20 working days wherever possible.
The code of practice provides guidance to public authorities as to the practice that it would be desirable for them to follow in connection with the discharge of their functions under Part I of the Bill. Clause 44(2) relates to guidance on various matters. They all relate directly to the obligations under Part I, but also cover aspects not addressed on the face of the Bill. Most importantly, Clause 10 requires authorities to deal promptly with requests made under Part I and determines an upper limit for doing so. In order to comply with this requirement, authorities will necessarily have to deal promptly with all matters covered by the code of practice. For those reasons we do not think that the amendment is necessary. We believe that Clause 10 and Amendment No. 28 cover the matter. We hope that the noble Lord will withdraw his amendment.
The intention of this amendment is to cover all the little bits and pieces to do with later clauses in the Bill, with all the toings and froings with the commissioner and the tribunal,, where again we have a whole set of undefined times. I had hoped that the noble Lord would give me some comfort that the duty to proceed as fast as was proper in every case was one which would be imposed, one way or another, on public authorities. However, at this stage of the night, I beg leave to withdraw the amendment.
My Lords, this is another attempt--the noble Lord, Lord Bach, will recognise it--to deal with the questions that I raised in relation to Clause 20. If it is too difficult to deal with these matters in Clause 20--I hope that I have convinced the noble Lord to some extent of the justice of the cause that I pursued--perhaps we can do something here to give some weight to the desirability of making information available in electronic form, even if that is not the form in which that information is immediately and easily available to the public authority. I beg to move.
My Lords, Amendment No. 53 would make it a requirement for the code of practice to include guidance concerning the desirability of making information available on the Internet.
As has been said, the purpose of the code is to provide guidance to public authorities on meeting their obligations under Part I of the Bill. Clause 11 already requires authorities to comply, as far as reasonably practicable, with the applicant's expressed preference for communication. This will include the provision of information by electronic means, which may involve making use of the Internet. We believe therefore that we do not need to include any specific reference to the Internet in so far as responding to requests for information is concerned.
Clause 18, relating to publication schemes, requires proactive disclosure. The means by which authorities make information available in accordance with a publication scheme is something over which the commissioner has direct control as she must approve the scheme. In so far as the commissioner thinks that the authority is not making appropriate use of the Internet, she can require it to include appropriate provisions in its scheme. This seems to the Government to be the appropriate way to ensure that the intention behind the amendment is met.
There is an important general point here. Given the range of public authorities which will be required to comply with the Bill's provisions, it would be inappropriate to make the Internet or any other means of communication a recommended method for communicating information under the terms of the Bill. We see where the noble Lord is coming from but we do not think that his amendment is necessary.
My Lords, I hope that does not mean that the Government have abandoned their intention to make all government available on the Internet by 2005. As that is also the year in which the Bill, if it becomes an Act, will become active, I should have thought that we might be looking forward to that point.
To go back to something that the noble Lord said earlier, I find it astonishing that the Government consider it all right that doctors do not have computers and that we should allow for doctors not to have computers in the year 2005. If the Government are serious about the Internet, they should be planning for it to be a compulsory part of the way that public authorities deal with the public in 2005, when we are supposed to have electronic government and when this Bill will become active. I am disappointed by what the noble Lord has said but I shall at this moment withdraw the amendment.
My Lords, Clause 44(4) provides that,
"Before issuing or revising any code under this section, the Secretary of State shall consult the Commissioner".
That is clearly a sensible provision. I have no problem with the Secretary of State consulting the commissioner. However, I think that there is a case for stipulating that the Secretary of State shall consult other bodies as he deems appropriate. The commissioner is an obvious and necessary person to consult. But there are others who will be in a position to offer informed comment. In revising the code the Secretary of State may find it helpful to consult the public authorities themselves.
I fully appreciate the point that the Minister will doubtless make in response: that the provision of the clause does not preclude the Secretary of State from consulting other bodies. However, by stipulating that the Minister must consult the commissioner there is the danger that the Minister will take the commissioner as the only person to be consulted.
My amendment makes clear that the Secretary of State should consider consulting other bodies. It does not tie the Minister's hands by stipulating the bodies to be consulted. The Minister may even conclude that there are no other bodies that he deems appropriate and thus need not consult anybody other than the commissioner. The purpose of the amendment is simple. It is to ensure that the Minister at least gives thought to consulting other bodies. That I think is appropriate. To achieve that purpose the amendment is necessary. I beg to move.
My Lords, not for the first time the noble Lord is miles ahead of me in understanding what I shall say. Of course he is right. Before issuing or revising a code of practice under Clause 44 the Secretary of State is required to consult the information commissioner. The issue is whether anything else needs to be written in. It is perhaps a fine point.
The commissioner has been specified because she has clear statutory duties in the areas to be dealt with in the code. But nothing in the Bill prevents the Secretary of State from consulting whomever he sees fit before issuing or revising a code of practice.
The commissioner can suggest, and may well do so if she feels it necessary, that the Secretary of State consult particular persons or bodies if she sees fit. We do not think that, on balance, the amendment adds anything to the position that already prevails. If the Secretary of State thinks it appropriate to consult more widely than is set out on the face of the Bill he can and will do so.
The noble Lord knew almost everything I would say before I said it.
My Lords, I am grateful to the Minister for that answer. I had anticipated more or less everything. However, I was not quite certain that the final sentence would be as it was. I take his point that the issue is finely balanced; it could go the other way. I was suggesting a prompt to the Minister.
I take the point that it is necessary to consult the commissioner. It may be necessary and sufficient to consult the commissioner. In some cases it may be necessary but not sufficient to do so. I thought it appropriate to put on the face of the Bill that prompt to the Secretary of State to make sure that some other consultation may be desirable.
I put forward the amendment to be helpful. I realise that the issue is not at the heart of the Bill. If I were to test the opinion of the House I am sure that I should receive overwhelming support. However, given the time of night I do not think that that is necessary. I beg leave to withdraw the amendment.
My Lords, in moving the amendment, I speak also to Amendment No. 57. These amendments have to do with the veto that we have touched on several times. Amendment No. 56 puts in a serious-harm-to-the-public-interest test, because at present the Ministerial veto under Clause 52 can be invoked where the Minister has on reasonable grounds formed the opinion that the public interest in maintaining the exemption outweighs the public interest in disclosing the information or confirming whether it is held.
If the Minister maintains that the commissioner has got it marginally wrong, he can veto the decision even if no real harm would flow from the disclosure. The amendment would insert an additional test: that the Minister had reasonable grounds for believing that complying with the commissioner's notice would cause serious harm to the public interest. This is the test which the last government adopted for claiming public interest immunity following the Scott report. The then Attorney-General, Sir Nicholas Lyell, announced in 1996 that:
"Under the new approach, Ministers would focus directly on the damage that disclosure would cause. The former division into class and contents claims would no longer apply. Ministers would claim public immunity only when it is believed that disclosure of a document would cause real damage or harm to the public interest.
The new emphasis on the test of serious harm means that Ministers will not, for example, claim PII to protect either internal advice or national security material merely by pointing to the general nature of the documents. The only basis for claiming PII will be a belief that disclosure will cause real harm".--[Official Report, Commons, 18/12/96; cols. 949-50.]
The present Government, in the person of the Home Secretary, said on 3rd March 1999 at col. 761 of Hansard that the present Government followed, and I quote:
"the same approach to public interest immunity."
The Foreign Office has explained that a PII certificate has been issued in relation to documents whose disclosure,
"would have caused serious harm to the UK's foreign relations."--[Official Report, Commons, 26/7/99; col.149.]
The new test I am proposing would make judicial review a much more realistic safeguard. Under the Bill as it stands, a Minister would be entitled to such wide discretion in exercising the veto that it is difficult to imagine circumstances in which the courts would normally set aside a veto, so long as he could offer any public interest argument against disclosure. The courts would not look at whether the Minister had reached the right decision in the balancing exercise. The additional test would require the Minister to demonstrate to a court that he had reasonable grounds for believing that disclosure would cause "serious harm".
Amendment No. 57 discusses how Parliament should be informed of these issues. At the moment there is no duty on Ministers to notify Parliament when they issue a veto. The Minister, or other accountable person, is required only to give the veto certificate to the commissioner and to tell the complainant why he has done so. The complainant could make the fact of the veto public, but may not bother, perhaps assuming that the matter would be of no interest to anyone else anyhow. Parliament may not learn about the veto until the commissioner's next annual report, which may be months down the road. Yet Ministers have argued that the prospect of having to justify the veto to Parliament is the main deterrent against its abuse. The noble and learned Lord, Lord Falconer, said in your Lordships' House on the 25th October, and I quote from col. 441 of Hansard, that the veto:
"will be available only on the signature of a senior member of the Government ... we can be sure that this House and the other place will hold such signatories accountable for their actions".
At col. 442 he said:
"A Minister making any such decision would be required to inform the applicant of the reasons for his decision and, as I said, would be accountable to Parliament, his Cabinet colleagues, his constituents, members of his own party and the wider population for that decision".
At col. 444 he said:
"Ministers would expect to have to explain to Parliament the grounds on which the certificate has been requested and approved".
My question simply is: if the Minister believes that-- I have no doubt that he does--how is Parliament to be informed? It really is not good enough for Parliament to be informed months later in a report. The amendment before your Lordships this evening would require the Minister to lay a copy of the veto before Parliament. The veto would have to be approved by both Houses within 20 sitting days. If the support was not forthcoming, the veto would automatically lapse and the Minister's words would be honoured in the deed, because the Minister would have had to account to Parliament for the veto. I beg to move.
My Lords, I presume that it will be for the convenience of the House if I speak to my Amendment No. 57A, as an amendment to Amendment No. 57, tabled by my noble friend Lord Mackay of Ardbrecknish. I imagine that the Minister will wish to reply to both at the same time.
I fully support my noble friend's amendment, which is designed to ensure that certificates issued under Clause 52 are subject to parliamentary scrutiny. The Minister can have no quarrel with that aim.
In Committee, the Minister advanced three arguments in response to criticisms of the clause. The first was that the provisions were not as all-encompassing as some Members of your Lordships' House suggested, because they covered only material that was exempt. The second was that the breadth of coverage was necessary to cover matters that were,
"not predictable from where we stand at present".--[Official Report, 25/10/00; col. 445.]
The third was that the Minister making the decision would be accountable,
"to Parliament, his Cabinet colleagues, his constituents, members of his own party and the wider population for that decision".--[Official Report, 25/10/00; col. 442.]
My noble friend Lord Lucas dealt effectively with the first point in Committee, pointing out that:
"under Clause 34, anything that will cause a Minister distress is exempt".--[Official Report, 25/10/00; col. 446.]
That leaves Ministers with remarkable scope for preventing material being made available.
The noble and learned Lord, Lord Falconer, made it clear in Committee that the Government were not prepared to accept any narrowing of the scope of the clause. I have already quoted his justification for that stance. That leaves us with only two options. One is to remove the clause. That is--or rather was--the position of the noble Lord, Lord Goodhart. The other is to ensure that the powers exercised by Ministers under the clause are subject to effective parliamentary scrutiny. My noble friend's amendment is designed to ensure that Ministers are accountable to Parliament for their actions.
It is formally correct that Ministers are accountable to Parliament for their actions, but ensuring that accountability is another matter. Ministers are often adept at bypassing scrutiny, not least because of the pressures on parliamentary time.
My noble friend's amendment would require a copy of the certificate to be laid before Parliament and approved by both Houses. That is a necessary step towards ensuring parliamentary accountability. However, I am not certain that it is sufficient. Ministers have to give reasons for their decisions. Members of both Houses will be able to consider those reasons. The problem is that it will be difficult to know how valid those reasons are if Members do not know what is in the material being sought. There may well be occasions when it is clear from the request what information is being sought and the Minister's reasons for refusing it may be clear and acceptable to Members of both Houses without them having sight of the material. However, on other occasions it may be difficult, if not impossible, to judge whether the veto is justified without seeing the material in question. That may be particularly relevant when the Minister's reasons are broad.
My amendment addresses that problem. It would give Parliament an opportunity to judge the appropriateness of the Minister's action without putting into the public domain material that should be kept secret. The appropriate departmental Select Committee of the House of Commons, or, in matters of national security, the Intelligence and Security Committee, would be permitted to have confidential sight of the material that was the subject of the certificate. The Committee would not be able to put the material in the public domain, but it would be able to issue a report saying whether, on the basis of its review of the material, it believed that a certificate should have been issued. It would be open to the Committee to have a meeting in closed session with the Minister before issuing its report.
I appreciate the limitations of that approach from the perspective of Parliament and of the Minister. Members of Parliament may want more than a recommendation from a Committee. They may well feel just as much in the dark as before. However, a recommendation from a Select Committee would at least offer Members an informed opinion other than that of the Minister. If the committee states that in its opinion the certificate is not appropriate, it is then open to Members to take that into account in deciding whether or not to approve the resolution before them.
The Minister may say that there is a risk in allowing members of a committee to have sight of the material. It may leak. Ministers may draw attention to the fact that some members have leaked material in recent years. However, I draw your Lordships' attention to the fact that members of the Select Committee on Defence may see material up to and including that classified as secret. The Intelligence and Security Committee, which is a statutory body comprising senior Privy Counsellors, has access to intelligence material. So far as I am aware, there is no evidence that either committee has failed in its duty to maintain the confidentiality of material.
Those committees cover the most sensitive areas and those in which I would consider it most likely that certificates would be issued. Providing for a committee to have such access is important in terms of maintaining the integrity of the governmental process; otherwise, one is giving too much power to Ministers to act as judge and jury in their own cause. Furthermore, this provision may have a valuable deterrent effect. If Ministers know that a parliamentary committee, or the Intelligence and Security Committee, has the power the see the material which they seek to withhold, they are likely to be even more rigorous than they would otherwise be in ensuring that their case for issuing a certificate is watertight.
I make two final points. First, I appreciate that, if doubts exist about the security of material, there may be a case for creating a special committee, perhaps even a statutory committee, akin to the Intelligence and Security Committee. However, if the issuing of certificates is to be as rare as the Government claim will be the case, there seems to be little point in crafting a purpose-built committee. On the other hand, I would not rule out such a possibility.
Secondly, my amendment is tabled as an amendment to that of my noble friends, but, if necessary, my amendment could be free-standing. It seems sensible to link it to the proposal put forward by my noble friends, but one can envisage a situation in which parliamentary approval need be sought only in the event of an adverse recommendation from a committee.
My purpose in making those points is to show that it is possible to achieve some flexibility in determining the best method of ensuring that the reasons for Ministers to issue certificates are subject to parliamentary scrutiny.
The noble and learned Lord, Lord Falconer, can have no argument with the end that is involved; that is, accountability to Parliament. We are debating means to achieving that end. If the noble and learned Lord believes that what is proposed is not appropriate, it is up to him to put forward an alternative to give effect to the end which he himself identified so clearly in Committee.
My Lords, as identified in Committee and in the earlier stages of the Bill, the Government believe that there will be certain cases dealing with the most sensitive issues where a senior member of the Government, able to seek advice from his Cabinet colleagues, should decide on the final question of public interest in relation to disclosure.
We believe that Cabinet Ministers are accountable in a way in which the commissioner cannot be. It is right that responsibility and accountability should rest at that level for this very important aspect of the freedom of information regime. As noble Lords have pointed out in the course of this short debate, a provision in Clause 52 requires the person exercising the override to specify the reasons for so doing. That is the purpose of the override, and that is the basic way in which it works.
I turn to the amendments. First, Amendment No. 56 in the name of the noble Lord, Lord Mackay of Ardbrecknish, would introduce a new and different test at the stage at which the accountable person was being asked to consider whether the public authority had properly carried out its responsibilities under the freedom of information legislation. Whereas the authority would look at all the circumstances of the case in reaching a decision on the balance of the public interest, the accountable person, pursuant to the noble Lord's amendment, would have to ask not whether it had been done properly but, if the authority had applied a different test, would the accountable person be able to confirm that he was right not to disclose the information requested? Therefore, a new test is being introduced at a very late stage in the process.
At a late stage, the amendment seeks to introduce a concept of "serious harm" to the public interest. Throughout the debates on the Bill the Government have made clear why they are unhappy with any suggestion that it would be sensible or even practical to introduce words such as "substantial" or "serious" to qualify the nature of a harm. The same obviously applies in this case.
The public, and public authorities, will want to be clear about how the judgment about the balance of the public interest will be made. As drafted, the accountable person must be satisfied that the authority has correctly identified and weighed the competing interests. The amendment would add an unwelcome element of subjectivity to that assessment of what is serious harm and what is not. I believe that the amendment proposed by the noble Lord, Lord Mackay of Ardbrecknish, is misguided and I urge him to withdraw it.
I turn now to Amendment No. 57. The Government have made their position clear on why, having listened to the arguments here and in another place, they believe that the right people to be accountable for issuing an exception certificate are Cabinet Ministers. The effect of Amendment No. 57 would be to transfer that accountability to Parliament.
I wonder what would be gained by such a procedure. There would certainly be additional delays in reaching a view on whether information might be disclosed or withheld, but I doubt there would be any greater transparency than the Bill already provides. We are not discussing a power which the executive can exercise lightly or unadvisedly. The Bill provides that decisions must be transparent. A Minister signing an exception certificate must give public reasons for his decision. The commissioner, who will have had an opportunity if she wishes to see all of the relevant information, can report any shortcomings in the decision-taking procedure to Parliament; and Parliament itself can at any time hold the Minister to account for his actions which are, in effect, an act of executive power, rather than legislative power, which is what the effect of the amendment would turn it into. Those are significant and sensible safeguards which operate without the need for the superstructure and delay inherent in the amendment.
Finally, I turn to Amendment No. 57A tabled by the noble Lord, Lord Norton of Louth. This amendment is complementary to Amendment No. 57. It would have the effect that a Minister, having signed an exception certificate, would be required within 20 sitting days to pass in confidence to a relevant Select Committee the information in question.
The Government's objections to those proposals are similar to those which I set out in relation to Amendment No. 75. They provide delay without providing any additional transparency of any sort. To some extent, they duplicate the position of the commissioner, who will, in the process, have seen the documentation or information with which the application is concerned. She is in a position, where appropriate, to report to Parliament on any shortcomings in relation to the decision-taking procedure. Because the Cabinet Minister is obliged to set out his reasons for exercising his executive override, the individual Minister will be accountable to Parliament.
For all those reasons, I invite noble Lords not to press their amendments.
My Lords, I start with Amendment No. 56. I am not sure what Ministers mean when they say that an amendment is "misguided". Does it mean that I have not hit the right target but there is another one which I should have tried to hit? I shall consider that.
I am always amused to hear that we should not qualify the test. It is interesting that, as far as I know, the Scottish executive is still going to use the word "substantial" before "prejudice". However, I am rather unsighted as to the position there. I do not know whether a Bill has been produced or whether the White Paper is still being considered.
I heard what was said about introducing a different test late in the proceedings. I agree that it is late in the proceedings but it is at a very serious stage in the proceedings. I remain to be convinced whether one should increase the size of the hurdle before one goes to the serious step of a Cabinet Minister issuing his veto. However, for the moment, I shall certainly withdraw that amendment.
As I listened to the Minister on Amendment No. 57, I wondered whether what he was saying was consistent with what he said on 25th October in relation to parliamentary accountability. He referred to explaining to Parliament the grounds on which the certificate had been requested and approved. I am not sure whether in his summing up he was agreeing with what he said. It seemed to me that he was backing off from what he had said. I am puzzled as to how a Minister would be called to account, especially if there were no obligation on the Cabinet Minister to report to Parliament. If he reported to the commissioner months down the road, Parliament may find out after many months had elapsed.
The complainant may have been told and he may raise it with his Member of Parliament. I am not sure how it would be raised. Would the MP have to wait until the next Question Time when the Minister was on his feet? Would he be able to put down a Question? Would he be able to put down a Motion on the Order Paper and hope that the Government are decent enough to find time? Governments are not noticeably decent enough to find time for Early Day Motions and the like on the House of Commons Order Paper, although I am not surprised, given the quality of some Early Day Motions that appear on the House of Commons Order Paper. I believe that noble Lords are well advised to steer clear of that particular route.
My serious point is how would Parliament call the Minister to account? The noble and learned Lord has not really addressed that. As I listened to my noble friend Lord Norton of Louth, I felt that his proposition was more attractive. If matters such as national security are dealt with, there is already a Select Committee in another place that takes those matters into account. If the noble and learned Lord says that that would be second-guessing the Cabinet Minister, I do not know why he used the words that he used on 25th October because the other place, in holding the signatories accountable for their actions and in explaining to Parliament the grounds on which the certificate had been requested, seems to involve parliamentary accountability.
I believe that my amendment and that of my noble friend put in place a method by which that parliamentary accountability can be carried out. However, I shall look seriously at what has been said and take account of the points made by the Minister, which I understand. I am quite attracted to the route chosen by my noble friend Lord Norton of Louth, which I believe goes a long way to meet the criticisms of the Minister. Perhaps when we have taken advice and discussed the matter, we may return at Third Reading with a way in which the Minister can honour the words that he used to your Lordships' Committee on 25th October. I beg leave to withdraw the amendment.
moved Amendments Nos. 63 to 65:
Page 34, line 43, leave out from ("II") to second ("or") and insert ("relating to the duty to confirm or deny").
Page 35, line 3, leave out from ("Where") to end of line 4 and insert ("information to which this section applies falls within a provision of Part II relating to the duty to confirm or deny but does not fall within any of the provisions of that Part relating to that duty which are").
Page 35, line 14, leave out ("does not apply") and insert ("applies").
On Question, amendments agreed to.
moved Amendment No. 65A:
Page 69, line 41, at end insert--
(" . In Schedule 3 to that Act (conditions relevant for the purposes of the first data protection principle: processing of any personal data) in paragraph 8(2) after the words "medical research" there is inserted "for the purpose of monitoring the public health".").
My Lords, Amendment No. 65A is an unashamedly opportunistic amendment to the Data Protection Act 1998 which is designed to take advantage of Schedule 6 of this Bill. It reflects a great deal of anxiety being experienced by public health professionals as a result of guidance given by the General Medical Council and the interpretation of the 1998 Act about the way that it affects public health monitoring, particularly the cancer registries and the notification of disease and infection.
Earlier this year the GMC produced new guidance on confidentiality which was designed to bring medical practices into line with modern law and ethics. Paragraph 22 of the guidance states,
"Professional organisations and government regulatory bodies which monitor public health or the safety of medicines or devices, as well as cancer and other registries, rely on information from patients' records for their effectiveness in safeguarding the public health".
However, paragraph 23 goes on to state,
"Where personal information is needed, you should seek express consent before disclosing information, whenever that is practicable".
Paragraph 27 of the guidance concludes,
"The automatic transfer of personal information to a registry, whether by electronic or other means, before informing the patient that information will be passed on is unacceptable save in the most exceptional circumstances".
The new guidance therefore essentially assumes either patient consent to disclosure to a registry or that data provided is "anonymised". Yet the fact is, as cancer registries and public health professionals have made clear to the GMC and the Department of Health, consent is sometimes difficult if not impossible to obtain sensitively and risks damaging the doctor-patient relationship. If information is not provided because of failure to obtain consent, the lack of those data can distort overall figures for cancer outcomes. The alternative avenue of anonymising data is not satisfactory when incidence and outcome by locality can be of great importance and personal identifiers are needed for cross-checking sources and avoiding double counting, and for linking to death certificates in order to estimate survival.
The UK Association of Cancer Registries believes that the requirement for explicit consent would,
"in effect destroy the population based coverage of cancer registries".
The GMC's approach, and indeed that of the Data Protection Commissioner, appears to be part legal and part ethical. The legal advice received by the GMC seems to interpret the Data Protection Act very restrictively, so that as regards Schedule 3, paragraph 8, which sets out the conditions relevant for the purposes of judging whether information has been processed fairly and lawfully, the GMC clearly did not consider that monitoring for public health purposes was encompassed within the term, "medical purposes".
The ethical objections were put by Sir Cyril Chantler in a recent letter to The Times. In the letter he said that the GMC did not believe that it is legally or morally acceptable for doctors to pass personal information about patients to others without the patients' knowledge or consent save in exceptional circumstances. I entirely agree with that proposition. However, he added that,
"Parliament has the power to legislate to make notification of a diagnosis of cancer compulsory".
It therefore seems, certainly in the eyes of the GMC, that it is possible to overcome the ethical objections to providing personal data if Parliament recognises certain exceptional circumstances by statute. That is why Schedule 3 to the Data Protection Act does that for medical purposes generally, and it could perfectly well include public health monitoring in that exception.
The failure to recognise that these are exceptional circumstances and delay in tackling the problem will put at risk an unrivalled system for production of public health information. As the registries themselves state,
"The continuity of data collection is now threatened directly".
The Select Committee on Science and Technology, in its report on cancer research in July, said,
"These registries have been in operation for 40 years and comprise the largest national collection of such data in the world; they have been the source of a very large volume of research into the causes, prevention and treatment of cancer and survival from cancer".
That is now at risk.
The health Minister in this House, the noble Lord, Lord Hunt of Kings Heath, has with great courtesy written to me on the subject in response to my inquiries. However, the bare fact is that an enormous lack of urgency is being displayed. The GMC has indicated that it will not enforce its guidance until October 2001. That is but a temporary solution; action needs to be taken urgently in the meantime to find a permanent solution if registries are not to have their activities interrupted.
The Minister's letter to me states:
"The GMC guidance has drawn attention to the fact that a range of essential NHS and related activity, including that of cancer registries, lacks a secure basis in law".
The letter goes on,
"I can assure you that the Department of Health will do all that it can to support the work of cancer registries and other essential activity. If necessary, legislative solutions will be sought".
I welcome that statement and the fact that the director of health services, Dr Adams, has been tasked to find a solution, but as regards cancer registries the issues were clearly raised in the report of the Science and Technology Select Committee, to which I referred earlier. It was published in July this year. It was extremely concerned by the implications of the current law and the guidance from the GMC. It recommended that cancer registration should be a legal requirement.
My amendment does not go as far as that. The cancer tsar, Professor Mike Richards, also raised the issue. Why have the Cabinet Office, the Home Office and the Department of Health not shown a more keen appreciation of the issues and acted earlier? The situation has been described by some onlookers as paralysis. The Freedom of Information Bill, with all the other changes it makes to the Data Protection Act, is clearly the ideal instrument for making the necessary changes in this case. This would provide the legal basis for the change to the GMC guidance and also demonstrate that the Government believe that an overriding public purpose is involved in public health monitoring.
The US guidance on confidentiality, given by the US Secretary for Health and Human Services, clearly makes such an exception. The Government's recent national cancer plan states:
"Public health benefits depend on the completeness of cancer registration in the population. The Government is determined to secure the future of cancer registration and will take the necessary action to do this".
I hope that the Government will express that determination by accepting the amendment. I know that the noble Lord, Lord Turnberg, has an even broader set of concerns in relation to infectious disease and they are equally as important as those that I have raised tonight. I hope that the Minister will accept from both of us that the concerns are important and require urgent action. I beg to move.
My Lords, I am conscious of the hour and I shall try to be brief. This is an important matter and I speak from the point of view of my special interest which I shall declare as chairman of the board of the Public Health Laboratory Service. Your Lordships may know that it is a statutory body set up by the Department of Health with the specific remit to protect the public from infectious diseases. The amendment seeks to remove the potential damage to that public protective role.
The PHLS traces the sources of infection by testing samples from patients, from food, water and the environment and by analysing and using the test results to activate a search for the sources of outbreaks and prevent the further spread of infection. That chain of activities relies heavily on doctors providing specimens from patients--for instance, blood, throat swabs and so forth--and laboratories reporting results, when they reveal an infectious disease, to our Communicable Disease Surveillance Centre. That is how cases of meningitis, TB, E.coli 0157 food poisoning and a myriad of other serious contagious diseases are detected and, most importantly, how the sources of those infections are traced. All that needs to be done quickly if the rapid spread of infection is to be avoided.
Let us imagine the situation in which a specimen from a patient is sent to one of our laboratories and the patient is found to have E.coli 0157. In order to get the patient's permission to let our surveillance unit know that this infection has been found, the laboratory must contact the GP. The GP must then contact the patient to obtain consent before the information can be passed on. Tracing GPs and then patients will not be an instantaneous process and precious time will be lost.
One might say that consent should have been obtained when the specimen was taken. The fact is that most patients with symptoms, for example gastric upsets, will not have E.coli infections. One cannot raise fears in all patients by discussing this potential with everyone in advance. Remember that in these circumstances speed is of the essence. At the moment doctors and laboratories face the dilemma of trying to seek consent from individuals at a time when delay poses threats to the community at large.
Unfortunately, the guidelines recently produced by the General Medical Council are based on a strict interpretation of the law and allow little leeway for doctors to provide information about their patients without their specific consent to the PHLS and others concerned with trying to nip outbreaks in the bud.
We already sense a reluctance among doctors and laboratory staff to report infections for fear that they may be brought to the attention of the GMC. That cannot be good for the public at large, and it is inconceivable that individual patients will interpret the use of such information as an infringement of their rights. The sharing of information between responsible professionals in organisations with high standards of confidentiality for such important purposes is not just reasonable but essential. I hope that the Minister will consider the implications of this amendment in a very favourable light.
My Lords, I have listened carefully to the reasons given by the noble Lords, Lord Clement-Jones and Lord Turnberg, for tabling this amendment. I do not believe that the amendment achieves the intention, but I hope that what I say will provide a degree of comfort. Put simply, the concern of the noble Lord is to ensure that the Data Protection Act 1998 does not prevent the medical data of individuals being used for certain medical research purposes, notably, but not solely, in relation to cancer registries, as the noble Lord said. I assure your Lordships that the Act does not have that effect. At present, the 1998 Act allows medical data to be used for any medical research purpose without the need for the consent of indviduals. It is not necessary to define the term "medical research", nor to make specific provision for it to include the monitoring of public health, which for these purposes is regarded as medical research.
It is desirable to seek consent wherever possible, but sometimes where the research is in the wider public interest it is necessary to go ahead without consent. The 1998 Act already allows that to take place. The noble Lord's amendment would make it more difficult, if not impossible, to conduct certain types of medical research without consent.
If there is difficulty at present--like the noble Lord, I am aware (because he drew it to my attention) that a few weeks ago there were press reports to that effect--it reflects the effect of the common law of confidence rather than the data protection legislation. Those reports suggested that cancer registries might be at risk. The Government are determined to secure the future of cancer registration and will take the necessary action to do so. We shall see what can be done without the need for fresh measures, but if there is no practicable alternative we shall introduce supporting legislation at the earliest opportunity.
Since the noble Lord's amendment does not achieve his intended purpose and it would make it more difficult to carry out certain types of medical research, which I know is not his wish, I invite him to withdraw it, particularly bearing in mind the assurances that I gave earlier in my remarks.
My Lords, I thank the Minister for that reply. It was slightly confusing to my ears at five past midnight. I am not quite sure what the Minister was saying. He was saying that he did not think that legislation was needed, but that if it is required there is a commitment to introduce it. Certainly, I do not understand that the Department of Health or the GMC have the same view of the law as the Minister appears to have in this case.
I wonder whether there is a common agreement among government departments. There appears to be a divergence of view among the various bodies--GMC, PHLS, and the cancer registries. I believe that the Data Protection Commissioner has a rather different view. In order to clear up the confusion there needs to be hard discussion between the parties involved because this mixture of legal and ethical makes the matter so very difficult. Without a clear legal statement, which I intended to give in the amendment, I do not believe that many parties involved, particularly the Data Protection Commissioner and the GMC, will agree that the ethical considerations are overridden.
The Minister may have felt that the absence of a comma in the amendment was a problem. I agree that the amendment is defective by the absence of a comma, which should have appeared after the term "medical research". If we had had one more day of Report stage he would have noticed the insertion of a comma. I understand why officials may have thought the amendment defective.
I do not believe that many of those who look at the provisions are absolutely clear that medical research covers the situation. I believe that there is considerable confusion. I believe that conflicting noises are coming out of the various ministries and bodies involved in the debate. Meetings are currently taking place. I believe that it is in the power of the Government to clarify the situation very quickly, but it really has to be done at Third Reading.
I very much hope that, with the few days that we have, the Minister will reconsider the situation. I do not intend to press the amendment tonight. But I believe that we are nowhere near clarity. I shall read the Minster's remarks very carefully to see whether or not there is any clarity, but I do not believe that what he has said will be of any great comfort to those concerned. I beg leave to withdraw the amendment.