Freedom of Information Bill

Part of the debate – in the House of Lords at 8:45 pm on 14th November 2000.

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Photo of Lord MacKay of Ardbrecknish Lord MacKay of Ardbrecknish Crossbench 8:45 pm, 14th November 2000

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.