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 Brennan Lord Brennan Labour 8:45 pm, 14th November 2000

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.

The noble Lord will remember the statement made by the Minister for Agriculture in the other place when he said in relation to the aftermath of the BSE inquiry:

"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.