Freedom of Information Bill

Part of the debate – in the House of Lords at 9:15 pm on 14th November 2000.

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Photo of Viscount Colville of Culross Viscount Colville of Culross Crossbench 9:15 pm, 14th November 2000

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.