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.