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.