§ Lord Williams of Mostyn
My Lords, with your Lordships' leave, I shall repeat a Statement made by my right honourable friend in another place earlier today. The Statement is as follows:
"With permission, Madam Speaker, I should like to make a Statement about freedom of information, on which I have today published a draft Bill and consultation paper. Copies are available in the Vote Office.
"In December 1997 the Government published a White Paper entitled Your Right to Know. I should like to pay tribute to my right honourable friend the Member for South Shields for his work on that document which underpins the draft Bill. I am also very grateful to the Public Administration Select Committee for its consideration of the White Paper's proposals.
"In drafting this Bill we had to strike a careful three-way balance between extending the public's access to information; protecting citizens' own privacy; and preserving confidentiality where disclosure would be against the public interest.
"This is a difficult balancing act, but one I think we have got right. The scales are weighted decisively in favour of openness and will radically change the relationship between the Government and their citizens.
"These proposals are not just about abstract rights which may benefit academics, historians or constitutional theorists alone. They will benefit everyone, and provide access to the kind of information which people really want to know.
"Parents will be able better to find out how schools apply their admissions policies. Patients will be able to understand how hospitals allocate resources between different treatments and how they prioritise waiting lists. And citizens will be able to find out more about the actions of their local police force.
"Under this Bill, for the first time, everyone will have the right of access to information held by bodies across the public sector. There will be a duty on public authorities to adopt a scheme for the publication of information about their work; a positive duty on public authorities, even where they are not obliged to provide such information, to consider disclosure on public interest grounds; and a new information commissioner together with a new information tribunal to enforce the rights created.
"Let me now explain to the House how the draft Bill compares with the White Paper's proposals. On which public bodies are to be covered, the Bill's proposals are a little wider than the White Paper. All the functions of the police and police authorities are to be covered as the Select Committee proposed, with 665 specific exemptions for information gained as part of an inquiry, or which relates to informers. The security and intelligence agencies—along now with the National Criminal Intelligence Service—will remain outside the scope of the Bill.
"On the question of including Parliament, we are discussing how this can be done without prejudicing parliamentary privilege.
"The White Paper also promised access to specific documents and actual records, unlike the current code. The Bill delivers that promise. Applicants for information may express a preference for the means of communication: inspection of originals, a copy, or a summary of the information sought.
"The White Paper set out seven areas to be covered by exemptions, together with other information which would be excluded from the Bill. It also set out conditions on the right of access. The Bill delivers broadly the same exemptions as the White Paper, but the tests involved do differ.
"There has never been any expectation that Cabinet documents, inter-ministerial correspondence and official papers on developing policy would ever be disclosed under freedom of information. As the White Paper said:Now more than ever the Government needs space and time in which to assess arguments and conduct its own debates with a degree of privacy".—(Your Right To Know, page 19, paragraph 3.12.)Moreover, it is worth bearing in mind that the product of such private deliberations is almost always a public announcement of policy.
"Under this Bill, there will be a class exemption for the formulation of government policy in place of the simple harm test in the White Paper, which we believe will achieve the same purpose in a more straightforward way.
"On the substantial harm test, after careful consideration, we reached the view that a single omnibus test could not work properly for the range of exemptions proposed. What is 'substantial' in relation to law enforcement may not be in relation to international relations. The harm concerned must be capable of being interpreted in relation to the subject matter it covers.
"Where therefore national security is an issue, the test proposed is whether the exemption is required for the purpose of safeguarding that. Where the health and safety of an individual is at issue, the test proposed is whether disclosure would, or would be likely to, endanger the physical or mental health or safety of an individual. Elsewhere the proposed test is whether disclosure would, or would be likely to, prejudice the criteria set out in the relevant exemption.
"The tests proposed will result in a more open regime than under the existing non-statutory code of practice. Under the code the test is the possibility of harm being caused. Under the draft Bill the test is one of probability.
666 "Generally, the information commissioner will have the power to substitute his or her judgment for that of the public authority. He or she will be able to ensure that public authorities are not able to claim that prejudice would be caused in circumstances where this would be trivial or frivolous. The prejudice has to be real, actual or of 'substance'. In respect of policy advice, the commissioner will be able to challenge the reasonableness of a Minister's decision against disclosure.
"There are two areas where the White Paper suggested that a harm test would apply where in fact such a test turns out to be impractical: personal information and information supplied in confidence.
"First, the disclosure of personal information is governed by our obligations to comply with the European Community Data Protection Directive and the European Convention on Human Rights—and the Human Rights Act. The convention and directive do not provide for the application of a harm test, and we cannot therefore unilaterally provide for one.
"Access to personal information about oneself is governed by the Data Protection Act 1998, whose provisions we are in fact extending under this Bill. Where personal information is sought about third parties, there will be a right to it under the Bill, if the Data Protection Act permits disclosure.
"Secondly, it would be wrong to overturn, in this Bill, duties of confidence which arise at common law. Those doing business with public authorities have the right to ensure that their confidences are respected. In many cases, public authorities need access to information held by others, which they in turn will only be prepared to release if given an undertaking of confidentiality. Where information is supplied to a public authority in these circumstances, the public authority should not be required to disclose it, if this would constitute a breach of confidence actionable by the supplier of the information.
"Let me turn now to the enforcement provisions. There will be an information commissioner who will enforce the FoI regime, and there will be rights of appeal against decisions of the commissioner to a tribunal, with a further appeal, on a point of law, to the courts.
"The Public Administration Select Committee said there was a need for there to be coherence between the data protection and freedom of information regimes, with a 'simple and comprehensive' right of access. A great many requests for information will be for a mixture of personal and general information. We are therefore providing that the office of the Data Protection Commissioner will be merged with that of the information commissioner.
"The cost of these proposals when enacted is forecast at between £90 million and £125 million per year.
"The Bill will now be subject to extensive public and parliamentary consultation, including by the Select Committee on Public Administration.
667 "Madam Speaker, I have spoken today of the need to balance rights. There is a right to know, there is a right to privacy and there is a right to confidentiality. For too long we have given insufficient weight to the right to know. The proposals in the draft Bill seek to redress that balance.
"This Government have done more than any other to open their workings to greater scrutiny by the public. In our manifesto we promised a programme of constitutional reform to get citizens more closely involved in the decisions which affect their everyday lives. We have delivered, as promised, a Scottish Parliament and a Welsh Assembly. We are bringing rights home through the Human Rights Act which will be implemented in October 2000. Today, we are taking forward our pledge on freedom of information.
"Madam Speaker, I commend these radical, and balanced, proposals to the House".
My Lords, that concludes the Statement.
§ 5.7 p.m.
§ Lord Cope of Berkeley
My Lords, the whole House will be grateful to the Minister for repeating the Statement made in another place by his right honourable friend the Home Secretary. It was perhaps more appropriate than usual that the Statement should have been thoroughly leaked beforehand, as has become habitual with the Home Office. However, in this case we were spared the sight of the Home Office seeking an injunction; I believe that Home Office lawyers were busy with another injunction.
The issue of freedom of government information—for that is what it is—has become more important as spin doctors have multiplied and been allowed to assert themselves more so that the accuracy and completeness of government information cannot be relied upon to the same extent. None of us has had much time to study the detail of the Statement, but it seems that the Scottish Parliament and Ministers appear to be exempted from the Bill, but not the Northern Irish or Welsh Assemblies. I should be interested to know the reasons why that should be so.
The right honourable gentleman the Home Secretary, in the course of delivering the Statement, added a sentence which the noble Lord, Lord Williams of Mostyn, was perhaps too modest to mention. The Home Secretary mentioned the taskforce to be set up under the chairmanship of the noble Lord, Lord Williams. It would be helpful to know more about its work.
It is clear that there will be substantial resource implications, not so much for central Government but for the police; the National Health Service; local government including educational authorities; and those in private industry who contract with the Government. It looks as though an individual who wants information about himself may have to cover some of the costs but there will be heavy costs on the budgets of the police, the NHS, the other bodies which I mentioned and contractors to pay for a new army of people to hand out paper and deal with the inquiries. I am not clear from the Statement whether the Government will pick up the 668 bill for the local authorities and, indeed, for the contractors too. The statement of the costs—£90 million to £125 million—seems very low if the Government are to pick up those costs.
Am I right in thinking that the requirements of existing contracts will not be altered unilaterally? That was not clear, but I presume that the confidentiality rules will apply to contracts. That is important also in the case of defence contracts. I notice that the noble Lord, Lord Gilbert, from the Ministry of Defence, is in his place. I am not clear—although it seems to me it would be wise—whether defence contractors are to be exempt from those provisions, either through the confidentiality clause or in some other way.
Those are all matters of detail which may be answered by a more lengthy study of the document as a whole. The publication of a draft Bill in this manner is a helpful way in which to bring forward legislation. The Home Secretary's Statement did not say anything specific about the Government's proposal for consideration of this draft Bill in your Lordships' House. The document itself suggests that for this House, the normal consideration by the Delegated Powers and Deregulation Committee would be sufficient. The remit of that committee covers every Bill, but it is extremely specific and limited in what it normally considers. In view of the importance of this whole issue to the proper conduct of government and to citizens, and in view also of the expertise available, we believe that the House will wish to consider this draft Bill very carefully. A special Select Committee may be the right way in which to proceed analogous with the committee which is to consider the matter in another place. I hope that that will be discussed through the usual channels, otherwise, this House will effectively be opting out of the next stage of this important consultation process.
§ Lord McNally
My Lords, in introducing the Statement, the Minister put the proposal for a freedom of information Act in its constitutional context. Before the general election, I was a member of what became known as the Cook-Maclennan Committee. The now Home Secretary, Jack Straw, was also a member of that committee. It was a Labour-Liberal Democrat joint committee which looked at constitutional reform. A plank of the joint statement before the general election was a freedom of information Act. Therefore, on these Benches, we welcome the introduction of this measure by the Government.
When we were discussing constitutional reform at that time, we wanted to see two outcomes: we wanted to see a breakdown of the confrontational nature of politics, and the Minister referred to reforms in Scotland and Wales which have taken us along that road; and we wanted to see an end to the culture of secrecy in our public service. We saw a freedom of information Act as an important part of that process.
I am sure that the Minister and the House will agree that it is only a step along the way because we need to change a whole culture and attitude of mind in Whitehall and in our public services that not only should the man in Whitehall know best but he should also know most.
669 Concerns were expressed on all sides of the House that Dr. David Clark, to whom the Minister paid tribute, lasted a very short time in office, although he did a great deal of work on the draft Bill while there. The business of looking after freedom of information was moved from the Cabinet Office to the Home Office. In a debate a few weeks ago, I. perhaps rather unkindly, suggested that that was like putting Dracula in control of a blood bank. But the Minister was extremely hurt by that suggestion and said that the Home Office was a safe guardian of freedom of information.
Nevertheless, as the noble Lord, Lord Cope, mentioned, there has been the usual plethora of spin and counter-spin which is one of the most irritating aspects of this Government's attitude to Parliament and to serious business. I hope that if we are to proceed on a genuinely all-party basis on this important legislation, the spin doctors can be kept under control.
As the noble Lord, Lord Cope, said, it is an extremely weighty document to absorb in a short time. Therefore, I make just a few headline points. Obviously we understand why security and intelligence services and the National Criminal Intelligence Service must be protected. But they must not become a refuge for government departments protecting their secrecy. As I said, we must break down that culture of secrecy.
The Minister may wish to expand further as to why the "substantial harm" test has been watered down. As he will have noted from all the leaks, that is seen as the Home Secretary's great triumph. He will be aware that those campaigning for a freedom of information Act are very suspicious about that.
Again, as the noble Lord, Lord Cope, hinted, advice to Ministers will be withheld, but will factual and statistical information also be withheld? We have concerns about the promise that many of the powers will be contained in secondary legislation. We do not want to open the door only to find that through secondary legislation, it is readily and easily closed again.
The Minister mentioned the Data Protection Act. It is probably a good idea to bring together the two commissioners, but there will obviously be strains and tensions between the rights given under a freedom of information Act and the powers and defences conferred by the Data Protection Act.
There are obviously other matters with which one could deal in detail. However, I wish to associate myself most strongly with the concluding remarks of the noble Lord, Lord Cope. In no way has there been collusion between us. In fact, I was rather annoyed that the noble Lord, Lord Cope, ran off with my one original idea. It occurred to me that while it was stated clearly that the Public Administration Select Committee in another place would be given the opportunity to examine the draft legislation in detail, no similar provision is made for this House. As the noble Lord, Lord Cope, rightly said, that misses an opportunity to make use of the considerable expertise which lies in this House in that area. We have the procedure to set up ad hoc Select Committees. I hope that the "Cope/McNally proposals" can be properly considered through the usual channels. It is important, in the light of history, to put one's name to these matters early on.
670 The Bill, as with the old sixth-form essay, is a challenge and opportunity. As I have said, it is a challenge to break down the culture of secrecy in our public service. We welcome the draft Bill and the process. We believe that with such a process, in which pressure groups and political parties take par, we shall build a freedom of information Act which will stand the test of time. All the parties who work on it will, I presume, with the ambition of politicians, hope to work in Government under this Act. Therefore there is a need for both Government and Opposition to approach this opportunity constructively. If we do that. I believe we shall have a freedom of information Act of which we shall all be proud. I wish the process well.
§ 5.20 p.m.
§ Lord Williams of Mostyn
My Lords, I am grateful for the responses from the noble Lords, Lord Cope of Berkeley and Lord McNally. The noble Lord, Lord Cope, said that things had been leaked beforehand. There certainly has been speculation. Most of it seems to have been resoundingly wrong on almost every point. The noble Lord spoke about the freedom of government information. I should like to underline that this is a much more fundamental approach.
In the Statement, which I repeated, my right honourable friend Jack Straw spoke about matters which are of infinitely greater importance to the ordinary individual than we sometimes think. Many people want to know about local schools, local hospitals and delivery of services by local authorities. They are much more interested in and touched by those matters than the kind of headline investigation that we see in newspapers. So, this is not about government information but about information that affects the ordinary member of the public, day in and day out.
The noble Lord, Lord Cope, asked about Wales and Scotland. The Bill will not apply to any public authority wholly or mainly concerned with devolved matters in Scotland or transferred matters in Northern Ireland. The Parliament and the Assembly will determine the regime to apply there. The National Assembly for Wales has no power to pass primary legislation. Therefore, the Act will apply in full to Wales and to the National Assembly.
The noble Lord also asked about the task force. That was set up recently by the Home Secretary who asked me to chair it. Its membership is quite wide and has been published but I shall give a few names, almost at random. It includes the General Secretary of the First Division Association; Mrs. Elizabeth France, the Data Protection Registrar; Professor Robert Hazell of the Constitution Unit; Dr. Dilys Jones, Clinical Strategy Director of the High Security Psychiatric Services Commissioning Board NHS Executive, and Mr. John Mills, Chief Executive of Cornwall County Council. As observers, it has Miss Santah Rasaiah of the Newspaper Society and Mr. Maurice Frankel of the Campaign for FOL So, I do not believe we have been wholly exclusive in the membership.
The Home Secretary wanted us to get on with matters and issue a report by the end of this year. I refer not simply to dealing with the nuts and bolts of legislation, 671 which is for others to do, but to dealing with what he rightly identified, as did the noble Lord, Lord McNally, as a complete change in the culture of operation. Everybody in this country knows that the English vice has always been excessive secrecy for no useful purpose. That is what we want to get away from. It will take a very long time indeed.
A question was asked about costs. They will be of the order I stated. They are greater than those mentioned in the White Paper because we expect many more people to want to use their rights. We firmly believe that managing any organisation properly—whether governmental, a health trust, a local authority education department, or any organisation of that kind—can be done only on the basis of openness. Quite apart from the fact that we speak of public rights, in my view and that of the Government, they are useful management tools. If one knows that one's decisions will be challenged, one tends to make better decisions in the first place.
Of course, we have to think carefully about confidentiality in defence contracts and prison service contracts. Perhaps I may give an example. The noble Earl, Lord Russell, wanted to see the contract on Campsfield House, the detention centre. The original response was that that was subject to commercial confidentiality. It was not; it was published simply with the prices taken out. The fundamental point of the question raised by the noble Earl was, "What sort of regime does the state require for those in a detention centre in the immigration context who have not been convicted?" It seems to me that he was perfectly entitled to see the contract. I provided a copy for him and placed one in the Library of the House. Therefore, one can draw such distinctions, as long as one draws them scrupulously on the basis that there is a presumption of openness.
The noble Lord, Lord Cope, spoke of the fact that having a draft Bill was helpful. It was intended to be such. I repeat what I have said on earlier occasions, and, I believe, to the noble Lord. If, after Second Reading, noble Lords want to come and see me, with or without advisers, with or without officials, we are more than happy for that to be a continuing process.
Both noble Lords spoke about a question for the usual channels. It is probably best if I leave it for them. I have no desire to resist anything being discussed by any Committee in your Lordships' House if by such means we get a better Bill.
The noble Lord, Lord McNally, rightly said that this is a step along the way. I believe that is fundamentally true. He also said that this is part of a constitutional settlement. I agree with him on that point. I repeat what has almost become a hobby-horse of mine. When we speak of devolution we do not speak of devolution to a parliament or an assembly; the information and the parliamentary rights are to go to the individual. It is devolution—devolved power by way of information to the individual—of which we are speaking in this context.
672 Importantly, when the Bill is able to be studied in greater depth, the information commissioner has to make an annual report. That is another extremely important discipline.
I am not sure about Dracula, a much-maligned person. Perhaps it is time for the revisionist historians to conclude that Dracula, just like the Home Office, was perfect in every way.
I certainly agree that we ought not to seek for refuge by simply saying, "This is national security and is within the remit of the intelligence agencies." I am bound to say, from my own experience of talking generally to one director of the intelligence services, that I was agreeably surprised to see the way in which they deal with their public duties, as well as their duties to maintain security in the service of the realm.
The noble Lord asked me, quite reasonably, why we have changed from "substantial harm" or "simple harm" to "prejudice". We believe that prejudice will be a much better concept. It will be focused on the particular rather than the general. I remind noble Lords that success in securing and continuing an exemption from disclosure depends on the probability demonstration of prejudice, not the possibility demonstration of substantial harm. That is a critical difference. Perhaps I may recapitulate. To rely on the "prejudice" ground of exemption—I use the words in the Bill—would, or would be likely to, cause prejudice. That is important. It is a higher hurdle than "possibility".
Statistical and factual information is already readily available. In the Home Office, for instance, contrary to what I am led to believe was earlier practice, the statistical department issues the statistics, whether they are convenient, comfortable or uncomfortable for the Home Office. To give an example, once the reports of the Chief Inspector of Prisons have been checked for factual accuracy, I can warrant that I sign them off immediately whether or not they are happy reading for us.
The noble Lord, Lord McNally, mentioned two matters of importance. First, I welcome his approach, and that of the noble Lord, Lord Cope, in stating that they want to work constructively with all Members of this House to achieve the best possible Bill. Secondly, he raised the question of whether it is appropriate for the information commissioner to be the same person as the data protection commissioner. We thought about that for quite a long time. We paid attention to the recommendations of the Select Committee in another place. We came to the conclusion that the argument was correct to look for a single point of access. There are strange intentions, as the noble Lord identified. It is fair to say that Mrs. France received the admiration of everyone for her independence. We want someone of experience and independence in this field. The probability is therefore that we will have a single commissioner, if the Bill goes through unchanged.
There is also another point. Quite a few of our fellow citizens are afraid of government; they are unaware of their rights and become confused by officialdom. We believe it is helpful to the individual to have a single point of access with a modest charge. Some people want 673 data protection information about themselves, but also want other material pertinent to themselves which is not covered by the data protection regime but which ought to be disclosable by freedom of information regimes. It is much better for someone in those circumstances to go to a single point and be assisted—I underline that word—by a single institution; namely, the joint information commissioner.
§ 5.30 p.m.
§ Lord Clinton-Davis
My Lords, I congratulate my noble friend, not only on the Statement that he repeated, but also on his clear personal commitment to the issues underlying this draft Bill.
I wish to ask specifically about environmental information. As I understand the provisions in the draft paper, modification to comply with European Community Directive 1990 in the Aarhus Convention on access to information and other allied issues will be required. Is my noble friend able to specify a little more clearly the reasons for making that assertion? I am sure it is required, but it is without any specific further and better particulars.
I thank the Home Office also for the comparison with other regimes that is set out in the document. That is most helpful. Finally, perhaps I may express some amazement at the extraordinary eagerness of the noble Lord, Lord McNally, to be allied with the noble Lord, Lord Cope. The noble Lord, Lord Cope, is a most agreeable man, for whom I had a great deal of affection in the other place as well as here, but it is extraordinary that the noble Lord's request to achieve fame should be based on that alliance. I suggest he seeks other allies.
§ Lord Williams of Mostyn
My Lords, I imagine that the noble Lord, Lord McNally, is sick and tired of being told by the noble Lord, Lord Cope, that he is not surprised that he has jumped into bed with the Labour Party and thought he would trump the observation. I have every sympathy.
My noble friend Lord Clinton-Davis has much greater experience than I of the environmental information area in the European as well as the domestic context. He is quite right. The environmental information regulations implement in our law the provisions of an EC directive on access to information. The Aarhus Convention is a further development in this area. It was signed in June 1998. We are trying to match to and marry our obligations in those contexts to make sure that we are not falling behind in the delivery of material to our citizens through our domestic FoI regime.
I am grateful to my noble friend Lord Clinton-Davis for saying that there are comparisons to be drawn between our regimes in prospect and those abroad. If one studies it with care, one realises that we have not made a bad fist of it; for instance, we are providing an information commissioner. That commissioner will be able to assist the citizen, without recourse to litigation—and that is not a feature one finds in all other jurisdictions. We have therefore made an important step forward.
§ Lord Goodhart
My Lords, I should like to raise a small but important point; that is, the cost limit for 674 providing information. Under Clause 12 of the Bill, there is no duty to disclose information if the cost of providing that information is above a ceiling to be fixed by regulations. The discussion papers suggest that the Government are thinking of a ceiling of £500. One cannot obtain an enormous amount of information for £500.
I can understand why the Government feel it necessary to impose some sort of ceiling on the information available for a £10 application fee. Again, I recognise also that under Clause 14 an authority which is not required by virtue of Clause 12 to provide information must, notwithstanding, consider whether or not to exercise its discretion to do so. But if the applicant is willing to pay the full cost of providing that information, should not the authority be required to produce it?
I have in mind in particular the position of the press. It is likely that the principal effect of the freedom of information Act will be that information will get to people not directly, but through the press as an intermediary. Unless the information is extremely expensive, the press will be in a position to pay the full cost of obtaining it. Should not there be an automatic right, therefore, for applicants to obtain whatever information they seek within the limits of the Act, if they are willing to pay for it?
§ Lord Williams of Mostyn
My Lords, that is an extremely telling, well made point and one that I discussed with representatives of the newspaper publishers. We took the two figures—first, the £500—as representing the amount at which it becomes unreasonable to answer a parliamentary Question. We then set the prospective fee quite low because we do not want to discourage people. The prospective fee is not intended as a revenue-gathering exercise; it could not be. It is to exclude the completely vexatious, of which we are all well familiar, which is normally written in green ink, heavily underlined in red and with more exclamation marks than one could shake a stick at! That is covered by Clause 12.
We should take forward this question. If the press have a legitimate request to make that is not vexatious or frivolous (that is covered in Clause 12) and it would cost £5,000, should not they be able to say to the authorities in question, "We are willing, as part of our public service function, our public information function and Article 10 duties as well as privileges, to pay the full amount?" I should welcome that in principle although I cannot make any further commitment because it may well be the outcome.
§ Lord Simon of Glaisdale
My Lords, will the right to know extend to the result of inquiries into the deplorable leaks that there have been in breach of confidence from public bodies in circumstances other than the intelligence agencies being involved? Or will they continue to be masked, in the words of the noble 675 Lord, Lord McNally, in the "culture of secrecy" so that the public are merely told, "We have not been able to find the culprit"?
§ Lord Williams of Mostyn
My Lords, there is no global answer to that pertinent question put by the noble and learned Lord, Lord Simon of Glaisdale. Self-evidently, if there is a leak in a department—for instance, the Ministry of Defence—it might be impossible to publish the full report because one would thereby be jeopardising a legitimate interest. It is quite different in other cases.
One comes back to this: we must stress the importance of the presumption of disclosure in favour of openness. It must then be demonstrated, except in the excluded cases, that there is something by way of prejudice which must be of substance which would, or would be likely to, inure. The noble and learned Lord cannot expect me to say that all reports of investigations into leaked inquiries will be published in full. In some cases they could do serious harm. They may bring about a prejudice which was of substance to an interest which ought to be safeguarded.
But I take the noble and learned Lord's point. I am in favour of openness because it is a useful discipline to concentrate the mind before one comes to conclusions; and if conclusions have been badly reached or sometimes properly reached, at the end of the day it is public information; in other words, it is public property.
§ Baroness Pitkeathley
My Lords, does my noble friend agree that at its best freedom of information goes far beyond simple access? It is about empowering citizens. For example, the more patients know about the diagnosis of their illness, its treatment and prognosis, the more they can be involved in their own care and thus help their recovery. That information is also of great value to the families and carers of such patients. Can the Minister give an assurance that the need for families to have such information will be addressed in the Bill?
§ Lord Williams of Mostyn
My Lords, this is a very delicate area. I tried to indicate earlier to the noble Lord, Lord McNally, why this matter is so important.
For many of the people described by my noble friend, this kind of information will matter to them more than anything, and they will never be interested in freedom of information on any other occasion in their lives. One then has to ask whether patients are entitled to patient/doctor confidentiality, and the answer is plainly that they are. I would not be able to say that families and carers would be entitled to information as of right, information which perhaps the patient did not want to be disclosed. That is a legitimate balance to be drawn. If I were ill, I might want to know the situation, but I might not want my relatives to know because it might be burdensome or harmful, or it might be none of their business.
These matters have to be worked through. The Bill is concerned with the empowerment of citizens and that is why it is very important that the thousands of public 676 authorities should have systems in place that will be vetted by the information commissioner. This will entitle people to know what is presently kept from them without any sensible basis.
My Lords, I welcome the Bill and I thank the Minister for repeating the Statement.
My wife, who was brought up as a civil servant and is very much opposed to freedom of information, quite naturally, also welcomes the Bill because a great deal has been done since the White Paper to weaken the effects of the Government's intent and to make it possible for the Government to avoid disclosing information that it finds inconvenient. The wording of the Bill in relation to departmental information exempts information from disclosure where it would be likely to inhibit free and frank provision of advice or prejudice effective conduct of public affairs. That is a very Sir Humphrey way of saying, "anything I say shall not be disclosed—shall not be disclosed".
I cannot see any presumption of openness in the Bill that applies to that, or balance of public interest, or the words "on balance". Had those words been applied to the information which MAFF had on BSE, which is the case that I know most intimately, it would have resulted in greater disclosure and in avoidance of the harm which occurred. I hope the Minister can give me some comfort in relation to that matter.
§ Lord Williams of Mostyn
My Lords, I hope that I can because one needs to look at Clause 8 which states quite boldly:Any person is entitled on making to a public authority a request for information—I do not think it could be put any plainer than that. Furthermore, I share the noble Lord's caution about what he calls the Sir Humphrey phrase. Time being as it is, he had a closer acquaintance with them for a longer period of time than I have had, so perhaps he is an old lag. However, it is further stated that even where a public authority is entitled to say there is an exemption, it nevertheless has the statutory duty to consider whether it ought to exercise its discretion to give the material out in any event.
- (a) to be informed by the public authority whether it holds information of the description specified in the request and,
- (b) if that is the case, to have that information communicated to him."
That links, in two ways, to the very important position of the information commissioner. He or she can substitute his or her own view as to the propriety of the exemption, in other words decide whether it is made out. The important question is this: if the authority in question fails to exercise discretion, the information commissioner can come to the conclusion that it was not done on any rational ground.
It is critical that there is an information commissioner to assist; there are then the statutory powers and a further right of appeal to the tribunal. Thereafter, quite properly, there is a right of appeal on legal grounds only to the court.
677 There is the bold statement in Clause 8, subject to exemptions. and there is further protection: if they have upheld the exemption they are nevertheless obliged to exercise their discretion about release of the information.
§ The Countess of Mar
My Lords, I am grateful for the Minister's reply to the noble Lord, Lord Lucas. However, I remain a little concerned. The noble Lord is well aware of my fields of interest, particularly the activities of the Scientific Advisory Committee.
The deliberations of that committee will be excluded on the basis of economic interests because they are provided in confidence because of commercial interests and because of Section 118 of the Medicines Act. Can the Minister give some assurance that where deliberations are important to people who have, for example, been exposed to pesticides and are ill as a result, the information will be disclosed as it is in the United States of America, from where I obtained most of my information?
§ Lord Williams of Mostyn
My Lords, this will have to be developed on a case-by-case basis. Not every assertion of confidentiality will be sufficient. What I was saying earlier was that if there were a breach of confidentiality which was actionable, that would be a reason for not disclosing. Not all commercial interests, if they are simply barely asserted, are sustainable, but if we want scientific committees of inquiry to do a thorough job of work, it is idle to think that those with legitimate commercial interests or those with legitimate requirements for commercial confidentiality will volunteer the information unless they are obliged to do so at the point of a statutory gun.
The noble Countess has asked some extremely important questions, and they are the kind of questions that we would expect to be asked during the two-month consultation period. It is not so long that it will be kicked into the long grass; it is short enough to be focused. I hope that we will return to such points of detail when we scrutinise the Bill in your Lordships' House.
Lord Bruce of Donington
My Lords, the Government are to be commended for making it quite clear that there will be an extensive consultative process not only in public but also in Parliament. It is very difficult to go through the Bill in any detail, but can the noble Lord give an assurance, in view of his emphasis on the information that can now be demanded from the public bodies listed at Schedule 1, that the emphasis will not be confined to the National Health Service, the police services and the local authorities, but that they will also comprise the public departments mentioned in part of Schedule 1?
I ask the noble Lord for an assurance that, although these other matters will be considered, and properly so, equal attention will be given to the provisions of Section 26 which deals with law enforcement and Section 24 which deals with the exemption of certain economic information:Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice—678 That is a very broad exemption, and we would appreciate reassurance that it will not unduly restrict those whose business it is from finding out as much information as possible as to how the economy is working.
- (a) the economic interests of the United Kingdom or of any part of the United Kingdom."
Section 29 deals with the way in which Government departments arrive at decisions. Can the noble Lord assure us that these matters will also receive the Government's attention because the origins of the demands for a Freedom of Information Act centred on the secrecy in Government departments? Will these matters also receive very considerable attention in the course of consultations and presentation of the Bill?
§ Lord Williams of Mostyn
My Lords, I hope that that will be so. If we want to maintain secrecy, confidentiality and privacy—whatever term one uses about the workings of government—my belief is that we ought to be able to demonstrate that it is legitimate to do so. I take the point about economic interests very much to heart. That is something that we have particularly in mind regarding whether or not we need to define or refine what we mean by "economic interests", and do not simply hide behind a general concept.
I do not know what the outcome of the consultation will be. It is a good document, which has been put out allowing a reasonable time for consideration. However, I stress that Parliament remains paramount. We want the outcome of the consultation to be of assistance to our deliberations and those in another place. Nothing in the consultation responses will dictate anything to your Lordships or, indeed, to the other place. Nevertheless, if I may say so, my noble friend's point about economic interests is a particularly pertinent one.