Freedom of Information Bill (Hansard, 14 November 2000)

HL Deb 14 November 2000 vol 619 cc134-58 134

§ 3.7 p.m.

§ Report received.

§ Clause 2 [Effect of the exemptions in Part II]:

§ Lord Archer of Sandwell moved Amendment No. 1: Page 2, line 12, leave out subsections (1) and (2) and insert— ("() Section 1(1)(a) does not apply in respect of information as respects which the duty to confirm or deny is excluded by virtue of any provision of Part II conferring absolute exemption. () Section 1(1)(a) applies in respect of information which is exempt information by virtue of any provision of Part II other than a provision conferring absolute exemption unless, in all the circumstances of the case, the public interest in excluding the duty to confirm or deny clearly outweighs the public interest in disclosing whether the authority holds the information. () Section 1(1)(b) does not apply in respect of information which is exempt information by virtue of any provision of Part II conferring absolute exemption. () Section 1(1)(b) applies in respect of information which is exempt information by virtue of any provision of Part II other than a provision conferring absolute exemption unless, in all the circumstances of the case, the public interest in maintaining the exemption clearly outweighs the public interest in disclosing the information.").

§ The noble and learned Lord said: My Lords, in Committee there were attempts from all sides of the House to suggest improvements which, taken together as a package, would have made all the difference between an effective Bill, one which realises the hopes in the original White Paper, and one which loses impetus at those points where it matters, where the public have cause to suspect that something of importance is being concealed from them.

§ Early in the Committee stage my noble and learned friend introduced an amendment which, although he was modest enough to say that it was chiefly a matter of drafting, was certainly about redrafting an improvement which had been introduced into the Bill at an earlier stage. It became what is now Clause 2. That clause contains one regrettable imperfection. In assessing the public interest the balance was to be in favour of concealment; the right to disclosure was to apply only if the public interest in disclosure outweighs the public interest in maintaining the exemption.

§ It was not the death knell of civilisation. My noble and learned friend pointed out that it was not about the burden of proof, but that it was simply a tiebreaker; it concerned what would happen when whoever took such a decision could not make up his mind where the balance of public interest lay. But a number of us felt that it did not belong in a Bill called the Freedom of Information Bill, a Bill apparently intended to thaw the flow of information; a Bill which begins by declaring a public right to information subject only to specified exceptions.

§ So on 17th October a number of us from all sides of the Chamber tried to persuade my noble and learned friend to consider the matter again. One was the noble Lord, Lord Goodhart. He was fair enough to say that it may not make an enormous difference because, in most cases, whoever is adjudicating will be able to come to a decision as to where the balance lies. But he 135 pointed out that it was about sending signals. I agree that it is not by any means the most important issue in the Bill, but if my noble and learned friend were persuaded, it would be a promising beginning to our debates today.

§ The arguments have been deployed many times. They will not improve from repetition by me. I tabled an amendment in the form for which we argued, and I see that the noble Lord, Lord Goodhart, has also tabled an amendment. I do not seek to argue that my drafting should prevail over his. If my noble and learned friend is persuaded on reflection that he agrees with the substance of what we are both saying, then I am content. I beg to move.

§ The Principal Deputy Chairman of Committees (Lord Tordoff)
My Lords, I should point out that if Amendment No. 1 is agreed to, I cannot call Amendments Nos. 2 to 4 inclusive because of preemption.

§ 3.15 p.m.

§ Lord Lester of Herne Hill
My Lords, I wish to speak in support of Amendments Nos. 2 and 4, which stand in my name and that of my noble friend Lord Goodhart. In doing so, I note that Hugo Young, writing in today's Guardian, accuses me and my colleagues on these Benches of having become "half-baked" in our pragmatism and "amnesiac" in our regard for principle, part of what Mr Young regards as a "shocking" conspiracy to "gut" true reform and to assist the Government in the butchery of the Bill.
The basis for that slightly intemperate comment rests on the retention in the Bill of absolute exemptions and the test of harm or prejudice which does not expressly refer to the need for that harm or prejudice to be "substantial", and the retention of a ministerial override which, according to Hugo Young, means that the information commissioner would be powerless in the face of a ministerial veto.
Hugo Young is an old and very close friend of mine and a leading political commentator for whose views I have the highest regard. But on this occasion his criticisms and perhaps those of the wider campaign are, I believe, misguided and unfair. They are based on a misunderstanding of the Bill and of what this package of amendments would achieve. I should like briefly to explain why I think that that is so.
During the first day in Committee I pointed out that the problem with the Bill as it stands is that it asks public authorities, the information commissioner, and the courts to interpret this constitutional measure in a constitutional vacuum. We do not start with a strong constitutional value in UK law that gives a positive right of public access to government information, subject only to necessary exceptions. I also pointed out that one way of filling the gap would be by the Bill including a proper standard against which to weigh the public right of access, conferred by Clause 1, against other rights and other facets of the public interest.
During the second day in Committee we attempted unsuccessfully, on all sides of the Chamber, to persuade the Minister to accept a substantial prejudice 136 test against which to weigh and balance the public right of access against necessary exceptions. The noble and learned Lord, Lord Falconer of Thoroton, having rejected the attempts of my noble friend Lord Goodhart to shift the burden of proof said this: The Bill provides for an equal balance. The factors in favour of maintaining an exemption are to be weighed against the factors in favour of disclosure". He referred to my submission that an authority should disclose official information unless there is a very good reason not to do so. He commented: That is not how the Bill is drafted. The only factors to, be considered are what is on one side of the scale and what is on the other side".—[Official Report, 17/10/00; col. 1267.] If that had remained the Government's position, I would have continued to believe that the Bill is a mockery of a true Freedom of Information Bill worthy of that name, as I said in my evidence to the Select Committee on the draft Bill in another place. By creating a public right of access and then qualifying it with exceptions and limitations without a clear presumption in favour of public access, unless there is very good reason not to disclose the information, the Bill as it stands is seriously defective.
If that fatal defect remained in the Bill, it would be legitimate for the House to withhold consent to the Bill's enactment because the public right of access would be illusory; not a real and effective right but something written in water. We on these Benches would feel especially cheated, after campaigning for so many years for a strong Freedom of Information Act and reaching an agreement with new Labour shortly before the 1997 general election in what is known as the Cook-Maclennan agreement.
The purpose of these amendments is to remove that serious defect by writing into Clause 2 a clear presumption in favour of public disclosure. I shall explain our understanding of the purpose and effect of the amendments and hope that the Minister, as controller of the Bill in this House, will not only support the amendments but will indicate whether or not he agrees with our understanding of their important purpose and significant effect. Ultimately, of course, it is not for the Minister but for the courts to decide on the meaning of the Bill in the form in which it is enacted.
Clause 2 is a crucial provision because it prescribes the standards to be applied to the exemptions from disclosure in Part II other than absolute exemptions. That includes the ministerial override in Clause 35 which, contrary to both the understanding of Hugo Young and those involved in the Campaign for Freedom of Information, does not—I repeat, does not—contain an absolute exemption, but an exemption subject to Clause 2. Where there is a duty to inform whether a public authority holds information, Clause 1(1) creates a duty to provide the information.
These amendments require the public authority, the information commissioner and ultimately the courts to ask and answer a key question: in all the circumstances of the case, does the public interest in maintaining the exclusion of the duty to confirm or deny outweigh the public interest in disclosing whether 137 the public authority holds the information? In other words, the starting point is the public right of access and the public interest in disclosure, and it is for the public authority to justify non-disclosure on the basis that public disclosure is outweighed in the circumstances of the case by the public interest in non-disclosure.
The burden of proof, as lawyers would say, is placed upon the public authority to show that there is some pressing need for non-disclosure and that the restriction on the public right of access is necessary in the sense of being a proportionate way of meeting that need. That applies to the exemptions in Clause 34 related to the formulation of government policy and to the exemption in Clause 35 (the ministerial override for prejudice to the effective conduct of public affairs). In each case, it will be for the public authority to justify the exceptional course of relying upon the exception.
It is true that the Bill does not qualify the word "prejudice" with an adjective such as "substantial". But the Minister conceded in previous debates that the prejudice must be real and not fanciful and, in applying the new balancing test inserted into Clause 2 by these amendments, the public authority, the information commissioner and ultimately the courts will decide whether the harm to the public interest in non-disclosure, identified in the specific exemption, is sufficiently substantial in the particular case to outweigh the public interest in disclosure. In other words, Clause 2 will enable the information commissioner and the courts to ensure that there is a proper sense of proportion and that the exemptions are not used excessively or unnecessarily or, in the old English phrase, that a sledge-hammer is not to be used to crack a nut.
Amendment No. 25, as part of the scheme, will tilt the balance more strongly in favour of public disclosure by placing a duty to provide advice and assistance on public authorities. That, too, will encourage a change in Civil Service ministerial culture to promote more open government and to discourage unnecessary secrecy.
In the case of Clause 34, Amendment No. 43 is designed to make it clear beyond argument that in deciding whether to invoke the ministerial override, regard must be had to the particular public interest in the disclosure of factual information which has been used, or is intended to be used, to provide an informed background to decision taking. That is a further safeguard—

§ Lord Mackay of Ardbrecknish
My Lords, can the noble Lord help me? I am puzzled by his reference to Amendments Nos. 25 and 43 because they are not in this group; they are in other groups. Has the grouping been changed without me being told?

§ Lord Lester of Herne Hill
My Lords, the noble Lord is right. As Clause 2 applies across the face of the Bill, I am trying in a single statement of our position to explain why we believe that these amendments should 138 be commended. In doing so, I am not attempting to move Amendment No. 43 but to explain the scheme as a whole.
As I was saying, Amendment No. 43, if it is later accepted, will provide a further safeguard of the public right of access, modelled on the way in which the Human Rights Act gives primacy to the right of freedom of communication to the public. It applies whether the decision has already been taken at the date of the request for information.
We ask the Minister to confirm that his understanding of the effect of these amendments is similar to our own understanding and their acceptance would represent a real shift in the way in which the balance is to be struck and maintained. We have no doubt that, if the amendments are accepted as part of the Bill, the courts will interpret the Bill in a way which gives practical reality to the public right of access, in the same way as the Law Lords have already given a powerful lead in protecting the right to free expression against unnecessary restriction in cases such as Derbyshire County Council, Reynolds and Turkington, in all of which I declare my professional interest in acting for the newspaper.
When the Government's White Paper was published, I congratulated them from these Benches. Most unfortunately, when responsibility was transferred from the Cabinet Office to the Home Office, a Bill was prepared which did not meet the expectations created by the White Paper. The draft Bill was rightly criticised by the Select Committees of both Houses. The Bill is far from perfect and it is not in the form which a Liberal Democrat administration would have introduced. But the amendments enable the Bill to be made to work in practice. I beg to move.

§ The Countess of Mar
My Lords, before the noble Lord sits down, on a technicality, perhaps I may gently point out that at this stage the only amendment which has been moved is Amendment No. 1. He is speaking to his amendments and not moving them at this stage.

§ Lord Lester of Herne Hill
My Lords, I am always at a loss when it comes to matters of procedure and I am always grateful to be told that I have got it wrong. I apologise for having done so.

§ Viscount Colville of Culross
My Lords, I want to speak briefly in support of this group of amendments. I was a member of the Select Committee chaired by the noble and learned Lord, Lord Archer of Sandwell, but the timing of the Bill has been such as to make it impossible for me to attend its previous stages. However, he and the noble Lord, Lord Lester, have made a strong case. I spend a long time trying to decide disputes between people and often the arguments are extremely evenly balanced. In those circumstances, something in the order of a burden of proof is immensely important and valuable.
I understand that the burden of deciding whether disclosure will be made will arise at many stages and in the minds of a disparate collection of people. There will be the first occasion when the request is made and 139 the public authority, in the form of some individual, will have to decide whether or not to disclose. Then there are the information commissioner, who will need some guidance, the tribunal, the courts and Ministers under the override system.
I found it most disquieting to read in the report of the Committee stage that there was likely to be equality and that it was not clear what would happen when the balances were exactly even. It seems to me that the balances are even less easy to discern in a subject such as this than in an ordinary case which comes before the courts because the issues are intangible and extremely difficult to weigh.
I would therefore commend to the noble and learned Lord, Lord Falconer, the arguments which have been made; that there should be a clear presumption in favour of disclosure. If there is no such guidance to assist those who are making decisions of the type I have just described, I do not know where they will think they are going to start. With any ordinary system of burden of proof, you know from where you are going to start and that makes it much easier for a proper and fair decision to be made.
One of the things which came out of the Committee stage— the noble Baroness, Lady Whitaker, clearly put her finger on it—is that this is one of the most important introductions to the whole of the system of freedom of information on which the Bill is centred. Unless we can get it right, there does not seem to be much prospect in there being an open culture of freedom of information, which is what it is all about. I am not sure which of the amendments I shall in due course be invited to support, but, as regards the principle, I am very much in favour of both noble Lords who have spoken.

§ Lord Peston
My Lords, I am extremely sympathetic to the sensible remarks of the noble Viscount, Lord Colville of Culross, but I was left somewhat puzzled by the noble Lord, Lord Lester, speaking to his amendments. The Deputy Speaker said that he could not call one if the other were passed, but I understand that there is a genuine sense in which the amendments are competing with each other.
I have not been able to understand what Amendment No. 2 et al. do which Amendment No. 1 does not do. Do they do less? Do we get more freedom of information under Amendment No. 1 than under Amendment No. 2? Do they do the same or more? We were not told why we should have Amendment No. 2 rather than Amendment No. 1.
On the assumption, which I assume we all share, that more freedom is better than less, I would like to know whether we are being told that Amendment No. 2, for example, offers us more freedom of information. I should have thought that the noble Lord, Lord Lester, as he spoke to amendments in the group, could have helped at least those of us who have difficulty following the wording—and I have enormous difficulty—by answering the simplest of 140 questions: namely, is he saying, "Support me because you get more freedom of information from me than you do from the noble and learned Lord"?

§ Lord Mackay of Ardbrecknish
My Lords, as this is Report stage, I have to speak before the Minister. However, it would have been interesting first to hear what the Minister had to say—

§ Lord Bach
My Lords, I am sorry to interrupt the noble Lord but on Report it is possible for the Minister to speak at an early point in the debate and before the noble Lord, allowing for others to speak and not to follow the normal rule of the Minister speaking last before the mover of the amendment.
I know that the noble Lord has a great deal more experience of the House than do I, and of this stage in particular, but I believe that the Minister can speak early in a debate without precluding others from speaking after him.

§ Lord Mackay of Ardbrecknish
My Lords, while I accept that, it must be said that last week there was a dispute about noble Lords speaking after the Minister. I was attempting to avoid the same guidance coming not from the noble Lord, Lord Bach, but from a different Whip who tends to try to keep your Lordships in some semblance of order! The noble Lord, Lord Peston, must be the only person who does not understand what is going on. We read it in the newspapers. The speech by the noble Lord, Lord Lester, was not a good example of freedom of information, because the one piece of information that he did not give, especially when I intervened to ask why he spoke to amendments which were not part of the group, was that he and his noble friends had done a deal with the Government on these matters. I do not normally read the Guardian, but the following article in Saturday's issue was drawn to my attention: Liberal Democrats agree pact on Information Bill". The Financial Times said: Liberal Democrats' deal set to ease the path of the data access Bill". Robert Shrimsley wrote in that newspaper: Ministers believe that they have headed off defeat on the Freedom of Information Bill in the House of Lords next week after striking a deal with the Liberal Democrats to ensure its passage. The Home Office has accepted four amendments tabled by Liberal Democrat Peers". Those were the four amendments to which the noble. Lord referred. The noble Lord could have been free with information had he described the purpose of the other amendments outside the group, if he intended to explain helpfully the package that had been agreed with the Government. I shall not complain too much. However, at Committee stage I and a number of other noble Lords were on the same side as the two noble Lords on the Liberal Democrat Benches—I was in awe of their speeches on the whole subject—and it would have been nice if they had indicated their intention to desert the field of battle without any grapeshot having been fired, accept some crumbs of comfort from the 141 table of the noble and learned Lord, Lord Falconer, and abandon ship. They have abandoned ship to a fairly puny lifeboat.
It is clear that the noble Lord, Lord Lester, was a little sensitive. He drew attention to the article in the Guardian by Hugo Young. I am not surprised that the noble Lord did not draw attention to the headline.

§ 3.30 p.m.

§ Lord Lester of Herne Hill
My Lords, I am grateful to the noble Lord for giving way. He provokes me to get to my feet, which I had not intended to do. Without seeking to cause offence to the Conservative Benches, if my choice of ally is between the present Government, who have introduced an admirable White Paper and a Bill which, though defective, at least creates a statutory right of access to the public, and the Conservative Party which during 18 years in power could not come up with anything other than a voluntary code—for which I commend it—and was always opposed to a statutory right of public access, on this occasion I unhesitatingly choose the new Labour Government over the old and new Conservative Party.

§ Lord Mackay of Ardbrecknish
My Lords, it is amazing that the Bill which the noble Lord now supports is in some ways less open than the code of practice introduced by my right honourable friend John Major. I now know that next time I sup with the Liberal Democrats I should use an even longer spoon.
The headline in the Guardian was, See the Lib-Dem approach: compliant, abject and half-baked". The noble Lord, Lord Lester, did not quote the whole article, which your Lordships should hear: The progressive alliance which got [the Bill] this far is, however, turning into a conspiracy to gut true reform. From the Government, this has been signalled for a long time". I suppose that it was signalled the day that David Clark was sacked and the White Paper was watered down to form the Bill. It goes on: What is new and shocking is the willingness of the Liberal Democrat Peers to assist in the butchery". It is not just Hugo Young and myself who believe that the Liberal Democrats have sold themselves short. In a letter to me dated Monday of this week Charter 88 states that it is, disturbed to learn of the reported details of the agreement reached between the Liberal Democrats and the Government over the Freedom of Information Bill … Bearing in mind particularly the furore surrounding recent incidents, such as the Hatfield rail disaster and the BSE report, we find it difficult to believe that the deal to secure the passage of the Government's Bill will command public support. This makes the collapse of Liberal Democrat support for the most important amendments outlined above all the more surprising". 142 The Campaign for Freedom of Information is also fairly scathing: The four amendments in themselves are helpful"— indeed, they provide a little help— but they represent only limited progress on issues of mainly secondary importance and do not in our view address the Bill's key shortcomings. We cannot see how they justify ending all serious efforts to amend the Bill, particularly at this critical stage". I would have thought that it would have been in the interests of the Liberal Democrats and ourselves to send some bits of this Bill back to the other place, where a significant number of the Government's own supporters are very unhappy with this watered-down version, to see whether some real progress could be made. For whatever reason, the Liberal Democrats have decided not to do that. My arithmetic is not bad, but I am aware that, even if I gain the assistance of a few noble Lords on the Government Benches, if the Liberal Democrats march into the Division Lobby with the Government my chances of sending much of this Bill back to the House of Commons are greatly limited. If we had stuck together we could have sent back some fairly substantial amendments.
I have no doubt that in a few moments the noble and learned Lord, Lord Falconer, will turn to these amendments. In Committee he told us gracefully about the balancing process. He admitted that when there was a balance the presumption would be in favour of disclosure. The effect of the amendments before us—I support them to this extent—is that there will be disclosure if the total balance is in favour of it. The noble Lord, Lord Goodhart, said in Committee: It is fair to say that I doubt whether, in practice, this will make an enormous difference. In most cases, it will be possible for whomever is adjudicating to come to a decision on whether one interest does in fact outweigh the other. But the fact that the statute calls for maintaining the exemption in cases of equality sends absolutely the wrong signal".—[Official Report, 17/10/00; col. 908.] Therefore, we are talking about something which will not happen very often. This is not a huge step forward for anyone, let alone mankind or freedom of information.
Although I am grateful to the Government for signalling—as they will shortly in the person of the noble and learned Lord, Lord Falconer—that they intend to accept this amendment. I am not impressed. I would rather they accepted the amendment in the name of their noble and learned friend Lord Archer. The noble and learned Lord's amendment goes further and introduces into the debate the word "clearly". Therefore, for secrecy to be maintained it must clearly outweigh the public interest over disclosure. I believe that that is a much more powerful way to look at it. If they balance out equally there shall be disclosure, but the use of the word "clearly" makes the amendment much more important, and better, than that of the Liberal Democrats. To tempt the noble and learned Lord, Lord Archer, if he decides to put his amendment to a vote we shall join him in the Division Lobby.

§ Lord McNally
My Lords, before the noble Lord sits down, he has been throwing about his voting 143 intentions with some braggadocio. Will the noble Lord reveal the strength of the Conservative Whip today which, as he admitted, was issued before Saturday when he read of any intention on the part of these Benches? It is my understanding that today there is what may be called an ultra-light Whip. Where are the Conservative Peers to back up the tough talking of the noble Lord?

§ Lord Mackay of Ardbrecknish
My Lords, it is interesting that I have brought the noble Lord to his feet. We have a strong Whip today. These matters are supposed to be confidential, but they never are in your Lordships' House. All noble Lords are aware that there is a strong two-line Whip today. I suppose that when this material appeared in the newspapers earlier in the week most of my noble friends wondered whether it was worth it. Last week we were confident that the Liberal Democrats and ourselves would be on the same side. We shall know what to do next time.

§ The Minister of State, Cabinet Office (Lord Falconer of Thoroton)
My Lords, it is interesting to hear the noble Lord, Lord Mackay of Ardbrecknish, having been part of a government who for 18 years did not introduce any kind of freedom of information Act, move from being a pragmatist to becoming, as it were, a purist in relation to freedom of information. He now wants to support only the most extreme Bill. I think that is a purely opportunistic change in his position and in those noble Lords behind him.
I turn to the amendments in the group. I speak first to Amendments Nos. 2 and 4, tabled by the noble Lords, Lord McNally, Lord Lester and Lord Goodhart. We make it clear, and made it clear in Committee, that what we are interested in seeking to achieve is a change of culture in relation to freedom of information.
Amendments Nos. 2 and 4, and the other amendments in different groups to which the noble Lord, Lord Lester, referred in his remarks, will result in an important and significant shift towards greater openness. They will put beyond doubt the Government's resolve that information must be disclosed except where there is an overriding public interest in keeping specific information confidential. Perhaps I may repeat that: information must be disclosed except where there is an overriding public interest in keeping specific information confidential. The amendments—not just Amendments Nos. 2 and 4 but he wider amendments referred to by the noble Lord, Lord Lester—seek to ensure that disclosure takes place more promptly than would otherwise be the case.
The amendments include placing a duty on the Government to assist applicants in relation to the freedom of information purpose. The one thing that noble Lords agreed on in Committee was that the change in culture was the important thing; to give a message that what was sought was that we should strive to give the information unless there was a good reason not to. One can argue about the details until one is blue in the face; but it is giving that signal that is the important thing.
144 We believe that the four Liberal Democrat amendments which we have agreed to accept make a significant difference. They significantly contribute to the change in culture. They contribute significantly to ensuring that the public authority must make out the case for non-disclosure before there is non-disclosure. That is why we have agreed to accept them. That is why there is agreement that once those changes are agreed to, or made, this is a Bill that makes a significant change to the culture and this is a Bill that is worth supporting. So we welcome the four amendments I have identified and we shall support them.
I return to Amendments Nos. 2 and 4. These amendments would have the same effect as the noble Lords stated in Committee. Quite apart from making it clear that the position is that there must be disclosure except where there is an overriding public interest in keeping specific information confidential, they also deal with the "tie-breaker" situation, to which the noble Viscount, Lord Colville of Culross, specifically referred. If there is a tie-break, disclosure has to take place. The amendments give a further push to openness; so the Government have concluded that they will support them.
Amendments Nos. 23, 29 and 65 are consequential to Amendments Nos. 2 and 4. We support those as well. Amendments Nos. 3 and 5, which were tabled by the noble Lord, Lord Lucas, are clearly intended to have the same effect as Amendments Nos. 2 and 4. As I have made clear, I accept the principle behind the amendments and I thank the noble Lord for tabling them. However, I believe that Amendments Nos. 2 and 4 better reflect the way the Bill is structured and are technically more compliant. I therefore ask the noble Lord, Lord Lucas, not to press his amendment.

§ Lord Lucas
My Lords, I merely put my name to amendments tabled by the Liberal Democrats. I thought that they were consequential amendments. At that time, I was merely supporting the amendments of the noble Lord, Lord Goodhart.

§ Lord Falconer of Thoroton
My Lords, that may be what the noble Lord thought he was doing; but Amendments Nos. 2 and 4 have been tabled by the Liberal Democrats.
Amendments Nos. 26, 27, 63 and 64 are similarly complementary to Amendments Nos. 2 and 4. They clarify the relationship between the provisions in Part II of the Bill, which provide that the duty to confirm or deny does not arise, and Clause 2. They make it clear that the fact that one of the provisions applies does not mean that the duty to confirm or deny is excluded. It is excluded only if the provision is one that confers absolute exemption, or the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the authority holds the information. These amendments are complementary to wording at the beginning of Amendment No. 2. Therefore, the Government support these amendments as well.
145 The noble Lord, Lord Peston, quite legitimately asked the question: what is the difference in this menu of changes? The noble Lord, Lord Mackay of Ardbrecknish, accurately as ever, identified what the difference is. The amendment of the noble and learned Lord, Lord Archer, contains the word "clearly". That is really the only significant difference. We would oppose the inclusion of the word "clearly" because one could end up in a situation where there was a public interest in not disclosing information. Where the public authority had made out the case for not disclosing, but only by a short head, even though it was by a short head—because it was not clear—one would end up nevertheless having to make disclosure. We think that the better amendments are Amendments Nos. 2 and 4.

§ Lord Peston
My Lords, I am desperately keen to understand this. My question was even more naïve than that. I simply was asking the question: do I as an ordinary person get more freedom of information from my noble and learned friend Lord Archer than I do from the noble Lord, Lord Lester? The noble Lord, Lord Lester, chose not to answer my question. But since my noble and learned friend the Minister understands what this is about, I should like to know which product, if I buy it, gives me more freedom of information.

§ 3.45 p.m.

§ Lord Falconer of Thoroton
My Lords, the appropriate amount of freedom of information comes from Amendments Nos. 2 and 4 which the noble Lords, Lord Lester of Herne Hill and Lord Goodhart, propose. I invite the noble and learned Lord, Lord Archer of Sandwell, to withdraw his amendment. I invite noble Lords to supports Amendments Nos. 2 and 4 and the consequential amendments which come later in the Bill. I ask noble Lords not to move any other amendments in the group.

§ Lord Archer of Sandwell
My Lords, it would be a pity if the message which went out from this debate were to mislead those who read it. What has happened in the course of this debate has improved the Bill. My noble and learned friend is to be commended on his response.
My noble friend Lord Peston and the noble Lord, Lord Mackay, tried to tempt me into entering into a competition. That was not my purpose. My noble and learned friend on the Front Bench tried to tempt me into racing terminology. That is not something with which I am perhaps as familiar as he. I am content that my noble and learned friend has accepted Amendment No. 2 and the accompanying amendments. They improve the Bill. For that reason, I shall not press my amendment.
That does not necessarily mean that I have adopted a pacifist stance in relation to the whole Bill. We may reach more controversial matters at later stages. I do not propose to enter into controversy at this stage.
146 It may help if I try to eliminate what appear to be two misunderstandings, although it may be that I am being more than usually thick. In Committee, the noble Viscount, Lord Colville, said, if I understood him correctly, that there is no provision for a tie; that it left the matter in the air with no guidance to the person who has to take the decision. My understanding is that it is much worse than that. It actually means that if there is a tie, the balance is against disclosure.

§ Viscount Colville of Culross
My Lords, that is exactly what I understood. I thought that was elicited by the noble Baroness, Lady Whitaker, in Committee. It is for that reason that I thought that it was the wrong way round. I am prepared to support whichever of these two amendments gets the general favour of the House.

§ Lord Archer of Sandwell
My Lords, I am most grateful. What I had misunderstood was not the Bill but the noble Viscount. Clearly, we are at one on that. The amendment has improved the position by swinging the balance from one way to the other.
I was rather puzzled by a point made by the noble Lord, Lord Lester. He said that the Campaign for Freedom of Information had overlooked the provision for the public interest override. I do not think that it has done that at all. I believe that it thinks, as I confess I do, that we must not overrate the importance of the concession made by my noble and learned friend. As he emphasised in Committee, we are talking about not the burden of proof but the tie-breaker. We have improved the situation if there is a tie and the person concerned cannot make up his mind one way or the other. It would be a mistake to give the impression that we have gone further than that. As the noble Lord, Lord Goodhart, very fairly put it in his argument in Committee, that is precisely what was being aimed at. It is about sending signals. I quite agree that that is an important reason for welcoming my noble and learned friend's response.
Other matters may engage our attention later. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ The Principal Deputy Chairman of Committees
My Lords, in calling Amendment No. 2, I have to advise the House that if it is agreed to, I cannot call Amendment No. 3.

§ Lord Lester of Herne Hill moved Amendment No. 2: Page 2, line 12, leave out subsection (1) and insert— ("(1) Where any provision of Part II states that the duty to confirm or deny does not arise in relation to any information, the effect of the provision is that where either—

(a) the provision confers absolute exemption, or
(b) in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information,

section 1(1)(a) does not apply.").

147

§ The noble Lord said: My Lords, I have spoken to Amendment No. 2 all too fully. I beg to move.

§ On Question, amendment agreed to.

§ [Amendment No. 3 not moved.]

§ Lord Lester of Herne Hill moved Amendment No. 4: Page 2, line 21, leave out from ("apply") to end of line 27 and insert ("if or to the extent that—

(a) the information is exempt information by virtue of a provision conferring absolute exemption, or
(b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information").

§ The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

§ On Question, amendment agreed to.

§ [Amendment No. 5 not moved.]

§ Lord Lucas moved Amendment No. 6: Page 2, line 27, at end insert— ("(2A) In assessing the public interest in disclosing the information under subsection (2)(b) above, particular weight shall be given to the desirability of making factual information freely available to the public.").

§ The noble Lord said: My Lords, Amendment No. 6 is grouped with Amendments Nos. 42 and 43. We have already heard a little about Amendment No. 43. I do not intend to press Amendment No. 6. I tabled it as a placeholder for a promise made by the noble and learned Lord the Minister in Committee to restore to the Bill a provision which had in error been struck out by the government amendment to Clause 13.

§ Two points arise in relation to Amendment No. 6 and Amendment No. 43, which apparently is to be accepted by the Government. First, why does not the concession on factual information apply to Clause 35? When the provision was in Clause 13 it was of general application. I have looked through the various exemptions and can see that there are many in relation to which a prejudice in favour of disclosure of factual information would have no relevance. But it does have a considerable relevance in relation to Clause 35. Why has the Minister brought back the provision in such a restrictive way that it now applies only to Clause 34?

§ Secondly, I should like to refer to the amendment that is to be proposed by the noble Baroness, Lady Whitaker. I am interested in the extent to which the word "factual" precludes information which might reasonably be released to the public by way of statistical information or analysis. The noble and learned Lord was kind enough to write to me with a definition of "statistical", for which I asked in Committee. He has accepted the definition of the Office for National Statistics that a statistic is a quantitative fact or statement. I presume, therefore, that "factual" embraces qualitative, but to what extent is analysis contained in that? If I have a collection of facts which are analysed in a dispassionate way—a statistical analysis of the facts—is that still a fact? The noble and learned Lord said in his letter that he had 148 included in it a couple of illustrations. Unfortunately, they were not in the envelope; nor has his office been able to supply them since my request to it this morning.

§ Lord Falconer of Thoroton
My Lords, I apologise. I was fully aware of that this morning. My office immediately told me of this disaster when the news was brought to it by the noble Lord this morning. I am sorry that the attachments have not yet reached him. I shall try to ensure that they do before the end of the day.

§ Lord Lucas
My Lords, I shall read them with great fascination when they arrive. We need to know how the Minister interprets the word "factual". When I was in government most of the papers I saw that formed the basis of decisions had a lot of facts in them. But the facts were not just randomly arranged on the page; they were supported by analysis so that one could see an interpretation of them. Part of the science of statistics is putting facts in a way that enables decisions to be made from them. I hope that the noble and learned Lord understands "factual" to include that kind of analysis but to exclude speculation based on that analysis, which would fall outside "factual". I hope that the noble and learned Lord will be able to enlarge on the definition of "factual". If not, I would be very happy to have a letter before Third Reading. I beg to move.

§ Lord Goodhart
My Lords, as the noble Baroness. Lady Whitaker, does not appear to be rising at this point to speak to Amendment No. 42, perhaps I may speak to Amendment No. 43. The noble Baroness will no doubt speak later. Amendment No. 43 is very important indeed. Clause 13(5) of the Bill as it originally appeared from the Commons stated that in considering access to government information under what was then Clause 33—I should say in response to the noble Lord, Lord Lucas, that it was never wider than Clause 33—regard should be had to the public interest in obtaining background information. That provision was apparently left out by accident when Clause 13 was replaced by Clause 2—at any rate, so we were told. We have now brought forward an amendment which we believe strengthens significantly what was originally contained in Clause 13(5). It is further strengthened when Amendment No. 43 is read together with the amendments to Clause 2 which have just been approved.
It is fair to say that we would have preferred a simple amendment recognising that there is a right not only to statistical information but also to other forms of factual information. That would have given a more easily understandable provision. However, the Government were unwilling to accept that. They took the view that it is a difficult job to separate factual information from opinion information. Be that as it may, we have now come back with an alternative version. It states that, regard shall be had to the particular public interest in the disclosure of factual information which has been used, or is intended to be used, to provide an informed background to decision-taking". 149 If we accept that the public has a "particular" interest in the disclosure of factual or background information and then add to that the change in what I would regard as the balance of the burden of proof under Clause 2—even if the Government do not strictly accept that—then we will reach a situation in which the Government will have to overcome a substantial hurdle if they are to withhold factual or background information, whether that is done before or after a decision is taken.
I am not sure whether the noble and learned Lord, Lord Falconer, will accept this, but we regard this as being in all but name a prejudice test. It will be necessary, first, for the information commissioner to take into account the particular public interest in the disclosure of background factual information. Secondly, she will have to recognise that that interest has to be outweighed by the public interest in non-disclosure. Frankly, unless it can be established that disclosure would cause significant harm to the public interest, we do not see how that hurdle can be overcome. That is why I have said that we feel that this is, in all but name, a prejudice test—something that we and other organisations such as the Campaign for Freedom of Information have been asking for over a long period of time.
On that basis, we feel that if Amendment No. 43 is accepted, it will represent another very important step forward in improving the quality of the Bill and the power it will confer on members of the public and the media to obtain information which properly should be disclosed. I shall not move the amendment—I am mindful of the noble Countess, Lady Mar—but I advocate most strongly the proposals which we have put forward in Amendment No. 43.

§ 4 p.m.

§ Baroness Whitaker
My Lords, our Amendment No. 42 is more clear cut than Amendment No. 43, which states only that, regard shall be had to the particular public interest in the disclosure of factual information". The amendment removes "factual or statistical information" and its analysis from the scope of three of the four class exemptions in Clause 34; namely, information relating to the formulation or development of government policy, ministerial communications and the operation of Ministers' private offices. Where, however, the facts or their analysis point to a forthcoming decision and disclosure would be contrary to the public interest, the information could be withheld.
The amendment is designed to improve a useful and valuable Bill. It is in line with Section 20(2)(b) of Ireland's Freedom of Information Act 1997, which removes from a similar exemption, factual (including statistical) information and the analyses thereof". Chaos does not seem to have broken out in Ireland during the three years since the Act was passed. Our 150 amendment is also in line with the existing UK Code of Practice on Access to Government Information, which requires government departments, to publish the facts and analysis of the facts which the Government considers relevant and important in framing major policy proposals and decisions". The amendment would give effect to current best practice in government, as exemplified by my right honourable friend the Minister for Agriculture, Fisheries and Food in his Statement in another place on the BSE inquiry on 26th October, when he said that: It is clearly right—certainly with the advantage of hindsight"— which we have now— to trust the public, put the advice available to government into the public domain and encourage a responsible debate around scientific advice".—[Official Report, Commons, 26/10/00; col. 396.] That was echoed by my noble friend the Minister in your Lordships' House on the same day: one of the lessons to be learnt from this is that it is necessary to be willing to expose uncertainties and to air balances of evidence and the consequent judgments that are made".—[Official Report, 26/10/00; col. 495.] It is further echoed in the guidelines issued by the Government's Office of Science and Technology in July of this year, where at paragraph 26 it states that: Departments should aim to publish widely the scientific advice and all the relevant papers, so that those outside can satisfy themselves about the process by which the advice was formulated and that the conclusions are correctly drawn". In our view, this amendment would make an essential improvement to this important and desirable Bill, an improvement such that the kind of secrecy over the devastating harm done by BSE, and the resulting lack of remedial measures which could have saved lives tragically cut short, would have been impossible to maintain. We need this simple, straightforward but fundamental provision to complete the Freedom of Information Bill.

§ Lord Williamson of Horton
My Lords, I know nothing of a deal struck between the Liberal Democrats and the Government, nor anything of the Conservative Whip. However, I should like to intervene at this point because it is important that we achieve the best possible provision for the availability of factual information and its analysis for the public. I start from a different point. I think that the availability of factual information should be automatic, but because we shall not reach that point, we shall have to see how far the Bill would be improved by the amendments that we are discussing.
I shall start with the amendment spoken to by the noble Lord, Lord Goodhart. I support the amendment, although I must say that I admire the way in which he was able to convince himself of its importance. Perhaps I may say that it is drafted in a style which I could easily have used myself during many years of drafting provisions. The noble Lord has used the phrase, regard shall be had to the particular public interest". 151 That is not a particularly strong phrase. We know that the attention given to it by those who will operate under the Bill will be conscientious, of course, but perhaps not necessarily extremely strong. It is a step forward and we should welcome that, but we must not overrate the importance of this proposed change in relation to the disclosure of factual information. None the less, I support Amendment No. 43.
I shall turn now to Amendment No. 42, tabled by the noble Baroness, Lady Whitaker. This amendment has the advantage over Amendment No. 43 in that it is more specific. It changes the onus of proof—in the same way that we discussed on an earlier amendment—by stating that, Information is not exempt … insofar as it consists of factual or statistical information, or the analysis of such information, unless its disclosure", and so forth. Provision has been made for it to be overridden but basically it is more specific about making available factual information and its analysis. I tend to prefer this amendment, although any improvement which can be made in relation to Clause 34 is much to be welcomed. For that reason I hope that either one of these amendments will be incorporated into the Bill at this stage.

§ Lord Archer of Sandwell
My Lords, perhaps I may first apologise to the House. The reason why my noble friend did not rise immediately to speak to her amendment was that I distracted her attention over a different matter.
This is a serious problem. There have been few provisions in the Bill which have attracted more universal criticism than Clause 34 as it is presently drafted. In Committee, the noble Lord, Lord Goodhart, described it as one of the most objectionable provisions in the Bill; he said that it was a step backwards from both the code and the White Paper. He attracted universal agreement to that proposition.
My noble friend Lord Brennan invited my noble and leaned friend to point out in what respect the existing code had failed to work. He received no reply. If the existing code was working, one needed to do very little but enact it in the Bill.
My noble friend Lord Borrie asked why it should be assumed that it is against the public interest for information about government policy to be disclosed. That is a question which seems to be shared by my right honourable friend Nick Brown and by the noble Lord, Lord Williamson.
Amendment No. 43 would improve that situation—it is certainly better than what we have now—but it would simply require whoever takes the decision to have regard to the matters in question. My noble friend's amendment is more decisive in the direction of disclosure. The danger which appears to concern the Government is provided for in the amendment. I hope that my noble and learned friend will allow us to be competitive on this occasion and to prefer Amendment No. 42.
152 I hope that my noble and learned Friend will not revert to the argument that he used on many occasions in Committee. Where the exclusion is defined by category without a harm test, my noble and learned friend tells us that it does not matter if the category is too wide; we should not trouble ourselves about the breadth of a category because it is all subject to the public interest test. Yet when we come to discuss the appropriate boundaries of a category, we are always told that we are trying to cast the boundaries too wide.
The difficulty in relying on the public interest test — I was rather expecting to develop this argument at a later stage; I have only just realised that Amendment No. 42 was grouped with an earlier amendment—is that the overall problem which casts its clammy hand over the Bill is that the last word on the public interest override lies with a senior member of the Government—a Cabinet Minister—or an appropriate Minister from the Welsh or Northern Ireland Assemblies.
At this stage we have not brought forward an amendment to deal with that because the Government's mind appears to be made up. However, if we are then invited to look at the stage where the matter is decided on the public interest override, we have to bear in mind that the last word will be with someone who is acting as judge in their own court. But for that, we may have gone along with a great deal of what is in the Bill.
I hope that when my noble and learned friend looks at this issue he will agree that something more forceful is required in Clause 34.

§ 4.15 p.m.

§ Lord Goodhart
My Lords, before the noble and learned Lord sits down, does he agree that the significant point in Amendment No. 43 is not the words "regard shall be had" but the recognition in that amendment that there is a particular public interest in the disclosure of factual information? The force of Amendment No. 43 lies in that wording. That is why Amendment No. 43 is a substantial improvement on the previous drafting.

§ Lord Archer of Sandwell
My Lords, I agree entirely that Amendment No. 43 is a substantial improvement on the previous drafting. It certainly was not my intention to criticise it. But when the noble Lord says that it recognises the public interest in disclosure, I suppose that a cynic may reply, "We all know there is a public interest in disclosure. That is the basis of our arguments on the Bill. It is about balances". I do not think it does any harm to remind people. As I say, I certainly would not wish to criticise the noble Lord's drafting.

§ Lord Lester of Herne Hill
My Lords, before the noble Lord, Lord Mackay of Ardbrecknish, accuses those on these Benches of being party to a dreadful conspiracy, perhaps I may give him further ammunition by outlining why, with respect, there is a great deal to be said for Amendment No. 43, and by 153 explaining some of the problems with Amendment No. 42, even though they have common cause in what they seek to do.
Perhaps I may first say something about the contribution made by the noble Lord, Lord Williamson. I very much appreciate what he said. However, if he were to look at the draft EC regulation now being presented on public access to information, he will find it a good deal less liberal than his own sentiments. If he reads the report of the House of Lords Select Committee on the subject, he will see why this House, through that Committee, wishes for something stronger on the European Union level.
Secondly, he said that he could have drafted Amendment No. 43. I am sure that is right. He would have looked at the Human Rights Act and seen that in that Act—which is a charter of freedom—exactly the same approach is being used in respect of regard being had to the particular public interest in freedom of expression as a way of steering the courts in the direction of openness and against an unnecessary and disproportionate restriction on free expression. That is why the words used in Amendment No. 43 are not weak; they give a very clear steer to the information commission and to the courts.
My third point is this. Of course it is right that Amendment No. 42, which stands in the names of, among others, the noble Baroness, Lady Whitaker, and the noble and learned Lord, Lord Archer of Sandwell, reflects what is in the Irish legislation and in the Australian legislation. We are not eating our words in saying that there is an enormous amount to commend that amendment. But it is not right to say—I am sure neither of them have said so—that it automatically provides for the disclosure of factual information. It provides a qualified right because it contains the words, unless its disclosure would be contrary to the public interest by reason of the fact that the applicant would thereby become aware of a significant decision which the government department"— I leave out "the National Assembly for Wales"— proposes to make". In other words, it qualifies disclosure if it concerns information on which a policy decision has not yet been made.
It may not have occurred to everyone that the effect of Clause 2 when read with Clause 43 is to provide a presumption of disclosure, not only for factual information but also for policy advice; and not only for factual information before a decision is reached but also for factual information after a decision is reached. In one sense, therefore, Amendment No. 43 is much wider than Amendment No. 42 and in another sense it is narrower.
154 I submit that it is better not to seek to draw distinctions between pre-decision and post-decision information but to have the wider test in Clause 2 read with the positive steer in Amendment No. 43. These are not great issues of principle; we are simply arguing about the most effective means of achieving the same end.

§ Lord Mackay of Ardbrecknish
My Lords, these three amendments deal with the important issue of statistical and factual information which, from my recollection, the Government have in barrow-loads, and how much of that can be made available to the public—and, more importantly, when it can be made available.
I was interested to hear that my noble friend Lord Lucas received an answer by letter regarding the definition of statistics. I was even more interested to hear that it was a two-page letter of which "on balance"—which is the noble and learned Lord's usual explanation—he decided to release one page but "on balance" decided not to release the other.

§ Lord Falconer of Thoroton
My Lords, I have further news of the attachments. I am told that they were placed in the pigeonhole of the noble Lord, Lord Lucas, at two o'clock this afternoon.

§ Lord Lucas
No, my Lords, they were not. I collected the mail from my pigeonhole at a quarter-to three.

§ Lord Mackay of Ardbrecknish
My Lords, I think I should give the noble and learned Lord some advice: he should be careful when crossing swords with my noble friend Lord Lucas on details of that nature.
I hope that my noble friend does not mind if I say that the other two amendments in the group are perhaps more important than his. It is to them that I now turn. The interesting point about Amendment No. 43—with which I have no argument—is that it reinstates a provision that appeared in the Bill, with the addition of the word "particular", which I noted the noble Lord, Lord Lester, was particularly keen to underline. I cannot think that it is a great triumph to ask the Government to restore to the Bill a reference which the noble and learned Lord, Lord Falconer, told us in Committee on 17th October had been deleted in error. It is not a huge advance to manage to persuade the Government to correct what they admit to be their own errors. That said, those who are interested in the Bill, including myself, see that putting this provision back into the Bill with the inclusion of the word "particular" is an important advance.
However, if the Government will take on board the amendment tabled by the noble Baroness, Lady Whitaker, they will have made a slightly greater advance. The noble Baroness explained her amendment perfectly well. I do not need to go over the matter again. If we leave the Bill where it is—even including the amendment tabled by the noble Lord, Lord Lester—most of the information whose suppression featured in the BSE crisis would still have been suppressed. It would not have been made public 155 and people would not have been able to judge the science. I refer not only to the public but to other professionals who might have helped to identify the problem and bring information in to MAFF which might have helped its side to see the scale and nature of the problem confronting it.
It seems to me that the noble Baroness's amendment is a superior one. It is based on the exemptions in the Government of Ireland's Freedom of Information Act 1997, which, as she said, has not brought the world to an end on the other side of the Irish Sea. Ironically—if I may say this to noble Lords on the Liberal Democrat Benches—it would bring the Bill into line with John Major's open government code. I should have thought that they would be attracted to that, as they want to do better.

§ Lord Falconer of Thoroton
My Lords, I am sorry for interrupting the noble Lord. To what extent did the code of practice produce the disclosure of information referred to in the BSE inquiry by the noble and learned Lord, Lord Phillips?

§ Lord Mackay of Ardbrecknish
My Lords, it is dates that will he important in examining that issue—the timing of the code, how these matters came together and the information that ought to have been made public. I am not advocating that we carry on with the code; I am advocating that we have legislation. But if we have legislation, it should at least be as good as, if not better than, the open government code, where there was an exemption applying only to internal discussion and advice.
As I said, the amendment in the name of the noble Baroness is a superior one. Perhaps I can tempt the Minister to think about it as a balancing act. He would please his noble friends; he would please the noble Lord who has spoken from the Cross Benches; he would please the Conservatives. He might even please the Liberal Democrats by accepting the amendment. I do not think he would displease them, although they would prefer their own amendment. In this case, perhaps the "balance" of advantage might be that the noble and learned Lord pleases his noble friends and noble Lords on the Cross Benches. I am not sure that pleasing me is something that the noble and learned Lord worries about every day, but it would be sensible to signal to many of his noble friends who are concerned that the Bill does not go far enough that he is occasionally prepared to listen to them.

§ Lord Falconer of Thoroton
My Lords, all three amendments in this group deal with the issue of factual information underlying policy decisions.
The proposal of the noble Lord, Lord Lucas, says that, particular weight shall he given to the desirability of making factual information freely available to the public". 156 The noble Baroness, Lady Whitaker, and those who support her amendment say that factual or statistical information should in effect not be exempt, unless its disclosure would be contrary to the public interest by reason of the fact that the applicant would thereby become aware of a significant [policy] decision", yet to be made. The noble Lords, Lord McNally, Lord Goodhart and Lord Lester, say that, when exercising discretion under Clause 2, regard shall be had to the particular public interest", in disclosing the informed background to decision-taking or information "intended to be used" before a decision is made. All three amendments deal with the same issue. We are all concerned to try to reach the same result.
The Government support Amendment No. 43. It reflects the provision that was already in the Bill but goes further because of its reference to the "particular public interest" in the disclosure of factual information.
The result of including Amendment No. 43, along with the amendment to Clause 2, which in effect shifts the burden of proof, is that factual information has to be disclosed unless there is a good reason not to do so. It is possible to envisage occasions—which will he very rare—when such factual information might not be disclosed. An example is where a government department decides to sell off an asset; it has advice as to what the asset is worth; it is going to negotiate for the sale of the asset; the policy decision is taken; it would be wrong to disclose advice in relation to the value of the asset. I should have thought that anyone would agree with that. That situation would not be covered by Amendment No. 42; it would be covered by Amendment No. 43. It would also be covered by Amendment No. 6; however, I believe that Amendment No. 43 is more appropriate. We believe that Amendment No. 43 should be supported. It achieves that which all sides of the House wanted to achieve in the course of the Committee stage of the Bill a few weeks ago.
The important consideration is not as the noble Lord, Lord Mackay of Ardbrecknish, suggests, "Who is one pleasing?". It is what best promotes the freedom of information—for example, on BSE, on signals passed at danger, or, in relation to rail safety, on the number of tracks that were defective. Although it is not possible to give a cast iron guarantee, we believe that the amendments now in place provide a clear basis for disclosure on all of those matters. That was not achieved by the Conservatives' code of practice, particularly in relation to the BSE inquiry. So when the time comes, the Government will support Amendment No. 43. I invite the noble Lord, Lord Lucas, to withdraw his Amendment No. 6, and I invite the noble Baroness, Lady Whitaker, not to move her Amendment No. 42.

§ Lord Lucas
My Lords, before the noble and learned Lord sits down, will he answer my question about the definition of "factual"?

§ Lord Falconer of Thoroton
My Lords, I have missed a number of questions raised by the noble Lord. He 157 asked why the provision does not apply to Clause 35 as well as to Clause 34. This factual issue has always been debated in the context of policy decisions. That is why it is being dealt with in relation to Clause 34 rather than Clause 35. The noble Lord asked: what is a fact and what is a statistic? I have always said in the course of our debates on freedom of information that it is difficult to draw the line between a fact, a statistic and advice. That is why, when looking at Clause 34, we have never sought to define the exemption by reference to any definition that requires a clear line in relation to it. That is why it has always been dealt with under the discretionary provisions in relation to Clause 2.
I should be loath to attempt a definition of "factual" on my feet. I shall write to the noble Lord. But again it seems to me that such a definition will never be sufficiently clear cut as to form the firm basis of an exemption.

§ 4.30 p.m.

§ Lord Lucas
My Lords, I am grateful to the noble and learned Lord for that response. However, my question was: does fact include the analysis of fact? Today we have the recitation of a code, which separates the two as concepts—namely, facts and the analysis of fact. My understanding was that the noble and learned Lord understood "factual information" to include analysis of those facts, as long as that did not move on into speculation or recommendation. Does the noble and learned Lord agree with my understanding? Again, I shall obviously be happy to receive a response by letter, but it is crucial that we understand the meaning of that phrase before Third Reading.

§ Lord Falconer of Thoroton
My Lords, sometimes analysis will be opinion and sometimes analysis will be fact. If we take, for example, a statistical table and say, "Well, these statistics show that 20 people went to Brighton during the year 1996, and we think that this suggests that very few people will go to that town in the next few years", which is fact and which is fiction? Both are an analysis from preceding fact, but which is a fact and which is an opinion? It is quite difficult to answer that question because it is a grey area.

§ Lord Lucas
My Lords, I am immensely grateful to the noble and learned Lord for the trouble that he has taken to deal with this group of amendments. As has been said, my amendment is the least important of them, but it seems to me that this is an extremely crucial part of the Bill. We are looking at the part of the Bill that will determine in the future whether the public have access to enough information to ensure that they have a real appreciation of what lies behind decisions that the Government are making and a real opportunity to contribute to such decisions.
When I look back at the history of the BSE crisis, it seems to me that it was the lack of that contribution to government decisions that made the crucial difference and enabled the Government to make the errors that occurred. If members of the public had fully 158 appreciated the risks that the Government were taking with their health, they would not have allowed them to pursue the course that they took. That is my clear view of what happened in the BSE crisis. Indeed, it is my clear view of what has happened with the recent rail disaster and the reaction to it. The public have been let in on that decision, and because it was clear that the facts would be made available to members of the public, Railtrack took the decision that safety must be absolutely paramount and that it must now face the financial consequences of repairing track.
The latter seems to me to be a pretty good analogy with what happened in the BSE crisis. During that time, we allowed the epidemic to trundle on to see where it would lead, even though there were, from the beginning, quite clearly very substantial risks that it would turn out to be a hazard to human health, as well the very substantial risk that the measures taken by the Government would not be sufficient to curb the epidemic. The difference between the two is that the public have been let in on the act, so to speak, and allowed to express their opinion in one case, but were not allowed to do so in the other. As a result of this legislation, it must be made absolutely certain that the public will be allowed access to enough information so that their reaction to it forms part of the decision-making process of government.
I have listened very carefully to what noble Lords have said about Amendments Nos. 42 and 43. My opinion, along with my noble friend Lord Mackay of Ardbrecknish, is that Amendment No. 42 is the better amendment. It is obviously not in my hands to decide whether that amendment will be pressed today. However, if it is, I shall certainly support it. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.

§ Lord Burlison
My Lords, before we move on to deal with the Statement on resources and priorities for the National Health Service, I should like to take this opportunity to remind the House that the Companion indicates that discussion on a Statement should be confined to brief comments and questions for clarification. Peers who speak at length do so at the expense of other noble Lords.