HL Deb 14 November 2000 vol 619 cc173-266

5.32 p.m.

Consideration of amendments on Report resumed on Clause 2.

Lord Lucas moved Amendment No. 7: Page 2, line 41, leave out paragraph (g).

The noble Lord said: My Lords, the purpose of this amendment is to bring the status of information provided in confidence into line with the other exemptions in the Bill in relation to the public interest test.

At the moment, Clause 40, which deals with information provided in confidence, is exempt from the public interest test, either the old one or the new one as recently revised. That is put forward on the basis that the Government tell us that there is already a public interest test in the law of confidence but they have agreed that that is an extremely weak public interest test of very limited application and also, it is qualified by the wording in Clause 40(1)(b) where it says that, the disclosure of information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person".

In Committee the noble and learned Lord tried to give us some comfort that "actionable" meant that information was not exempt unless a case would be lost. But since then, a number of people have told me that that is not the case. Perhaps the noble and learned Lord would care to repeat his assurances. The information that I have since received is that that merely reflects the fact that there is an arguable case, rather than a case which would definitely be won were the action to be brought. That is obviously a crucial matter of understanding and I shall listen to what the noble and learned Lord says about it.

In any event, it seems to me to be an anomaly that we should be dealing, in this particular exemption, with a phrasing, a formulation, of the public interest test which is different from that applied to any other exemption.

It seems to me that if we make the amendment which I suggest here, we shall be in a position where the general public interest test in the Bill will apply to information provided in confidence.

Then, obviously, if an action might be brought and won for breach of confidence, that would be a very significant weight in the scales against the publication of that information. But it would find its proper place in the scales. It would be being weighed against the public interest in disclosure by the same test as should be applied to every other exemption and we should not be faced with a position where information provided in confidence, which is a large and crucial part of information held by government, was, in practice, extremely difficult to get at because one would have to go to the courts to have any hope of extracting it. It is extremely difficult to know how one would set about extracting it because one would have no rights under this Bill and no obvious rights to go to law to dig it out.

This really comes back to BSE. There is an awful lot of information which was provided to the Government in confidence, particularly about how effectively the BSE controls were being enforced. It was extremely difficult to get that information out of government before the proper and regular publication of that information was commenced because it had been provided to government in confidence and the Government therefore felt that they had to keep it in confidence.

There are many other occasions to do with the safety of medicine and the safety of veterinary practices and other areas where a lot of information is provided to the Government in confidence. It is crucial that that information should be subject to the same public interest tests as we have for information in the rest of the Bill.

Of course, as I said, if an action would be won for breach of confidence with the consequent damages being awarded against the Government, that would have to be weighed in the scales against the public benefit of the publication of information and it would have to be a fairly tremendous public benefit to outweigh it. But at least it would be public benefit defined in the same way for this exemption as for other exemptions and not by the very limited tests which are down there in common law for breach of confidence as it is at the moment.

This is a crucial part of making sure that we do our very best to avoid the mistakes which were made in the case of BSE. It is a crucial part too of giving the public confidence in the operation of this legislation; that there is not—by just writing "In confidence" at the top of a piece of paper and it being clear that information is being provided in confidence—the understanding that it can be hidden away for ever, subject only to the very limited tests in general law to which information in confidence is subject. We must have something which is consistent and rigorous. I beg to move.

Lord Goodhart

My Lords, I rise briefly because I remember that in Committee, the noble and learned Lord indicated that the Government were considering giving further thought to amending the code of conduct under what is now Clause 45 to ensure that public authorities did not accept information on a confidential basis unless that was strictly necessary.

I appreciate that that does not require any amendment to the Bill but I should be grateful if the noble and learned Lord could give us some assurance in relation to that matter.

Lord Mackay of Ardbrecknish

My Lords, I support the amendment moved by my noble friend Lord Lucas. In many cases, as my noble friend said, a legally binding obligation of confidence would arise merely because a third party and an authority agreed between themselves that a communication would be in confidence. That would make it remarkably easy for the two parties to ensure that their exchanges were exempt from any access, perhaps because they knew they would attract criticism or public interest, more than they would like to see.

So it seems to me that information subject to an obligation of confidentiality should be subject to a stronger public interest test than, as far as I understand it as a layman, would be the case under the common law of confidence. In Standing Committee in the other place, Mr Mike O'Brien, the Home Office Minister, on 1st February at col. 362, said: Case law [for breach of confidence] has produced a type of public interest test, though not of the level used in the Bill". He went on to state: the common law of confidence contains a public interest test, but I do not claim that that interest test is of as high a standard as the one in the Bill". I see no reason why it should not be subject to the same standard as that in the Bill.

Lord Falconer of Thoroton

My Lords, I have a few remarks to make at the outset. First, the word "actionable" does not mean arguable, as the friends of the noble Lord, Lord Lucas, appeared to have implied to him. It means something that would be upheld by the courts; for example, an action that is taken and won. Plainly, it would not be enough to say, "I have an arguable breach of confidence claim at common law and, therefore, that is enough to prevent disclosure''. That is not the position. The word used in the Bill is "actionable" which means that one can take action and win.

Secondly, on the code of practice, I said what the noble Lord has said. We shall return with an amended code of practice aimed at dealing with the area of accepting information in confidence only if it is necessary to obtain that information and it is appropriate so to do.

Thirdly, on the point raised by the noble Lord, Lord Mackay of Ardbrecknish, over the years the courts have been acutely aware that simply describing something as "confidential" is not of itself sufficient to show that there is an actionable breach of confidence for the reason that the noble Lord pointed out. Simply to describe something as "confidential" as a means of keeping it from people may not mean that in truth it is confidential. The court would look at the reality rather than at the way in which the parties describe information.

Fourthly, the noble Lord, Lord Lucas, said in Committee and again today, supported by the noble Lord, Lord Mackay of Ardbrecknish, that the public interest test in the field is different from the public interest test applied by the courts in relation to breaches of confidence. That is absolutely correct. The point made by the noble Lord, Lord Lucas, is that there is a narrower public interest basis on which one overrides confidence at law than there would be under Clause 2. As the noble Lord said on the previous occasion—this is not the only test—words like "iniquity" are used to describe it.

Broadly, I believe that we agree on the basic parameters of this debate. Knowing all that, the Government take the view that public authorities should not be placed between a rock and a hard place. They should not have to choose between failing in their statutory duties under the legislation currently before your Lordships' House and leaving themselves open to an action at common law for a breach of confidence which they owe to a third party. That is what could happen as a result of the amendment of the noble Lord, Lord Lucas.

The amendment would mean that the public interest test would be extended to cover information, the disclosure of which would amount to a breach of confidence by the public authority. Hence, where the public interest in maintaining the exemption in Clause 40 was equal to, or outweighed by, the public interest in disclosing the information, no matter how slight the margin, the information would have to be disclosed, notwithstanding the fact that it was being held in confidence. That would be to amend by statute the common law of confidence, albeit in an indirect and uncertain way. We do not accept that that is an appropriate course.

The law of confidence already provides that where the public interest requires disclosure of information, albeit, as I accept, on a more narrow basis, no confidence can arise. The fact that it is more narrow is no relief when one is talking about information which has been provided in the correct belief—a simple belief is not enough—that a duty of confidence would apply.

The effect of the amendment would be to apply a wider public interest test to information which is properly regarded as being confidential by the common law. Inevitably, that would lead to third parties being less trusting of public authorities and less keen to provide them with information which they would want to be held in confidence. We believe that that could have an adverse effect on the ability of public authorities to carry out their functions satisfactorily.

Because of the point raised by the noble Lord, Lord Goodhart, in Committee, to which I explicitly accede in the remarks that I have made this evening, we recognise that the code of practice must be so constructed that information is genuinely obtained in confidence only when it is necessary to obtain the information and that that is appropriate.

On the BSE point, which seems to be at the heart of many of these discussions, the code of practice, to which the noble Lord, Lord Mackay of Ardbrecknish, attaches such significance, came into force in 1994. Before the Statement on the NHS, he said in response to my question that a matter of timing may have led to the code of practice not producing any information. Not one document in relation to the BSE crisis came out under the code of practice.

Plainly there is a clear public interest, as the noble Lord, Lord Lucas, has said, in knowing the facts about BSE. I do not believe for one moment that if this Bill had been in force in its present form, or maybe as amended later on Report, the Government would have been able to sustain an argument that the information should have been withheld.

Our intention and purpose, which has been made clear by my right honourable friend the Minister of Agriculture, Fisheries and Food in another place, is that the culture of secrecy which has led to the suppression of material in relation to the BSE crisis, despite the existence of the code of practice, should no longer apply. There should be no inhibition about, for example, publishing research carried out within government that may relate to the BSE crisis.

I believe that this Bill makes the difference in its specific terms and provides no proper basis for non-disclosure of those facts. I believe that the constant reference to the BSE crisis is correct and proper. This Bill marks the real difference between what went before and what will happen once the Bill takes effect.

That was a slight digression, but from a number of discussions that I have had with the noble Lord, Lord Lucas, both privately and publicly, on how the government of the day reacted to the BSE crisis, I know that that is a benchmark against which he measures this particular Bill. If one measures the Bill against that benchmark, I believe that it stands excellent examination.

I have set out our reasons for not accepting the amendment to delete paragraph (g) of Clause 2(3). I appreciate that the noble Lord may not agree with the reasoning, but the reasoning is clear. On the bigger issue of whether it will provide adequate disclosure in respect of BSE, I believe that the answer is "yes".

5.45 p.m.

The Countess of Mar

My Lords, the noble Lord, Lord Lucas, mentioned medicines and veterinary medicines. The Minister is aware of my interest in organophosphates. Can he tell me whether "commercial in confidence" information given to the licensing authority is covered by this clause? Occasionally chemicals are used that affect public health and, when questions are asked, often the answer is that the information cannot be given because it is "commercial in confidence".

Lord Falconer of Thoroton

My Lords, I am loath to answer a question like that without the proper information. I shall write to the noble Countess on that point.

Lord Lucas

My Lords, I can answer the noble Countess, Lady Mar. That is exactly the sort of information that is covered by this clause. It is also exactly the kind of problem that we ran into with BSE in relation to information about the enforcement of abattoir controls and how releasable that was because some of it had been obtained in confidence. The way in which the Government receive some of their information creates a real problem.

We understand the argument, but I do not believe that it is reasonable for the Government to take the view that civil servants should not to be asked to take decisions about such matters. Often in life we are faced with two rather uncomfortable alternatives and we have to make choices. It is important that there is a public interest test that is understood by everybody. It is not a matter of narrow balancing, exceeding one way or the other, and then landing ourselves with an enormous bill for breach of confidence.

As there is a possibility of action in relation to a breach of confidence, the public interest would have to be substantial in order to outweigh that. If my amendment were accepted, a point of minor public interest would not cause that kind of trouble. There would have to be substantial public interest to outweigh the possibility of damages being awarded in the courts against the agreed lower public interest test that would there be applied.

The Government are making a grave mistake in shying away from this amendment and I wish to test the opinion of the House.

5.50 p.m.

On Question, Whether the said amendment (No. 7) shall be agreed to?

Their Lordships divided: Contents, 93; Not-Contents, 151.

Division No. 1
Allenby of Megiddo, V. Knight of Collingtree, B.
Anelay of St Johns, B. Laird, L.
Astor of Hever, L. Lucas, L. [Teller]
Attlee, E. Luke, L.
Belstead, L. Lyell, L.
Blaker, L. Mackay of Ardbrecknish, L.
Blatch, B. Mar, C.
Brabazon of Tara, L. Miller of Hendon, B.
Brougham, and Vaux, L. Molyneaux of Killead, L.
Byford, B. Monro of Langholm, L.
Caithness, E. Monson, L.
Campbell of Alloway, L. Montrose, D.
Campbell of Croy, L. Moynihan, L.
Carnegy of Lour, B. Murton of Lindisfarne, L.
Chadlington, L. Noakes, B.
Clark of Kempston, L. Northbrook, L.
Coe, L Northesk, E.
Colville of Culross, V. Norton of Louth, L.
Colwyn, L. O'Cathain, B.
Cope of Berkeley, L. Onslow, E.
Courtown, E. Park of Monmouth, B.
Craiy of Radlev, L. Pilkington of Oxenford, L.
Prior, L.
Crathorne, L. Rawlings, B.
Crickhowell, L. Rawlinson of Ewell, L.
Dean of Harptree, L. Reay, L.
Denham, L. Rees, L.
Dixou-Smith, L. Renton, L.
Eden of Winton, L. Roberts of Conwy, L.
Elliott of Morpeth, L. Saatchi, L.
Elton, L. Seccombe, B.
Fookes, B. Selborne, E.
Gardner of Parkes, B. Selsdon, L.
Gilmour of Craigmillar, L. Shaw of Northstead, L.
Glentoran, L. Simon of Glaisdale, L.
Hanham, B. Skelmersdale, L.
Hanningfield, L. Soulsby of Swaffham Prior, L.
Henley, L. [Teller] Stodart of Leaston, L.
Higgjns, L. Strathclyde, L.
Hilton of Eggardon, B. Swinfen, L.
Hodgson of Astley Abbotts, L. Thomas of Gwydir, L.
Howe, E. Vivian, L.
Howell of Guildford, L. Wade of Chorlton, L.
Hunt of Wirral, L. Walpole, L.
Jopling, L. Wilcox, B.
Kimball, L. Williamson of Horton, L.
Kirkham, L. Young, B.
Acton, L. Brooks of Tremorfa, L.
Addington, L. Burlison, L.
Ahmed, L. Carter, L. [Teiler]
Alli, L. Christopher, L.
Alton of Liverpool, L. Clarke of Hampstead, L.
Amos, B. Clement-Jones, L.
Andrews, B. Cocks of Hartcliffe, L.
Ashley of Stoke, L. Cohen of Pimlico, B.
Ash ton of Upholland, B. Crawley, B.
Bach, L. David, B.
Barker, B. Davies of Coity, L.
Barnett, L. Davies of Oldham, L.
Bassam of Brighton, L. Dean of Thornton-le-Fylde, B
Beaumont of Whitley, L. Desai, L.
Berkeley, L. Dholakia, L.
Bernstein of Craigweil, L. Dixon, L.
Billingham, B. Donoughue, L.
Blease, L. Dubs, L.
Bragg, L. Elder, L.
Brennan, L. Evans of Parkside, L.
Brooke of Alverthorpe, L. Evans of Temple Guiting, L.
Brookman, L. Evans of Watford, L.
Falconer of Thoroton, L. Methuen, L.
Falkland, V. Mitchell, L.
Farrington of Ribbleton, B. Molloy, L.
Faulkner of Worcester, L. Morgan, L.
Filkin, L. Morris of Castle Morris, L.
Fitt, L. Morris of Manchester, L.
Fyfe of Fairfield, L. Newby, L.
Gale, B. Nicol, B.
Geraint, L. Northover, B.
Gibson of Market Rasen, B. Orme, L.
Gilbert, L. Parry, L.
Goldsmith, L. Patel of Blackburn, L.
Goodhart, L. Paul, L.
Gordon of Strathblane, L. Plant of Highfield, L.
Gould of Potternewton, B. Prys-Davies, L.
Graham of Edmonton, L. Puttnam, L.
Grenfell, L. Ramsay of Cartvale, B.
Hamwee, B. Razzall, L.
Hardy of Wath, L. Rea, L.
Harris of Greenwich, L. Redesdale, L.
Harris of Haringey, L. Rendell of Batergh, B.
Harris of Richmond, B. Rennard, L.
Harrison, L. Richard, L.
Hayman, B. Rodgers of Quarry Bank, L.
Hogg of Cumbernauld, L. Sandberg, L.
Hollis of Heigham, B. Scotland of Asthal, B.
Howells of St. Davids, B. Scott of Needliam Market, B.
Howie of Troon, L. Sharp of Guildford, B.
Hughes of Woodside, L. Shepherd, L.
Hunt of Chesterton, L. Shutt of Greetland, L.
Hunt of Kings Heath, L. Simon, V.
Irvine of Lairg, L. (Lord Chancellor) Smith of Clifton, L.
Smith of Gilmorehill, B.
Islwyn, L. Smith of Leigh, L.
Jacobs, L. Strabolgi, L.
Janner of Braunstone, L. Symons of Vemham Dean, B
Jay of Paddington, B. (Lord Privy Seal) Taylor of Blackburn, L.
Thomas of Walliswood, B.
Jeger, B. Tordoff, L.
Kirkhill, L. Turnberg, L.
Lea of Crondall, L. Turner of Camden, B.
Lipsey, L. Uddin, B.
Lockwood, B. Walker of Doncaster, L.
Lofthouse of Pontefract, L. Wallace of Saltaire, L.
Longford, E. Warner, L.
McCarthy, L. Warwick of Undercliffe, B.
Macdonald of Tradeston, L. Wedderburn of Charlton, L.
McIntosh of Haringey, L. [Teller] Whitty, L.
Wilkins, B.
MacKenzie of Culkein, L. Williams of Crosby, B.
Mackie of Benshie, L. Williams of Elvel, L.
McNally, L. Williams of Mostyn, L.
Maddock, B. Winston, L.
Mason of Bamsley, L. Woolmer of Leeds, L.
Merlyn-Rees, L. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

6.1 p.m.

Schedule 1 [Public authorities]:

Lord Falconer of Thoroton moved Amendment No. 8: Page 47, line 5, leave out paragraph 19.

The noble and learned Lord said: My Lords, Schedule 1 lists "public authorities" for the purposes of the Bill. The purpose of these amendments is to ensure that the list is as up to date and accurate as possible.

Amendments Nos. 8 to 14 are technical amendments which maintain the accuracy of Schedule I to the Bill by ensuring that the schedule includes entries for bodies recently established. Provision is made in Clauses 4 and 7 for further necessary changes to the schedule to continue to be made once the Bill has been enacted. I beg to move.

Lord Lucas

My Lords, I was not aware that English Nature had been recently established. Why does it make a sudden appearance in the Bill?

Lord Falconer of Thoroton

My Lords, the reason is that the Countryside Bill will re-name the Nature Conservancy Council for England as English Nature. Amendment No. 10 inserts a reference to "English Nature" and Amendment No. 13 removes a reference to the Nature Conservancy Council for England.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendments Nos. 9 to 14: Page 52, line 16, at end insert— ("The Children and Family Court Advisory and Support Service."). Page 53, line 33, at end insert— ("English Nature."). Page 54, line 30, at end insert— ("The House of Lords Appointments Commission."). Page 55, line 10, at end insert— ("A local probation board established under section 4 of the Criminal Justice and Court Services Act 2000."). Page 55, leave out line 47. Page 58, line 47, at end insert— ("The consultative Civic Forum referred to in section 56(4) of the Northern Ireland Act 1998.").

On Question, amendments agreed to.

Clause 7 [Public authorities to which Act has limited application]:

Lord Mackay of Ardbrecknish moved Amendment No. 15: Page 5, line 10, leave out paragraph (a).

The noble Lord said: My Lords, Clause 7 gives the Secretary of State some order-making powers. Under the current subsection (3)(a) the Secretary of State has the power to place limitations on the information held by a public body which would be subject to disclosure in accordance with the Bill.

While I understand that some known arbitrary alternations of limitations might be desirable under certain circumstances, and given that the material abuse of Clause 7 would undermine the entire principle of the Bill, I would prefer to see the revision of existing limitations rather than the creation of new ones. In other words, I approve of subsection (3)(b), which would remove or amend existing limitations but I do not like subsection (3)(a) which gives the Secretary of State the power to create new ones. My amendment would do what I suggest.

The Government responded to our concerns expressed in another place by putting forward a proposal for an affirmative resolution and we welcome that. However, some important questions remain unanswered. For example, we would be grateful if the Minister would indicate the kind of information which might be exposed to limitation and whether the limitation would be applied on a departmental basis or by some other means.

It would be helpful if the Minister, the noble Lord, Lord Bassam, could tell the House what the Government mean by that, what their intentions are and give examples. Perhaps he will persuade me that this is not merely a piece of gold-plating for no apparent reason. As I understand the Bill, all information held by a public body would already be subject to the tests for exemption as laid out in the Bill. However, I am perplexed as to the need for what I consider to be a superfluous piece of legislation.

Despite all the warm words which the noble Lord, Lord Bassam, gave me in Committee, the existence, which I accept, of an affirmative resolution does not address the essential point; that is, the use to which the Secretary of State might put such a power. If the noble Lord believes that the power is so vital, can he give the House a scenario in which the Secretary of State might use the power. If he cannot, I do not believe that it should exist. I beg to move.

The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton)

My Lords, I am grateful to the noble Lord for his question. The power to amend the entries in Schedule 1 so as to limit them to specific types of information is necessary in order to ensure that the bodies listed at Schedule 1 are covered by the Freedom of Information Act only in respect of those activities which should properly be the subject of the obligations in the Bill. It is not the Government's to apply the Bill to information held for purposes in respect of which it would be inappropriate and damaging to apply freedom of information principles. Journalistic information held by public sector broadcasters or private banking information held by the Bank of England are two current examples of such information.

Where we have identified information which needs to be protected in this way, we have amended the entry in Schedule 1 accordingly. However, we cannot be certain that any of the bodies listed may not change their functions in the future. For that reason, we need to make provision for a power to amend the entry if this should be deemed necessary. To that extent, Clause 7(3) is a just-in-case provision.

The noble Lord asked for an example, hypothetical or otherwise, and I am happy to try to provide one. The entry in Schedule 1 relating to the Bank of England is already limited to certain information. Should the Bank decide to add, say, an insurance provision to the services it provides to its private customers, that private activity which would relate to private customers would be brought within the scope of the Freedom of Information Act, unless an order was made to limit the entry in Schedule 1 specifically to exclude it.

That is why the power in Clause 7(3) is necessary. I hope that the noble Lord will accept the example I have given and feel able to withdraw his amendment.

Lord Mackay of Ardbrecknish

My Lords, the noble Lord is always grateful for the question and in this case I am reasonably grateful for the answer. He set out a clear scenario and I hope that if the Secretary of State decides to go a good deal further a clever lawyer will be able to prevent him by using the courts and quoting what the noble Lord said and the example he gave. I am pleased to beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 16: Page 5. line 40, at end insert— ("() In this section "publicly-owned company" has the meaning given by section 6.").

The noble Lord said: My Lords, these are technical amendments. Amendment No. 16 clarifies the term "publicly-owned company" in Clause 7 so as to have the same definition as in Clause 6. Amendment No. 66 removes a reference to order-making powers which no longer apply. The powers referred to were previously contained in Clause 52 but amendments made in Committee mean that the reference is no longer necessary. I beg to move.

On Question, amendment agreed to.

Clause 8 [Request for information]:

Lord Lucas moved Amendment No. 17: Page 6, line 6, at end insert— ("() For the purposes of subsection (1)(b)—

  1. (a) the name of the applicant may be any name by which that applicant wishes to be known, and
  2. (b) the address for correspondence may be an address suitable only for the receipt of electronic communications.").

The noble Lord said: Amendment No. 17 is also a genuinely technical amendment which rectifies an omission by the draftsman who has provided in subsection (2) of Clause 8 for the application of electronic conventions to subsection (1)(a), which says "is in writing", but has failed to provide for the application of electronic conventions to (1)(b), which requires a name and address for correspondence. There is no indication that that can be an electronic name, such as kissmequick@hotmail.com or an electronic address, which is much the same thing. I hope that the noble Lord will say that the Internet age has dawned for both subsection (8)(b) and subsection (8)(a). I beg to move.

Lord Bach

My Lords, the Internet age has dawned. The Freedom of Information Bill makes provision for an application to be purpose blind. It requires that an applicant must apply in writing, which includes any electronic application, and provide an address. These are commonsense provisions which are necessary to ensure that a public authority can carry out its statutory duty to communicate information to that applicant. The Bill assumes that an applicant will wish to give his real name, but nothing requires him or her to do so or to use any particular name. He can call himself Father Christmas, or even Ralph Lucas, if he desires. In any event, the name is not relevant, as long as the information provided is sufficient to identify the applicant for the purpose of communicating information. We believe, therefore, that the first amendment is unnecessary.

However, as drafted, paragraph (b) of the amendment appears to be intended to override the provisions of Clause 11 where an applicant provides only an electronic address to which information can be communicated. Clause 11 provides that an authority is under a duty to communicate information in the applicant's preferred format where it is reasonably practicable to do so. That is sensible and proportionate. A balance must be struck between public authorities being under an obligation to provide information to an applicant and the need to make sure that inappropriate amounts of both time and resources are not expended on each potential application.

We believe that, if passed, the noble Lord's amendment would mean that a public authority would be required to provide an applicant with information in electronic format regardless of the cost or other resource implications if the applicant declined to provide any alternative address for communicating that information. For example, it would mean that information contained in records which had always, or until relatively recently, been kept in written form—perhaps several hundred pages—would have to be converted if requested. The implications for public authorities such as GPs could be huge and, we believe, damaging if they had to divert time and resources from their main purpose in order to meet those demands. For those reasons, I invite the noble Lo rd to withdraw his amendment.

Lord Lucas

My Lords, I am grateful for that explanation. I am sorry that paragraph (b) is not accepted. I thought that it would have some very interesting effects. However, I have been spotted coming, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 [Fees]:

6.15 p.m.

Lord Mackay of Ardbrecknish moved Amendment No. 18: Page 6, line 19, leave out ("may") insert ("shall").

The noble Lord said: In moving Amendment No. 18 I speak also to Amendments Nos. 19 and 20. These amendments would require, instead of merely permit, the Secretary of State in his regulations under Clause 9(3) to specify the cases in which fees might or might not be charged, to set a maximum fee and to say how the fees should be calculated. Amendment No. 18 would confirm implementation of the subsections of Clause 4 which currently take the form of guidance rather than statutory requirements. It would then require fees regulations to reflect the provisions set out in the Bill and avoid circumstances in which the Secretary of State would have too much discretion, thereby allowing Parliament to be given a say in establishing the boundaries of the fee regulations. The amendment would prevent the imposition of unreasonable and restrictive fees on the public where access is potentially limited by the cost of fulfilling the request for information.

Amendment No. 19 creates a presumption that there will be no fee. To allow a fee to be charged in prescribed cases is likely to narrow the circumstances in which it is payable. We believe that it is more in keeping with the "Freedom" part of the Bill to prescribe those cases that involve fees and thus highlight that the information can automatically be restricted for some people. This amendment clearly defines when a fee can be levied.

Amendment No. 20 links the fees level to the main purpose of the Bill, which is to facilitate public access. Public authorities must bear in mind that the main purpose of the Bill is to allow members of the public to request information, and nothing must be done which excludes them from requesting that information because of the fee structure. The code of practice allows for information and is not subject to a charge, but under the Bill fees are to be charged on a basis set out in regulations issued by the Secretary of State. These amendments seek to prevent too high a level of fee being charged, which results in members of the public being unable to exercise their rights. The amendments seek to prevent a financial fissure being created between those who can afford access to information and those who cannot.

I wonder whether in this case I may tempt the Liberal Democrats to join me, despite the deal that they have made. Perhaps I may remind the noble Lord, Lord McNally, of his observations in Committee on 17th October. I was not present on that occasion; I was in Scotland on a rather sad occasion. The noble Lord said: As the noble Lord, Lord Cope, said, if the means of gaining access to information were in any way to be a deterrent—if freedom of information was like the freedom to dine at the Ritz; in other words, you could get information if you could afford it—that would be against the spirit of what I hope we all intend to be a revolutionary Bill". —[Official Report, 17/10/00; col. 993.] Having reminded the noble Lord of his words, I hope that I can look forward to his support.

Lord Bach

My Lords, we have been round this circuit before, but on that occasion there was a different driver on each side. As the noble Lord said, for a sad reason he was unable to be present. At that time another of my noble friends answered the debate and that task falls to me today. Noble Lords opposite were not fully persuaded by the arguments employed last time, perhaps because the noble Lord, Lord Mackay of Ardbrecknish, was not present to advise them of the good sense of those arguments.

Amendment No. 18 would not have the effect of compelling the Secretary of State to make regulations but simply require that any regulations that might be made should include provisions to give effect to the matters listed in Clause 9(4). We believe that that is too prescriptive. It is quite sufficient to specify the particular matters which the Secretary of State may wish to consider, including in regulations, which is the effect of the clause as drafted. Regulations need to have a somewhat greater degree of flexibility than the primary legislation upon which they depend so as to enable them to adapt within the parameters set by subsection (4) to circumstances and practical experience. We believe that that is a reasonable and balanced way to proceed, rather than force the regulations needlessly to cover matters which practical experience and circumstances show that they do not need to cover.

Amendment No. 19 would force the Secretary of State to prescribe in the regulations the circumstances under which a fee might be charged. It was said in Committee that this did not take sufficient account of the scope of the legislation. This amendment, if passed, would require the Secretary of State to identify all types of information and the circumstances under which any one of the 50,000 authorities within the scope of the Bill might charge. Just to state it proves the impossibility of that task. But even if it could be achieved, the effect would be to produce regulations which would be complex, confusing and difficult to interpret. For the smallest public authority, any omission or failure properly to comprehend the implications could have a significant effect on its operational and financial viability, and that would be too high a price to pay. What we propose in comparison is sensible, comprehensible and, above all, deliverable and will ensure that the public are able to exercise their right of access to information without overcharging or obstruction through the fees structure.

Amendment No. 20 would introduce a statutory duty to set fees at a sufficiently low level to facilitate access to information by applicants. That is not necessary. The regulations will provide that the greater part of the costs of disclosing information under the Bill will be met by the public purse. The appropriate way to do that is through the detail of the regulations. A statement of a statutory duty to provide for a low level of fees to "facilitate" public access to information would be vague and unenforceable. What level would constitute "sufficiently low"? Should the fee be means tested to ensure that a wealthier person should pay a fee more commensurate with his level of income? Arguably, any fees would put people off to varying degrees, depending upon their means. No fees as such facilitate access to information. Looked at like that, the amendment could be seen even as unfair and counter-productive. The intention behind the amendment is clearly commendable, but we do not think that it will achieve the aim that it seeks.

The Government have published their draft fees regulations. The policy is that the maximum fee should be 10 per cent of the marginal costs of seeking and finding the information. We reckon that that is a fairly generous subsidy. I invite the noble Lord to withdraw his amendment.

Lord Mackay of Ardbrecknish

My Lords, I am not overly surprised by the noble Lord's argument. I accept that my words, fees are set at a sufficiently low level", are a tinge on the vague side. But they have achieved what I meant them to achieve. I have on the record a fairly reasonable assurance of the Government's intentions. Although the noble Lord did not put it in as many words, he accepted that people must not be put off because of the fee structure confronting them if they ask for information. I am reasonably content with the noble Lord's answer. I do not know whether that means that the noble Lord made a better effort than his colleague in Committee. But I am prepared to accept that answer. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 19 and 20 not moved.]

Clause 10 [Time for compliance with request]:

Lord Mackay of Ardbrecknish moved Amendment No. 21: Page 6, line 28, leave out ("subsections (2) and (3)") and insert ("subsection (2)").

The noble Lord said: My Lords, in moving Amendment No. 21, I shall speak also to Amendment No. 22. Under Clause 10, decisions on whether information is exempt must be taken within 20 working days. However, decisions on whether to disclose exempt information on public interest grounds are not subject to any time limit. Clause 10(3) allows these decisions to be taken within, such time as is reasonable in the circumstances". That could allow decisions to drag on for indefinite periods, either because the authority was obstructive or merely because it had no formal target at which to aim. Because the public interest test is the sole basis for access to information covered by many of the class exemptions, all requests for such information would be subject to no real time limit at all.

Amendment No. 21 seeks to delete Clause 10(3). The effect of that would be to require decisions on public interest grounds to be taken within the same 20-day period as decisions on whether an exemption applies. That is in line with the existing code of practice, which has a 20 working-day period for all requests, regardless of whether or not the code's public interest test is involved. Home Office figures indicate that the 20-day target—or the shorter time limit set by some departments—is complied with in 92 per cent of cases. So it is not an impossible target.

The code's approach has been adopted in the Aarhus convention on access to environmental information, to which the Government are a signatory. The DETR in its consultation paper—Proposals for a Revised Public Access to Environmental Regimes published on 18th October 2000—said that it supports the convention's approach to time limits. The convention requires that information must be supplied as soon as possible and at the latest within one month of the request. All exemptions under the convention incorporate a public interest test. So this one month covers all decisions on which the public interest test has to be taken into account. We should put a time limit of 20 days in the Bill. That limit is used in other parts of the Bill. The code indicates that departments are able to meet that limit in the vast majority of cases. I beg to move.

Lord Goodhart

My Lords, I rise to speak to Amendment No. 28 which is grouped with Amendments Nos. 21 and 22. I have a good deal of sympathy with the amendment that the noble Lord, Lord Mackay of Ardbrecknish, has just moved. But there is a problem. While, undoubtedly in the great majority of cases, it is and should be possible to take a decision within a 20-day period both on exemption and on the question of disclosure under Clause 2, there are nevertheless certain cases of particular sensitivity where consultation may be needed about the possible consequences of disclosure. Therefore, it is reasonable that a further period of time should be allowed. For that reason, we have tabled a considerably more modest amendment than the noble Lord's amendment. The amendment requires a public authority to give an estimate of the time it will take to reach a decision. That will set a bench-mark against which it can be tested.

The issue must be looked at against the background of Clause 10(3) which does not give a public authority an open-ended discretion as to the time it can take; it must comply within such time as is reasonable in the circumstances. We think that it will help if the public authority is not merely allowed to take a reasonable time, but must make and publish its own estimate of what a reasonable time is. I recognise that a public authority will give itself as much time as it thinks it may possibly use, but it is more likely to give a reasonable time for the estimate. That is likely, therefore, to have a beneficial effect in speeding up the time within which decisions are taken.

Lord Lucas

My Lords, I should have thought that the natural thing would be to say, "just a couple of weeks". Having waited a couple of weeks, one can usually persuade someone to wait a couple more weeks. If one is capable of reaching a decision within the first two weeks, that will give ample time to spin matters out. After a month it may be that the information has been rendered useless by other actions or other decisions that have been taken to deal with a problem which would have been brought to light earlier had the information been available more promptly.

In this and other areas where the timescales are undefined, what is lacking in the Bill is any sense of urgency. There is no imposition of urgency or promptness or mention of "as quickly as you can" or anything else. There is nothing to give the information commissioner some teeth to bite on authorities which do not so much delay unreasonably but generally dawdle and stretch timescales as much as they can.

I think that the Liberal Democrats have sold the pass very cheaply and that we could have achieved something a good deal better with their co-operation. It is clear that the point was understood by the Government in Committee. It is clear because the Government have agreed to the Liberal Democrat amendment. It is a great shame that the Liberal Democrats should have settled for such a little advance when, without any great difficulty, the Government could have conceded something much more useful.

6.30 p.m.

Lord Bassam of Brighton

My Lords, I was going to say, until I heard the noble Lord, Lord Lucas, that there was not a great deal between us on this issue. We debated the issue at an earlier stage. The Government explained the complexities which might lead to applications for information involving public interest disclosure decisions taking longer than 20 days to resolve. As the noble Lord, Lord Mackay, said, in 92 per cent of cases there is likely to be compliance with that deadline. We should all feel very pleased about that. It rather undermines the point made by the noble Lord, Lord Lucas.

The Government have a real concern that if time is short, authorities may be more likely to withhold information than disclose it, on the basis that where there is insufficient time to consider the matter properly it is better to be safe than sorry. On the other hand, authorities may decide not to consult those affected by disclosure on the basis that it would take too long. A properly considered decision that perhaps takes a little longer seems to me far better than an ill-considered one produced within a wholly unrealistic timescale. Thus the Bill provides for a reasonable limit in order to ensure that decisions are taken soundly.

Amendments Nos. 21 and 22 would have the effect not only of disadvantaging authorities by imposing an impractical time limit on them but might also disadvantage perversely applicants and others affected by disclosure, by causing decisions on the public interest to be taken hastily. The amendments would result in ill-considered decisions by authorities and work against the very culture of openness that the Government are seeking to achieve with this legislation. For those reasons, I invite the noble Lord, Lord Mackay, to withdraw the amendment.

Amendment No. 28, tabled by the noble Lord, Lord Goodhart, and others, concerns the timetable for making a decision where information which is requested is covered by an exemption, but not an absolute exemption; that is, where Clause 2 requires the public authority to determine where the public interest lies. The Government believe that it would be wrong to set an arbitrary time limit on decisions on disclosure in the public interest for all the reasons we have just been debating. However, we have listened to the strength of feeling on this issue. Having given further consideration to these matters, we accept that Amendment No. 28 is sensible, reasonable and practical in the circumstances, and that we can support the changes which the amendment would introduce.

Failure to provide an estimate of time would mean there was failure to comply with the requirements of Part I of the Bill. The commissioner would therefore be able to issue an enforcement notice under Clause 51(2), or a decision notice under Clause 49(4). In the light of the amendment, if accepted, the Government make a commitment to add a reference in the Secretary of State's code of practice under Clause 44 to the desirability of complying with estimates given. Failure to comply with the estimate would render the authority liable to a practice recommendation from the commissioner under Clause 47. So, to answer the point made by the noble Lord, Lord Lucas, there is a series of steps which give the provisions some teeth.

Finally, I should say that the Government remain of the view that wherever possible all information should be disclosed within a 20-day time period. That too—I give a commitment—will be reflected in the Secretary of State's code. For that reason, I commend Amendment No. 28 to the House.

Lord Mackay of Ardbrecknish

My Lords, noble Lords should not be in the least surprised by the fact that the Government accept Amendment No. 28 as that was one of the four deals done by the Government with the Liberal Democrats. I am not entirely sure whether the Liberal Democrats think that that amendment is a great grain of comfort. I do not think it is very much. Frankly, I am not convinced. The idea that authorities might be more likely to withhold information if they are asked to provide it within 20 days would soon be ended when it became public knowledge that authorities were behaving like that. They would find themselves at the rough end of the courts, the commissioner or indeed Parliament.

I do not believe that four weeks represents hasty, although the time it takes to get letters out of some government departments suggests that four weeks is but a twinkling of an eye for them and that they do not think it matters. I think it is important that we have 20 working days. I am sorry that the Liberal Democrats are not with me. I am going to ask the opinion of the House.

6.35 p.m.

On Question, Whether the said amendment (No. 21) shall be agreed to?

Their Lordships divided: Contents, 79; Not-Contents, 148.

Division No. 2
Alton of Liverpool, L. Burnham, L. [Teller]
Astor of Hever, L. Buscombe, B.
Attlee, E. Byford, B.
Belstead, L. Caithness, E.
Brabazon of Tara, L. Campbell of Croy, L.
Bridgeman, V. Carnegy of Lour, B.
Brougham and Vaux, L. Carr of Hadley, L.
Chadlington, L. Monro of Langholm, L.
Clark of Kempston, L. Montrose, D.
Colwyn, L. Moynihan, L.
Cope of Berkeley, L. Noakes, B.
Crathorne, L. Northbrook, L.
Crickhowell, L. Northesk, E.
Cumberlege, B. Norton of Louth, L.
Dean of Harptree, L. O'Cathain, B.
Dixon-Smith, L. Palmer, L.
Elliott of Morpeth, L. Park of Monmouth, B.
Elton, L. Pilkington of Oxenford, L.
Ferrers, E. Rawlings, B.
Fookes, B. Reay, L.
Glentoran, L. Rees, L.
Goschen, V. Renton, L.
Hanningfield, L. Roberts of Conwy, L.
Hanson, L. Ryder of Wensum, L.
Henley, L. [Teller] Saatchi, L.
Higgins, L. Seccombe, B.
Hodgson of Astley Abbotts, L. Selsdon, L.
Hooper, B. Shaw of Northstead, L.
Howe, E. Skelmersdale, L.
Skidelsky, L.
Hunt of Wirral, L. Soulsby of Swaftham Prior, L.
Jopling, L. Stodart of Leaston, L.
Kimball, L. Strathclyde, L.
Knight of Collingtree, B. Thomas of Gwydir, L.
Lawson of Blaby, L. Vivian, L.
Lucas, L. Waddington, L.
Lyell, L. Walpole, L.
Mackay of Ardbrecknish, L. Wilcox, B.
Mar, C. Williamson of Horton, L.
Molyneaux of Killead, L. Young, B.
Acton, L. Dubs, L.
Addington, L Elder, L.
Ahmed, L. Evans of Parkside, L.
Alli, L. Evans of Temple Guiting, L.
Amos, B. Evans of Watford, L.
Andrews, B. Falconer of Thoroton, L.
Archer of Sandwell, L. Farrington of Ribbleton, B.
Ashley of Stoke, L. Faulkner of Worcester, L.
Ashton of Upholland, B. Filkin, L.
Bach, L. Fyfe of Fairfield, L.
Barker, B. Gale, B.
Barnett, L. Gibson of Market Rasen, B.
Bassam of Brighton, L. Goldsmith, L.
Bath and Wells, Bp. Goodhart, L.
Berkeley, L. Gordon of Strathblane, L.
Bernstein of Craigweil, L. Gould of Potternewton, B.
Billinghain, B. Graham of Edmonton, L.
Blackstone, B. Greaves, L.
Blease, L. Grenfell, L.
Borrie, L. Hardy of Wath, L.
Bragg, L. Harris of Greenwich, L.
Brennan, L. Harris of Haringey, L.
Brooke of Alverthorpe, L. Harris of Richmond, B.
Brookman, L. Harrison, L.
Burlison, L. Haskins, L.
Carter, L. [Teller] Hayman, B.
Chandos, V. Hilton of Eggardon, B.
Christopher, L. Hollis of Heigham, B.
Clarke of Hampstead, L. Howells of St. Davids, B.
Clement-Jones, L. Howie of Troon, L.
Cocks of Hartcliffe, L. Hughes of Woodside, L.
Cohen of Pimlico, B. Hunt of Chesterton, L.
Crawley, B. Hunt of Kings Heath, L.
David, B. Irvine of Lairg, L. (Lord Chancellor)
Davies of Coity, L.
Davies of Oldham, L. Islwyn, L.
Dean of Thornton-le-Fylde, B. Jacobs, L.
Desai, L. Janner of Braunstone, L.
Dixon, L. Jay of Paddington, B. (Lord Privy Seal)
Donoughue, L.
Jenkins of Putney, L. Rennard, L.
Kirkhill, L. Richard, L.
Lea of Crondall, L. Rodgers of Quarry Bank, L.
Lockwood, B. Scotland of Asthal, B.
Lofthouse of Pontefract, L. Scott of Needham Market, B.
McCarthy, L. Sharp of Guildford, B.
Macdonald of Tradeston, L. Shepherd, L.
McIntosh of Haringey, L. [Teller] Shutt of Greenland, L.
Simon, V.
MacKenzie of Culkein, L. Smith of Leigh, L.
Mackie of Benshie, L. Strabolgj, L.
McNally, L. Strange, B.
Merlyn-Rees, L. Symons of Vernham Dean, B.
Methuen, L. Taylor of Blackburn, L.
Thomas of Walliswood, B.
Mitchell, L. Thornton, B.
Molloy, L. Tomlinson, L,
Morgan, L. Tordoff, L.
Morris of Castle Morris, L. Turnberg, L.
Morris of Manchester, L. Uddin, B.
Newby, L. Walker of Doncaster, L.
Nicol, B. Wallace of Saltaire, L.
Northover, B. Walmsley, B.
Oakeshott of Seagrove Bay, L. Warner, L.
Orme, L. Warwick of Undercliffe, B.
Parry, L. Watson of Richmond, L.
Patel, L. Wedderburn of Charlton, L.
Patel of Blackburn, L. Whitaker, B.
Plant of Highfield, L. Whitty, L.
Prys-Davies, L. Wilkins, B.
Puttnam, L. Williams of Crosby, B.
Ramsay of Cartvale, B. Williams of Elvel, L.
Razzall, L. Williams of Mostyn, L.
Rea, L. Winston, L.
Redesdale, L. Woolmer of Leeds, L.
Rendell of Babergh, B. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

6.45 p.m.

[Amendment No. 22 not moved.]

Lord Goodhart moved Amendment No. 23: Page 6, line 38, leave out paragraphs (a) and (b) and insert—

  1. ("(a) section 1(1)(a) would not apply if the condition in section 2(1)(b) were satisfied, or
  2. (b) section 1(1)(b) would not apply if the condition in sect ion. 2(2)(b) were satisfied,").

On Question, amendment agreed to.

Clause 12 [Exemption where cost of compliance exceeds appropriate limit]:

Lord Mackay of Ardbrecknish moved Amendment No. 24: Page 7, line 42, at beginning insert ("Unless it is in the public interest to do so,").

The noble Lord said: My Lords, this amendment addresses the provision in Clause 12 where it states that a public authority is not obliged to comply with a request for information if it, estimates that the cost of complying … would exceed the appropriate limit". That appropriate limit will be £500, although I understand that that figure has been worked out in consideration of the cost of searching for the information rather than the cost of giving it out, so to speak. However, the point is that the local authority has complete discretion to refuse. My amendment would put at the beginning of the subsection the words, Unless it is in the public interest to do so". In other words, an authority would be obliged to comply with a request, regardless of the cost, where it is in the public interest.

What is interesting about this amendment is that I think that I am right to say that these words were included in the Bill when it started its progress through the House of Commons. Somehow, they were removed in the other place. I wonder whether this is another example of something which has been removed in error, as was the case with one of the earlier amendments. The Government removed a phrase in error and the Liberal Democrats considered it a great triumph to put it back. Could the same thing have happened here? Would the Government like to consider whether they have made a mistake and that they would now like to put this back into the Bill? In all seriousness, they were right initially to put in a test of public interest for a local authority to consider when deciding whether a request would lead to far too great an expenditure. I beg to move.

Lord Bassam of Brighton

My Lords, I am sure that this amendment and the amendments with similar objectives which were debated in Committee are well intentioned. I shall endeavour to answer the question put to me by the noble Lord; namely, whether we have changed tack in error. I doubt whether that is the case, but I can understand why the noble Lord might wish to ensure that information which is in the public interest should be made public irrespective of cost. However, we do not believe that this is the right way to achieve that.

I shall try to explain why we feel that the amendment is not acceptable. Nothing in the Bill prevents a public authority from disclosing such information. That is a point that I made clear when we considered the matter in Committee. Where a public authority has the power to disclose information, it would be required to do so under administrative law; and when asked to disclose such information, in so doing to balance the costs of disclosure with the public interest. We feel that that is the sensible way in which to approach this issue, rather than the blanket disapplication of exemption provided for in Clause 12—regardless of the implications for the public authority. Indeed, those implications would be real and could from time to time be very substantial.

This Bill gives real rights of access to all information held, but—we have argued this point many times—this must be balanced against the administrative burden that it would place on public authorities. Clause 13 seeks to achieve that end. I can assure noble Lords that the Government intend to set the appropriate limit for the purposes of Clause 12 at £500. That should ensure that the clause does not unduly restrict the right of access.

The amendment could expose public authorities to disproportionate demands on their resources and jeopardise other important work. I believe this to be particularly the case with smaller public authorities. We advanced this argument at an earlier stage and we still believe it to be an important consideration, particularly when one considers how small are some public authorities. The point has been made on many occasions, but it is an important one. Although the noble Lord moved the amendment with his customary elegance, I do not think that he has particularly focused on that important matter. Many public authorities are unlikely to be large enough to be sufficiently flexible to adapt to such demands, even if they were able to recover the full financial costs.

In addition, the amendment would allow applicants with sufficient financial resources—for example, companies or wealthier individuals—to require the public authority to undertake time-consuming research on their behalf—again regardless of the size, scope and capacity of the organisation to undertake that research. That seems entirely unfair. For those reasons, I would ask the noble Lord to withdraw his amendment.

The noble Lord asked me a specific question. I said that I did not think this was an error. Apparently, it is not an error. The forerunner to Clause 2 was a direction to authorities to consider the public interest in disclosure when the Bill did not require it because the information was exempt. Clause 2 is now much stronger. For those reasons we feel that this is a sensible way of dealing with this issue.

Lord Mackay of Ardbrecknish

My Lords, I am not wholly convinced but I am prepared to suspend judgment until we see what happens when the Bill comes into operation. If public authorities use the issue of costs excessively in order to decline information, I hope that whoever is in government at the time will be prepared to revisit the issue.

We believe that including the words, Unless it is in the public interest to do so", would have been a reasonable qualification. However, I have just tested the opinion of the House on one matter; I shall not do so again for the moment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 25: After Clause 15, insert the following new clause—

  1. DUTY TO PROVIDE ADVICE AND ASSISTANCE 35,834 words, 2 divisions